State v. Webster

[Cite as State v. Webster, 2022-Ohio-590.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
JOSHUA STEVEN WEBSTER,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 21 BE 0011
Criminal Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case No. 20 CR 236
BEFORE:
David A. D’Apolito, Gene Donofrio, Cheryl L. Waite, Judges.
JUDGMENT:
Affirmed.
Atty. J. Kevin Flanagan, Belmont County Prosecutor, and Atty. Daniel P. Fry, Assistant
Prosecuting Attorney, 147-A West Main Street, St. Clairsville, Ohio 43950, for Plaintiff-
Appellee and
Atty. Brian A. Smith, Brian A. Smith Law Firm, LLC, 123 South Miller Road, Suite 250,
Fairlawn, Ohio 44333, for Defendant-Appellant.
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Dated: February 22, 2022
D’Apolito, J.
{¶1} Appellant, Joshua Webster, appeals from the February 17, 2021 judgment
of the Belmont County Court of Common Pleas sentencing him to an indefinite prison
term of 11 years (mandatory minimum) to 16 and one-half years (maximum) for the rape
of a minor child under the age of 13 and designating him a Tier III Sex Offender following
a guilty plea. On appeal, Appellant takes issue with his sentence. Finding no reversible
error, we affirm.
FACTS AND PROCEDURAL HISTORY
{¶2} On November 5, 2020, Appellant was indicted by the Belmont County
Grand Jury on one count of rape, a felony of the first degree, in violation of R.C.
2907.02(A)(1)(b) and (B), with a specification alleging that he had compelled the victim to
submit to sexual conduct by force or threat of force.1 Appellant was appointed counsel
and pled not guilty at his arraignment.
{¶3} Appellant subsequently entered into plea negotiations with Appellee, the
State of Ohio. A change of plea hearing was held on February 4, 2021. Appellant
withdrew his former not guilty plea and entered a guilty plea to an amended count of rape,
a felony of the first degree, in violation of R.C. 2907.02(A)(2).2 Appellant understood that
he could be sentenced up to a maximum of 16 and one-half years in prison. The trial
court accepted Appellant’s guilty plea after finding it was made in a knowing, intelligent,
and voluntary manner pursuant to Crim.R. 11. The court ordered a PSI and deferred
sentencing. Appellant filed a sentencing memorandum and attached correspondence
from family and friends.
{¶4} A sentencing hearing was held on February 16, 2021. After considering the
record, the oral statements, Appellant’s sentencing memorandum with attached
1 The charge stems from Appellant’s involvement in which he engaged in sexual conduct with his ex-
girlfriend’s minor daughter, J.M., d.o.b. 11/28/2007 (“the victim”). At the age of 33, Appellant admitted to
engaging in oral and vaginal sexual intercourse with the 12-year-old victim on at least two or three separate
occasions. Apparently, the victim’s mother allegedly allowed this to happen and even participated at times.
2 The amended count did not include the specification contained in the indictment.
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testimonials, the testimony from the victim’s mother, the PSI with attached Risk
Assessment (“High” Risk Level), the purposes and principles of sentencing under R.C.
2929.11, the seriousness and recidivism factors under R.C. 2929.12, and the guidelines
contained in R.C. 2929.13 and 2929.14, the trial court sentenced Appellant to an indefinite
term of 11 years (mandatory minimum) to 16 and one-half years (maximum) in prison,
with 27 days of credit for time served. The court labeled Appellant a Tier III Sex Offender
and subjected him to five years of mandatory post-release control.
{¶5} Appellant filed a timely appeal and raises two assignments of error.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT’S SENTENCE OF APPELLANT, WHICH DID NOT
PROPERLY CONSIDER THE PRINCIPLES AND PURPOSES OF
FELONY SENTENCING UNDER R.C. 2929.11 OR THE SERIOUSNESS
AND RECIDIVISM FACTORS UNDER R.C. 2929.12, WAS CONTRARY
TO LAW.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT’S SENTENCE OF APPELLANT WAS NOT
SUPPORTED BY THE RECORD.
