State v. Peddicord

[Cite as State v. Peddicord, 2014-Ohio-2849.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HENRY COUNTY
STATE OF OHIO,
CASE NO. 7-13-12
PLAINTIFF-APPELLEE,
v.
MAURICE C. PEDDICORD, III, OPINION
DEFENDANT-APPELLANT.
Appeal from Henry County Common Pleas Court
Trial Court No. 12 CR 0065
Judgment Affirmed
Date of Decision: June 30, 2014
APPEARANCES:
Alan J. Lehenbauer for Appellant.
J. Hawken Flanagan for Appellee.
Case No. 7-13-12
WILLAMOWSKI, P.J.
{¶1} Defendant–Appellant, Maurice C. Peddicord, III, appeals the
judgment of the Court of Common Pleas of Henry County, Ohio, sentencing him
to two consecutive prison terms for his conviction on two counts of gross sexual
imposition. For the reasons that follow, we affirm the trial court’s judgment.
{¶2} The relevant facts of this case were previously outlined in State v.
Peddicord, 3d Dist. Henry No. 7-12-24, 2013-Ohio-3398, as follows. On October
23, 2012, Peddicord was found guilty on two counts of gross sexual imposition, a
felony of the third degree, in violation of R.C. 2907.05(A)(4),(C)(2), for “sexual
abuse of R.P., a three-year old female, while he was responsible for supervising
her.” Id. at ¶¶ 2-3. He was sentenced on December 4, 2012, “to a prison term of
five years for each count, to be run consecutively, for a total of 10 years.” Id. at ¶
6.
{¶3} Upon appeal, we reversed the trial court’s sentencing decision in part
due to the trial court’s failure to make any of the three statutory findings that are
required by R.C. 2929.14(C)(4) when imposing consecutive sentences. We
remanded the matter to the trial court to “consider making the necessary findings
to support an imposition of consecutive sentences.” Id. at ¶¶ 34-35.
{¶4} On September 16, 2013, the trial court conducted a new sentencing
hearing and again sentenced Peddicord to two consecutive prison terms of five
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years each, for a total mandatory prison term of ten years. From this judgment
Peddicord now appeals raising the following assignment of error.
ASSIGNMENT OF ERROR
The trial court erred by imposing consecutive sentences for
appellant’s convictions for two counts of gross sexual imposition.
{¶5} Peddicord’s main argument on this appeal is that the record did not
support the trial court’s findings required for imposing consecutive sentences. He
further argues that the words used by the trial court in one of the findings do not
properly follow the statutory language and are therefore insufficient to satisfy the
findings required under the statute.
{¶6} An appellate court must conduct a meaningful review of the
imposition of consecutive sentences by the trial court. State v. Billeg, 3d Dist.
Wyandot No. 16-12-03, 2013-Ohio-219, ¶ 20; State v. Daughenbaugh, 3d Dist.
Wyandot No. 16-07-07, 2007-Ohio-5774, ¶ 8. Nevertheless, because the trial
court is in a better position “to judge the defendant’s dangerousness and to
ascertain the effect of the crimes on the victims,” when reviewing the imposition
of consecutive sentences we should not substitute our judgment for that of the trial
court. State v. Watkins, 3d Dist. Auglaize No. 2-04-08, 2004-Ohio-4809, ¶ 16,
quoting State v. Jones, 93 Ohio St.3d 391, 400, 754 N.E.2d 1252 (2001).
Therefore, we will not disturb the trial court’s findings absent a showing by clear
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and convincing evidence that the sentence is unsupported by the record. State v.
Lester, 3d Dist. Wyandot No. 16-05-01, 2005-Ohio-3885, ¶ 10.
{¶7} In order to impose consecutive sentences the trial court was required
to make certain specific findings on the record, as required by R.C. 2929.14(C)(4).
State v. Hites, 3d Dist. Hardin No. 6-11-07, 2012-Ohio-1892, ¶ 11; Peddicord,
2013-Ohio-3398, ¶ 33. Under R.C. 2929.14(C)(4),
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.
(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. Therefore, in order to impose consecutive sentences, the trial court
must find on the record that (1) consecutive sentences are necessary to either
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protect the public or punish the offender; (2) the sentences would not be
disproportionate to the offense committed and to the danger posed to the public by
the offender; and (3) the timing of the offense, the harm caused by multiple
offenses, or the offender’s criminal history justify the imposition of consecutive
sentences. Id.; Peddicord, 2013-Ohio-3398, at ¶ 33.
{¶8} The trial court made the following statements on the record in support
of the consecutive sentences for Peddicord.
The court has reviewed of course the record * * *. In reviewing the
file and the information in front of it and the previous transcript as
well its, in considering whether or not the sentences would be served
in each count would be consecutive or concurrent, the Court has
reviewed, once again, that 2929.14 statute, the two counts did arise
out of two separate courses of conduct. Count One reflected the
time period of June 14 through 17 and Count Two reflected a time
frame June 17 through June 20 of the year 2012. Now, the Court’s
looked at this back at the transcript and there was, I believe,
information provided at the time that this was a child of extremely
tender years and I don’t think the Court is forbidden from inferring
that in any regard, that the conduct in which the Court entered a
guilty finding is so serious with regard to the impact that it would
have with a child of that age. That, for the Court to view a single
sentence would so significantly diminish the seriousness of the
conduct. That a single sentence would be totally inadequate. The
conduct reflected requires a consecutive sentence to be imposed.
***
In closing the court would reiterate the, for the record, that the
sentences being made consecutive serve both to punish the defendant
for the conduct as well as to protect the public and that being
consecutive in no way are disproportionate to the conduct of the
defendant and serve to in fact, reinforce the seriousness of the
offense and not to in any way diminish the seriousness of the
underlying offenses.
