State v. May

[Cite as State v. May, 2012-Ohio-2766.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97354
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DENNIS F. MAY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-547913
BEFORE: Sweeney, J., Blackmon, A.J., and Jones, J.
RELEASED AND JOURNALIZED: June 21, 2012
ATTORNEY FOR APPELLANT
Elena N. Lougovskaia, Esq.
Lougovskaia Boop, L.L.C.
815 Superior Avenue, Suite 1412
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Brian M. McDonough, Esq.
Assistant County Prosecutor
Eighth Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:
{¶1} Defendant-appellant Dennis May (“defendant”) appeals various aspects of
the sentences that the trial court imposed on him following his guilty plea and convictions
for five counts of sexual battery in violation of R.C. 2907.02(A)(1)(b). He contends the
court erred (1) by imposing consecutive sentences without making statutory findings, (2)
by imposing a term of community control sanctions to commence upon the completion of
his prison term; and (3) by requiring him to submit to polygraph examinations as part of
his community control sanctions. For the reasons that follow, we affirm.
{¶2} The state charged defendant with 34 offenses, including rape, gross sexual
imposition, and kidnapping with sexual motivation and sexually violent predator
specifications. The alleged victim is a child under the age of thirteen.1 Defendant pled
guilty to five amended counts of sexual battery, felonies of the third degree, and all
remaining counts and specifications were nolled.
{¶3} Prior to sentencing, defense counsel requested the court to order a
mitigation and presentence investigation report and an eligibility interview for the Wood
County Community-Based Correctional Facility. The trial court did so. Subsequently,
however, defendant refused to participate in the eligibility screen for the
community-based correctional facility.
1
To the extent possible, this opinion will not detail any specifics that would
jeopardize the privacy interests of this child.
{¶4} Defendant’s sentencing hearing took place on August 31, 2011. Defendant
appeared with new counsel.
{¶5} The state addressed the court and specifically invoked the principles and
purposes of felony sentencing contained in R.C. 2929.11. The state proceeded to detail its
position that several of the “more serious” factors applied in this case, specifically the
injury, was exacerbated by the victim’s age (being under 13 years old), the victim
suffered serious psychological harm, and the relationship between the victim and the
defendant.
{¶6} The state cited the following factors it considered indicative of recidivism
being more likely: defendant’s prior criminal convictions, defendant’s lack of genuine
remorse, and defendant’s admitted addiction to pornography.
{¶7} The state conceded that defendant accepted some responsibility by entering
a guilty plea.
{¶8} The record reflects that “as part and parcel of the plea agreement, the
defendant agreed that the five counts of sexual battery would not be allied offenses.”
{¶9} Defendant faced a maximum prison sentence of 25 years.
{¶10} According to the record, defendant began committing these type of crimes
when the victim was only five years old, which were on-going until the victim was under
the age of 13. The state described the defendant’s criminal conduct as “escalating” and
“shocking.”
{¶11} Defense counsel suggested mitigating factors including the victim’s age
of 47, acceptance of responsibility by entering a guilty plea, and no adult felony record.
The defense conceded that defendant was in a position of authority over the victim. The
defense indicated defendant is remorseful and that he wanted another opportunity to be
assessed for community based correction.
{¶12} Defendant addressed the court and expressed his desire to apologize. The
trial court noted that defendant denied his guilt in the PSI and refused to participate in the
eligibility interview.
{¶13} The court made numerous findings concerning defendant’s conduct and
the nature and severity of these offenses. The court articulated at length its dismay that no
sentence could rectify the harm done to the victim in this case. The court explicitly
considered defendant’s guilty plea and expressions of remorse as mitigating factors. The
court also considered that defendant had lived a law abiding life for a number of years.
The court’s findings tracked the statutory guideposts of Ohio’s felony sentencing law. It
found three recidivism factors present. The court found defendant’s crimes very serious
in nature. The court indicated the following sentence was required “to achieve the
purposes and principles of felony sentencing”:
{¶14} A one year prison term on count 13, consecutive to a two year prison term
on count 14, consecutive to a three year prison term on count 15, for an aggregate term of
six years. The trial court imposed a five-year term of community control sanctions on
counts 16 and 17 to commence upon his release from the six year prison term imposed for
the other counts.
{¶15} Upon defendant’s completion of his prison sentence, the court directed the
probation department to determine whether he is eligible for participation in the
community-based correction program. If not, defendant would be placed in the sex
offender unit to “receive sex offender treatment, regular polygraph examinations, sex
offender supervision and maintain full-time employment, these recommendations as set
forth by the probation department.”
{¶16} Defendant’s appeal presents three assignments of error for our review.
