State v. Thomas

[Cite as State v. Thomas, 2016-Ohio-1221.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102976
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DAVID THOMAS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-591440-A
BEFORE: S. Gallagher, J., Stewart, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: March 24, 2016
ATTORNEY FOR APPELLANT
Thomas A. Rein
700 W. St. Clair
Suite 212
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Brett Kyker
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} Appellant David Thomas appeals his convictions and sentence. Upon
review, we affirm.
{¶2} Appellant was indicted on five counts of gross sexual imposition, each
containing a sexually violent predator specification. The two victims in the case were his
minor grandchildren. After initially pleading not guilty, appellant entered a change of
plea to guilty to all five counts as amended to delete the specifications. Appellant
stipulated that the offenses were not allied offenses of similar import.
{¶3} At the change of plea hearing, the state set forth the proposed plea agreement
on the record. The trial court engaged in a colloquy with appellant, explained to
appellant the rights he would be waiving by entering a plea of guilty, and detailed the
nature of the amended charges along with the potential penalties they carried. The trial
court advised appellant that he could receive a prison sentence or be given a sentence of a
community control sanction for up to five years. Appellant proceeded to plead guilty to
amended Counts 1 through 5.
{¶4} The sentencing hearing was held before a different judge. The trial court
heard from defense counsel, appellant, and the prosecutor. Defense counsel noted that
appellant was 71 years old, he had a number of health issues, and he had recently been
sentenced to 16 years in prison in Medina County. Defense counsel acknowledged
appellant’s conduct in this case was egregious, but highlighted that appellant was
cooperative with law enforcement, accepted responsibility for his actions, and was
remorseful. Appellant apologized and expressed remorse.
{¶5} The prosecutor detailed the factual background. After it was discovered that
appellant had been uploading child pornography images to the Internet, the police
executed a search warrant and seized multiple electronic storage devices from appellant’s
residence. The bulk of the child pornography images were of appellant’s granddaughter.
Upon investigation, appellant admitted photographing both his five-year-old
granddaughter and four-year-old grandson in a state of nudity while babysitting for them.
Appellant admitted to masturbating while viewing the photographs and sharing the
images online with like-minded individuals. He also admitted to inappropriate sexual
contact with the victims. The state read two letters from family members into the record,
both of which mentioned the severe emotional and behavioral problems the victims were
experiencing as a result of appellant’s sexual abuse. The prosecutor advised the trial
court that appellant had been prosecuted in Medina County in connection with the child
pornography offenses and had been sentenced to 16 years in prison.
{¶6} At sentencing, the trial court stated: “The section of the Ohio Revised Code
that you have pled guilty to, Mr. Thomas, not only carries a presumption of prison, but
under the circumstances of your crime, that being particularly R.C. 2907.05(A)(4) [sic],
requires that the Court sentence you to mandatory time in this case.” The trial court
classified appellant as a Tier III sex offender, sentenced appellant to five years on each
count to be served consecutively for a total prison term of 25 years, and ordered five years
of mandatory postrelease control. The trial court clarified that the sentence was not
being run consecutive to the other case for which appellant was serving 16 years in
prison.
{¶7} Appellant filed this appeal. He raises two assignments of error for our
review. Under his first assignment of error, appellant claims he “did not enter his guilty
plea knowingly, intelligently, or voluntarily because the trial court failed to properly
inform [him] that he is not eligible for probation or for the imposition of community
control sanctions.”
{¶8} Appellant claims that his plea was invalid because the trial court should have
apprised him that he was not eligible for probation or community control sanctions.
Appellant’s argument is premised on the advisement that was given at sentencing, which
differed from the advisement made at the time of his plea. Although appellant refers to
his sentencing hearing, we are cognizant that he is challenging his plea.
{¶9} Pursuant to Crim.R. 11(C)(2)(a), a trial judge may not accept a plea of guilty
or no contest without addressing the defendant personally and
[d]etermining that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum penalty
involved, and if applicable, that the defendant is not eligible for probation
or for the imposition of community control sanctions at the sentencing
hearing.
(Emphasis added.)
{¶10} At the change of plea hearing in this case, the trial court informed appellant
that the offenses were punishable by a prison term of 12 to 60 months each and that he
could receive a prison sentence or be given a sentence of a community control sanction
for up to five years. This advisement was proper.
