State v. F.R.

[Cite as State v. F.R., 2014-Ohio-799.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 13AP-525
v. : (C.P.C. No. 12CR-12-6149)
F.R., : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on March 4, 2014
Ron O'Brien, Prosecuting Attorney, and Valerie Swanson, for
appellee.
Yeura R. Venters, Public Defender, and Emily L. Huddleston,
for appellant.
APPEAL from the Franklin County Court of Common Pleas
SADLER, P.J.
{¶ 1} Defendant-appellant, F.R., appeals from the judgment of the Franklin
County Court of Common Pleas convicting him of four counts of gross sexual imposition
in violation of R.C. 2907.05 and sentencing him to a total of nine years incarceration. For
the following reasons, we affirm in part, reverse in part, and remand for resentencing.
I. BACKGROUND
{¶ 2} Appellant was indicted on four counts of gross sexual imposition, in
violation of R.C. 2907.05, and one count of sexual battery, in violation of R.C. 2907.03.
Appellant, pursuant to a negotiated plea agreement, withdrew his former plea of not
guilty and entered a guilty plea to two counts of gross sexual imposition, third-degree
No. 13AP-525 2
felonies, because they involved a child less than 13 years of age, in violation of R.C.
2907.05(A)(4), and two counts of gross sexual imposition, fourth-degree felonies, in
violation of R.C. 2907.05. In exchange for the plea, plaintiff-appellee, the State of Ohio,
requested the trial court enter a nolle prosequi on the remaining charge in the indictment.
{¶ 3} The trial court held a plea hearing in which appellee informed the trial court
that, as part of the plea agreement, "[t]he parties stipulate in regards to counts one and
two that there is corroboration and, as such, those counts would [carry] mandatory"
prison time. (Apr. 16, 2013 Tr. 5.) When asked if he approved of the plea, appellant's
counsel responded, "Yes, Your Honor." (Apr. 16, 2013 Tr. 5.) The trial court proceeded
with the plea hearing and accepted appellant's guilty plea to four counts of gross sexual
imposition. A presentence investigation report was ordered, and a sentencing hearing
was set for May 16, 2013.
{¶ 4} At the sentencing hearing, appellant argued that the R.C. 2907.05(C)(2)(a)
"mandatory sentencing provisions based on corroborative evidence should not apply in
this case * * * because * * * they are enhancing sentencing factors that should be
presented to a jury." (May 16, 2013 Tr. 3.) Moreover, appellant argued that the
mandatory sentencing provisions based on corroborative evidence lack a "rational basis"
and "violate equal protection," but acknowledged that such arguments had been
previously rejected in State v. Bevly, 10th Dist. No. 12AP-471 (Mar. 28, 2013). (May 16,
2013 Tr. 3.) Appellee responded that, pursuant to Bevly, appellant "would face
mandatory prison time as to counts one and two" because "there is corroborative
evidence." (May 16, 2013 Tr. 4.)
{¶ 5} Appellee introduced state's exhibit A, "which is a phone call where
[appellant] admitted to the conduct involving the allegations made by his daughters of
gross sexual imposition." (May 16, 2013 Tr. 4.) Appellant stipulated that state's exhibit A
is a "disk [that] contain[s] what [appellee] represented it contains" and that "it is a
statement by [appellant] that corroborates the accusations in this case." (May 16, 2013
Tr. 4-5.) The trial court admitted exhibit A, acknowledged that it had received two victim
impact statements, and allowed the mother of the victims to address the court.
{¶ 6} Thereafter, the trial court sentenced appellant to a period of incarceration of
60 months on Count 1, 48 months on Count 2, and a period of 18 months on Counts 4 and
No. 13AP-525 3
5 with "[c]ounts one, four, and five * * * run[ning] concurrently and will run consecutively
with count two for a total of nine years." (May 16, 2013 Tr. 16.) On May 17, 2013, the trial
court issued a judgment entry memorializing appellant's sentence. The entry, in relevant
part, stated "[t]he Court further finds that a prison term is mandatory as to Counts One
and Two." (Emphasis sic.) (May 17, 2013 Judgment Entry, 2.) This appeal followed.
