State v. Laraby

[Cite as State v. Laraby, 2023-Ohio-741.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-22-1161
Appellee Trial Court No. CR0202102989
v.
William Laraby DECISION AND JUDGMENT
Appellant Decided: March 10, 2023
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Lorrie J. Rendle, Assistant Prosecuting Attorney, for appellee.
Tyler Naud Jechura, for appellant
*****
SULEK, J.
{¶ 1} Appellant William Laraby appeals the judgment of the Lucas County Court
of Common Pleas, which convicted him of two counts of sexual battery and sentenced
him to serve two consecutive 48-month prison terms. Laraby contends that his prison
sentence constitutes cruel and unusual punishment. The 48-month prison terms,
however, fall within the range set by R.C. 2929.14(A)(3)(a), and do not in any way shock
the sense of justice in the community. Accordingly, we affirm the trial court’s judgment.
I. Facts and Procedural Background
{¶ 2} On December 13, 2021, the Lucas County Grand Jury indicted Laraby on
one count of rape of a child less than 10 years of age in violation of R.C.
2907.02(A)(1)(b) and (B), and two counts of rape of a child less than 13 years of age in
violation of R.C. 2907.02(A)(1)(b) and (B).
{¶ 3} On May 31, 2022, as part of a negotiated plea agreement, the state filed by
information two new counts of sexual battery in violation of R.C. 2907.03(A)(5) and (B),
felonies of the third degree. Laraby entered a plea of guilty pursuant to North Carolina v.
Alford to the two counts of sexual battery. In exchange, the state agreed to dismiss the
original three counts of rape at sentencing. As the factual basis for the charges, the state
offered that on multiple occasions during the months of October and November, 2021,
Laraby anally penetrated his minor daughter with his penis. The victim disclosed that
Laraby had been engaging in this behavior for several years, and a medical examination
revealed injuries in the anal areas that were consistent with the victim’s report.
Following a Crim.R. 11 plea colloquy, the trial court accepted Laraby’s plea and found
him guilty of the two counts of sexual battery. The trial court continued the matter for
sentencing following the preparation of a presentence investigation report.
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{¶ 4} At the sentencing hearing, Laraby’s counsel advocated for community
control, remarking that Laraby has led a law-abiding life. Counsel also suggested that the
family is dysfunctional and has a history of mental health issues. Laraby, on his own
behalf, stated that he was a stay-at-home dad for most of his children’s lives, but when he
went back to work three years ago, he failed to notice the changes that were happening in
his family. Laraby further commented that his children have been hearing voices since
his arrest. He also informed the court that he would abide by any terms of probation,
would seek therapy for his depression and be evaluated for any other issues, and that he
would return to work to provide financial support to his family, with which he one day
hopes to reconcile.
{¶ 5} Upon considering Laraby’s statements, the presentence investigation report,
and letters submitted on Laraby’s behalf, on the victim’s behalf, and by the victim
herself, the trial court commented that the case was “most disturbing.” The trial court
noted that Laraby has been sexually abusing his daughter since she was six years old, and
yet there are members of the family that do not believe the victim and make excuses for
Laraby, causing the victim to suffer serious psychological trauma alone. It also
recognized that Laraby has failed to accept responsibility. Therefore, in addition to
designating Laraby as a Tier III sex offender, the trial court ordered Laraby to serve 48
months in prison on each count, to be served consecutively for a total prison term of eight
years.
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II. Assignment of Error
{¶ 6} Laraby has timely appealed the judgment of conviction, and now asserts one
assignment of error for our review:
The trial court erred when it sentenced the defendant to consecutive
prison sentences. This constitutes cruel and unusual punishment in
violation of the 8th Amendment of the United States Constitution and
Article 9 Section 1 of the Ohio Constitution.
III. Analysis
{¶ 7} We review felony sentences pursuant to R.C. 2953.08(G)(2), which
provides, in pertinent part,
The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence and
remand the matter to the sentencing court for resentencing. The appellate
court’s standard for review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
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(b) That the sentence is otherwise contrary to law.
{¶ 8} Here, Laraby’s argument falls under R.C. 2953.08(G)(2)(b)’s provision that
the sentence is otherwise contrary to law in that Laraby contends that his sentence
constitutes cruel and unusual punishment.
