[Cite as State v. Bell, 2017-Ohio-1531.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. CT2016-0049 MICHAEL A. BELL : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum County Court of Common Pleas, Case No. CR2016-0102
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 24, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellee
GERALD ANDERSON II ERIC ALLEN Assistant Prosecutor 4605 Morse Road, Suite 201 27 North Fifth St. Gahanna, OH 43240 Zanesville, OH 43702-0189 Muskingum County, Case No. CT2016-0049 2
Gwin, P.J.
{¶1} Defendant-appellant, Michael A. Bell (“Bell”), appeals from the consecutive
maximum sentences imposed for Sexual Battery and Gross Sexual Imposition.
Facts and Procedural History
{¶2} Bell was indicted on or about August 19, 2015, on four counts of Gross
Sexual Imposition, each a felony of the third degree, three counts of Rape, each count a
felony of the first degree, and three counts of Sexual Battery, each a felony of the third
degree. The victim of those offenses is Bell’s daughter. That case was given case
number CR2015-02461.
{¶3} Bell was subsequently indicted on or about March 9, 2016, on two counts
of Gross Sexual Imposition, each count a felony of the fourth degree, and one count of
Endangering Children, a felony of the second degree. The victim of those offenses was
Bell’s other daughter. That case was given case number CR2016-0102.
{¶4} Bell resolved both of these cases together in a universal plea negotiation.
On July 19, 2016, Bell pled guilty to one count of Sexual Battery on the CR2015-0246
case, and one count of Gross Sexual Imposition on the CR2016-0102 case. All of the
other counts were dismissed by the state. Part of the reason for such a plea negotiation
was the consideration of the victims and their desire not to relive their experiences on
trial. (Sentencing Transcript at 11).
{¶5} Bell was sentenced on both cases on August 22, 2016. Prior to imposing
sentence, the trial court heard letters from the mother of the victims and the victims
expressing the injury caused to them by being sexually assaulted by their father and the
1 This case is separately appealed as State v. Bell, 5th Dist. Muskingum No. CT2016-0050. Muskingum County, Case No. CT2016-0049 3
impact on their family and on their relationships with people in general. (Sentencing
Transcript at 8-11). The trial court sentenced Bell to the maximum on each count
consecutively, for an aggregate prison sentence of 78 months.
Assignments of Error
{¶6} “I. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO
CONSECUTIVE SENTENCES AS THE COURT FAILED TO ENGAGE IN THE
REQUISITE THREE PART ANALYSIS REQUIRED TO SENTENCE A DEFENDANT TO
CONSECUTIVE SENTENCES BY FAILING TO FIND THAT ANY OF THE THREE
FACTORS LISTED IN R.C. 2929.14(C)(4)(a)-(e) APPLIED.
{¶7} “II. THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT TO
THE MAXIMUM SENTENCE FOR BOTH COUNTS.”
Law and Analysis
{¶8} In accordance with R.C. 2953.08(A)(1), Bell is entitled to appeal as of right
the maximum sentence imposed on his convictions. In accordance with R.C. 2953.08(C)
(1) Bell is granted leave to appeal his consecutive prison terms because the sentence
imposed exceeds the maximum term for a felony of the third degree.
{¶9} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶22;
State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31. R.C.
2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence
and remand for resentencing where we clearly and convincingly find that either the record
does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),
2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law. Muskingum County, Case No. CT2016-0049 4
See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659, ¶28.
{¶10} Accordingly, pursuant to Marcum this Court may vacate or modify a felony
sentence on appeal only if it determines by clear and convincing evidence that: (1) the
record does not support the trial court's findings under relevant statutes, or (2) the
sentence is otherwise contrary to law.
{¶11} Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph three of the
syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the
degree of proof required to sustain an issue must be clear and convincing, a reviewing
court will examine the record to determine whether the trier of facts had sufficient
evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477
120 N.E.2d 118.
R.C. 2929.13(B).
{¶12} R.C. 2929.13(B) applies to one convicted of a fourth or fifth degree felony.
Bell pled guilty to Gross Sexual Imposition, a violation of R.C. 2907.05(A)(5), a felony of
the fourth degree by virtue of R.C. 2907.05 (C)(1).