II. ASSIGNMENTS OF ERROR
{¶ 7} Appellant asserts the following assignments of error for our review:
[I.] Ohio Revised Code section 2907.05(C)(2)(a) violates the
accused's right to trial by jury guaranteed by the Sixth and
Fourteenth Amendments to the United States Constitution
and Sections 5 and 10, Article I of the Ohio Constitution.
[II.] Ohio Revised Code section 2907.05(C)(2)(a) lacks
rationality and therefore its enforcement violates the Due
Process Provisions of the Fifth and Fourteenth Amendments
to the United States Constitution and Section 16, Article I of
the Ohio Constitution.
[III.] The State of Ohio failed to present the statutorily-
required testimony of the victim necessary for the imposition
of a mandatory prison term in violation of R.C.
2907.05(C)(2)(a).
[IV.] The trial court failed to make a finding on the record that
corroborating evidence existed to enhance the penalty to a
mandatory prison term pursuant to R.C. 2907.05(C)(2)(a).
[V.] The trial court erred by imposing consecutive sentences
without making findings required by R.C. 2929.14(C)(4).
III. DISCUSSION
A. First, Second, and Third Assignments of Error
{¶ 8} Appellant's first three assignments of error challenge the constitutionality
and application of R.C. 2907.05(C)(2)(a). "R.C. 2907.05(C)(2)(a) provides that a trial
court shall impose a mandatory prison term on an offender convicted of gross sexual
imposition against a victim less than 13 years old when '[e]vidence other than the
testimony of the victim was admitted in the case corroborating the violation.' " State v.
North, 10th Dist. No. 13AP-110, ¶ 5 (Oct. 17, 2013). As recognized by appellant, we have
No. 13AP-525 4
previously addressed identical challenges to R.C. 2907.05(C)(2)(a) in Bevly and its
progeny, North.
{¶ 9} In appellant's first assignment of error, he argues a jury is required to
determine the existence of corroborating evidence under R.C. 2907.05(C)(2)(a). In
appellant's second assignment of error, he asserts "there is simply no rational basis for the
[R.C. 2907.05(C)(2)(a)] statutory classification requiring corroborating evidence to
enhance the minimum sentence." (Appellant's brief, 27.)
{¶ 10} As referenced above, we previously addressed these arguments in Bevly. In
Bevly, the defendant pleaded guilty to two counts of gross sexual imposition against a
victim less than 13 years old. At the plea hearing, the prosecution introduced the
testimony of a detective, who stated that the defendant confessed to the offenses. The
prosecution also introduced a recording of the defendant's confession. The trial court
declined to impose a mandatory prison sentence under R.C. 2907.05(C)(2)(a), holding
that R.C. 2907.05(C)(2)(a) was unconstitutional for two reasons:
First, the Court does not believe there is any rational basis for
the distinction between cases where there is corroborating
evidence from those where there is no corroborating evidence.
Second, the Court finds that the distinction violates the
Defendant's right to have the fact decided by a jury as
guaranteed by the Sixth Amendment.
Id. at ¶ 5.
{¶ 11} On appeal, in reversing the decision of the trial court, we determined R.C.
2907.05(C)(2)(a) is constitutional and concluded that the existence of corroborating
evidence is a "sentencing factor" that must be determined by the trial court. Id. at ¶ 15.
{¶ 12} In North, we addressed this same issue raised in appellant's first
assignment of error, in light of the United States Supreme Court's decision in Alleyne v.
United States, 133 S.Ct. 2151 (2013). The defendant argued that a "jury must determine
beyond a reasonable doubt that there was corroborating evidence before the trial court
may impose a mandatory prison term under R.C. 2907.05(C)(2)(a)." North at ¶ 8. We
disagreed and. upholding our decision in Bevly and reversing the decision of the trial
court, we "conclude[d] that the determination called for under R.C. 2907.05(C)(2)(a) does
not involve the same type of 'fact' that must be determined by the jury." North at ¶ 10.
No. 13AP-525 5
{¶ 13} In appellant's third assignment of error, he argues appellee was required to
introduce the testimony of the victim before the trial court could impose a mandatory
prison term under R.C. 2907.05(C)(2)(a). We previously addressed this issue in North.
