State v. Hervey

[Cite as State v. Hervey, 2022-Ohio-1498.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110775
v. :
MICHAEL P. HERVEY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: VACATED IN PART AND REMANDED
RELEASED AND JOURNALIZED: May 5, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-655505-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Debora Brewer and Jeffrey Schnatter,
Assistant Prosecuting Attorneys, for appellee.
Milton and Charlotte Kramer Law Clinic, Case Western
Reserve University School of Law, Andrew S. Pollis,
Supervising Attorney, and Joshua Knauf and Megan
Moro, Certified Legal Interns, for appellant.
EILEEN A. GALLAGHER, J.:
Defendant-appellant Michael Hervey appeals his consecutive sentences
after he pled guilty to four counts of gross sexual imposition. Hervey contends that
his consecutive sentences should be vacated because (1) the trial court failed to make
all of the requisite findings for the imposition of consecutive sentences under R.C.
2929.14(C)(4) and (2) the record does not support the imposition of consecutive
sentences. Because we find that the trial court failed to make the complete
proportionality finding required for the imposition of consecutive sentences at the
sentencing hearing, we vacate Hervey’s consecutive sentences and remand for
resentencing.
Factual Background and Procedural History
On January 6, 2021, a Cuyahoga County Grand Jury indicted Hervey
on 14 counts of gross sexual imposition. The charges related to Hervey’s alleged
sexual abuse of his then-girlfriend’s minor daughters, Jane Doe I and Jane Doe II,
during the time period January 1, 2000, to December 31, 2002 (“Jane Doe I”) and
May 9, 1996, to May 9, 1998 and May 9, 2005, to May 8, 2009 (“Jane Doe II”).
The parties reached a plea agreement. On August 12, 2021, Hervey pled
guilty to four counts of gross sexual imposition in violation of R.C. 2907.05(A)(1)
(Counts 2, 5, 9 and 12), fourth-degree felonies,1 and the remaining counts were
nolled. As part of the plea agreement, the parties stipulated that all counts were
non-allied offenses, that Hervey would have no contact with the victims and that his
guilty pleas would render Hervey a sexually oriented offender under Megan’s Law.
1 The two counts to which Hervey pled guilty relating to Jane Doe II, Counts 9 and
12, were amended to reflect a date range of May 9, 2005, to December 31, 2007.
The trial did not order a presentence-investigation report (“PSI”) prior to
sentencing.2
The sentencing hearing was held on August 19, 2021. At the outset of
the sentencing hearing, the trial court indicated that it had previously reviewed
Hervey’s sentencing memorandum, victim-impact statements from Jane Doe I and
Jane Doe II and relevant records from the Cuyahoga County Division of Children
and Family Services. Jane Doe I, the state, defense counsel and Hervey addressed
the trial court at the sentencing hearing.
Jane Doe I read her victim-impact statement. She described the
“pattern of abuse” she had endured beginning when she was 12 years old, the effect
2 Hervey argues in his appellate briefs that the trial court sentenced him “without
affording him the benefit of a [PSI] or time to procure other evidence that would have
demonstrated that he posed no risk of reoffending.” The record reflects that, at the
conclusion of the change-of-plea hearing, defense counsel initially requested a PSI. The
trial court questioned whether a PSI was necessary, noting that it was taking “four to six
weeks to get a PSI.” The trial court indicated that that it had already reviewed the records
it had in the case, that it would prefer to move the case along “sooner rather than later,”
and that if Hervey had other mitigation evidence he wished to present, the trial court
“would be more than happy to consider all of it.” The trial court then asked, “Is that all
right?” Defense counsel responded: “That’s fine. A PSI’s not — we do have other
mitigation things we want to present, but it doesn’t necessarily need to be through a PSI.”
Hervey did not request a continuance or otherwise claim, prior to the sentencing
hearing, that he needed additional time to gather mitigation evidence. It was not until
the middle of the sentencing hearing, after Jane Doe I and the state had addressed the
trial court, that defense counsel requested an opportunity to obtain a risk assessment for
Hervey prior to sentencing to “give the [c]ourt an indication as far as his likelihood to
reoffend as part of our mitigation.” Defense counsel stated that they had intended to “get
a risk assessment * * * as part of our mitigation” but “didn’t have time from the plea to
the sentencing.” The trial court denied the request, stating that it did not believe such an
assessment was “necessary” because the trial court would “accept what [Hervey’s]
attorney is saying” and would “accept the fact that on paper the statutory sentencing
factors in [R.C.] 2929.12 would indicate that [Hervey] is unlikely to reoffend.” Because
Hervey has not raised the trial court’s denial of this request as an assignment of error in
this appeal, we do not further consider the issue here.
of Hervey’s abuse on her sense of self-worth and relationships with others, the guilt
she felt for not coming forward sooner to protect her younger sister from Hervey
and the years of therapy she underwent to learn how to recover from what Hervey
did to her. She described Hervey as a “monster” and a “danger to society” and
requested that he be sentenced “to the fullest extent of the law.”
