State v. Cisco

[Cite as State v. Cisco, 2013-Ohio-5412.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 13 CAA 04 0026
:
SCOTT V. CISCO :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court
of Common Pleas, case no. 12CR-I-11-
0430
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: December 9, 2013
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
CAROL HAMILTON O’BRIEN WILLIAM T. CRAMER
DELAWARE COUNTY PROSECUTOR 470 Olde Worthington Road, Suite 200
ERIC C. PENKAL Westerville, OH 43082
140 North Sandusky St.
Delaware, OH 43015
Delaware County, Case No.13 CAA 04 0026 2
Delaney, J.
{¶1} Appellant Scott Cisco appeals from the March 15, 2013 Judgment Entry
on Sentence entered in the Delaware County Court of Common Pleas. Appellee is the
state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} A statement of the facts underlying appellant’s criminal convictions will be
made infra where pertinent to the procedural history.
{¶3} Appellant was originally charged by indictment with ten criminal offenses
including three counts of kidnapping, one count of abduction, and six counts of rape. All
but two counts were dismissed by appellee: Count Four, abduction, a violation of R.C.
2905.02(A)(2), a felony of the third degree, and Count Ten, rape, a violation of R.C.
2907.02(A), a felony of the first degree.
The Change-of-Plea Hearing: Appellant’s Allocution
{¶4} On January 16, 2013, appellant appeared before the Delaware County
Court of Common Pleas to enter pleas of guilty to Counts Four and Ten pursuant to a
Crim.R. 11(F) negotiated plea agreement. The trial court discussed the rights appellant
waived by changing his pleas and advised appellant the issue of merger would be
determined at sentencing, noting the parties did not agree whether the rape and
abduction offenses merged. Appellant stated he understood this meant he could be
sentenced separately upon each count; his “exposure” on the rape count was a
maximum of eleven years in prison and he faced an additional maximum sentence of
thirty-six months on the count of abduction.
Delaware County, Case No.13 CAA 04 0026 3
{¶5} The trial court also stated appellant would be referred for a presentence
investigation (P.S.I.).
{¶6} The trial court next gave appellant an opportunity for allocution. Appellant
stated on October 25, 2012, after meeting the victim online, he picked her up in
Indianapolis and drove her to his home in Sunbury, Delaware County, Ohio. Once at
his home, appellant claimed the victim disrobed and he bound her ankles and wrists
and gagged her. Appellant stated he raped the victim vaginally and anally, both digitally
and with objects. He stated the victim said “no” but he disregarded her protests.
Appellant claimed the victim was bound for a total of approximately 15 minutes; he then
released her and she went to the bathroom and cleaned herself up. Appellant admitted
he knew the victim was 17 years old. This statement concluded appellant’s allocution.
The P.S.I.
{¶7} The following facts are adduced from the P.S.I., which is ordinarily a
confidential document but which the parties have made part of the record in this case.
The trial court indicated facts in the P.S.I. would be taken into account in determining
whether the rape and abduction offenses merged for sentencing.
{¶8} On October 25, 2012, around 2:15 p.m., the Sunbury Police Department
received a call from the 17-year-old victim and responded to appellant’s apartment.
Upon arrival, police found the victim in a state of panic; she stated she had been
kidnapped by appellant and tied up at his residence while he went to work. She stated
she broke free and called for help after finding her clothing and cell phone which
appellant had hidden in the back yard.
Delaware County, Case No.13 CAA 04 0026 4
{¶9} The victim told police she met appellant online in a sexual chatroom and
snuck out of her home in Indianapolis to meet him; although her online profile said she
was 18, the victim told appellant she was really 17. She rode with appellant back to his
home in Ohio. Upon arrival, appellant gave her alcohol. The victim stated appellant
made her take her clothes off and call him “master,” then bound her, gagged her, and
penetrated her vaginally and anally, both digitally and with objects. The victim stated
appellant also made her perform oral sex on him that night and the next morning. The
victim described in detail various sexual acts appellant performed upon her. She stated
he gave her a “safe word” to say if she wanted him to stop. She said the safe word
several times but appellant didn’t stop.
{¶10} The victim stated appellant bound her again in the bedroom, hid her
clothing and cell phone in the backyard, and left for work the next day. She was
subsequently able to escape, find her clothes and phone, and call police.
{¶11} Upon entering the residence and finding the victim, police conducted a
protective sweep. They discovered the residence in disarray with alcoholic beverage
containers on the counter; in the bedroom, they observed clothing, bedding, “sexual
devices lying out, and duct tape in two different spots wrapped around a metal stand at
the head of the bed.”