{¶6} Because Appellant’s first and second assignments of error concern his
sentence, we will consider them together for ease of discussion.
{¶7} This court utilizes R.C. 2953.08(G) as the standard of review in all felony
sentencing appeals. State v. Michaels, 7th Dist. Mahoning No. 17 MA 0122, 2019-Ohio-
497, ¶ 2, citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,
¶ 1.
{¶8} R.C. 2953.08(G) states in pertinent part:
(2) 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.
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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:
(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;
(b) That the sentence is otherwise contrary to law.
R.C. 2953.08(G)(2)(a)-(b).
{¶9} Although trial courts have full discretion to impose any term of imprisonment
within the statutory range, they must consider the sentencing purposes
in R.C. 2929.11 and the guidelines contained in R.C. 2929.12.
{¶10} R.C. 2929.11(A) provides that the overriding purposes of felony sentencing
are (1) “to protect the public from future crime by the offender and others”; and (2) “to
punish the offender * * * using the minimum sanctions that the court determines
accomplish those purposes without imposing an unnecessary burden on state or local
government resources.” Further, the sentence imposed shall be “commensurate with and
not demeaning to the seriousness of the offender’s conduct and its impact upon the victim,
and consistent with sentences imposed for similar crimes committed by similar offenders.”
R.C. 2929.11(B).
{¶11} R.C. 2929.12 provides a nonexhaustive list of sentencing factors the trial
court must consider when determining the seriousness of the offense and the likelihood
that the offender will commit future offenses. The court that imposes a felony sentence
“has discretion to determine the most effective way to comply with the purposes and
principles of sentencing.” R.C. 2929.12(A). The factors a trial court may consider include
the “more serious” factors, such as “[t]he physical or mental injury suffered by the victim
Case No. 21 BE 0011
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of the offense due to the conduct of the offender was exacerbated because of the physical
or mental condition or age of the victim” and “[t]he victim of the offense suffered serious
physical, psychological, or economic harm as a result of the offense.” R.C. 2929.12(B)(1)
and (2). The court may also consider the “less serious” factors, any recidivism factors,
and any mitigating factors listed in R.C. 2929.12(C)-(F).
R.C. 2929.11 does not require the trial court to make any specific findings
as to the purposes and principles of sentencing. State v. Wilson, 129 Ohio
St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31. Similarly, R.C. 2929.12
does not require the trial court to “use specific language or make specific
findings on the record in order to evince the requisite consideration of the
applicable seriousness and recidivism factors.” State v. Arnett, 88 Ohio
St.3d 208, 215, 724 N.E.2d 793 (2000).
State v. Shaw, 7th Dist. Belmont No. 15 BE 0065, 2017-Ohio-1259, ¶ 36.
{¶12} “‘The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum or more than minimum sentences.’ State v. King, 2013-
Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.).” State v. Burkhart, 7th Dist. Belmont No. 18
BE 0020, 2019-Ohio-2711, ¶ 16.
{¶13} In State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, the Supreme Court
of Ohio indicated that the language in Marcum is dicta. Id. at ¶ 27 (“The statements
in Marcum at ¶ 23 suggesting that it would be ‘fully consistent’ with R.C. 2953.08(G) for
an appellate court to modify or vacate a sentence when the record does not support the
sentence under R.C. 2929.11 or 2929.12 were made only in passing and were not
essential to this court’s legal holding.”) In Jones, the Court held that “R.C.
2953.08(G)(2)(b) * * * does not provide a basis for an appellate court to modify or vacate
a sentence based on its view that the sentence is not supported by the record under R.C.
2929.11 and 2929.12.” Id. at ¶ 39. The Court explained that “an appellate court’s
determination that the record does not support a sentence does not equate to a
determination that the sentence is ‘otherwise contrary to law’ as that term is used in R.C.
2953.08(G)(2)(b).” Id. at ¶ 32. Thus, under Jones, an appellate court errs if it relies on
Case No. 21 BE 0011
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the dicta in Marcum and modifies or vacates a sentence “based on the lack of support in
the record for the trial court’s findings under R.C. 2929.11 and 2929.12.” Id. at ¶ 29; see
also State v. Dorsey, 2nd Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 17.
