[Cite as State v. Apger, 2012-Ohio-1360.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97372
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
JOHN APGER
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-547475
BEFORE: Kilbane, J., Stewart, P.J., and Keough, J.
RELEASED AND JOURNALIZED: March 29, 2012 ATTORNEY FOR APPELLANT
Edward F. Borkowski, Jr. 323 W. Lakeside Avenue Suite 420 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor Mary McGrath Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY EILEEN KILBANE, J.:
{¶1} Defendant-appellant, John Apger (“Apger”), appeals his sentence. Finding
no merit to the appeal, we affirm.
{¶2} In February 2011, Apger was charged in a 16-count indictment. Counts 1, 3,
5, 7, 9, 11, 13, and 15 charged him with kidnapping, with each count carrying a sexual
motivation specification and a sexually violent predator specification. Counts 2, 4, 6,
and 8 charged him with rape, with each count carrying a sexually violent predator
specification. Counts 10, 12, 14, and 16 charged him with gross sexual imposition
(“GSI”), with each count carrying a sexually violent predator specification. The charges
arose from Apger’s conduct of raping his biological daughter, beginning when she was
nearly six years old (DOB 11/16/1998).
{¶3} Pursuant to a plea agreement, Apger pled guilty to three amended counts of
rape, and the remaining charges were nolled. The trial court amended Counts 2, 4, and 6
to R.C. 2907.02(A)(2) instead of the initial violation of R.C. 2907.02(A)(1)(b), and the
sexually violent predator specification was deleted from each count.
{¶4} At a hearing on September 22, 2011, the trial court sentenced Apger to ten
years on each of Counts 2, 4, and 6, to be served consecutively, for an aggregate of 30
years in prison. The trial court also classified Apger as a Tier III sexual offender.
Pursuant to defense counsel’s request, the trial court held a subsequent hearing on September 26, 2011. At this hearing the trial court sentenced Apger to eight years on
each of Counts 2, 4, and 6, to be served consecutively, for an aggregate of 24 years in
prison. The trial court also classified Apger as a Tier III sexual offender. We note that
the trial court had authority to hold the subsequent hearing and sentence Apger because
the sentence imposed at the September 22, 2011 hearing was never journalized by the
clerk pursuant to Crim.R. 32. See State ex rel. White v. Junkin, 80 Ohio St.3d 335, 337,
686 N.E.2d 267 (1997) (where the Ohio Supreme Court held that a trial court had
authority to vacate a finding of guilt and imposition of sentence and order the defendant
to face trial on a more serious charge because the judgment had never been journalized by
the clerk pursuant to Crim.R. 32); see also State v. Baker, 119 Ohio St.3d 197,
2008-Ohio-3330, 893 N.E.2d 163, syllabus, as modified by State v. Lester, 130 Ohio
St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142 and State v. Carlisle, 131 Ohio St.3d 127,
2011-Ohio-6553, 961 N.E.2d 671.
{¶5} Apger now appeals, raising the following two assignments of error for
review.
ASSIGNMENT OF ERROR ONE
The sentence imposed by the trial court is contrary to law.
ASSIGNMENT OF ERROR TWO
The trial court abused it discretion in imposing a 24-year sentence.
Standard of Review {¶6} The Ohio Supreme Court, in a split decision, has set forth the applicable
standard of appellate review of a felony sentence in State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124, ¶ 4:
In applying [State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470,] to the existing statutes, appellate courts must apply a two-step approach. First, they must examine the sentencing court’s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court’s decision shall be reviewed under an abuse-of-discretion standard.
Sentence
{¶7} In the first assignment of error, Apger argues that his sentence was contrary
to law because the trial court failed to consider the relevant factors under R.C. 2929.11
and 2929.12. R.C. 2929.11(A) provides that:
A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing[:] * * * to protect the public from future crime by the offender and others and to punish the offender * * *. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.
R.C. 2929.12 provides a nonexhaustive list of factors a trial court must consider when
determining the seriousness of the offense and the likelihood that the offender will
commit future offenses.