{¶12} Appellant told police he met the victim on the internet, brought her to Ohio,
drank beer with her, and watched a movie. He stated she slept on the couch and he
slept in the bedroom; further, “if she had any injuries, she did it to herself, and that he
didn’t do anything to her.” Appellant stated he went to work at 8:00 a.m. the next day,
Delaware County, Case No.13 CAA 04 0026 5
learned the Indianapolis police were looking for the victim as a runaway, returned home,
and told her to turn herself in before returning to work.
{¶13} Appellant told the Court Investigating Officer he met the victim on a dating
website and she told him she wanted to move. He picked her up and brought her to
Ohio. They watched T.V. and ate dinner; later they “became intimate.” In the past they
had discussed “kinky encounters” and the victim voluntarily submitted to being bound,
gagged, and penetrated as described supra. Appellant continued, “At a point in time
during this, she decided she wanted to stop. No meant no which I disregarded at that
time. The continued (sic) for 5-8 minutes longer before I stopped & untied her.”
The Sentencing Hearing: Trial Court Declines Merger of Offenses
{¶14} Appellant appeared before the trial court for sentencing on March 13 and
March 15, 2013. The trial court inquired whether the parties objected to the facts as set
forth in the P.S.I.; appellee did not, but appellant argued the facts were pulled from the
police report and should not be relied upon to determine whether the offenses merge.
Appellant denied he tied up the victim while he went to work.
{¶15} The trial court questioned whether the victim’s statements in the P.S.I.
could be considered for sentencing purposes. The victim was not present in the
courtroom for sentencing and appellee indicated she was not willing to voluntarily return
to Ohio to testify for sentencing purposes. Appellant argued the only facts properly
before the trial court were those admitted by him during allocution.
{¶16} After argument, the trial court decided the P.S.I. could be used for
sentencing purposes. Pursuant to R.C. 2941.25, in light of the victim’s statements
contained in the P.S.I. about the facts of the offense, to wit, appellant leaving her bound
Delaware County, Case No.13 CAA 04 0026 6
before leaving for work, the trial court concluded the offenses of rape and abduction did
not merge.
{¶17} Appellant was thereupon sentenced to a prison term of 11 years for the
rape offense and a consecutive term of 36 months for the abduction offense.
{¶18} Appellant now appeals from the judgment entries of his convictions and
sentences.
ASSIGNMENTS OF ERROR
{¶19} “I. THE TRIAL COURT VIOLATED PRINCIPLES OF DOUBLE
JEOPARDY AND R.C. 2941.25 BY FAILING TO MERGE RAPE AND ABDUCTION
BASED ON HEARSAY FROM A PRESENTENCE INVESTIGATION REPORT.”
{¶20} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING
MAXIMUM SENTENCES CONSECUTIVELY ON BOTH COUNTS.”
ANALYSIS
{¶21} In his first assignment of error, appellant argues the trial court erred in
failing to merge the offenses of rape and abduction for sentencing.
{¶22} R.C. 2941.25 codifies the judicial doctrine of merger and states as follows:
(A) Where the same conduct by defendant can be construed
to constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in
two or more offenses of the same or similar kind committed
Delaware County, Case No.13 CAA 04 0026 7
separately or with a separate animus as to each, the
indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
{¶23} A trial court is required to merge allied offenses of similar import at
sentencing. State v. Underwood, 124 Ohio St. 3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶
27. The doctrine of merger as codified by the statute implements the protections of the
Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and
Ohio Const. Art. I, Sec. 10, which prohibit punishing an offender twice for the same
offense. The statute requires merger of allied offenses of similar import into a single
conviction for the purpose of sentencing, thereby preventing multiple punishments. The
defendant bears the burden of proving an entitlement to merger at sentencing pursuant
to R.C. 2941.25. State v. Mughni, 33 Ohio St. 3d 65, 67, 514 N.E.2d 870 (1987).
{¶24} Appellant entered a negotiated plea. When the plea agreement is silent
on the issue of allied offenses of similar import the trial court is obligated under R.C.
2941.25 to determine whether the offenses are allied, and if they are, to convict the
defendant of only one offense; if a trial court fails to merge allied offenses of similar
import, the defendant has the right to appeal the sentence.
State v. Underwood, 124 Ohio St. 3d 365, 371, 2010-Ohio-1, 922 N.E.2d 923 (2010).
{¶25} The specific issue before us is whether the trial court may properly
consider the information contained in the P.S.I. in determining whether offenses merge
for sentencing. Appellant entered a guilty plea. The facts before the court came from
appellant’s allocution and the P.S.I. Appellant contends the trial court could not properly
take into account the facts stated in the P.S.I. and was limited to the information
Delaware County, Case No.13 CAA 04 0026 8
contained in his allocution. We disagree and find the trial court properly considered the
facts contained within the P.S.I in weighing whether to merge the offenses of rape and
abduction.