In North, the defendant entered a plea of guilty to two counts of gross sexual imposition
against a victim less than 13 years old. At the plea hearing, the parties stipulated that, if
called to testify, a detective would have testified that the victim stated that the defendant
sexually assaulted her and that the defendant admitted to touching and fondling the
victim. Further, the detective would have authenticated an audio recording of the
defendant's statement to police. The victim's testimony was not presented in the case.
{¶ 14} On appeal, the defendant in North argued that "the introduction of the
victim's testimony constitutes a predicate event before a mandatory prison sentence may
be imposed under R.C. 2907.05(C)(2)(a)." Id. at ¶ 11. In rejecting the defendant's
argument, we held "that introduction of the victim's testimony in a case is not required to
trigger a mandatory prison sentence under" R.C. 2907.05(C)(2)(a). Id. at ¶ 15.
{¶ 15} In the present case, appellant acknowledges that Bevly and North have
previously decided the issues raised in his first three assignments of error. Although
appellant invites us to reconsider our prior decisions, we decline such an invitation to
depart from our pronouncements in Bevly and North. Thus, based upon the authority of
Bevly and North, appellant's first, second, and third assignments of error are overruled.
B. Fourth Assignment of Error
{¶ 16} In appellant's fourth assignment of error, he argues, because the
"sentencing court's Judgment Entry does not accurately reflect what occurred on the
record," the sentence must be "vacated and remanded for resentencing." (Appellant's
brief, 32, 33.) Specifically, appellant asserts "[a]lthough the trial court admitted [exhibit
A], it never * * * made a * * * finding on the record that the evidence corroborated the
victim's testimony * * * pursuant to R.C. 2907.05(C)(2)(a)." (Appellant's brief, 31.)
{¶ 17} R.C. 2907.05(C)(2)(a) provides, in relevant part: "[t]he court shall impose
on an offender convicted of gross sexual imposition in violation of division (A)(4) or (B)
* * * a mandatory prison term * * * if * * * [e]vidence other than the testimony of the
victim was admitted in the case corroborating the violation." Appellant acknowledges
that he stipulated that corroborating evidence existed in this case. "A stipulation is an
No. 13AP-525 6
agreement between opposing parties as to an undisputed fact for which no evidence need
be presented." State v. Blocker, 10th Dist. No. 06AP-313, 2007-Ohio-144, ¶ 52. "A
stipulation, once entered into and accepted by the court, is binding upon the parties and is
a fact deemed adjudicated for purposes of determining the remaining issues in a case."
Id.{¶ 18} Here, while being sentenced, appellant's counsel stated "I would go ahead
and stipulate" that exhibit A "is a statement by [appellant] that corroborates the
accusations in this case." (May 16, 2013 Tr. 4, 5.) The trial court accepted the stipulation,
stating "[v]ery good. It will be admitted." (May 16, 2013 Tr. 5.) Thus, the trial court
admitted exhibit A, which corroborated the accusations in this case. Once the trial court
accepted the stipulation, it was "binding upon the parties and [was] a fact deemed
adjudicated." Blocker at ¶ 52. As such, we find the record demonstrates that the trial
court complied with the requirements of R.C. 2907.05(C)(2)(a).
{¶ 19} Accordingly, appellant's fourth assignment of error is overruled.
C. Fifth Assignment of Error
{¶ 20} In appellant's fifth assignment of error, he contends the trial court erred as
a matter of law by imposing consecutive sentences without making the statutory findings
mandated by R.C. 2929.14(C)(4).
{¶ 21} Preliminarily, we note that appellant failed to object to the imposition of
consecutive sentences at the sentencing hearing and, therefore, has forfeited all but plain
error. State v. Wilson, 10th Dist. No. 12AP-551, 2013-Ohio-1520, ¶ 8. Under Crim.R.
