State v. Moon

[Cite as State v. Moon, 2014-Ohio-384.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99748
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ERNEST L. MOON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-553914
BEFORE: Rocco J., Boyle A.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: February 6, 2014
-i-
ATTORNEY FOR APPELLANT
Patricia J. Smith
4403 St. Clair Avenue
The Brownhoist Building
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Kerry A. Sowul
Mahmoud Awadallah
James M. Price
Assistant County Prosecutors
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶1} Defendant-appellant Ernest L. Moon appeals from his consecutive sentences,
arguing that the trial court failed to make the requisite statutory findings. We conclude
that the trial court did not err in ordering consecutive sentences and so we affirm.
{¶2} The underlying incidents giving rise to the charges against Moon occurred in
1999 and involved a child victim. On February 11, 2013, Moon pleaded guilty to three
counts of kidnapping (R.C. 2905.01(A)(4)), a first-degree felony; to three counts of rape
with a sexually violent predator specification (R.C. 2907.02(A)(1)(b), 2941.148(A)), a
first-degree felony; and to three counts of gross sexual imposition (R.C. 2907.05(A)(4)), a
third-degree felony. The trial court indicated that the counts for gross sexual
impositions would merge into the rape counts. Moon was advised that the rape counts
carried life tails on them. The trial court also informed Moon that he could be subject to
consecutive sentences. Moon indicated that he understood, and that he still wished to
plead guilty.
{¶3} Moon appeared for sentencing on March 12, 2013. The victim (who was
now an adult) appeared and gave an impact statement, as did the victim’s father. The
defendant made a statement in mitigation on his own behalf.
{¶4} Following these statements, the trial court informed Moon that because he
had pleaded guilty to a sexually oriented offense and/or a child victim offense as set forth
in R.C. 2950.01, he would henceforth be classified as a Tier III sex offender.
{¶5} Next, the trial court considered the sentencing factors. The trial court found
that Moon had taken away the victim’s innocence and destroyed her childhood. The
record further indicated that on a previous occasion, Moon had pleaded guilty to sexual
imposition where he had attempted the same plan or scheme on another minor victim.
The trial court also noted that Moon’s history in law enforcement had put him in a
position of trust, and that he had betrayed that trust. According to the trial court,
Moon’s mitigating statement showed very little remorse for what he had done to the
victim. After considering the need to protect the public, Moon’s pattern of behavior,
and his lack of remorse, the trial court determined that the maximum sentence was
warranted: Moon was sentenced to ten years for each of the three kidnapping counts
and to ten years to life for each of the three rape counts.
{¶6} The trial court next turned to the issue of consecutive sentencing. The trial
court determined that consecutive sentences were warranted, bringing Moon’s total
sentence to sixty years to life. The trial court explained:
In this case the Court does believe based upon this defendant’s
history, the defendant’s conduct in this matter, the way he induced his
victims, the age — twelve years old was the age of the victim in this case —
that consecutive sentences are necessary to protect and punish.
A consecutive sentence would not be disproportional given the
nature of the this defendant’s activity especially given the age and
innocence of his victim in this case. The Court finds further that the harm
caused to the victim in this matter and the attempted harm that we heard
about through evidence presented is so great or unusual that a single term
does not adequately reflect the seriousness of the conduct, and the Court
does appreciate the fact that this defendant did accept responsibility for his
acts. However, the Court does not believe at this point that that has any
bearing on the sentence that I’m about to hand down.
Tr. 51–52.
{¶7} In his sole assignment of error, Moon asserts that the trial court erred because
it failed to make the necessary findings required under R.C. 2929.14(C)(4) prior to
imposing consecutive sentences. We disagree.
{¶8} We will affirm a trial court’s order for consecutive sentences if the trial court
has made the requisite findings set forth in R.C. 2929.14(C)(4), and so long as the
sentences are not otherwise contrary to law. R.C. 2953.08(G)(2); State v. Venes, 8th
Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 11. Turning to the R.C. 2929.14(C)(4)
factors, the trial court must first find that consecutive sentences are “necessary to
protect the public from future crime or to punish the offender.” Second, the trial court
must find that consecutive sentences are “not disproportionate to the seriousness of the
offender’s conduct and to the danger the offender poses to the public.” Finally, the trial
court must find that one of the following factors applies:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction * * *, or
was under postrelease 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 * * * 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.
Id.{¶9} Moon’s brief asserts that the trial court failed to make the R.C. 2929.14(C)(4)
findings, but Moon does not specify which finding the trial court failed to make.
Moon’s argument is vague — and with good reason. The trial court made every
required finding before imposing consecutive sentences. First, the trial court found that
consecutive sentences were necessary, both to protect the public from Moon and to
punish Moon. Second, the trial court found that consecutive sentences “would not be
disproportional given the nature of [Moon’s] activity, especially given the age and
innocence of his victim in this case.” Tr. 52. Finally, the trial court found that multiple
offenses were committed as part of one or more courses of conduct and that the harm
caused by Moon was “so great or unusual that a single term does not adequately reflect
the seriousness of the conduct.” Tr. 51. This finding satisfied R.C. 2929.14(C)(4)(b).
{¶10} Moon pleaded guilty to and was sentenced for three separate incidents of
rape and three separate incidents of kidnapping. The trial court found that, on the facts
of this case, consecutive sentences were warranted. Moon is not entitled to a “volume
discount” at sentencing just because these separate criminal acts were charged in the same
indictment. See State v. Wilson, 8th Dist. Cuyahoga No. 99331, 2013-Ohio-3915, ¶ 20
(Rocco, J., concurring).
{¶11} The trial court made each finding required under R.C. 2929.14(C)(4).
The sole assignment of error is overruled.
{¶12} The trial court’s judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
__________________________________________
KENNETH A. ROCCO, JUDGE
MARY J. BOYLE, A.J., and
SEAN C. GALLAGHER, J., CONCUR