{¶14} Pursuant to Jones, when reviewing felony sentences that are imposed
solely after considering the factors in R.C. 2929.11 and R.C. 2929.12, appellate courts
shall no longer analyze whether those sentences are unsupported by the record. Rather,
we simply must determine whether those sentences are contrary to law. See Dorsey,
supra, at ¶ 18.
A sentence is considered to be contrary to law if it falls outside of the
statutory range for the particular degree of offense; if the trial court failed to
properly consider the purposes and principles of felony sentencing as
enumerated in R.C. 2929.11 and the seriousness and recidivism factors set
forth in R.C. 2929.12; or if the trial court orders consecutive sentences and
does not make the necessary consecutive sentence finding.
Burkhart, supra, at ¶ 12.
{¶15} In this case, Appellant alleges his indefinite prison sentence of 11 years
(mandatory minimum) to 16 and one-half years (maximum) is not supported by the record
and is contrary to law. Appellant stresses the trial court did not properly consider the
purposes and principles of felony sentencing under R.C. 2929.11 because it focused
solely on punishment and gave no consideration to rehabilitation. Appellant also stresses
the court did not consider several of the seriousness and recidivism factors under R.C.
2929.12, including: (E)(4) its failure to consider that the offense was committed under
circumstances not likely to recur (because Appellant is no longer the boyfriend of the
victim’s mother, and the victim was currently living in a foster home and Appellant would
have no contact with her); and (E)(5) its refusal to consider Appellant’s remorse (because
Appellant said he accepts responsibility for his actions).
{¶16} Contrary to Appellant’s assertions, his prison sentence is supported by the
record and is not contrary to law. The trial court gave due deliberation to the relevant
statutory considerations and its findings were supported by the record. Appellant entered
a guilty plea which the court accepted after finding it was made pursuant to Crim.R. 11.
Case No. 21 BE 0011
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At the sentencing hearing, the judge heard from the prosecutor on behalf of the State,
from defense counsel on behalf of Appellant, and from the victim’s mother (Appellant’s
ex-girlfriend). The victim’s mother spoke on behalf of Appellant. Although Appellant
admitted that he raped her daughter, the victim’s mother requested that Appellant receive
“the lower end of the sentence” and indicated he has been “a great friend” to her.
(2/16/2021 Sentencing Hearing T.p., p. 6, 10). The judge asked Appellant if he wished
to say anything. Appellant replied, “No, Your Honor.” (Id. at p. 12). The judge concluded
by stating the following:
THE COURT: All right. And the Court just wants to make it clear that there
were testimonial letters on behalf of Mr. Webster attached to the sentencing
memorandum filed on his behalf from some church pastors and some
individual people as well.
The Court has reviewed all of those.
All right. The factors in this record that indicate that the conduct is more
serious and that recidivism is more likely include the following:
As a juvenile, he has adjudication for rape as a first degree felony, he was
then 12 years old. He received a suspended DYS commitment.
He has admitted to engaging, at the least, in oral and vaginal sex with the
12-year old daughter of his former girlfriend * * * and I use “former” based
on simply what’s in the reports that I received, and that that has occurred
two or three occasions at least.
His relationship with the victim facilitated his offense.
He has a high risk assessment according to the probation department, that
is due to mental health issues, and critically for this Court, no desire to
change.
Although he claims to have been drunk for one of his rapes, and therefore
asks the Court to excuse his conduct because of that, he does seem to have
Case No. 21 BE 0011
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total recall of all of the details of that event and he also does not mention
alcohol use during his other rapes of this child.
His admissions and statements were relatively cavalierly made. They
appeared to the Court to be very selfish with no mention of regret or sorry
or contrition. And there has been no showing of any remorse on his part.
The factors that indicate less serious conduct, less likelihood of recidivism,
as his attorney pointed out, he does appear to have led a law-abiding life
since his first rape adjudication, which was in 1999. That’s the one in
juvenile court I was talking about.
