State v. Artripe

2015 Ohio 4155

• Court: Ohio Court of Appeals
• Decided: October 2, 2015
• Docket: 15CA7
• Status: Published

Opinion

[Cite as State v. Artripe, 2015-Ohio-4155.]

COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 15CA7 : ROGER R. ARTRIPE : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Knox County Court of Common Pleas, Case No. 13CR05- 0083

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: October 2, 2015

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

CHARLES T. MCCONVILLE JOHN A. DANKOVICH KNOX CO. PROSECUTOR 11 East High St. MICHAEL D. MILLER Mount Vernon, OH 43050 117 East High St., Ste. 234 Mount Vernon, OH 43050 Knox County, Case No. 15CA7 2

Delaney, J.

{¶1} Appellant Roger E. Artripe appeals from the Sentencing Entry of the Knox

County Court of Common Pleas dated March 10, 2015. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} A statement of the facts underlying appellant's criminal convictions is not

necessary to our resolution of this appeal and may be found in our opinion at State v.

Artripe, 5th Dist. Knox No. 14CA8, 2014-Ohio-4658 ["Artripe I"].

{¶3} Appellant was originally convicted of one count of rape of a child under the

age of 13 pursuant to R.C. 2907.02(A)(1)(b) [Count I] and one count of gross sexual

imposition pursuant to R.C. 2907.05(A)(4) [Count II]. The trial court merged the

offenses and sentenced appellant upon Count I, imposing a sentence of life in prison

with a possibility of parole after fifteen years.

{¶4} In Artripe I, we reversed appellant's conviction upon Count I because we

found the trial court erred in failing to redact portions of a videotaped interview of the

child victim. We affirmed appellant's conviction upon Count II and remanded the matter

to the trial court.

{¶5} On February 6, 2015, appellant was resentenced to a prison term of 60

months upon Count II. Knox County, Case No. 15CA7 3

{¶6} On February 27, 2015, appellee filed a "Motion to Resentence Defendant"

based upon the decision of the Ohio Supreme Court in State v. Bevly, 142 Ohio St. 3d

41, 2015-Ohio-475, 27 N.E.3d 516.1

{¶7} On March 6, 2015, appellant appeared before the trial court and was

resentenced to a prison term of 60 months upon Count II. In its Sentencing Entry dated

March 10, 2015, the trial court states in part:

* * * *.

In imposing a maximum term, the Court considered:

1) The physical and/or mental injury suffered by the victim of the

offense due to the conduct of [appellant] was exacerbated because

of the age of the victim, to wit: 4 years old;

2) The victim of the offense suffered serious psychological harm as

a result of the offense;

3) [Appellant's] relationship with the victim facilitated the offense, to

wit: step-grandparent;

4) The offense [appellant] stands convicted of is a sex offense; and

5) [Appellant] shows no genuine remorse.

1 R.C. 2907.05(C)(2)(a) required a mandatory prison term for a defendant convicted of gross sexual imposition when the state produced evidence corroborating the crime. In Bevly, the Ohio Supreme Court found the statute unconstitutional. 142 Ohio St. 3d 41, 2015-Ohio-475, 27 N.E.3d 516, paragraphs one and two of the syllabus. Bevly is relevant to the instant case because in the first resentencing (February 6, 2015), the trial court imposed the prison term based in part upon a finding pursuant to R.C. 2907.05(C)(2)(a) that evidence other than the victim's testimony corroborated the offense. Knox County, Case No. 15CA7 4

{¶8} Appellant now appeals from the trial court's Sentencing Entry of March 10,

2015.

{¶9} Appellant raises one assignment of error:

ASSIGNMENT OF ERROR

{¶10} "THE TRIAL COURT ERRED IN IMPOSING THE MAXIMUM

SENTENCE."

ANALYSIS

{¶11} Appellant argues the maximum prison term imposed is contrary to law and

constitutes an abuse of discretion. We disagree.

{¶12} In State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–Ohio–4912,

the Ohio Supreme Court established a two-step procedure for reviewing a felony

sentence. The first step is to “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.” Kalish at ¶ 4. If the first step is

satisfied, the second step requires the trial court's decision be reviewed under an

abuse-of-discretion standard. Id. We have recognized that “[w]here the record lacks

sufficient data to justify the sentence, the court may well abuse its discretion by

imposing that sentence without a suitable explanation.” State v. Firouzmandi, 5th Dist.

Licking No.2006–CA–41, 2006–Ohio–5823, ¶ 52.

{¶13} Subsequent to the Ohio Supreme Court's Foster decision, “[t]he decision

to impose the maximum sentence is simply part of the trial court's overall discretion in

issuing a felony sentence and is no longer tied to mandatory fact-finding provisions.”

State v. Parsons, 7th Dist. Belmont No. 12 BE 11, 2013–Ohio–1281, ¶ 14. Knox County, Case No. 15CA7 5

{¶14} In the instant case, on the record at the sentencing hearing, the trial court

noted it considered the purposes and principles of sentencing contained in R.C.

2929.11 and considered the seriousness factors of R.C. 2929.12. The trial court cited

the relevant factors listed in its sentencing entry, to wit: the physical and/or mental

injuries to the victim, a 4-year-old child; the psychological harm to the victim; the offense

was facilitated by the family relationship; the conviction is a sex offense; and appellant

demonstrates no genuine remorse. The prison term of 60 months is within the statutory

range for the offense of gross sexual imposition against a victim under the age of 13

and is in accordance with law. R.C. 2907.05(C)(2); R.C. 2929.14(A) and (C)(3)(a). We

further find the sentence of the trial court is supported by the record and does not

constitute an abuse of discretion.

{¶15} Finally, appellant summarily argues his sentence is disproportionate to

those of similarly-situated individuals. A felony sentence should be proportionate to the

severity of the offense committed so as not to “shock the sense of justice in the

community.” State v. Chafin, 30 Ohio St.2d 13, 17, 282 N.E.2d 46; R.C. 2929.11(B). A

defendant alleging disproportionality in felony sentencing has the burden of producing

evidence to “indicate that his sentence is directly disproportionate to sentences given to

other offenders with similar records who have committed these offenses * * *.” State v.

Ewert, 5th Dist. Muskingum No. CT2012-0002, 2012-Ohio-2671, ¶ 33, citing State v.

Breeden, 8th Dist. No. 84663, 2005–Ohio–510, ¶ 81. Appellant has failed to provide

any evidence his sentence is constitutionally disproportionate.

{¶16} Appellant's prison term of 60 months is not contrary to law and does not

constitute an abuse of discretion. Knox County, Case No. 15CA7 6

CONCLUSION

{¶17} Appellant's sole assignment of error is overruled and the judgment of the

Knox County Court of Common Pleas is affirmed.

By: Delaney, J. and

Hoffman, P.J.

Farmer, J., concur.