{¶26} The trial court is statutorily required to take into account the record of the
case, in addition to any victim impact statement and P.S.I. R.C. 2929.19 states the
following regarding the sentencing hearing:
(A) The court shall hold a sentencing hearing before imposing a
sentence under this chapter upon an offender who was convicted of
or pleaded guilty to a felony and before resentencing an offender
who was convicted of or pleaded guilty to a felony and whose case
was remanded pursuant to section 2953.07 or 2953.08 of the
Revised Code. At the hearing, the offender, the prosecuting
attorney, the victim or the victim's representative in accordance with
section 2930.14 of the Revised Code, and, with the approval of the
court, any other person may present information relevant to the
imposition of sentence in the case. The court shall inform the
offender of the verdict of the jury or finding of the court and ask the
offender whether the offender has anything to say as to why
sentence should not be imposed upon the offender.
(B)(1) At the sentencing hearing, the court, before imposing
sentence, shall consider the record, any information presented at
the hearing by any person pursuant to division (A) of this section,
and, if one was prepared, the presentence investigation report
Delaware County, Case No.13 CAA 04 0026 9
made pursuant to section 2951.03 of the Revised Code or Criminal
Rule 32.2, and any victim impact statement made pursuant to
section 2947.051 of the Revised Code.
(2) Subject to division (B)(3) of this section, if the sentencing court
determines at the sentencing hearing that a prison term is
necessary or required, the court shall do all of the following:
(a) Impose a stated prison term and, if the court imposes a
mandatory prison term, notify the offender that the prison term is a
mandatory prison term;
(b) In addition to any other information, include in the sentencing
entry the name and section reference to the offense or offenses,
the sentence or sentences imposed and whether the sentence or
sentences contain mandatory prison terms, if sentences are
imposed for multiple counts whether the sentences are to be
served concurrently or consecutively, and the name and section
reference of any specification or specifications for which sentence
is imposed and the sentence or sentences imposed for the
specification or specifications;
* * * *.
{¶27} Defendants are permitted to read portions of P.S.I.s and to comment upon
alleged factual inaccuracies; within its discretion, the trial court may even permit the
defendant to introduce testimony to counter alleged factual inaccuracies. R.C.
2951.03(B) states in pertinent part:
Delaware County, Case No.13 CAA 04 0026 10
(B)(1) If a presentence investigation report is prepared pursuant to
this section, section 2947.06 of the Revised Code, or Criminal Rule
32.2, the court, at a reasonable time before imposing sentence,
shall permit the defendant or the defendant's counsel to read the
report, except that the court shall not permit the defendant or the
defendant's counsel to read any of the following:
(a) Any recommendation as to sentence;
(b) Any diagnostic opinions that, if disclosed, the court believes
might seriously disrupt a program of rehabilitation for the defendant;
(c) Any sources of information obtained upon a promise of
confidentiality;
(d) Any other information that, if disclosed, the court believes might
result in physical harm or some other type of harm to the defendant
or to any other person.
(2) Prior to sentencing, the court shall permit the defendant and the
defendant's counsel to comment on the presentence investigation
report and, in its discretion, may permit the defendant and the
defendant's counsel to introduce testimony or other information that
relates to any alleged factual inaccuracy contained in the report.
(3) If the court believes that any information in the presentence
investigation report should not be disclosed pursuant to division
(B)(1) of this section, the court, in lieu of making the report or any
part of the report available, shall state orally or in writing a summary
Delaware County, Case No.13 CAA 04 0026 11
of the factual information contained in the report that will be relied
upon in determining the defendant's sentence. The court shall
permit the defendant and the defendant's counsel to comment upon
the oral or written summary of the report.
(4) Any material that is disclosed to the defendant or the
defendant's counsel pursuant to this section shall be disclosed to
the prosecutor who is handling the prosecution of the case against
the defendant.
(5) If the comments of the defendant or the defendant's counsel,
the testimony they introduce, or any of the other information they
introduce alleges any factual inaccuracy in the presentence
investigation report or the summary of the report, the court shall do
either of the following with respect to each alleged factual
inaccuracy:
(a) Make a finding as to the allegation;
(b) Make a determination that no finding is necessary with respect
to the allegation, because the factual matter will not be taken into
account in the sentencing of the defendant.