Again, the purposes of felony sentencing are to protect the public from
future crimes by you and others by teaching a lesson and to punish you
using, however, the minimum sanctions that accomplish those purposes
without imposing an unnecessary burden on state or local government
resources.
To send a warning to others, and a message to your victim, Court believes
that you must be severely punished, Mr. Webster. More than a minimum
sentence is necessary, appropriate and reasonable.
The shortest sentence will not adequately punish you and protect the public
from future crimes and would demean the seriousness of what you’ve done
to this young victim.
The factors decreasing serious are greatly outweighed by those increasing
seriousness. There is more likelihood of recidivism if you receive the
shortest sentence.
All of my findings I believe are in accordance with the statutory and case
law of the State of Ohio.
Therefore, Mr. Webster, you will be sentenced as follows: You will be
sentenced to serve a minimum mandatory term of 11 years in the
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penitentiary.
The maximum term is therefore 16 and a half years. * * *
You have credit for 27 days served through and including today’s date. You
will be classified as a Tier 3 sex offender requiring lifetime reporting every
90 days and you will be placed on post-release control after you finish your
sentence, and that will be for five years.
Now, again, so the sentencing laws in the [S]tate of Ohio changed almost
two years ago. We now have, for a crime like this, what is called indefinite
sentencing.
So the Court sentences you to the minimum, in this case 11 years;
automatically the maximum then is 16 and a half years.
***
The Court was very negatively impressed, Mr. Webster, by the fact that you
just appeared - - it almost appears as if you feel you didn’t do anything
wrong, and now we have a 12-year-old young girl who is going [to] live with
this now for some time.
***
Mr. Webster, you have the right to appeal the decisions of this Court.
(2/16/2021 Sentencing Hearing T.p., p. 12-15, 20-21).
{¶17} The trial court made a similar pronouncement in its February 17, 2021
judgment, stating:
* * * Defendant was afforded all rights pursuant to Criminal Rule 32. The
Court has considered the record, oral statements, Defendant’s Sentencing
Memorandum with attached testimonials, the testimony from * * * the mother
of the victim, and the Presentence Investigation Report with attached Risk
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Assessment, as overrided, as High, as well as the principles and purposes
of sentencing in Revised Code 2929.11 and has balanced the seriousness
and recidivism factors under Revised Code 2929.12.
***
The Court finds that on February 4, 2021, Defendant was found guilty by
plea of Rape, in violation of O.R.C. 2907.02(A)(2), a felony of the first
degree.
The Court, in sentencing, may, in its discretion to determine the most
effective way to comply with the principles and purposes of sentencing set
forth in Revised Code 2929.11, consider the factors contained in Ohio
Revised Code 2929.12(B), (C), (D), and (E), and any other factors relevant
to achieving those purposes and principles.
In light of that guidance, the Court finds that the factors contained in Ohio
Revised Code 2929.12(B) and (D) which indicate more serious conduct and
more likelihood of recidivism include the following:
1. As a juvenile, Defendant has an adjudication for Rape as a first degree
felony (Defendant was then 12 years old). He received a suspended DYS
commitment;
2. Defendant has admitted to engaging, at the least, in oral and vaginal sex
with the twelve year old daughter of his former girlfriend, on at least two (2)
or three (3) occasions;
3. Defendant’s relationship with the victim facilitated his offense;
4. The Presentence Investigator found Defendant to have a High risk
assessment due to mental health issues/no desire to change;
5. Although Defendant claims to have been drunk for one (1) of the Rapes,
he seems to have total recall of all of the details. He does not mention
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alcohol use during the other rapes;
6. Defendant’s admissions were cavalierly made, selfishly, and with no
mention of regret, sorrow, or contrition; and
7. Defendant has not shown genuine remorse.
In accordance with Ohio Revised Code 2929.12(C) and (E), the factors
which suggest that Defendant’s conduct is less serious and that recidivism
is less likely, including the following:
1. Defendant appears to have abided by the law since his Rape adjudication
in 1999.