{¶17} “Assignment of Error No.1: The trial court committed reversible error by
imposing non-mandatory consecutive prison terms without making the findings required
in R.C. 2929.14(C)(4), which revives R.C. 2929.14(E)(4) and applies retroactively.”
{¶18} Defendant was sentenced on August 31, 2011. At that time, the trial judges
were not mandated to make statutory findings as a prerequisite to imposing consecutive
sentences. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 99
(excising portions of Ohio’s sentencing law as unconstitutional and holding that “judicial
fact-finding is not required before imposition of consecutive prison terms.”) Despite the
pronouncement in Foster, the Ohio legislature never repealed, and subsequently
re-enacted, the statutory provisions that were excised by Foster.
{¶19} In State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768,
paragraph three of the syllabus, the Ohio Supreme Court held that “[t]rial court judges are
not obligated to engage in judicial fact-finding prior to imposing consecutive sentences
unless the General Assembly enacts new legislation requiring that findings be made.”
{¶20} When it decided Hodge, the Ohio Supreme Court must have considered the
fact that the legislature had never changed or deleted the judicial fact-finding provisions
in any of the post-Foster amendments. Id., 2010-Ohio-6320, ¶ 6 (noting the General
Assembly is “no longer constrained by Foster’s holdings * * * and may, if it chooses to
do so, respond with enactment of a statutory provision in light of Ice’s holding.”) The
General Assembly did just that with amendments contained in Am.Sub.H.B.No. 86.
These provisions took effect on September 30, 2011, and included judicial fact-finding
requirements for imposing consecutive sentences. R.C. 2929.14(C)(4) provides:
(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.
{¶21} Although the trial court commented at length on the rationale it used to
craft defendant’s sentence, we need not decide whether the findings satisfy the
requirements of the above-quoted provision. This court has found that the amendments
are not applicable to individuals who were sentenced prior to the September 30, 2011
effective date. State v. Calliens, 8th Dist. No. 97034, 2012-Ohio-703, ¶ 28.
{¶22} This assignment of error is overruled.
{¶23} “Assignment of Error II: The trial court committed a reversible error by
imposing a sentence of five years of community control sanctions to commence upon the
completion of Appellant’s six years of incarceration.”
{¶24} This error concerns the trial court’s decision to impose a five-year term of
community control sanctions on counts 16 and 17 consecutive to the six-year aggregate
prison term he received on the remaining counts.
{¶25} Notably, the trial court imposed a five-year prison term on each counts 16
and 17 to be served consecutively to each other, totaling a ten-year prison sentence in the
event community control sanctions is violated.
{¶26} Defendant complains about his receipt of the community control sanction
term to the extent it will run consecutive to his prison term. Defendant’s position is that
it must commence immediately upon sentencing and cannot be “tolled” under these
circumstances. If defendant’s interpretation is correct, the trial court’s imposition of
community control sanctions would be pointless because it would expire prior to his
release from prison. In practicality, this would bind trial courts in many cases to imposing
prison sentences on all counts in multiple conviction cases where some period of
incarceration is deemed necessary in order to accomplish the purposes of sentences. It
would hamper the trial court’s ability to fashion less restrictive sentencing alternatives.
For example, we can ascertain from this record that the trial court determined that the
facts supported a 16-year prison term but the court opted to suspend ten years of it by
releasing defendant from prison after six years to serve a term of community control
sanctions. The trial court’s sentence is fashioned in such a way that defendant has an
opportunity to rejoin society albeit under court supervision and subject to certain
conditions. If he violates community control, defendant will be returned to prison to
complete the remainder of his sentence.
{¶27} Defendant relies upon R.C. 2929.15(A)(1) which provides,
(A)(1) If in sentencing an offender for a felony the court is not required to
impose a prison term, a mandatory prison term, or a term of life
imprisonment upon the offender, the court may directly impose a sentence
that consists of one or more community control sanctions authorized
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code. If
the court is sentencing an offender for a fourth degree felony OVI offense
under division (G)(1) of section 2929.13 of the Revised Code, in addition to
the mandatory term of local incarceration imposed under that division and
the mandatory fine required by division (B)(3) of section 2929.18 of the
Revised Code, the court may impose upon the offender a community
control sanction or combination of community control sanctions in
accordance with sections 2929.16 and 2929.17 of the Revised Code. If the
court is sentencing an offender for a third or fourth degree felony OVI
offense under division (G)(2) of section 2929.13 of the Revised Code, in
addition to the mandatory prison term or mandatory prison term and
additional prison term imposed under that division, the court also may
impose upon the offender a community control sanction or combination of
community control sanctions under section 2929.16 or 2929.17 of the
Revised Code, but the offender shall serve all of the prison terms so
imposed prior to serving the community control sanction.