The state read Jane Doe II’s victim-impact statement. In her victim-
impact statement, Jane Doe II detailed specific instances of sexual abuse and other
inappropriate behavior by Hervey towards her. She stated that Hervey’s conduct
first began making her uncomfortable when she was five or six years old and that
the sexual abuse started when she was 14 and continued until she moved out at age
17. The state argued that although the offenses were fourth-degree felonies, they
were sex offenses involving a “pattern of abuse” against two young victims and,
therefore, “warrant[ed] a prison sentence for Mr. Hervey.” The state “defer[red] to
the [c]ourt” as to “the amount of time that he should serve.”
Defense counsel requested that the trial court consider community
control sanctions and argued that Hervey could be “maintained safely in the
community.” Defense counsel stated that Hervey had been “heavily abusing drugs,
ecstasy, meth” and alcohol during the time the conduct at issue occurred and that
“once he realized * * * how out of control his behavior was,” Hervey “took it upon
himself to stop abusing and maintain his sobriety.” Defense counsel asserted that
Hervey had “taken responsibility for his behavior,” had maintained his sobriety for
ten years and had “expressed extreme remorse with regard to this case.” Defense
counsel further asserted that Hervey had stable housing and stable employment as
a concierge/security officer for a condominium complex, that Hervey’s mother
relied on him for her care, that Hervey had no prior felony convictions and that there
had been no indication that Hervey had committed any crimes or engaged in “any
other incidents that would be concerning to the Court” in the past ten years.
Hervey also addressed the trial court. He stated that he was “really
sorry” for his actions but that he “really didn’t know” what he was doing at the time
he was abusing his victims because his “brain was really messed up” due to his heavy
drug use. The trial court questioned Hervey at length regarding the extent to which
he knew what he was doing when he abused the girls. Hervey claimed that he only
“very vaguely” remembered “some” of the multiple incidents of abuse. Hervey
stated that, “[a]fter the fact” when he was told what he had done, he was “absolutely
mortified,” but acknowledged that he “did it again” “[w]hen [he] was high.” Harvey
told the trial court that he had been sober “for a long time now” and “never meant
to affect [the victims] negatively in any way.”
Prior to sentencing Hervey, the trial court discussed the principles and
purposes of felony sentencing and explained its evaluation of the recidivism and
seriousness factors that led to its decision to impose a prison sentence in this case.
The trial court explained:
[D]etermining how to sentence on a felony is directed by statute.
Here’s what the statute says:
In imposing a sentence on a felony, you have to protect the public
from future crime by you, okay? I have to punish, okay? That’s the
punitive piece of it, and use resources in as economically-feasible way
as possible, striving to do the least-restrictive sentence. * * *
I’m required to consider if you are likely or unlikely to reoffend.
* * * I’ll accept what your attorney is saying. I’ll accept the factors that
would indicate that you are likely to reoffend or unlikely to reoffend.
You don’t have a criminal history. I understand that. However,
this went on for years and years. So while you never got charged with
it or caught, had you been, you could have had charges for a long time,
but there’s no other charges elsewhere.
That is a statutory factor. Therefore, I can’t consider whether
you have ever violated probation or parole and, in listening to your
attorney, I understand that you have reported as required and tested
negative.
You have expressed remorse, took responsibility, said you didn’t
know what you were doing; but in the midst of all of this, you tell me
that you were doing this because you were using drugs, which made you
behave in a different way, and you continued to use drugs and
victimize.
So, I mean, that’s on you. * * * Those are voluntary decisions.
* * * I’ll accept every factor that your attorney is arguing that would
indicate statutorily against you reoffending, but this went on for years
and years and it is multiple victims. * * *
I have to consider the seriousness of your conduct, and that’s
where you fail, because the factors that indicate that your conduct is
more serious than conduct that ordinarily constitutes the offense
statutorily include that the harm caused by you was exacerbated and
felt more by the victims because of their tender age and the fact that
you did indeed cause harm. You caused harm. We heard it. You know
that.
Messing around with little girls, and you have a relationship with
them, a position of trust that you breached. You were the person who
should have made sure nobody ever did that to them, and it was that
relationship that facilitated your unlawful assaultive behavior. * * *
But when it comes to the seriousness factors, sir, there’s nothing
that renders your conduct less serious. Nothing. These were children
that regarded you as their father.
