State v. Record

[Cite as State v. Record, 2020-Ohio-189.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108338
v. :
MATTHEW P. RECORD :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 23, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-634317
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Marcus A. Henry, Assistant Prosecuting
Attorney, for appellee.
Daniel J. Misiewicz, for appellant.
ANITA LASTER MAYS, J.:
Defendant-appellant Matthew P. Record (“Record”) appeals his
sentence, and asks this court to vacate the sentences imposed by the trial court. We
affirm.
Record pleaded guilty to two counts of gross sexual imposition, third-
degree felonies, in violation of R.C. 2907.05(A)(4); one count of illegal use of a minor
in nudity-oriented material or performance, a second-degree felony, in violation of
R.C. 2907.323(A)(1); and one count of endangering children, a second-degree
felony, in violation of R.C. 2919.22(B)(5). The trial court sentenced Record to two
years imprisonment each on the R.C. 2907.05(A)(4) violations; five years
imprisonment on the R.C. 2907.323(A)(1) violation; and six years imprisonment on
the R.C. 2919.22(B)(5) violation. The trial court ordered that all terms be served
consecutively, for an aggregate of 15 years imprisonment. Additionally, Record was
ordered to register as a Tier II sex offender.
I. Facts and Procedural History
Record’s biological daughter, A.H., alleged that Record had taken
nude photographs of her while she was in the bathroom. Additionally, A.H. reported
to the police that Record played the “food game” with her, where Record would
blindfold A.H., and have A.H. eat pizza toppings off of what Record would say was
his hand or a spatula, when in fact it was Record’s penis. (Tr. 36.) When Record
was arrested, he told the police that he did not have any nude photos of A.H.
However, after being informed of a warrant to retrieve his cell phone, Record
admitted to taking the photos, but said that he took the photos of A.H. because her
mother suspected that someone was abusing A.H., and needed photo evidence.
(Tr. 35.)
On January 26, 2019, at the plea hearing, Record pleaded guilty to an
amended indictment. The trial court conducted a full hearing pursuant to
Crim.R. 11. (Tr. 7-11.) The trial court also advised Record of the potential penalties
for pleading guilty to each count. (Tr. 12-13.) The trial court advised Record that
none of the counts merged for the purpose of sentencing, because they were not
allied offenses. (Tr. 14.) The trial court then advised Record that the counts could
run consecutive to each other, and that it was the agreement of Record and the state
that each count would be sentenced separately. Id.On February 26, 2019, after the court listened to the victim impact
statements from A.H.’s mother, A.H., and Record’s mother, the trial court sentenced
Record to 15 years imprisonment. Record filed this timely appeal assigning one
error for our review:
I. The record in this matter does not support the sentence
imposed by the trial court.
II. Consecutive Sentences
A. Standard of Review
Record argues that his sentence is contrary to law.
R.C. 2953.08(G)(2) provides, in part, that when reviewing felony
sentences, the appellate court’s standard is not whether the
sentencing court abused its discretion; rather, if this court “clearly and
convincingly” finds that (1) “the record does not support the
sentencing court’s findings under” R.C. Chapter 2929 or (2) “the
sentence is otherwise contrary to law,” then we may conclude that the
court erred in sentencing. See also State v. Marcum, 146 Ohio St.3d
516, 2016-Ohio-1002, 59 N.E.3d 1231.
State v. Johnson, 8th Dist. Cuyahoga No. 107528, 2019-Ohio-4668, ¶ 6.
B. Whether the Record Supports the Consecutive
Sentence Imposed by the Trial Court
Record contends that his sentence is contrary to law because the trial
court did not consider the purposes and principles of felony sentencing set forth in
R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12.
R.C. 2929.11 directs a court to consider the “overriding” purposes of
felony sentencing: (1) “protect[ion of] the public from future crime by
the offender or others,” and (2) “punish[ing] the offender.”
R.C. 2929.11(A). The sentencing court is to accomplish these
purposes using “minimum sanctions” and without placing any
“unnecessary burden on state or local government resources.” Id. To
achieve these purposes, a court must also consider the need for
incapacitation, deterrence, rehabilitation, and restitution. Id. An
appropriate sentence is thus one “reasonably calculated” to achieve
the overriding purposes of felony sentencing and is “commensurate
with,” while “not demeaning the seriousness” of, the conduct and its
impact. R.C. 2929.11(B).
Pursuant to R.C. 2929.12, the trial court has discretion to “determine
the most effective way to comply with the purposes and principles of
sentencing.” R.C. 2929.12(A). The court must consider applicable
factors from divisions (B) and (C) relating to the “seriousness of the
conduct,” and divisions (D) and (E) relating to recidivism. Id. The
statute also permits the trial court to consider “any other factors that
are relevant to achieving those purposes and principles of
sentencing.” Id.State v. McGowan, 8th Dist. Cuyahoga No. 105806, 2018-Ohio-2930, ¶ 11-12.
The trial court complied with the requirements of R.C. 2929.11 when
it stated,
I’ve formulated this decision based upon the overriding principles and
purposes of felony sentencing, namely to protect the public from
future crime by you and to punish you using the minimum sanctions
the Court determines accomplishes those purposes without imposing
an unnecessary burden on state or local government resources. I have
considered the need for incapacitation, deterrence, and rehabilitation.
There’s been no request for restitution in this case.
***
This sentence is not based upon any impermissible purposes; namely
the race, ethnic background, gender, or religion of Mr. Record.
(Tr. 50-52.)
The trial court also complied with the requirements of R.C. 2929.12
when it stated,
I’ve considered the seriousness and recidivism factors relevant to the
offense and the offender. When I talk about seriousness, I do consider
these crimes to be of the most serious in their designated felony level.
