State v. McVay

[Cite as State v. McVay, 2019-Ohio-3699.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 2018CA0007
MICHAEL H. MCVAY II :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Coshocton County
Court of Common Pleas, Case No.
17CR136
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 12, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JASON W. GIVEN RICHARD E. MAYHALL
Coshocton County Prosecuting Attorney 20 S. Limestone St. Suite 120
318 Chestnut Street Springfield, OH 45502
Coshocton, OH 43812
[Cite as State v. McVay, 2019-Ohio-3699.]
Gwin, P.J.
{¶1} Defendant-appellant Michael H. McVay, II [“McVay”] appeals the imposition
of consecutive sentences after his guilty plea in the Coshocton County Court of Common
Pleas.
Facts and Procedural History
{¶2} McVay pled guilty to two counts of Unlawful Sexual Conduct with a Minor in
violation of R.C. 2907.04(A), felonies of the third degree. Both counts involved the same
victim (“N.K.M.H.”). N.K.M.H. was 14 years old and McVay was 27 years old at the time
of the offenses.
{¶3} At the sentencing hearing, McVay called four church witnesses. Mickey
Humphrey was McVay's boss and testified to his excellent work ethics as an employee.
William Buxton testified that he attended the same church as McVay and found him to be
"a very hard worker, very dedicated, and very concerned about the community.” Sheila
Knapp testified that she was McVay's best friend and McVay had told her what he had
done was "horrible.” Finally , Mark Granger testified that he was McVay's pastor and that
he had known the family for twenty years, Granger expressed that McVay had committed
a "great sin' but that he was "repentant."
{¶4} The court sentenced McVay to a twenty-four month term of incarceration
for count one and a forty-eight month term of incarceration for count two. The court
ordered the sentences to be served consecutively for an aggregate sentence of 72
months.
Assignments of Error
{¶5} McVay raises two assignments of error:
Coshocton County, Case No. 2018CA0007 3
{¶6} “I. BECAUSE THE TRIAL COURT FAILED TO MAKE THE REQUIRED
FINDINGS OF FACT AT THE SENTENCING HEARING, THE CONSECUTIVE
SENTENCES IMPOSED ON APPELLANT ARE CONTRARY TO LAW.
{¶7} “II. BECAUSE THE RECORD CLEARLY AND CONVINCINGLY DOES
NOT SUPPORT THE TRIAL COURT'S FINDINGS USED TO JUSTIFY THE
IMPOSITION OF CONSECUTIVE SENTENCES, THE SENTENCE SHOULD BE
VACATED.”
Law and Analysis
STANDARD OF APPELLATE REVIEW.
{¶8} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶22;
State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31. R.C.
2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence
and remand for resentencing where we clearly and convincingly find that either the record
does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),
2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.
See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659, ¶28.
{¶9} Accordingly, pursuant to Marcum this Court may vacate or modify a felony
sentence on appeal only if it determines by clear and convincing evidence that: (1) the
record does not support the trial court's findings under relevant statutes, or (2) the
sentence is otherwise contrary to law.
{¶10} Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Coshocton County, Case No. 2018CA0007 4
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph three of the
syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the
degree of proof required to sustain an issue must be clear and convincing, a reviewing
court will examine the record to determine whether the trier of facts had sufficient
evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477
120 N.E.2d 118.
ISSUE FOR APPEAL.
A. Whether the trial court properly imposed consecutive sentences in McVay’s
case.
R.C. 2929.14 (C)(4) Consecutive Sentences.
{¶11} R.C. 2929.14(C)(4) concerns the imposition of consecutive sentences. In
Ohio, there is a statutory presumption in favor of concurrent sentences for most felony
offenses. R.C. 2929.41(A). The trial court may overcome this presumption by making
the statutory, enumerated findings set forth in R.C. 2929.14(C) (4). State v. Bonnell, 140
Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶23. This statute requires the trial court
to undertake a three-part analysis. State v. Alexander, 1st Dist. Hamilton Nos. C–110828
and C–110829, 2012-Ohio-3349, 2012 WL 3055158, ¶ 15.
{¶12} R.C. 2929.14(C)(4) provides,
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness
Coshocton County, Case No. 2018CA0007 5
of the offender’s conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) 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 of
the multiple offenses so committed 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.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶13} Thus, in order for a trial court to impose consecutive sentences the court
must find that consecutive sentences are necessary to protect the public from future crime
or to punish the offender. The court must also find that consecutive sentences are not
disproportionate to the offender’s conduct and to the danger the offender poses to the
public. Finally, the court must make at least one of three additional findings, which include
that (a) the offender committed one or more of the offenses while awaiting trial or
sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18, or
while under post-release control for a prior offense; (b) at least two of the multiple offenses
were committed as part of one or more courses of conduct, and the harm caused by two
Coshocton County, Case No. 2018CA0007 6
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 would adequately reflect the
seriousness of the offender’s conduct; or (c) the offender’s criminal history demonstrates
that consecutive sentences are necessary to protect the public from future crime by the
offender. See, State v. White, 5th Dist. Perry No. 12-CA-00018, 2013-Ohio-2058, ¶36.