You were in a position of trust. You can only imagine at that age
with their inexperience, you introduced them into a world of intimacy
that was so flawed and corrupt and that shaped their world view and
hurt them. * * * I don’t see where you overcome a prison term. * * *
Listening to everything, considering the statutory sentencing
factors, the harm is so great that despite the fact that you will be a
registered sex offender, I don’t believe that that satisfies the punitive
aspect that is intended to be included in a sentence here, and I do
believe that community control sanctions would demean the
seriousness of your conduct.
The trial court questioned Hervey’s repeated attempts to blame his
drug use for his abuse of the girls and noted that Hervey’s drug use was a “voluntary
decision,” i.e., “[n]obody is making you take drugs.” The trial court further stated:
It seems unfathomable, unfathomable that somebody had to bring this
to your attention, that you didn’t know what you were doing engaging
in this long pattern of abusing these kids. You’re not helping yourself
by standing here and saying I take responsibility, somebody told me
about it. It just seems so far-fetched and ridiculous, despite the fact
that I understand you were using drugs heavily.
The trial court sentenced Hervey to one year in prison on each of the
four counts, with the sentences on Counts 2 and 5 to run concurrently to each other
but consecutively to the sentences on Counts 9 and 12, and the sentences on Counts
9 and 12 to run concurrently to each other but consecutively to the sentences on
Counts 2 and 5 — resulting in an aggregate prison sentence of two years. The trial
court also imposed five years of mandatory postrelease control and designated
Hervey a sexually oriented offender.
With respect to its decision to impose consecutive sentences, the trial
court stated:
I’m making these — I’m imposing these consecutive terms
pursuant to 2929.14(C). It is necessary to punish, as I mentioned
before. That’s 2929.14(C)(4), and it is certainly not disproportionate to
the seriousness of your conduct, Mr. Hervey.
The history — I’m sorry, at least two of the conducts were
committed as a course of conduct. This was a pattern that went on and
on, and the harm caused to these two kids was so great that no single
prison term would adequately reflect the seriousness of your conduct.
I’m not making the finding that the history of criminal conduct
demonstrates consecutive terms are necessary to protect the public, but
I will tell you this:
I’m just listening to what [defense counsel] has to say on the
recidivism piece. I say this qualifiably [sic]; because when you look at
what happened, there are multiple counts over a span of years, but I
just want the sentence to be clean and clear and supportive of the
consecutive terms. The aggregate is two years.
The trial court set forth its consecutive sentence findings in its
sentencing journal entry as follows:
The court imposes prison terms consecutively finding that consecutive
service of the prison term is necessary to protect the public from future
crime or to punish defendant; that the consecutive sentences are not
disproportionate to the seriousness of defendant’s conduct and to the
danger defendant poses to the public; and that, at least two of the
multiple offenses were committed in this case as part of one or more
courses of conduct, and the harm caused by said multiple 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 defendant’s conduct.
Hervey appealed, raising the following sole assignment of error for
review:
The trial court erred in imposing consecutive sentences without finding
on the record that consecutive sentences were not disproportionate to
the danger that Mr. Hervey posed to the public and when the record
would not have supported such a finding.
Law and Analysis
Hervey argues that his consecutive sentences should be vacated and
modified to concurrent sentences pursuant to R.C. 2953.08(G)(2) because (1) the
trial court did not make a finding at the sentencing hearing that consecutive
sentences were not disproportionate to the danger he poses to the public and (2) the
record “would not have supported such a finding.”
We review felony sentences under the standard of review set forth in
R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59
N.E.3d 1231, ¶ 21. Under R.C. 2953.08(G)(2), an appellate court may increase,
reduce or otherwise modify a sentence or vacate a sentence and remand for
resentencing if it “clearly and convincingly finds” that (1) 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 (2) the sentence is “otherwise contrary
to law.” “‘Clear and convincing evidence is that measure or degree of proof * * *
which will produce in the mind of the trier of facts a firm belief or conviction as to
the facts sought to be established.’” State v. Franklin, 8th Dist. Cuyahoga No.
107482, 2019-Ohio-3760, ¶ 29, quoting Cross v. Ledford, 161 Ohio St. 469, 120
N.E.2d 118 (1954), paragraph three of the syllabus. It is “an extremely deferential
standard of review.” State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 21 (8th
Dist.).
Under Ohio law, sentences are presumed to run concurrently unless
the trial court makes the required findings under R.C. 2929.14(C)(4). State v.