{¶8} This court has previously recognized that there is no requirement for judicial
findings in either R.C. 2929.11 or R.C. 2929.12, and that the trial court is required only to
carefully consider the statutory factors before imposing its sentence. State v. Bartoe, 8th Dist. No. 95286, 2011-Ohio-2521, ¶ 10, citing State v. Samuels, 8th Dist. No. 88610,
2007-Ohio-3904. Moreover, the Kalish court recognized that R.C. 2929.11 and 2929.12
are not factfinding statutes; rather, they “serve as an overarching guide for trial judges to
consider in fashioning an appropriate sentence.” Id. at ¶ 17. “In considering these
statutes in light of Foster, the trial court has full discretion to determine whether the
sentence satisfies the overriding purposes of Ohio’s sentencing structure.” Id.
{¶9} We do not find Apger’s sentence contrary to law. First, his 24-year
sentence is within the permissible statutory range. Second, the record reflects that the
trial court considered all required factors of law and found that prison was consistent with
the purposes of the factors in R.C. 2929.11. Accordingly, Apger’s sentence is not
contrary to law.
{¶10} Having satisfied step one, we next consider whether the trial court abused its
discretion. An ‘“abuse of discretion’ connotes more than an error of law or judgment; it
implies that the court’s attitude is unreasonable, arbitrary or unconscionable.’”
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State
v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶11} In the second assignment of error, Apger argues the trial court abused its
discretion by offering groundless speculation as to his likelihood of reoffending and by
refusing to recognize his statements of remorse.
{¶12} We find nothing in the record to suggest that the trial court abused its
discretion or offered groundless speculation.
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[Cite as State v. Apger, 2012-Ohio-1360.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97372
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
JOHN APGER
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-547475
BEFORE: Kilbane, J., Stewart, P.J., and Keough, J.
RELEASED AND JOURNALIZED: March 29, 2012 ATTORNEY FOR APPELLANT
Edward F. Borkowski, Jr. 323 W. Lakeside Avenue Suite 420 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor Mary McGrath Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY EILEEN KILBANE, J.:
{¶1} Defendant-appellant, John Apger (“Apger”), appeals his sentence. Finding
no merit to the appeal, we affirm.
{¶2} In February 2011, Apger was charged in a 16-count indictment. Counts 1, 3,
5, 7, 9, 11, 13, and 15 charged him with kidnapping, with each count carrying a sexual
motivation specification and a sexually violent predator specification. Counts 2, 4, 6,
and 8 charged him with rape, with each count carrying a sexually violent predator
specification. Counts 10, 12, 14, and 16 charged him with gross sexual imposition
(“GSI”), with each count carrying a sexually violent predator specification. The charges
arose from Apger’s conduct of raping his biological daughter, beginning when she was
nearly six years old (DOB 11/16/1998).
{¶3} Pursuant to a plea agreement, Apger pled guilty to three amended counts of
rape, and the remaining charges were nolled. The trial court amended Counts 2, 4, and 6
to R.C. 2907.02(A)(2) instead of the initial violation of R.C. 2907.02(A)(1)(b), and the
sexually violent predator specification was deleted from each count.
{¶4} At a hearing on September 22, 2011, the trial court sentenced Apger to ten
years on each of Counts 2, 4, and 6, to be served consecutively, for an aggregate of 30
years in prison. The trial court also classified Apger as a Tier III sexual offender.
Pursuant to defense counsel’s request, the trial court held a subsequent hearing on September 26, 2011. At this hearing the trial court sentenced Apger to eight years on
each of Counts 2, 4, and 6, to be served consecutively, for an aggregate of 24 years in
prison. The trial court also classified Apger as a Tier III sexual offender. We note that
the trial court had authority to hold the subsequent hearing and sentence Apger because
the sentence imposed at the September 22, 2011 hearing was never journalized by the
clerk pursuant to Crim.R. 32. See State ex rel. White v. Junkin, 80 Ohio St.3d 335, 337,
686 N.E.2d 267 (1997) (where the Ohio Supreme Court held that a trial court had
authority to vacate a finding of guilt and imposition of sentence and order the defendant
to face trial on a more serious charge because the judgment had never been journalized by
the clerk pursuant to Crim.R. 32); see also State v. Baker, 119 Ohio St.3d 197,
2008-Ohio-3330, 893 N.E.2d 163, syllabus, as modified by State v. Lester, 130 Ohio
St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142 and State v. Carlisle, 131 Ohio St.3d 127,
2011-Ohio-6553, 961 N.E.2d 671.
{¶5} Apger now appeals, raising the following two assignments of error for
review.