The duration of all community control sanctions imposed upon an offender
under this division shall not exceed five years. If the offender absconds or
otherwise leaves the jurisdiction of the court in which the offender resides
without obtaining permission from the court or the offender’s probation
officer to leave the jurisdiction of the court, or if the offender is confined in
any institution for the commission of any offense while under a community
control sanction, the period of the community control sanction ceases to run
until the offender is brought before the court for its further action. If the
court sentences the offender to one or more nonresidential sanctions under
section 2929.17 of the Revised Code, the court shall impose as a condition
of the nonresidential sanctions that, during the period of the sanctions, the
offender must abide by the law and must not leave the state without the
permission of the court or the offender’s probation officer. The court may
impose any other conditions of release under a community control sanction
that the court considers appropriate, including, but not limited to, requiring
that the offender not ingest or be injected with a drug of abuse and submit
to random drug testing as provided in division (D) of this section to
determine whether the offender ingested or was injected with a drug of
abuse and requiring that the results of the drug test indicate that the offender
did not ingest or was not injected with a drug of abuse.
(Emphasis added.)
{¶28} The above-cited statute does not require the term of community control
sanction to commence immediately. In fact, portions of the statute recognize that where
both a prison term and community control sanctions are imposed, the offender must serve
the prison term first.
{¶29} R.C. 2929.13(A) provides,
Except as provided in division (E), (F), or (G) of this section and unless a
specific sanction is required to be imposed or is precluded from being
imposed pursuant to law, a court that imposes a sentence upon an offender
for a felony may impose any sanction or combination of sanctions on the
offender that are provided in sections 2929.14 to 2929.18 of the Revised
Code.
(Emphasis added.)
{¶30} The Fifth District has addressed the exact issue presented here and held
that a court can impose community control sanctions for one count, a prison term for a
separate count and order the sentences to be served consecutively. State v. Connor, 5th
Dist. No. 04CAA04-028, 2004-Ohio-6752, ¶ 28-29, citing, State v. Kinder, 5th Dist. No.
03CAA12075, 2004-Ohio-4340.
{¶31} The law as set forth above supports the finding that the trial court has
discretion to impose a combination of sanctions, i.e., a prison term for one count and
community control for another, and to order the offender to serve them consecutively.
This assignment of error is overruled.
{¶32} “Assignment of Error III: The trial court committed a reversible error by
requiring appellant to submit to polygraph examinations as part of his community control
sanctions.”
{¶33} This aspect of defendant’s sentence will not take effect until defendant
completes his six year prison sentence.
{¶34} R.C. 2929.15(A)(1) vests the trial court to impose any condition of
community control sanctions it deems appropriate. Courts have broad discretion when
imposing conditions. State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d
1201. The parties agree that the relevant inquiry to determine whether a court abused
this discretion in imposing a condition three-fold: (1) is the condition reasonably related
to rehabilitating the offender, (2) does it have some relationship to the crime of which the
offender was convicted, and (3) does it relate to conduct that is criminal or reasonably
related to future criminality and serves the ends of probation. Talty, 2004-Ohio-4888, ¶
14, citing State v. Jones, 49 Ohio St.3d 51, 550 N.E.2d 469 (1990).
{¶35} The transcript reflects that submitting to polygraph testing was part of
defendant’s supervision and treatment through the county probation department’s sex
offender unit. It is reasonably related to monitoring defendant’s conduct in light of the
nature of his serious offenses.
{¶36} The Ohio Supreme Court addressed the constitutionality of requiring a
juvenile delinquent sex offender to submit to polygraph examinations as part of
community control sanctions in In re D.S., 111 Ohio St.3d 361, 2006-Ohio-0992, 856
N.E.2d 921, ¶ 5. Therein, the court’s dicta provides that “for the most part on cases
involving adult offenders, that full-disclosure polygraphs are common in the treatment of
sex offenders.” Id. at ¶ 6. The Ohio Supreme Court, however, drew a distinction
between juvenile and adult offenders. Nonetheless, still it found that the use of a
polygraph could be a reasonable probationary condition even for a juvenile under certain
circumstances. Id. at ¶ 15 (holding that
before a polygraph can be considered to be a reasonable probationary
condition [for a juvenile] there must be a showing that a polygraph is
needed for therapeutic reasons in a particular case, that is, for the treatment
and monitoring of the juvenile’s behavior. The juvenile court judge may
then select the condition on a case-by-case basis, based upon advice of a
therapist or other relevant expert.)
{¶37} Because this case involves an adult sex offender, the imposition of
polygraph testing as part of defendant’s treatment and supervision while on community
control sanctions is reasonable. This assignment of error is overruled.
{¶38} Judgment 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.
JAMES J. SWEENEY, JUDGE
PATRICIA ANN BLACKMON, A.J., CONCURS;
LARRY A. JONES, SR., J., CONCURS IN JUDGMENT ONLY