{¶ 9} The Eighth Amendment to the United States Constitution provides that
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” This provision applies to the states pursuant to the Fourteenth
Amendment. State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073,
¶ 12, citing Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).
The same restriction is set forth in Article I, Section 9 of the Ohio Constitution.
{¶ 10} “Historically, the Eighth Amendment has been invoked in extremely rare
cases, where it has been necessary to protect individuals from inhumane punishment such
as torture or other barbarous acts.” State v. Weitbrecht, 86 Ohio St.3d 368, 370, 715
N.E.2d 167 (1999), citing Robinson at 676. “Over the years, it has also been used to
prohibit punishments that were found to be disproportionate to the crimes committed.”
Id. The rare cases where cruel and unusual punishments have been found involved
“sanctions which under the circumstances would be considered shocking to any
reasonable person.” Id. at 371, quoting McDougle v. Maxwell, 1 Ohio St.2d 68, 70, 203
N.E.2d 334 (1964). “Furthermore, ‘the penalty must be so greatly disproportionate to the
offense as to shock the sense of justice of the community.’” Id., quoting McDougle at 70.
5.
{¶ 11} In this case, Laraby argues that the imposition of consecutive sentences
constitutes cruel and unusual punishment because he is not a danger to the community
and is not at risk to re-offend as he has lived a crime-free life until this point, has been the
sole caretaker for his family, and desires to reconcile with his children. Thus, Laraby
concludes he should have been sentenced to concurrent prison terms, and the fact that he
was not shocks the conscience of any reasonable person.
{¶ 12} Notably, Laraby makes this argument while recognizing that
proportionality review under the cruel and unusual punishment clauses focuses on
individual sentences rather than the cumulative prison term. Indeed, in State v. Hairston,
118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶ 20, the Ohio Supreme Court
expressly held, “[F]or purposes of the Eighth Amendment and Section 9, Article I of the
Ohio Constitution, proportionality review should focus on individual sentences rather
than on the cumulative impact of multiple sentences imposed consecutively.” “Where
none of the individual sentences imposed on an offender are grossly disproportionate to
their respective offenses, an aggregate prison term resulting from consecutive imposition
of those sentences does not constitute cruel and unusual punishment.” Id.; see also State
v. Neff, 6th Dist. Ottawa No. OT-20-004, 2021-Ohio-3766, ¶ 70 (citing Hairston and
concluding that a 25-year aggregate prison term that resulted from the consecutive
imposition of reasonable individual sentences was not grossly disproportionate).
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{¶ 13} Here, the trial court sentenced Laraby to 48-month prison terms for each
count of sexual battery, which were less than the maximum 60-month prison terms
allowed under R.C. 2929.14(A)(3)(a). “As a general rule, a sentence that falls within the
terms of a valid statute cannot amount to a cruel and unusual punishment.” McDougle at
69; see also State v. Ramirez, 6th Dist. Lucas No. L-11-1263, 2013-Ohio-843, ¶ 19.
{¶ 14} Under the facts of this case, we hold that 48-month prison sentences for
two counts of sexual battery where the offender anally penetrated his minor daughter
with his penis do not in any way shock the sense of justice in the community. See State
v. Accorinti, 12th Dist. Butler Nos. CA-2012-10-205, CA2012-11-221, 2013-Ohio-4429,
¶ 22 (“After a thorough review of the record, we find no evidence to even remotely
suggest Accorinti’s aggregate sentence of 20 years to life imprisonment for raping a 12-
yearold (sic) girl would shock the conscience of the community.”); State v. Murrell, 2d
Dist. Montgomery No. 24717, 2012-Ohio-2108, ¶ 33 (indefinite prison sentence of ten
years to life for engaging in sexual conduct with a child under thirteen years of age does
not constitute cruel and unusual punishment). Therefore, because Laraby’s individual
sentences are not grossly disproportionate to their respective offenses, we hold that
Laraby’s aggregate prison term does not constitute cruel and unusual punishment.