{¶14} In this case, the record does support a conclusion that the trial court made
all of the findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive
sentences.
R.C. 2929.14(C)(4): [T]he court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is necessary to
protect the public from future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct
and to the danger the offender poses to the public.
{¶15} In the case at bar, the trial court made this finding on the record and in its
sentencing entry. Sent. T. at 32-33; Judgment Entry on Sentencing, filed May 4, 2018.
R.C. 2929.14(C)(4)(a): The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.
{¶16} This provision does not apply to McVay’s case.
R.C. 2929.14(C)(4)(b): 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 of
the multiple offenses so committed was so great or unusual that no single prison
Coshocton County, Case No. 2018CA0007 7
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.
{¶17} In the case at bar, the parents of N.K.M.H. provided the court with victim
impact through a previously prepared written statement. They chose to remain silent at
the sentencing hearing. The trial court further considered the Pre-Sentence
Investigation Report, the witnesses presented by McVay and the arguments of
counsel.
{¶18} The trial court made this finding on the record and in its sentencing entry.
Sent. T. at 32; Judgment Entry on Sentencing, filed May 4, 2018.
{¶19} The trial court, in part, noted,
The Court further finds that the harm caused by the defendant is so
great or unusual that a consecutive sentence is appropriate. In finding that
the harm caused is so great or unusual, the Court notes in the presentence
investigation and report, particularly the victim impact statement. And the
victim impact statement says, in part, “We’ve lost our friends and our church
family and we feel alone. Our daughter [N.K.M.H.] has had interviews and
STD testing and physical examinations."
On that point, I note that 14-year-old girls should not have to undergo
intrusive physical examinations that are required after they are victims of
sex offenses. [N.K.M.H.], who is the victim of the offense, has developed a
distrust of people and she will have to go through life knowing that what is
supposed to be a special moment with her husband was taken from her by
someone that cares and only thinks of himself.
Coshocton County, Case No. 2018CA0007 8
I do note that the commentary at that point is appropriate, that the
defendant's actions to plan and prepare and go to the effort to engage in
sexual conduct with a 14-year-old girl are truly based on selfish actions.
The Court further notes that the harm caused by sex offences of this kind
do not require any further support on behalf of the victim. This is, in fact, a
sex offense and the Court is assuming that there is a significant harm
caused.
Sent. T. at 32-34.
R.C. 2929.14(C)(4)(c): The offender’s history of criminal conduct
demonstrates that consecutive sentences are necessary to protect the public from
future crime by the offender.
{¶20} The Court made no findings concerning this factor in McVay’s case.
R.C. 2929.11 and R.C. 2929.12.
{¶21} The Marcum court further noted,
We note that some sentences do not require the findings that R.C.
2953.08(G) specifically addresses. Nevertheless, it is fully consistent for
appellate courts to review those sentences that are imposed solely after
consideration of the factors in R.C. 2929.11 and 2929.12 under a standard
that is equally deferential to the sentencing court. That is, an appellate court
may vacate or modify any sentence that is not clearly and convincingly
contrary to law only if the appellate court finds by clear and convincing
evidence that the record does not support the sentence.
146 Ohio St.3d at ¶23, 2016–Ohio–1002, 59 N.E.3d 1231 (emphasis added).
Coshocton County, Case No. 2018CA0007 9
{¶22} R.C. 2929.11(A) governs the purposes and principles of felony sentencing
and provides that a sentence imposed for a felony shall be reasonably calculated to
achieve the two overriding purposes of felony sentencing, which are (1) to protect the
public from future crime by the offender and others, and (2) to punish the offender using
the minimum sanctions that the court determines will accomplish those purposes.
Further, the sentence imposed shall be “commensurate with and not demeaning to the
seriousness of the offender's conduct and its impact on the victim, and consistent with
sentences imposed for similar crimes by similar offenders.” R.C. 2929.11(B).
{¶23} R.C. 2929.12 is a guidance statute that sets forth the seriousness and
recidivism criteria that a trial court “shall consider” in fashioning a felony sentence.
Subsections (B) and (C) establish the factors indicating whether the offender's conduct is
more serious or less serious than conduct normally constituting the offense. These
factors include the physical or mental injury suffered by the victim due to the age of the
victim; the physical, psychological, or economic harm suffered by the victim; whether the
offender’s relationship with the victim facilitated the offense; the defendant’s prior criminal
record; whether the defendant was under a court sanction at the time of the offense;
whether the defendant shows any remorse; and any other relevant factors. R.C.
2929.12(B). The court must also consider any factors indicating the offender’s conduct
is less serious than conduct normally constituting the offense, including any mitigating
factors. R.C. 2929.12(C). Subsections (D) and (E) contain the factors bearing on whether
the offender is likely or not likely to commit future crimes.