The Court further finds in accordance with Ohio Revised Code 2929.11(A),
that the overriding purposes of felony sentencing are to protect the public
from future crime by the offender and others and to punish the offender,
using the minimum sanctions that the Court determines accomplishes these
purposes, without imposing an unnecessary burden on State or local
government resources. This Court finds that Defendant must be severely
punished as a message to his victim and a warning to others.
In light of that guidance, the Court finds that more than the minimum
sentence is deemed necessary and is otherwise appropriate and
reasonable. Therefore, in accordance with Ohio Revised Code 2929.13(D)
the Court finds that a short sentence will not adequately punish Defendant
and protect the public from future crimes and will demean the seriousness
of the offense and that factors decreasing seriousness are greatly
outweighed by those increasing seriousness and that there is more
likelihood of recidivism if Defendant is given a short sentence.
The Court makes all findings based upon the sentencing factors contained
in Ohio Revised Code 2929.11, 2929.12, 2929.13 and 2929.14, as such
have been amended and/or modified by State v. Foster, 109 Ohio St.3d 1,
Case No. 21 BE 0011
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and in accordance with House Bill 86, effective September 30, 2011, and
Senate Bill 160, effective March 22, 2013.
(2/17/2021 Sentencing Entry, p. 2-4).
{¶18} The record in this case reflects the trial court gave due deliberation to the
relevant statutory considerations. The court considered the purposes and principles of
felony sentencing under R.C. 2929.11 and balanced the seriousness and recidivism
factors under R.C. 2929.12. The court also considered the factors under R.C. 2929.13
and 2929.14.
{¶19} In addition, Appellant was sentenced to an indefinite prison term of 11 years
(mandatory minimum) to 16 and one-half years (maximum) following a guilty plea for rape,
a felony of the first degree, in violation of R.C. 2907.02(A)(2). Thus, Appellant’s sentence
is within the statutory range for the first-degree felony offense, which was committed on
or about April 1, 2019 through February 14, 2020. See (2/16/2021 Sentencing Hearing
T.p., p. 2); (2/17/2021 Sentencing Entry, p. 1); R.C. 2929.14(A)(1)(a) (“For a felony of the
first degree committed on or after the effective date of this amendment [rape – R.C.
2907.02 - March 22, 2019], the prison term shall be an indefinite prison term with a stated
minimum term selected by the court of three, four, five, six, seven, eight, nine, ten, or
eleven years and a maximum term that is determined pursuant to section 2929.144 of the
Revised Code[.]”); R.C. 2929.144(B)(1), “Determining maximum prison term,” effective
March 22, 2019 (“The court imposing a prison term on an offender under division (A)(1)(a)
* * * of section 2929.14 of the Revised Code for a qualifying felony of the first * * * degree
shall determine the maximum prison term that is part of the sentence * * * [i]f the offender
is being sentenced for one felony and the felony is a qualifying felony of the first * * *
degree, the maximum prison term shall be equal to the minimum term imposed on the
offender under division (A)(1)(a) * * * of section 2929.14 of the Revised Code plus fifty
per cent of that term.”) Also, the record reveals the trial court properly advised Appellant
regarding post-release control.
{¶20} Accordingly, because the trial court considered the purposes and principles
of felony sentencing under R.C. 2929.11 and balanced the seriousness and recidivism
factors under R.C. 2929.12, and because Appellant’s indefinite prison sentence of 11
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years (mandatory minimum) to 16 and one-half years (maximum) is supported by the
record and within the authorized statutory range for a first-degree felony, his sentence is
not contrary to law.
{¶21} Appellant’s first and second assignments of error are without merit.
CONCLUSION
{¶22} For the foregoing reasons, Appellant’s assignments of error are not well-
taken. The February 17, 2021 judgment of the Belmont County Court of Common Pleas
sentencing Appellant to an indefinite term of 11 years (mandatory minimum) to 16 and
one-half years (maximum) in prison for rape and designating him a Tier III Sex Offender
following a guilty plea is affirmed.
Donofrio, P.J., concurs.
Waite, J., concurs.
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For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of
the Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs to be waived.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 21 BE 0011