{¶11} R.C. 2907.05(C)(2) establishes that a conviction for third-degree gross
sexual imposition under R.C. 2907.05(A)(4) is a third-degree felony for which there is “a
presumption that a prison term shall be imposed.” State v. Bevly, 142 Ohio St.3d 41,
2015-Ohio-475, 27 N.E.3d 516, ¶ 8. The maximum term of incarceration for the offense
is 60 months in prison. R.C. 2929.14(A)(3). Although R.C. 2907.05(C)(2)(a) elevates
the prescribed punishment to a mandatory prison term if there is corroborating evidence
of the crime, the Ohio Supreme Court deemed that section unconstitutional in Bevly. Id.at paragraphs one and two of the syllabus.
{¶12} Bevly was decided prior to the change of plea hearing that was held in this
case. Therefore, appellant was properly advised of his eligibility for community control
sanctions at the time of his guilty plea. The trial court’s mistaken comments at
sentencing concerning mandatory prison time have no bearing upon our review of
appellant’s plea. Upon our review of the record, we find that appellant’s plea was
knowingly, intelligently, and voluntarily entered and we uphold his convictions.
Appellant’s first assignment of error is overruled.
{¶13} Under his second assignment of error, appellant claims that the trial court
erred by imposing a consecutive sentence without making the appropriate findings. 1
1
We note that the trial court sentenced appellant to the maximum term on each count and
that the sentence was within the applicable sentencing range.
Under R.C. 2929.14(C)(4), consecutive sentences may be imposed if the trial court finds
that (1) a consecutive sentence is necessary to protect the public from future crime or to
punish the offender, (2) consecutive sentences are not disproportionate to the seriousness
of the offender’s conduct and to the danger the offender poses to the public, and (3) any
one of the following apply:
(1) the offender committed one of more of the multiple offenses while
awaiting trial or sentencing, while under a sanction, or while under
postrelease control for a prior offense;
(2) at least two of the multiple offenses were committed as part of one or
more courses of the conduct, and the harm caused by two or more of the
offenses was so great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender’s conduct; or
(3) the offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.
R.C. 2929.14(C)(4).
{¶14} A trial court must both make the statutory findings mandated for
consecutive sentences under R.C. 2929.14(C)(4) at the sentencing hearing and
incorporate those findings into its sentencing entry. State v. Bonnell, 140 Ohio St.3d
209, 2014-Ohio-3177, 16 N.E.3d 659, at the syllabus. However, “a word-for-word
recitation of the language of the statute is not required, and as long as the reviewing court
can discern that the trial court engaged in the correct analysis and can determine that the
record contains evidence to support the findings, consecutive sentences should be
upheld.” Id. at ¶ 29.
{¶15} In this case, the trial court found that consecutive sentences within the case
were “necessary to protect the public [and] to punish the offender, [and] no one term
would be sufficient for the gravity of this case.” The court also found consecutive
sentences were “not disproportionate to the severity of the conduct” and that “at least two
of the multiple offenses were committed as part of one or more courses of conduct and
the harm caused by two or more offenses so committed was so great or unusual that no
single term adequately reflects the seriousness of the offender’s conduct.”
{¶16} Appellant claims the trial court stated nothing to the effect that consecutive
sentences were not disproportionate to “the danger the offender poses to the public” on
the record or in the sentencing entry. However, the trial court’s failure to employ the
exact wording of the statute does not mean that the appropriate analysis is not otherwise
reflected in the transcript or that the necessary finding has not been satisfied. See State v.
Davis, 8th Dist. Cuyahoga No. 102639, 2015-Ohio-4501, ¶ 22; State v. Hargrove, 10th
Dist. Franklin No. 15AP-102, 2015-Ohio-3125, ¶ 15. Here, the trial court remarked
upon appellant’s actions against the two young victims in the case as “horrible” and
“unspeakable.” The court determined that no one term would be sufficient for the
gravity of the case and that consecutive sentences were necessary to protect the public.
We can discern from the record that the trial court engaged in the proper analysis.
Further, the trial court did state in the sentencing entry that “the consecutive sentences are
not disproportionate to the seriousness of defendant’s conduct and to the danger
defendant poses to the public[.]”
{¶17} Our review reflects that all of the required findings were made at the
sentencing hearing. Further, the findings were incorporated into the sentencing entry.
Appellant’s second assignment of error is overruled.
{¶18} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed. The court finds
there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
MELODY J. STEWART, P.J., and
ANITA LASTER MAYS, J., CONCUR