{¶ 15} As a final matter, although the entirety of Laraby’s argument focuses on
whether his aggregate eight-year prison sentence constitutes cruel and unusual
punishment, we recognize that his assignment of error asserts that the trial court erred
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when it imposed consecutive sentences. Further, in his appellate brief, he disputes the
trial court’s finding under R.C. 2929.14(C)(4) that he is a danger to the community
because he recognizes the severity of the offenses he pled to and has otherwise lived a
crime-free life. He further asserts that he is the sole caretaker of his family and that he
desires to continue to care for and reconcile with his children.
{¶ 16} R.C. 2929.14(C)(4) provides that a trial court may impose consecutive
sentences on an offender if it finds “that the consecutive service is necessary to protect
the public from future crime or to punish the offender,” “that consecutive sentences are
not disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public,” and that one of the following circumstances exists:
(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.
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(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
Notably, Laraby does not argue that R.C. 2929.14(C)(4) itself is unconstitutional under
the Eighth Amendment to the United States Constitution or Article I, Section 9 of the
Ohio Constitution.
{¶ 17} When imposing consecutive sentences, “[t]he trial court must engage in the
correct analysis, state its statutory findings during the sentencing hearing, and incorporate
those findings into its sentencing entry.” State v. Gregory, 6th Dist. Lucas Nos. L-21-
1106, L-21-1107, 2023-Ohio-331, ¶ 110, citing State v. Beasley, 153 Ohio St.3d 497,
2018-Ohio-493, 108 N.E.3d 1028, ¶ 253; State v. Bonnell, 140 Ohio St.3d 209, 2014-
Ohio-3177, 16 N.E.3d 659, ¶ 37. “[W]hen a sentencing court makes the statutory
findings under R.C. 2929.14(C)(4) for consecutive sentences, it must consider the
number of sentences that it will impose consecutively along with the defendant’s
aggregate sentence that will result.” State v. Gwynne, Slip Opinion No. 2022-Ohio-4607,
¶ 12. “[U]pon a de novo review of the record, an appellate court may reverse or modify a
defendant’s consecutive sentences—including the number of consecutive sentences
imposed—when it clearly and convincingly finds that the record does not support the trial
court’s findings.” Id.; R.C. 2953.08(G)(2)(a). “Clear and convincing evidence is that
measure or degree of proof which is more than a mere ‘preponderance of the evidence,’
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but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in
criminal cases, and which will produce in the mind of the trier of facts a firm belief or
conviction as to the facts sought to be established.” Id. at ¶ 19, quoting Cross v. Ledford,
161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶ 18} Here, the trial court engaged in the correct analysis, stated its statutory
findings during the sentencing hearing, and incorporated those findings in its sentencing
entry. It found that consecutive sentences were “necessary to protect the public from
future crime or to punish the offender and are not disproportionate to the seriousness of
the offender’s conduct and to the danger the offender poses to the public.” The trial court
also found under R.C. 2929.14(C)(4)(b) that the harm caused was so great or unusual that
no single prison term is adequate.
{¶ 19} Upon our de novo review, we cannot clearly and convincingly find that the
record does not support the trial court’s findings. While Laraby argues that he is not a
danger to the community and is not at risk to re-offend, Laraby’s conduct in anally
penetrating his minor daughter with his penis on multiple occasions belies his claim.
Such repeated, reprehensible conduct against the most vulnerable of victims manifestly
supports the conclusion that consecutive sentences are necessary to protect the public
from future crime or to punish him, and that consecutive sentences are not
disproportionate to the seriousness of his conduct and to the danger he poses to the
public. Further, the harm Laraby caused the victim to suffer by sexually violating her
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when he was supposed to be the one protecting her supports the conclusion that no single
prison term adequately reflects the seriousness of his conduct. In sum, we do not have a
firm belief that the record does not support the trial court’s findings. Therefore, the trial
court did not err when it imposed consecutive sentences under R.C. 2929.14(C)(4).
{¶ 20} Accordingly, Laraby’s assignment of error is not well-taken.
IV. Conclusion
{¶ 21} For the foregoing reasons, the judgment of the Lucas County Court of
Common Pleas is affirmed. Laraby is ordered to pay the costs of this appeal pursuant to
App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Charles E. Sulek, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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