And when we talk about recidivism, while this is the first time you’ve
been prosecuted, Mr. Record, that you are capable of performing these
acts and taking pictures of your daughter — your biological daughter
gives me much concern for recidivism. Because if you can do it to your
daughter, who knows who else you can do it to. The Court is ensuring
that this sentence being imposed does not demean the seriousness of
the offense, the impact it has on the victim, and is consistent with
other similar offenses committed by like offenders.
(Tr. 51.)
Record argues that there is nothing in the record that gave the trial
court concern for recidivism. “We are aware that the trial court does not have to
make findings on the record regarding the R.C. 2929.11 and 2929.12 sentencing
factors. We are also aware that appellate courts may not substitute their judgment
for the trial court’s judgment nor may they independently weigh the sentencing
factors.” Johnson, 8th Dist. Cuyahoga No. 107528, 2019-Ohio-4668, at ¶ 33. At
sentencing, the trial court stated,
I’ve considered the seriousness and recidivism factors relevant to the
offense and the offender. * * * And when we talk about recidivism,
while this is the first time you’ve been prosecuted, Mr. Record, that
you are capable of performing these acts and taking pictures of your
daughter — your biological daughter gives me much concern for
recidivism. Because if you can do it to your daughter, who know who
else you can do it to.
(Tr. 52.)
The record reflects that the trial court did consider the recidivism
factors under R.C. 2929.12(B)(6) and (9). The trial court also considered that
Record sexually abused his biological daughter and took nude photographs of her.
Record argues that the trial court did not consider the fact that he only had one
infraction in his criminal history. However, it is our determination that there is
enough in the record to give the trial court concern for recidivism.
Additionally, Record argues that the trial court failed to make the
proper findings pursuant to R.C. 2929.14(C)(4).
There is a presumption in Ohio “that prison sentences should be
served concurrently unless the trial court makes the findings outlined
in R.C. 2929.14(C)(4) to warrant consecutive service of the prison
terms.” State v. Vinson, 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 67 (8th
Dist.), citing State v. Primm, 8th Dist. Cuyahoga No. 103548, 2016-
Ohio-5237, ¶ 64, citing State v. Cox, 8th Dist. Cuyahoga No. 102629,
2016-Ohio-20, ¶ 3; R.C. 2929.41(A).
State v. Hunt, 8th Dist. Cuyahoga No. 107125, 2019-Ohio-1643, ¶ 13.
However,
[t]he consecutive sentencing statute, 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 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 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.
Id. at ¶ 17.
At the sentencing hearing, the trial court stated,
The Court must make the following findings to support the record to
impose consecutive sentences: That it is necessary to punish the
offender or protect the public from future crime and this sentence is
not disproportionate in part to the seriousness of the conduct and the
danger posed by the defendant. And one of the two or more of the
offenses are part of one or more course of conduct. And the harm
caused is so great or unusual that a single prison term would not
adequately reflect the seriousness of the conduct. This means, sir, that
you are sentenced to an aggregate prison term of 15 years.
(Tr. 53.)
The trial court complied with R.C. 2929.14(C)(4).
The trial court must make the required statutory findings at the
sentencing hearing and incorporate those findings into its sentencing
journal entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,
16 N.E.3d 659, syllabus. To make the requisite “findings” under the
statute, “‘the [trial] court must note that it engaged in the analysis’
and that it ‘has considered the statutory criteria and specifie[d] which
of the given bases warrants its decision.’” Id. at ¶ 26, quoting State v.
Edmonson, 86 Ohio St.3d 324, 326, 1999-Ohio-110, 715 N.E.2d 131(1999). When imposing consecutive sentences, the trial court is not
required to give a “talismanic incantation of the words of the statute.”
Bonnell at ¶ 37. “[A]s long as the reviewing court can discern that the
trial court engaged in the correct analysis and can determine that the
record contains evidence to support the findings, consecutive
sentences should be upheld.” Id. at ¶ 29; see also State v. Thomas,
8th Dist. Cuyahoga No. 102976, 2016-Ohio-1221, ¶ 16 (“the trial
court’s failure to employ the exact wording of the statute does not
mean that the appropriate analysis is not otherwise reflected in the
transcript or that the necessary finding has not been satisfied”). When
considering whether the trial court has made the requisite findings,
we must view the trial court’s statements on the record “in their
entirety.” See, e.g., State v. Blevins, 2017-Ohio-4444, 93 N.E.3d 246,
¶ 21, 23 (8th Dist.).
State v. Hicks, 8th Dist. Cuyahoga No. 107055, 2019-Ohio-870, ¶ 12.
Before imposing Record’s sentence, the trial court stated,
Before imposing sentence, the Court notes for the record that I have
considered the record, the oral statements made here today, the
presentence investigation report, and the plea negotiations. I’m
considering the victim statement relaid [sic] by the State of Ohio and
the statements made by the witnesses today. I’ve formulated this
decision based upon the overriding principles and purposes of felony
sentencing, namely to protect the public from future crime by you and
to punish you using the minimum sanctions the Court determines
accomplishes those purposes without imposing an unnecessary
burden on state or local government resources. I have considered the
need for incapacitation, deterrence, and rehabilitation.
(Tr. 50-51.)
After reviewing the trial court’s statements on the record in their
entirety, we have determined that the trial court made the required statutory
findings to sentence Record to consecutive sentences. The trial court took note of
the fact that Record committed these crimes against his biological daughter and was
very concerned that if Record could do this to his own daughter, then who else would
he feel comfortable doing it to again. We find that the record supports the
imposition of consecutive sentences.
Therefore, Record’s assignment of error is overruled.
Judgment is affirmed.
It is ordered that the appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
_______________________________
ANITA LASTER MAYS, JUDGE
EILEEN T. GALLAGHER, A.J., and
EILEEN A. GALLAGHER, J., CONCUR