{¶28} We are not persuaded by appellant’s argument that the statements
contained in the P.S.I. are hearsay and therefore untrustworthy. The Ohio Rules of
Evidence do not apply to sentencing hearings. Evid.R. 101(C)(3). Moreover, appellant
has the opportunity outlined in the statute, supra, to bring alleged inaccuracies to the
court’s attention. The burden of proof regarding any inaccuracy in the P.S.I. is on the
Delaware County, Case No.13 CAA 04 0026 12
defendant who alleges that the report is inaccurate. R.C. 2951.03(B)(2), supra.
Appellant made no such request nor offered any evidence beyond his self-serving
allocution to dispute the facts in the report, which the trial court elected to accept.
Appellant has failed to demonstrate the trial court abused its discretion in doing so.
State v. Sims, 184 Ohio App. 3d 741, 746, 2009-Ohio-5751, 922 N.E.2d 298 (2nd Dist.
Greene).
{¶29} R.C. 2941.25 is a sentencing statute. State v. May, 11th Dist. Lake No.
2010-L-131, 2011-Ohio-5233, ¶ 77, appeal not allowed, 131 Ohio St. 3d 1458, 2012-
Ohio-648, 961 N.E.2d 1137, citing State v. Kent, 68 Ohio App. 2d 151, 428 N.E.2d 453,
(8th Dist.1980), paragraph one of the syllabus. The trial court is required to rely upon
the entire record in sentencing defendant, including determining whether offenses
merge.
{¶30} The trial court does not err in relying upon facts contained in a P.S.I. in
sentencing a defendant. State v. Steimle, 8th Dist. Cuyahoga No. 82183, 2003-Ohio-
4816, ¶ 14, appeal not allowed, 101 Ohio St. 3d 1424, 2004-Ohio-123, 802 N.E.2d 155;
State v. Gunnell, 10th Dist. Franklin Nos. 11AP-811, 11AP-814, 11Ap-812, 11AP-815,
11AP-813, 2012-Ohio-1614, ¶ 14-15, appeal not allowed, 132 Ohio St. 3d 1485, 2012-
Ohio-3334, 971 N.E.2d 962; State v. Dudenas, 8th Dist. Cuyahoga No. 81461, 2003-
Ohio-1000, ¶ 9, abrogated on other grounds by State v. Norman, 8th Dist. Cuyahoga
No. 91302, 2009-Ohio-4044. We conclude the trial court does not err in relying upon
the P.S.I. in deciding whether to merge offenses for pursuant to R.C. 2941.25.
{¶31} Appellant’s position is that the victim was not bound when he left for work,
the critical factor in the trial court’s sentencing decision. The trial court advised the
Delaware County, Case No.13 CAA 04 0026 13
parties this detail was crucial to the merger decision but appellant offered no evidence
beyond his self-serving allocution. If we were to accept appellant’s argument, he would
have the benefit of entering guilty pleas to two offenses and then by virtue of his
allocution, dictating the facts upon which the trial court makes its merger decision, a
position which would give appellee no incentive to offer appellant a plea in the first
place. Moreover, such a conclusion would eliminate the sentencing discretion of the
trial court.
{¶32} The trial court did not err in relying upon the P.S.I. in assessing whether
the offenses of rape and abduction were allied offenses of similar import which merged
for sentencing. We further agree with the trial court’s decision that under the facts of
this case, the offenses do not merge.
{¶33} In State v. Johnson, the Ohio Supreme Court modified the test for
determining whether offenses are allied offenses of similar import. 128 Ohio St. 3d 1405,
2010–Ohio–6314. The Court directed us to look at the elements of the offenses in
question and determine whether or not it is possible to commit one offense and commit
the other with the same conduct. If the answer to such question is in the affirmative, the
court must then determine whether or not the offenses were committed by the same
conduct. If the answer to the above two questions is yes, then the offenses are allied
offenses of similar import and will be merged. If, however, the court determines that
commission of one offense will never result in the commission of the other, or if there is
a separate animus for each offense, then the offenses will not merge according to
Johnson, supra.
Delaware County, Case No.13 CAA 04 0026 14
{¶34} Appellant was indicted upon, convicted of, and sentenced upon one count
of rape pursuant to R.C. 2907.02(A) and one count of abduction pursuant to
2905.02(A)(2). Appellant argues the trial court erred in failing to merge these offenses
for purposes of sentencing; we disagree.
{¶35} As the trial court pointed out, separate offense and separate animus arise
from the fact that appellant bound the victim when he left for work the next day. In other
words, he didn’t commit the abduction solely for the purpose of accomplishing the rape.
Appellant’s actions constituted both separate conduct and separate animus under these
circumstances. Id. Appellant was properly convicted of and sentenced upon two
separate offenses.