52(B), "[p]lain errors or defects affecting substantial rights may be noticed although they
were not brought to the attention of the court." For an error to be "plain" within the
meaning of Crim.R. 52(B), it " 'must be an "obvious" defect in the trial proceedings.' "
State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 16, quoting State v. Barnes, 94
Ohio St.3d 21, 27 (2002). A reviewing court notices plain error " 'with the utmost caution,
under exceptional circumstances and only to prevent a manifest miscarriage of justice.' "
Barnes at 27, quoting State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the
syllabus. "The burden of demonstrating plain error is on the party asserting it." Payne at
¶ 17.
No. 13AP-525 7
{¶ 22} Generally, we review felony sentences to determine " 'whether clear and
convincing evidence establishes that a felony sentence is contrary to law.' " State v. Ayers,
10th Dist. No. 13AP-371, 2014-Ohio-276, ¶ 8, quoting State v. Allen, 10th Dist. No. 10AP-
487, 2011-Ohio-1757, ¶ 19. "A sentence is contrary to law when the trial court failed to
apply the appropriate statutory guidelines." Id., quoting State v. Burton, 10th Dist. No.
06AP-690, 2007-Ohio-1941, ¶ 19.
{¶ 23} R.C. 2929.14(C)(4) provides:
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.
{¶ 24} Thus, "R.C. 2929.14(C)(4) now requires the trial court to make three
findings before imposing consecutive sentences: (1) that consecutive sentences are
necessary to protect the public from the future crime or to punish the offender; (2) 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 (3) that one of the
subsections (a), (b), or (c) apply." State v. Roush, 10th Dist. No. 12AP-201, 2013-Ohio-
No. 13AP-525 8
3162, ¶ 76. "The trial court is not required to give reasons explaining these findings, nor is
the court required to recite any 'magic' or 'talismanic' words when imposing consecutive
sentences." Id. "Nevertheless, the record must reflect that the court made the findings
required by the statute." Id.{¶ 25} Here, appellee does not argue that the trial court complied with the
requirements in R.C. 2929.14(C)(4), and, upon review of the record, we find the trial court
failed to make any of the requisite R.C. 2929.14(C)(4) findings prior to imposing
consecutive sentences. We have consistently determined "that when the record
demonstrates that the trial court failed to make the findings required by R.C.
2929.14(C)(4) before imposing consecutive sentences on multiple offenses, 'appellant's
sentence is contrary to law and constitutes plain error.' " Ayers at ¶ 15, quoting Wilson at
¶ 18; see also State v. Bailey, 10th Dist. No. 12AP-699, 2013-Ohio-3596, ¶ 46; State v.
Hunter, 10th Dist. No. 13AP-196, 2013-Ohio-4013, ¶ 9; State v. Bender, 10th Dist. No.
12AP-934, 2013-Ohio-2777, ¶ 7; State v. Castlin, 10th Dist. No. 13AP-331, 2013-Ohio-
4889, ¶ 9; State v. Phipps, 10th Dist. No. 13AP-351, 2013-Ohio-5546, ¶ 15.
{¶ 26} Here, without making any of the requisite R.C. 2929.14(C)(4) findings, the
trial court imposed a period of incarceration of 60 months on Count 1, 48 months on
Count 2, and a period of 18 months on Counts 4 and 5, with "[c]ounts one, four, and five
* * * run[ning] concurrently and will run consecutively with count two for a total of nine
years." (May 16, 2013 Tr. 16.) Because the trial court did not make any of the requisite
R.C. 2929.14(C)(4) findings before imposing consecutive sentences, "appellant's sentence
is contrary to law and constitutes plain error." Wilson at ¶ 18. As such, we must vacate
appellant's sentence and remand this case for resentencing.
{¶ 27} Accordingly, based on the foregoing, appellant's fifth assignment of error is
sustained.
IV. CONCLUSION
{¶ 28} Having overruled appellant's first, second, third, and fourth assignments of
error, but having sustained appellant's fifth assignment of error, we affirm the judgment
of the Franklin County Court of Common Pleas in part, but vacate appellant's sentence
and remand the case for resentencing. On remand, the trial court must determine
No. 13AP-525 9
whether consecutive sentences are appropriate under R.C. 2929.14(C)(4) and enter the
required findings on the record.
Judgment affirmed in part and overruled in part,
cause remanded with instructions.
TYACK and CONNOR, JJ., concur.
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