Reindl, 8th Dist. Cuyahoga Nos. 109806, 109807, and 109808, 2021-Ohio-2586,
¶ 14; State v. Gohagan, 8th Dist. Cuyahoga No. 107948, 2019-Ohio-4070, ¶ 28. To
impose consecutive sentences, the trial court must find that (1) consecutive
sentences are 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) at
least one of the following applies:
(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.
R.C. 2929.14(C)(4).
Thus, a defendant can challenge consecutive sentences on appeal in
two ways. First, the defendant can argue that consecutive sentences are contrary to
law because the court failed to make the necessary findings required by R.C.
2929.14(C)(4). See R.C. 2953.08(G)(2)(b); Reindl at ¶ 13; State v. Nia, 2014-Ohio-
2527, 15 N.E.3d 892, ¶ 16 (8th Dist.). Second, the defendant can argue that the
record “clearly and convincingly” does not support the court’s findings made
pursuant to R.C. 2929.14(C)(4). See R.C. 2953.08(G)(2)(a); Reindl at ¶ 13.
Following a careful review of the transcript of the sentencing hearing,
we find that the trial court failed to make all of the requisite findings for the
imposition of consecutive sentences at the sentencing hearing. To impose
consecutive sentences, it is not enough that the record could support each of the
findings necessary for the imposition of consecutive sentences; the trial court must
actually make each finding required under R.C. 2929.14(C)(4) at the sentencing
hearing and then incorporate those findings into its sentencing journal entry. State
v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. To make
the requisite statutory findings, ‘“the [trial] court must note that it engaged in the
analysis’ and that it ‘has considered the statutory criteria and specifie[d] which of
the given bases warrants its decision.”’ Id. at ¶ 26, quoting State v. Edmonson, 86
Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). Although the trial court is not required
to make a “talismanic incantation of the words of the statute,” Bonnell at ¶ 37, it
must be clear from the record that the trial court actually made the findings required
by statute. State v. Tolbert, 8th Dist. Cuyahoga No. 110249, 2022-Ohio-197, ¶ 43;
State v. Lariche, 8th Dist. Cuyahoga No. 106106, 2018-Ohio-3581, ¶ 24. “[A]s 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.” Bonnell at ¶ 29. When considering
whether the trial court has made the requisite findings, we must view the trial court’s
statements on the record “in their entirety.” See, e.g., State v. Wells, 8th Dist.
Cuyahoga No. 109787, 2021-Ohio-2585, ¶ 74; State v. Aquilar, 8th Dist. Cuyahoga
No. 109283, 2021-Ohio-841, ¶ 22; State v. Blevins, 2017-Ohio-4444, 93 N.E.3d 246,
¶ 21, 23 (8th Dist.).
With respect to the proportionality finding, the “essential question” is
whether the record of the sentencing hearing “makes it clear” that the court
considered both (1) the seriousness of the offender’s conduct and (2) the danger the
offender poses to the public and “compared those factors to the sentence imposed
on the defendant and determined that comparison supported the imposition of the
consecutive sentence.” Tolbert at ¶ 48.
Following a careful review of the record, we do not discern from the
entirety of the trial court’s statements at the sentencing hearing that the trial court
— either expressly or “using different language” — made the finding that consecutive
sentences are not disproportionate to the danger Hervey poses to the public. Id. at
¶ 51. It is not clear from the transcript of the sentencing hearing that the trial court
considered the danger the offender poses to the public, compared that factor to the
sentence imposed on the defendant and determined that that comparison supported
the imposition of consecutive sentences. Id. at ¶ 48. Indeed, the trial court expressly
declined to make a finding at the sentencing hearing that “the history of criminal
conduct demonstrates consecutive terms are necessary to protect the public.”
Because, based on the record before us, the trial court did not make the full
proportionality finding required by R.C. 2929.14(C)(4) at the sentencing hearing,
Hervey’s consecutive sentences are contrary to law. Bonnell at ¶ 36-37; see also
Tolbert at ¶ 49-50 (trial court did not make proportionality finding under R.C.
2929.14(C)(4) where trial court did not expressly state at the sentencing hearing that
consecutive sentences were ‘“not disproportionate’ to either the offense of the
[a]ppellant or to the likelihood of the [a]ppellant of reoffending” and none of the
trial court’s other statements could “be taken as any sort of comparison between the
consecutive sentence and the offense or the likelihood that [a]ppellant would
reoffend”); State v. Lewis, 8th Dist. Cuyahoga No. 107875, 2019-Ohio-3660, ¶ 49-
54 (where “the only proportionality finding the trial court made was that a
consecutive sentence was ‘not disproportionate to the crime that occurred,’”
imposition of consecutive sentences did not comply with R.C. 2929.14(C)(4)); State
v. Tidmore, 8th Dist. Cuyahoga No. 107369, 2019-Ohio-1529, ¶ 11, 19-21
(consecutive sentences vacated where trial court stated that consecutive sentences
were “not disproportionate to what you did in this case” but did not make “the
complete proportionality finding required by R.C. 2929.14(C)(4)”); State v. F. F.,
8th Dist. Cuyahoga No. 107013, 2019-Ohio-455, ¶ 13-14 (where trial court “made
only a passing reference that the sentence is not disproportionate” and did not find
that consecutive sentences are not disproportionate to the seriousness of offender’s
conduct and to the danger he poses to the public, imposition of consecutive
sentences was contrary to law).