{¶36} We find each of these offenses was committed with separate conduct and
a separate animus, and the trial court properly declined to merge the offenses for
sentencing. Appellant’s first assignment of error is overruled.
II.
{¶37} In his second assignment of error, appellant argues the trial court erred in
imposing the maximum sentence.
{¶38} Appellant acknowledges the prison terms of eleven years and 36 months
are within the statutory range for these offenses but asserts the trial court failed to
“properly consider the statutory purposes and factors of statutory sentencing.”
{¶39} In State v. Kalish, 120 Ohio St. 3d 23, 896 N.E.2d 124, 2008–Ohio–4912,
the Ohio Supreme Court established a two-step procedure for reviewing a felony
sentence. The first step is to “examine the sentencing court's compliance with all
applicable rules and statutes in imposing the sentence to determine whether the
Delaware County, Case No.13 CAA 04 0026 15
sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If the first step is
satisfied, the second step requires the trial court's decision be reviewed under an
abuse-of-discretion standard. Id. We have recognized that “[w]here the record lacks
sufficient data to justify the sentence, the court may well abuse its discretion by
imposing that sentence without a suitable explanation.” State v. Firouzmandi, 5th Dist.
Licking No. 2006–CA–41, 2006–Ohio–5823, ¶ 52.
{¶40} We first note that subsequent to the Ohio Supreme Court's Foster
decision, “[t]he decision to impose the maximum sentence is simply part of the trial
court's overall discretion in issuing a felony sentence and is no longer tied to mandatory
fact-finding provisions.” State v. Parsons, 7th Dist. Belmont No. 12 BE 11, 2013–Ohio–
1281, ¶ 14.
{¶41} Appellant also challenges the trial court’s imposition of consecutive terms.
2011 Am.Sub.H.B. No. 86, which became effective on September 30, 2011, revived
language provided in former R.C. 2929.14(E) and moved it to R.C. 2929.14(C)(4). The
General Assembly has thus expressed its intent to revive the statutory fact-finding
provisions pertaining to the imposition of consecutive sentences that were effective pre-
Foster. See State v. Wells, 8th Dist. Cuyahoga No. 98428, 2013–Ohio–1179, ¶ 11.
These revisions to the felony sentencing statutes now require a trial court to make
specific findings when imposing consecutive sentences. Nonetheless, “[a]lthough H.B.
86 requires the trial court to make findings before imposing a consecutive sentence, it
does not require the trial court to give its reasons for imposing the sentence.” State v.
Bentley, 3rd Dist. Marion No. 9–12–31, 2013–Ohio–852, ¶ 12, citing State v. Frasca,
11th Dist. Trumbull No. 2011–T–0108, 2012–Ohio–3746, ¶ 57. The record must clearly
Delaware County, Case No.13 CAA 04 0026 16
demonstrate that consecutive sentences are not only appropriate, but are also clearly
supported by the record. See State v. Queer, 5th Dist. Ashland No. 12-COA-041, ,
2013-Ohio-3585, ¶ 21.
{¶42} R.C. 2929.14(C)(4) provides, in relevant part:
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 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.
Delaware County, Case No.13 CAA 04 0026 17
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
{¶43} We note appellant asks us to disregard the victim’s statements which are
not favorable to his merger argument, supra, and to accept the victim’s statements
which are favorable to his maximum sentence argument. He argues the trial court
abused its discretion in sentencing him to consecutive maximum terms upon one count
of rape and one count of abduction because this offense began as “consensual
dominant/submissive play” and appellant apologized at the sentencing hearing. We
disagree with appellant’s characterization of the record and note the ongoing trauma
and distress experienced by the 17-year-old victim1 as evidenced by the P.S.I. and the
victim impact statement. The trial court specifically noted a consecutive sentence was
not disproportionate to appellant’s conduct and was necessary to punish appellant and
protect the public.
{¶44} Upon review, we find the trial court adequately made the findings required
by R.C. 2929.14(C)(4) in considering appellant's sentence, and consecutive sentences
in this matter are not unreasonable, arbitrary or unconscionable. In short, we have
reviewed the record of this case and find the trial court did not abuse its discretion in
sentencing appellant to consecutive maximum terms.
{¶45} Appellant’s second assignment of error is overruled.
1
Appellant is age 47.
Delaware County, Case No.13 CAA 04 0026 18
CONCLUSION
{¶46} Appellant’s two assignments of error are overruled and the judgment of
the Delaware County Court of Common Pleas is affirmed.
By: Delaney, J. and
Hoffman, P.J.
Farmer, J., concur.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. SHEILA G. FARMER