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(Tr. of Proceedings, Sept. 16, 2013, at 4-7.) These findings were entered into a
judgment entry on September 18, 2013, as follows.
The court * * * specifically found that consecutive sentences are
necessary to protect the public and punish the offender; that the
sentences are not disproportionate to the offense committed; and that
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 was so great or unusual that no single prison
term for any of the offenses committed as part of the courses of
conduct adequately reflects the seriousness of the offenders [sic]
conduct.
(R. at 28, J. Entry.)
{¶9} Peddicord asserts that the record contradicts the above findings of the
trial court. We disagree.
1. Consecutive sentences are necessary to either protect the public or punish
Peddicord.
{¶10} First, Peddicord argues that consecutive sentences were not
necessary to protect the public. In support of this argument, Peddicord submits
that he was released on personal recognizance during the underlying criminal
proceedings1 and that he did not have a prior criminal record. These facts, in his
opinion, clearly and convincingly show that he was not a threat to the public and
therefore, consecutive sentences were not necessary to protect the public. Even if
Peddicord were correct in his assertion that the fact of being released on personal
recognizance and the lack of prior criminal record show by clear and convincing
1
Peddicord refers to “Recognizance filed 6/28/12.” (App’t Br. At 8.) This filing is not attached to the
record.
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evidence the lack of need to protect the public, his argument would still fail. To
satisfy the first element of R.C. 2929.14(C)(4), the trial court was required to find
that consecutive sentences were necessary to either protect the public or punish
the offender. Here, the trial court found both purposes satisfied. Therefore, even
if the finding that consecutive sentences were necessary to protect the public were
incorrect, the trial court’s finding that they were necessary to punish Peddicord is
sufficient and there is no evidence that this finding was improper or unsupported
by the record.
2. The sentences are not disproportionate to the offense committed and to the
danger posed by Peddicord to the public.
{¶11} Peddicord also asserts that the imposition of consecutive sentences
was disproportionate to the seriousness of his conduct. He claims that because he
was convicted of only two acts of gross sexual imposition and the incidents
occurred within a short period of time, rather than continuously over the years,
consecutive sentences are too harsh. These assertions do not amount to clear and
convincing evidence in support of reversing the trial court, which is in a better
position to judge the seriousness of the defendant’s conduct. See Watkins, 2004-
Ohio-4809, at ¶ 16, quoting Jones, 93 Ohio St.3d at 400.
3. The offenses were committed as part of one or more courses of conduct,
and the harm caused by these offenses was so great or unusual that no
single prison term adequately reflects the seriousness of Peddicord’s
conduct.
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{¶12} Here, the trial court attempted to satisfy subdivision (b) of R.C.
2929.14(C)(4). Peddicord alleges that the language used by the trial court does
not satisfy the statute and that even if it did, the record does not support the
finding of great or unusual harm to the victim.
{¶13} “The trial court is not required to recite any ‘magic’ or ‘talismanic’
words when imposing consecutive sentences, as long as it is ‘clear from the record
that the trial court engaged in the appropriate analysis.’ ” State v. Bentley, 3d Dist.
Marion No. 9-12-31, 2013-Ohio-852, ¶ 13, quoting State v. Murrin, 8th Dist.
Cuyahoga No. 83714, 2004-Ohio-3962, ¶ 12. Here, the trial court stated that “the
two counts did arise out of two separate courses of conduct” and it “inferred” that
Peddicord’s conduct was “so serious with regard to the impact that it would have
with a child of that age. That, for the Court to view a single sentence would so
significantly diminish the seriousness of the conduct. That a single sentence would
be totally inadequate.” (Tr. of Proceedings, Sept. 16, 2013, at 5.) Peddicord
seems to argue that the trial court’s failure to use the word “harm” together with
adjectives “great or unusual” renders the finding defective. Nevertheless, the trial
court’s finding with respect to the serious “impact” on the child, followed by the
exact statutory language in the judgment entry, sufficiently proves that “the trial
court engaged in the appropriate analysis.” See Bentley, 2013-Ohio-852, at ¶ 13.
{¶14} Peddicord further asserts that “there is a complete absence of actual
evidence as to the harm caused to the child.” (App’t Br. at 9.) He is incorrect.
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We recognize that due to the nature of the no contest plea, the record contains little
information about the facts of the case. Furthermore, the young victim was likely
not able to describe the effects that Peddicord’s actions had upon her.
Nonetheless, the Presentence Investigation Report (PSI), prepared prior to
sentencing, on November 27, 2012, includes two victim impact statements, written
by the child’s mother on October 27, 2012, and November 12, 2012. (See
attachments to PSI.) Those describe psychological, economic, and social effects
that the offenses committed by Peddicord had upon the child and her family.
While the trial court’s use of the word “inferring” could cause Peddicord to
believe that the trial court based its finding of harm merely on the fact that “the
child was ‘of extremely tender years’ ” (App’t Br. at 9, quoting Tr. of Proceedings,
Sept. 16, 2013, at 5), our review of the record shows factual support for that
inference-finding. The record does not include, and Peddicord does not cite, any
facts that would contradict the mother’s statements. Accordingly, there is no clear
and convincing evidence that the trial court’s findings of the extent of harm or
“impact” upon the child were incorrect.
{¶15} Based upon the foregoing, we hold that the trial court did not err by
imposing consecutive sentences. Peddicord’s sole assignment of error is thus
overruled.
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Conclusion
{¶16} Having reviewed the arguments, the briefs, and the record in this
case, we find no error prejudicial to Appellant in the particulars assigned and
argued. The judgment of the Court of Common Pleas of Henry County, Ohio, is
thereby affirmed.
Judgment Affirmed
ROGERS and PRESTON, J.J., concur.
/hlo
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