{¶24} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the
court discussed the effect of State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
Coshocton County, Case No. 2018CA0007 10
N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court
severed the judicial-fact-finding portions of R.C. 2929.14, holding that “trial courts have
full discretion to impose a prison sentence within the statutory range and are no longer
required to make findings or give their reasons for imposing maximum, consecutive, or
more than the minimum sentences.” Kalish at ¶ 1 and ¶11, citing Foster at ¶100, See
also, State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306; State v.
Firouzmandi, 5th Dist. Licking No. 2006-CA-41, 2006-Ohio-5823.
{¶25} “Thus, a record after Foster may be silent as to the judicial findings that
appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶ 12.
However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C.
2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶13,
see also State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1; State v.
Firouzmandi supra at ¶ 29.
{¶26} Thus, post-Foster, “there is no mandate for judicial fact-finding in the
general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster
at ¶ 42. State v. Rutter, 5th Dist. No. 2006-CA-0025, 2006-Ohio-4061; State v. Delong,
4th Dist. No. 05CA815, 2006-Ohio-2753 at ¶ 7-8. Therefore, post-Foster, trial courts are
still required to consider the general guidance factors in their sentencing decisions.
{¶27} There is no requirement in R.C. 2929.12 that the trial court states on the
record that it has considered the statutory criteria concerning seriousness and recidivism
or even discussed them. State v. Polick, 101 Ohio App.3d 428, 431(4th Dist. 1995); State
v. Gant, 7th Dist. No. 04 MA 252, 2006-Ohio-1469, at ¶60 (nothing in R.C. 2929.12 or the
decisions of the Ohio Supreme Court imposes any duty on the trial court to set forth its
Coshocton County, Case No. 2018CA0007 11
findings), citing State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d 94(1992); State v.
Hughes, 6th Dist. No. WD-05-024, 2005-Ohio-6405, ¶10 (trial court was not required to
address each R.C. 2929.12 factor individually and make a finding as to whether it was
applicable in this case), State v. Woods, 5th Dist. No. 05 CA 46, 2006-Ohio-1342, ¶19
(“... R.C. 2929.12 does not require specific language or specific findings on the record in
order to show that the trial court considered the applicable seriousness and recidivism
factors”). (Citations omitted).
{¶28} In the case at bar, the trial court heard from the parents of the victim by
way of a written victim impact statement, heard from the witnesses presented by McVay,
heard arguments from the state and defense counsel and reviewed the presentence
investigation report before imposing a sentence.
{¶29} In the case at bar, the record supports that the harm caused to the victim
was “more serious” because of the age of the victims [2929.12(B)(1)]. The offense was
also more serious because McVay used his relationship with the victim to facilitate the
offenses. [2929.12(B)(6)]. None of the factors set forth in 2929.12(C) are applicable to
render the offenses “less serious.”
{¶30} Given that the trial court is not obligated to refer to every factor listed in R.C.
2929.12 as part of its sentencing analysis, “the defendant has the burden to affirmatively
show that the court did not consider the applicable sentencing criteria or that the sentence
imposed is ‘strikingly inconsistent’ with the applicable sentencing factors.” State v. Hull,
11th Dist. Lake No. 2016-L-035, 2017-Ohio- 157, ¶8. McVay has failed in this burden.
{¶31} Accordingly, the trial court considered the purposes and principles of
sentencing [R.C. 2929.11] as well as the factors that the court must consider when
Coshocton County, Case No. 2018CA0007 12
determining an appropriate sentence. [R.C. 2929.12]. The trial court has no obligation
to state reasons to support its findings. Nor is it required to give a talismanic incantation
of the words of the statute, provided that the necessary findings can be found in the record
and are incorporated into the sentencing entry.
{¶32} Upon review, we find that the trial court's sentencing on the charges
complies with applicable rules and sentencing statutes. The sentence was within the
statutory sentencing range. We also find that the record in the case at bar supports the
trial court’s findings under R.C. 2929.14(C)(4). Furthermore, the record reflects that the
trial court considered the purposes and principles of sentencing and the seriousness and
recidivism factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised Code
and advised McVay regarding post-release control. While McVay may disagree with the
weight given to these factors by the trial judge, McVay’s sentence was within the
applicable statutory range for a felony of the third degree and therefore, we have no basis
for concluding that it is contrary to law.
{¶33} McVay has failed to clearly and convincingly show that the trial court failed
to consider the principles of felony sentencing, or that the aggregate nine-year sentence
is otherwise contrary to law.
Coshocton County, Case No. 2018CA0007 13
Conclusion.
{¶34} McVay’s First and Second Assignments of Error are overruled. The
decision of the Coshocton County Court of Common Pleas is affirmed.
By Gwin, P.J.
Hoffman, J., and
Wise, J., concur