State v. Sweeney

[Cite as State v. Sweeney, 2021-Ohio-657.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2020-A-0023
- vs - :
JERRY M. SWEENEY, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2019 CR
00070.
Judgment: Affirmed.
Colleen M. O’Toole, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Prosecutor’s Office, 25 West Jefferson Street, Jefferson,
OH 44047 (For Plaintiff-Appellee).
Malcolm S. Douglas, 113 North Chestnut Street, Jefferson, OH 44047 (For Defendant-
Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Jerry M. Sweeney, appeals the March 20, 2020 judgment of the
Ashtabula County Court of Common Pleas sentencing him to two consecutive terms of
18-months imprisonment for one count of Gross Sexual Imposition and one count of
Trespass in a Habitation When a Person is Present or Likely to be Present. The issue on
appeal is the imposition of consecutive sentences. For the reasons stated herein, the
judgment is affirmed.
{¶2} On the evening of August 12, 2018, appellant entered the home of his
neighbor, the victim’s, where she was sleeping. She woke up when she heard the front
door and encountered appellant in the hallway. She testified that he fondled her breasts,
placed his hand down the front of her pants, and offered to perform oral sex on her. She
testified that she pushed him out the door, locked it and returned to bed but that appellant
reentered her home. No evidence was presented as to how he bypassed the locked door.
She testified she pushed him out again and called her mother, who came over and sat
with her until she called the police the next day. Officer Cahill interviewed appellant and
he eventually admitted to the conduct.
{¶3} Appellant was charged in a five-count indictment including Burglary,
Attempted Rape, Gross Sexual Imposition, Sexual Imposition, and Trespass in a
Habitation. Appellant entered pleas of not guilty and the case proceeded to trial where
the jury ultimately found him guilty of Count Three, Gross Sexual Imposition, in violation
of R.C. 2907.05(A)(1), a felony of the fourth degree; Count Four, Sexual Imposition, in
violation of R.C. 2907.06(A)(1), a misdemeanor of the third degree; and Count Five,
Trespass in a Habitation When a Person Present or Likely to be Present, in violation of
R.C. 2911.12(B), a felony of the fourth degree.
{¶4} The trial court found that Count Four merged with Count Three for the
purpose of sentencing and sentenced appellant to 18-months imprisonment on each of
Counts Three and Five, to be served consecutively. Appellant now appeals, assigning
one error for our review, which states:
{¶5} The trial court improperly imposed consecutive sentencing upon the
Appellant.
{¶6} Appellate courts review the imposition of consecutive sentences under R.C.
2953.08(G)(2), which states:
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{¶7} The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the
sentence or modification given by the sentencing court.
{¶8} The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the
sentence and remand the matter to the sentencing court for
resentencing. The appellate court’s standard for review is not
whether the sentencing court abused its discretion. The appellate
court may take any action authorized by this division if it clearly and
convincingly finds either of the following:
{¶9} (a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or
(C)(4) of section 2929.14, or division (I) of section 2929.20 of the
Revised Code, whichever, if any, is relevant;
{¶10} (b) That the sentence is otherwise contrary to law.
{¶11} Appellate courts “‘may vacate or modify any sentence that is not clearly and
convincingly contrary to law’” only when the appellate court clearly and convincingly finds
that the record does not support the sentence. State v. Wilson, 11th Dist. Lake No. 2017-
L-028, 2017-Ohio-7127, ¶18, quoting State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-
1002, ¶23.
{¶12} Further, R.C. 2929.14(C)(4) provides, in relevant part, as follows regarding
consecutive felony sentences:
{¶13} 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:
{¶14} (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.
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{¶15} (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.
{¶16} (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(C)(4).
{¶17} “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry, but it has no obligation to state
reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,
syllabus.
{¶18} Under his assigned error, appellant argues the imposition of consecutive
sentence contradicted the overriding purposes and principles of sentencing, and that
community control would not have demeaned the seriousness of the offenses for which
he was convicted. Specifically, appellant agues the trial court erred by determining the
victim suffered long-term injury when she already suffered from existing psychological
trauma and was on multiple, prescribed, mind-altering controlled substances at the time
of the offense.
{¶19} The trial court made the requisite findings, specifically holding that “the two
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.”
{¶20} Nothing in the record supports a conclusion that her prescribed, “mind-
altering” controlled substances taken before August 12, 2018 in any way mitigated or
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aggravated the results of appellant’s actions. Though appellant seems to argue that the
victim’s psychological trauma preceded the events of August 12, 2018, it is clear from her
statement that appellant’s actions had direct consequences on her life, including
hospitalization for depression, PTSD, hypervigilance, and nightmares. The existence of
preexisting psychological trauma does not negate the additional psychological trauma
caused by appellant’s actions on August 12, 2018.
{¶21} Appellant also argues that the court erred in its application of the
seriousness factors under R.C. 2929.12(D) and (E). We find no error in this regard. The
trial court stated that it balanced the seriousness and recidivism factors under R.C.
2929.12. During the sentencing hearing, the trial court noted that there was a low
likelihood of recidivism. Nevertheless, the court found that the long-term harm to the
victim outweighed the factors making the crimes less serious. This finding is supported
by the record, specifically the victim’s hospital stay, ongoing treatment, and continued
“emotional turmoil.” Appellant has failed to show the court’s conclusion is strikingly
inconsistent with the statutory factors.
{¶22} Appellant’s assignment of error is without merit.
{¶23} In light of the foregoing, the judgment of the Ashtabula County Court of
Common Pleas is affirmed.
MARY JANE TRAPP, P.J.,
MATT LYNCH, J.,
concur.
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