Where, as here, a trial court has imposed consecutive sentences but
failed to make all of the requisite statutory findings, the remedy is generally to vacate
the consecutive sentences and remand for resentencing. See, e.g., State v. Beasley,
153 Ohio St.3d 497, 544, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 260; Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 37; Tolbert at ¶ 51-52; Tidmore at
¶ 30; F. F. at ¶ 14, 16.
Hervey, however, urges this court not to remand the case and to,
instead, modify his sentences from consecutive sentences to concurrent sentences
based on the trial court’s failure to comply with R.C. 2929.14(C)(4). He contends
that this case is indistinguishable from State v. Regalo, 8th Dist. Cuyahoga No.
108430, 2020-Ohio-917, and that “[t]here is nothing in this record to demonstrate
that Mr. Hervey posed a danger to the public, much less a danger sufficient to
warrant the imposition of consecutive service under R.C. 2929.14(C)(4).” We
disagree.
In Regalo, the trial court made all of the findings required for the
imposition of consecutive sentences under R.C. 2929.14(C)(4); however, this court
held that the record clearly and convincingly did not support the trial court’s
findings that consecutive sentences were necessary to protect the public from future
crime and were not disproportionate to the danger the defendant posed to the
public. Regalo at ¶ 16, 18. The court, therefore, vacated the defendant’s consecutive
sentences and remanded to the trial court to impose concurrent sentences. Id. at
¶ 21. Although there are some similarities between the facts in this case and those
in Regalo — e.g., both defendants entered guilty pleas to sexual offenses involving
children and both defendants had no prior or subsequent criminal history — there
are also some significant differences.
This is not a case in which it would be futile to remand for
resentencing because the record clearly and convincingly would not support a
finding that consecutive sentences are not disproportionate to the danger the
offender poses to the public. Although, as detailed above, the trial court “accept[ed]
the fact that on paper the statutory sentencing factors in [R.C.] 2929.12 would
indicate that [Hervey] is unlikely to reoffend,” the trial court also appeared to
indicate that, under the circumstances, consideration of those statutory factors
alone may not fully capture the danger Hervey poses to the public. Hervey
attributed his abuse of his victims to a substance abuse problem. Hervey
consistently maintained at the sentencing hearing that he had been “unaware” of
what he was doing when he abused these two young victims and that the years of
sexual abuse was not his fault because, at the time, his brain was “really messed up”
due to his drug use. Even though Hervey claimed to be “absolutely mortified” when
he learned what he had done, he acknowledged that he “did it again” “[w]hen [he]
was high.” Although, in this case, the risk of Hervey reoffending may arguably be
lessened based on Hervey’s lack of subsequent criminal history and apparent
sobriety, that risk still exists. There is nothing in the record before us to indicate
that Hervey participated in any substance abuse or sex offender treatment
programs. The record reflects that Hervey’s abuse stopped only when the victims
left home and no longer had contact with Hervey.
Considering the record before us in its entirety, ‘“the possibility exists
for the trial court to make another finding to support the imposition of consecutive
sentences,’” i.e., that consecutive sentences are not disproportionate to the danger
Hervey poses to the public, “‘[b]ut the trial court is free to impose concurrent
sentences if it does not find that consecutive sentences are appropriate.’” State v.
Ferrell, 8th Dist. Cuyahoga No. 104047, 2016-Ohio-7715, ¶ 10, quoting State v.
Ferrell, 8th Dist. Cuyahoga No. 100659, 2014-Ohio-4377, ¶ 46. Accordingly, we
vacate Hervey’s consecutive sentences and remand for the trial court to again
consider whether the sentences on Counts 2 and 5 should be served consecutively to
the sentences on Count 9 and 12 and, if so, to make all of the required findings on
the record and to incorporate those findings into its sentencing journal entry.
Hervey’s assignment of error is sustained in part and overruled in
part.
Judgment vacated in part and remanded.