ASSIGNMENT OF ERROR ONE
The sentence imposed by the trial court is contrary to law.
ASSIGNMENT OF ERROR TWO
The trial court abused it discretion in imposing a 24-year sentence.
Standard of Review {¶6} The Ohio Supreme Court, in a split decision, has set forth the applicable
standard of appellate review of a felony sentence in State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124, ¶ 4:
In applying [State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470,] to the existing statutes, appellate courts must apply a two-step approach. First, they must examine the sentencing court’s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court’s decision shall be reviewed under an abuse-of-discretion standard.
Sentence
{¶7} In the first assignment of error, Apger argues that his sentence was contrary
to law because the trial court failed to consider the relevant factors under R.C. 2929.11
and 2929.12. R.C. 2929.11(A) provides that:
A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing[:] * * * to protect the public from future crime by the offender and others and to punish the offender * * *. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.
R.C. 2929.12 provides a nonexhaustive list of factors a trial court must consider when
determining the seriousness of the offense and the likelihood that the offender will
commit future offenses.
{¶8} This court has previously recognized that there is no requirement for judicial
findings in either R.C. 2929.11 or R.C. 2929.12, and that the trial court is required only to
carefully consider the statutory factors before imposing its sentence. State v. Bartoe, 8th Dist. No. 95286, 2011-Ohio-2521, ¶ 10, citing State v. Samuels, 8th Dist. No. 88610,
2007-Ohio-3904. Moreover, the Kalish court recognized that R.C. 2929.11 and 2929.12
are not factfinding statutes; rather, they “serve as an overarching guide for trial judges to
consider in fashioning an appropriate sentence.” Id. at ¶ 17. “In considering these
statutes in light of Foster, the trial court has full discretion to determine whether the
sentence satisfies the overriding purposes of Ohio’s sentencing structure.” Id.
{¶9} We do not find Apger’s sentence contrary to law. First, his 24-year
sentence is within the permissible statutory range. Second, the record reflects that the
trial court considered all required factors of law and found that prison was consistent with
the purposes of the factors in R.C. 2929.11. Accordingly, Apger’s sentence is not
contrary to law.
{¶10} Having satisfied step one, we next consider whether the trial court abused its
discretion. An ‘“abuse of discretion’ connotes more than an error of law or judgment; it
implies that the court’s attitude is unreasonable, arbitrary or unconscionable.’”
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State
v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶11} In the second assignment of error, Apger argues the trial court abused its
discretion by offering groundless speculation as to his likelihood of reoffending and by
refusing to recognize his statements of remorse.
{¶12} We find nothing in the record to suggest that the trial court abused its
discretion or offered groundless speculation. Here, Apger repeatedly raped his daughter for six years. The trial court considered Apger’s actions and his refusal to take
responsibility, the impact on the victim and her family, and Apger’s psychiatric reports.
One report indicates that Apger began molesting his six-year-old daughter by forcing her
to perform oral sex on him. He also would touch her vagina with his hand and force her
to sit on top of him as he lay naked on a bed. He would then rock her back and forth
until his penis became hard. He threatened to kill her if she ever told anyone.
{¶13} In addition, Apger’s psychiatric test results indicated that he has a
significant sexual interest in females five years of age or younger and six to thirteen years
of age, demonstrating that he is a risk in the future to children. While Apger argues that
he was remorseful for his actions, a review of the transcripts reveal that Apger attempted
to minimize his actions of forcing his daughter to preform oral sex on him by claiming
that “things got out of hand” when he was teaching her about the birds and the bees.
{¶14} Moreover, we note that as part of his plea agreement, the following 13
counts out of a total of 16 counts were nolled: eight counts of kidnapping, four counts of
GSI, and one count of rape. Apger faced the potential of multiple life sentences in
prison, but the sexually violent predator specification was deleted from the three
remaining rape charges. This left Apger with the potential of a maximum sentence of 30
years in prison. Here, the trial court sentenced him to 24 years in prison. Thus, based
on the foregoing, we do not find that Apger’s sentence was unreasonable, arbitrary, or
unconscionable.
{¶15} Accordingly, the first and second assignments of error are overruled. {¶16} 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 issue out of this court directing the common
pleas 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.
MARY EILEEN KILBANE, JUDGE
MELODY J. STEWART, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR