State v. Anderson

[Cite as State v. Anderson, 2016-Ohio-5946.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 15AP-1082
v. : (C.P.C. No. 14CR11-6302)
Lori A. Anderson, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 22, 2016
On brief: Michael DeWine, Attorney General, and Angela
Canepa, for appellee.
On brief: Roberts Kelly & Bucio, LLP, and Christopher R.
Bucio, for appellant.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Defendant-appellant, Lori A. Anderson, appeals from a judgment of
conviction entered by the Franklin County Court of Common Pleas. For the following
reasons, we affirm that judgment.
I. Factual and Procedural Background
{¶ 2} In 2014, an Auglaize County Grand Jury indicted appellant with 23 counts
of rape, sexual battery, and gross sexual imposition arising from the repeated acts of
sexual abuse of her son over a four-year period of time.1 Appellant entered a not guilty
plea to the charges. Shortly after her plea, the Auglaize County judge found that a fair and
1 She was also charged with counts of obstructing justice and obstructing official business.
No. 15AP-1082 2
impartial trial could not be held in that county. Therefore, the court ordered the transfer
of appellant's case to the Franklin County Court of Common Pleas. After the transfer, the
trial court joined appellant's case with that of her husband's, who had also been charged
with similar counts arising from the abuse of the same boy, his stepson.2
{¶ 3} Appellant subsequently withdrew her not guilty plea and entered guilty
pleas to three counts of sexual battery, felonies of the third-degree, and a misdemeanor
count of obstructing official business. That plea was conditioned upon her truthful
testimony in her husband's trial. (Oct. 5, 2015 Hearing at 5.) The trial court accepted her
pleas, found her guilty, and delayed her sentencing for the preparation of a pre-sentence
investigation report.
{¶ 4} At the sentencing hearing, appellant called a psychiatrist, Dr. Frank
Ochberg, in an attempt to explain appellant's conduct. He testified that appellant formed
a trauma bond with her husband, who had already started abusing her son without her
knowledge. (Nov. 12, 2015 Sentencing Hearing at 14.) Ochberg testified that her husband
then influenced and coerced her to engage in the sexual abuse of her son. He concluded
that she acted out of an instinct to save her son because of her concern that her husband
would kill him. Id. at 17. He also concluded that her husband would have killed her son if
the circumstances had been right. Id. at 14. The state presented comments from two of
appellant's children, both the victim and his younger brother, who both asked the trial
court to severely punish appellant.
{¶ 5} The trial court, who also sentenced appellant's husband, opined that she
was just as despicable as her husband. Id. at 63. The trial court concluded that appellant
had violated the "most sanctified" position of all, that of a parent who shall protect their
children. The trial court felt that she had many opportunities to stop the abuse but failed
her son. Id. at 63-64. Ultimately, the trial court sentenced appellant to the maximum
prison term possible, five years, for each of the sexual battery charges and ordered that
those sentences be served consecutively for a total prison term of 15 years.3
II. Appellant's Appeal
{¶ 6} Appellant appeals her sentence and assigns the following errors:
2 A jury found appellant's husband guilty of more than 40 counts of rape, gross sexual imposition, and
sexual battery. His appeal is currently pending in this court. State v. Wycuff, 10th Dist. No. 15AP-1024.
3 The 90-day sentence for the obstructing official business charge was to be served concurrently to those
sentences.
No. 15AP-1082 3
[1.] The sentence imposed by the sentencing court is contrary
to law because it fails to reflect any consideration of the
purposes and principles of felony sentencing contained in
Revised Code § 2929.11 or the seriousness and recidivism
factors of Revised Code § 2929.12.
[2.] The sentencing court committed abuse of discretion
when it imposed maximum and consecutive sentences upon
Mrs. Anderson—a first-time offender—without adequate
justification.
A. First Assignment of Error–Did the Trial Court Consider R.C. 2929.11
and R.C. 2929.12 in Sentencing Appellant?
{¶ 7} Appellant first argues that the trial court failed to properly consider and
apply the sentencing factors set forth in R.C. 2929.11 and 2929.12. We disagree.
{¶ 8} In sentencing a felony offender, the trial court must consider the overriding
purposes of sentencing, which are "to protect the public from future crime by the offender
and others and to punish the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden on state
or local government." R.C. 2929.11(A). This requires consideration of "the need for
incapacitating the offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim of the offense, the public,
or both." R.C. 2929.11(A). Further, pursuant to R.C. 2929.12(A), the court must consider
the factors set forth R.C. 2929.12(B) and (C) relating to the seriousness of the offender's
conduct, as well as the factors set forth in R.C. 2929.12(D) and (E) relating to the
likelihood of recidivism, along with any other relevant factors. State v. Phipps, 13AP-640,
2014-Ohio-2905, ¶ 46, citing State v. Patrick, 10th Dist. No. 10AP-26, 2011-Ohio-1592,
¶ 24.
{¶ 9} In the trial court's judgment entry of conviction, it noted that it "has
considered the purposes and principles of sentencing set forth in R.C. 2929.11 and the
factors set forth in R.C. 2929.12." That language in a judgment entry by itself belies a
defendant's claim that the trial court failed to consider the purposes and principles in
sentencing pursuant to R.C. 2929.11(A), and the R.C. 2929.12 factors regarding recidivism
and the seriousness of the offense. State v. Stubbs, 10th Dist. No. 13AP-810, 2014-Ohio-
3696, ¶ 14, citing State v. Foster, 10th Dist. No. 12AP-69, 2012-Ohio-4129, ¶ 15; State v.
Small, 10th Dist. No. 09AP-1175, 2010-Ohio-5324, ¶ 16.
No. 15AP-1082 4
{¶ 10} Additionally, before imposing sentence, the trial court noted that "my job in
imposing sentence is to look at all of the facts in a particular case. I am supposed to look
at your history, your character, and I am supposed to make a determination of what an
appropriate sentence is that will protect the public from future crime and also to punish
you. * * * I am to weigh the seriousness of your conduct and determine whether
recidivism is more likely or less likely, and I am also imposing sentence to make a
determination of the seriousness of your conduct." (Sentencing Hearing at 62-63.)
{¶ 11} The trial court considered the purposes and principles in sentencing as well
as the factors found in R.C. 2929.12. We overrule appellant's first assignment of error.
B. Second Assignment of Error–Did the Trial Court Properly Sentence
Appellant?
{¶ 12} In her second assignment of error, appellant contends that the trial court
abused its discretion by sentencing her to maximum and consecutive sentences. We do
not, however, review a trial court's sentence for an abuse of discretion. Instead, we must
determine whether clear and convincing evidence establishes that the sentence is contrary
to law. State v. Mercier, 10th Dist. No. 13AP-906, 2014-Ohio-2910, ¶ 4. Applying that
standard, we look to the record to determine whether the sentencing court considered and
properly applied the statutory guidelines and whether the sentence is otherwise contrary
to law. State v. Burton, 10th Dist. No. 06AP-690, 2007-Ohio-1941, ¶ 19. See also State v.
White, 1st Dist. No. C-130114, 2013-Ohio-4225, ¶ 9-10 (applying same standard of
review).
{¶ 13} Appellant concedes that the trial court's sentence is within the statutory
guidelines for her convictions and is, therefore, not contrary to law. We agree. Instead,
she argues that the trial court improperly weighed the sentencing factors and should have
given more weight to her grounds in mitigation. We disagree, because "the trial court, in
exercising its sentencing discretion, determines the weight afforded to any particular
statutory factors, mitigating grounds, or other relevant circumstances." State v. Todd,
10th Dist. No. 06AP-1208, 2007-Ohio-4307, ¶ 23. While appellant disagrees with the trial
court's balancing of the sentencing factors and mitigation evidence, such a disagreement
does not make a sentence that falls within the applicable statutory range contrary to law.
State v. Reeves, 10th Dist. No. 14AP-856, 2015-Ohio-3251, ¶ 10; State v. Saur, 10th Dist.
No. 15AP-1082 5
No. 10AP-1195, 2011-Ohio-6662, ¶ 48. Appellant has not demonstrated that her sentence
is contrary to law. Accordingly, we overrule her second assignment of error.
III. Conclusion
{¶ 14} Having overruled appellant's two assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and SADLER, JJ., concur.