It is ordered that appellant recover from appellee the 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
Cuyahoga County Common Pleas Court to carry this judgment into execution. Case
remanded to the trial court for resentencing.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., CONCURS;
CORNELIUS J. O’SULLIVAN, JR., J., DISSENTS (WITH SEPARATE OPINION)
CORNELIUS J. O’SULLIVAN, JR., J., DISSENTING:
This court has repeatedly held that although the trial court must make
the findings required by R.C. 2929.14(C)(4), the trial court has no obligation to state
the reasons to support its findings. State v. Crawley, 8th Dist. Cuyahoga No.
102781, 2015-Ohio-5150, ¶ 13. Having made sufficient findings for the imposition
of consecutive sentences, the trial court fulfilled the R.C. 2929.14(C)(4)
requirements. Thus, if the trial court failed to specifically identify one of the factors
that were considered in its proportionality analysis, this omission does not render
the consecutive sentences contrary to law. Crawley at id. Herein, the court made
the requisite findings, albeit not in a concise manner.
This court has routinely affirmed consecutive sentences in cases
where the trial court stated far less concerning disproportionality than the trial court
did in the case at bar. In State v. McGowan, 8th Dist. Cuyahoga No. 105806, 2018-
Ohio-2930, this court upheld consecutive sentences when the trial court’s
“statements on the record undoubtedly indicate that it considered the
disproportionate prong with regard to both the seriousness of [appellant’s] conduct
and the danger he posed to the public.” Id. at ¶ 23. In State v. Hicks, 8th Dist.
Cuyahoga No. 107055, 2019-Ohio-870, this court upheld the imposition of
consecutive sentences when the trial court, after detailing the defendant’s criminal
history and prior unsuccessful attempts to give him “a chance at community control
sanctions,” stated only that “the sentences are not disproportionate to other
sentences” in the county and state. Id. at ¶ 14.
In State v. Morris, 2016-Ohio-7614, 73 N.E.3d 1010 (8th Dist.), the
defendant argued that the trial court did not comply with R.C. 2929.14(C)(4) where
the court stated the word “disproportionate” but did not specifically state that
consecutive sentences would not be disproportionate to the seriousness of his
conduct or disproportionate to the danger he posed to the public. Id. at ¶ 29. The
Morris Court noted that the Ohio Supreme Court had already taken a more relaxed
approach, finding that the requisite findings could be made if the reviewing court
could “discern” them from statements made by the sentencing judge. Id. at ¶ 32,
citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659. The
Morris Court concluded:
Viewing the trial court’s remarks in their entirety, we can discern
from the trial court’s statement — “I believe consecutive sentences in
this matter are necessary to protect and punish, are not
disproportionate” — findings that consecutive sentences are both not
disproportionate to the seriousness of Morris’ conduct and not
disproportionate to the danger Morris poses to the public.
Id. at ¶ 34.
In coming to this conclusion, the Morris Court reasoned that this
court had “repeatedly rejected” arguments like the defendant’s and pointed to
several prior decisions from this court. Id. at ¶ 30-32 and citing State v. Crawley,
8th Dist. Cuyahoga No. 102781, 2015-Ohio-5150 (holding that the trial court’s
statement that consecutive sentences “are not disproportionate” is sufficient
because the court does not have to identify the factors or reasons that were
considered in its proportionality analysis); State v. Amey, 8th Dist. Cuyahoga Nos.
103000 and 103001, 2016-Ohio-1121, ¶ 15-19 (trial court’s statement that
consecutive sentences “would not be disproportionate” combined with statements
regarding appellant’s extensive criminal history and that appellant had not
“responded favorably to sanctions previously imposed” satisfied proportionality
finding); and State v. Kirkman, 8th Dist. Cuyahoga No. 103683, 2016-Ohio-5326, ¶
3-5 (trial court’s statement — “I don’t believe it’s disproportionate” — along with a
reference to the defendant’s criminal history and a need to protect the public is
sufficient). See also State v. Brown, 8th Dist. Cuyahoga No. 108699, 2020-Ohio-
1615, ¶ 15 (finding that trial court’s statement that consecutive sentences are “not
disproportionate” is sufficient to discern that the trial court considered
disproportionality because court referenced presentence-investigation report,
which included appellant’s criminal history and risk of reoffending); State v. Kamal,
8th Dist. Cuyahoga No. 109781, 2021-Ohio-2261, ¶ 14 (stating that consecutive
sentences are “not disproportionate to what you did in this matter” is sufficient when
trial court’s statements during hearing, when viewed in their entirety, clearly
indicate trial court considered proportionality); State v. Bennett, 8th Dist. Cuyahoga
Nos. 108700 and 108749, 2020-Ohio-3453, ¶ 12 (trial court’s statement “it’s not
disproportionate” is sufficient); State v. Forston, 8th Dist. Cuyahoga No. 108332,
2020-Ohio-569, ¶ 12; State v. Wagner, 8th Dist. Cuyahoga No. 109678, 2021-Ohio-
3107, ¶ 14 (trial court’s statement that “it is not disproportionate” is sufficient); State
v. Delmonico, 8th Dist. Cuyahoga No. 108578, 2020-Ohio-3368, ¶ 59.
More recently, this court found that “[w]hile the trial court did not
explicitly mention the word ‘proportionality’ or specifically address the ‘threat’” that
the defendant posed:
the totality of the court’s statements demonstrate that it did make
findings regarding both. The trial court explicitly stated that because
[the defendant] had been found guilty of sexually assaulting three
separate women on three separate occasions, his conduct
demonstrated a need to protect the public through the imposition of
consecutive prison sentences. We can discern from the record that the
court found consecutive sentences were not disproportionate to the
danger [the defendant] posed to the public.
State v. Townsend, 8th Dist. Cuyahoga No. 110525, 2022-Ohio-692, ¶ 17.
What even a cursory review of cases from this district reveals is that
this court has repeatedly upheld the imposition of consecutive sentences when the
disproportionality finding can be discerned from the record. What McGowan,
Hicks, and Morris and each of the above cited cases have in common is that this
court has repeatedly upheld the imposition of consecutive sentences when the trial
court said less regarding the disproportionate nature of the sentence than the trial
court said in this case. Here, the trial court expressly made the statement that
consecutive sentences were not disproportionate to the seriousness of appellant’s
conduct, and we can excerpt specific references from the record demonstrating that
the trial court also made the finding that the sentences were not disproportionate to
the danger appellant poses to the public.
The majority states as follows:
Following a careful review of the record, we do not discern from
the entirety of the trial court’s statements at the sentencing hearing that
the trial court — either expressly or “using different language” — made
the finding that consecutive sentences are not disproportionate to the
danger Hervey poses to the public. It is not clear from the transcript of
the sentencing hearing that the trial court considered the danger the
offender poses to the public, compared that factor to the sentence
imposed on the defendant and determined that that comparison
supported the imposition of consecutive sentences.
(Internal citations omitted). Majority Opinion, ¶ 21.
I disagree. What is missing from the sentencing transcript, and what
the Ohio Supreme Court has made clear is not necessary, are the exact words that
appellant’s “consecutive sentences are not disproportionate to the danger appellant
poses to the public.” It is clear, however, that the trial court considered the danger
appellant poses to the public, compared that factor to the sentence imposed, and
determined that comparison supported the imposition of consecutive sentences.
See State v. Tolbert, 8th Dist. Cuyahoga No. 110249, 2022-Ohio-197, ¶ 48.
During the sentencing hearing, defense counsel asked the trial court
for a presentence-investigation report, stating, “we do have some experts that our
office would pay for to determine or give the Court an indication as far as his
likelihood to reoffend as part of our mitigation to defend.” In response, the trial
court stated:
I believe that as an officer of the Court you have made the
strongest statutory argument that you could and I accept it. I accept
the fact that on paper the statutory sentencing factors in [R.C.] 2929.12
would indicate that your client is unlikely to reoffend. The factors that
specifically would so indicate — well, let me just give the factors that
would support that he won’t reoffend and then I will give you the
factors that would support otherwise.
***
I’m required to consider if you are likely or unlikely to reoffend. That
is what your attorney is asking for, to have this assessment done. I
don’t believe it is necessary because I’ll accept what your attorney is
saying. I’ll accept the factors that would indicate that you are likely to
reoffend or unlikely to reoffend. You don’t have a criminal history. I
understand that. However, this went on for years and years. So, while
you never got charged with it or caught, had you been, you could have
had charges for a long time, but there’s no other charges elsewhere.
You have expressed remorse, took responsibility, said you didn’t know
what you were doing; but in the midst of all of this, you tell me that you
were doing this because you were using drugs * * *.
***
[B]ut I’ll accept every factor that your attorney is arguing that would
indicate statutorily against you reoffending, but this went on for years
and years and it is multiple victims.
***
So we talk about recidivism. I'll accept what your attorney has to say.
She’s an officer of the Court. She is. I have to consider the seriousness
of your conduct, and that’s where you fail, because the factors that
indicate that your conduct is more serious than conduct that ordinarily
constitutes the offense statutorily include that the harm caused by you
was exacerbated and felt more by the victims because of their tender
age * * *.
***
So when it comes to considering whether you’re likely or unlikely to
reoffend, I’ll accept everything that [defense counsels have said].
***
When it comes to the recidivism factors, again, I’m going to deny your
request to have that assessment completed as to whether your client is
likely to reoffend. I’ll accept all of your arguments.
***
But when it comes to the seriousness factors, sir, there’s nothing that
renders your conduct less serious. Nothing. These were children that
regarded you as their father.
(Emphasis added.)
Here, the trial court is clearly stating that, notwithstanding the
arguments of appellant’s attorneys and what a presentence investigation report
would likely show, appellant is at risk of being a recidivist and his conduct is more
serious.
In sentencing appellant, the trial court stated:
It is necessary to punish, as I mentioned before. That’s [R.C.]
2929.14(C)(4), and it is certainly not disproportionate to the
seriousness of your conduct, Mr. Hervey. The history – I’m sorry, at
least two of the conducts were committed as a course of conduct. This
was a pattern that went on and on, and the harm caused to these two
kids was so great that no single prison term would adequately reflect
the seriousness of your conduct. I’m not making the finding that the
history of criminal conduct demonstrates consecutive terms are
necessary to protect the public but I will tell you this: I’m just listening
to what [defense counsel] has to say on the recidivism piece. I say this
qualifiably [sic]; because when you look at what happened, there are
multiple counts over a span of years * * *.
(Emphasis added.)
Again, it is clear from the record that the court is discussing
appellant’s likeliness to reoffend and chance of recidivism; the court continually
makes the finding that it is sentencing him to consecutive sentences because these
crimes were committed against multiple victims as a multi-year course of conduct.
Recidivism, in general, is the repetition of criminal conduct by a
person who had been earlier arrested and punished for such conduct. Bouvier Law
Dictionary Desk Edition Recidivism (2012). A recidivist is one who commits a crime
and commits it again, particularly after having been punished for an earlier
commission. Id. Thus, in discussing appellant’s likeliness to reoffend, the trial court
is considering the danger posed to the public.
I further consider that, during the sentencing hearing, the court heard
directly from Jane Doe I, who came into court to face her abuser, and was read Jane
Doe II’s victim-impact statement. The victim of a crime has a right under R.C.
2930.14(A) to make a statement to the court prior to imposing sentence on the
defendant. State v. Taft, 6th Dist. Huron No. H-18-003, 2019-Ohio-1565, ¶ 53. The
victim is also permitted to present his or her statement to the court through a
representative — who can be any person the victim designates— and the designated
representative “may exercise the rights of the victim * * *.” R.C. 2930.02(A);
2929.19(A). If the victim chooses to make a statement at sentencing through either
means, the trial court is required to consider the statement along with all other
sentencing considerations. R.C. 2930.14(B); 2929.19(B)(1).
During her statement, Jane Doe I told the court that it was not until
her early 20’s that she learned that her younger sister had also been abused by
appellant. She told the court that she has also learned of more victims — “It seemed
the more I started to be open about what he had done with me, more girls kept
coming out of the woodwork to share their similar story with me.” Jane Doe I told
the court that appellant’s son warned her to never be alone with appellant and she
knew that appellant’s former wife stopped letting him see his own children after she
learned of his crimes. Jane Doe I learned that she “was not his first victim and I also
knew that I was not his last.” Jane Doe I noted that appellant held jobs in “positions
of power and trust, such as security guard and condominium maintenance” and
explained how “his pattern of abuse involves building a sense of trust with his
victims so they are submissive to his abuse.” Moreover, according to Jane Doe I,
appellant also practices martial arts with swords, “which makes him all the more
domineering.”
R.C. 2929.19(A) requires that a victim-impact statement “present
information relevant to the imposition of sentence in the case.” R.C. 2930.14 “does
not expressly limit the content of the victim-impact statement — it only sets forth
what the court is required to consider. Other information is not forbidden by
statute.” (Emphasis added.) Taft at ¶ 54, citing State v. Brown, 146 Ohio App.3d
654, 660, 2001-Ohio-4266, 767 N.E.2d 1192 (1st Dist.).
When the trial court stated, more than once, that appellant victimized
multiple children over a period of years, it must be understood that the court was
taking the victim-impact statements into consideration. When the court stated,
“multiple victims over a period of years” and “this is a course of conduct,” it was
summarizing its findings. Although the trial court could have stated, ad nauseam,
the danger that appellant’s vile and perverse activity posed to the public, the court
instead summarized its finding, and this court has held time and again it is sufficient
for the trial court to do so. The trial court’s findings support consecutive sentences.
The trial court’s statements, considered as a whole, comply with R.C.
2929.14(C)(4). I would affirm the trial court’s judgment.