{¶13} In relevant part the statute provides,
(b) The court has discretion to impose a prison term upon an offender
who is convicted of or pleads guilty to a felony of the fourth or fifth degree
that is not an offense of violence or that is a qualifying assault offense if any
of the following apply:
*** Muskingum County, Case No. CT2016-0049 5
(v) The offense is a sex offense that is a fourth or fifth degree felony
violation of any provision of Chapter 2907. of the Revised Code.
{¶14} Accordingly, the trial court had discretion to impose a prison term for Gross
Sexual Imposition.
R.C. 2929.13(D).
{¶15} R.C. 2929.13(D) (1) applies to one convicted of a felony of the first or
second degree, for a felony drug offense that is a violation of any provision of Chapter
2925., 3719., or 4729. of the Revised Code for which a presumption in favor of a prison
term is specified as being applicable, and for a violation of division (A)(4) or (B) of section
2907.05 of the Revised Code for which a presumption in favor of a prison term is specified
as being applicable. Bell was convicted of a violation of R.C. 2907.05(A)(2) and R.C.
2907.03(A)(5). Accordingly, R.C. 2929.13(D) does not apply to Bell’s case.
R.C. 2929.14 (B)(2)(e).
{¶16} R.C. 2929.14(B)(2)(e) concerns additional prison sentences that a trial court
can impose upon a defendant under specified circumstances. Bell was not given an
additional prison sentence.
R.C. 2929.14 (C)(4) Consecutive Sentences.
{¶17} R.C. 2929.14(C)(4) concerns the imposition of consecutive sentences. Bell
was given a sentence of eighteen months in Case No. CR2016-0102 consecutive with
the 60-month sentence imposed for his plea to one count of Sexual Battery in violation
of R.C. 2907.03(A)(5), a felony of the third degree imposed in Case No. CR2015-0246.
{¶18} In Ohio, there is a statutory presumption in favor of concurrent sentences
for most felony offenses. R.C. 2929.41(A). The trial court may overcome this Muskingum County, Case No. CT2016-0049 6
presumption by making the statutory, enumerated findings set forth in R.C. 2929.14(C)
(4). State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶23. This
statute requires the trial court to undertake a three-part analysis. State v. Alexander, 1st
Dist. Hamilton Nos. C–110828 and C–110829, 2012-Ohio-3349, 2012 WL 3055158, ¶ 15.
{¶19} 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 post-release 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. Muskingum County, Case No. CT2016-0049 7
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶20} Thus, in order for a trial court to impose consecutive sentences the court
must find that consecutive sentences are necessary to protect the public from future crime
or to punish the offender. The court must also find that consecutive sentences are not
disproportionate to the offender’s conduct and to the danger the offender poses to the
public. Finally, the court must make at least one of three additional findings, which include
that (a) the offender committed one or more of the offenses while awaiting trial or
sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18, or
while under post-release 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 offenses 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 would adequately reflect the
seriousness of the offender’s conduct; or (c) the offender’s criminal history demonstrates
that consecutive sentences are necessary to protect the public from future crime by the
offender. See, State v. White, 5th Dist. Perry No. 12-CA-00018, 2013-Ohio-2058, ¶36.
{¶21} Recently, in State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16
N.E.2d 659, syllabus, the Supreme Court of Ohio stated that:
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. Muskingum County, Case No. CT2016-0049 8
{¶22} Furthermore, the sentencing court is not required to recite “a word-for-word
recitation of the language of the statute.” Bonnell, ¶29. “[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. A failure to make the findings required by R.C. 2929.14(C)(4) renders a
consecutive sentence contrary to law. Bonnell, ¶34. The findings required by R.C.
2929.14(C)(4) must be made at the sentencing hearing and included in the sentencing
entry. Id. at the syllabus. However, a trial court’s inadvertent failure to incorporate the
statutory findings in the sentencing entry after properly making those findings at the
sentencing hearing does not render the sentence contrary to law; rather, such a clerical
mistake may be corrected by the court through a nunc pro tunc entry to reflect what
actually occurred in open court. Bonnell, ¶30.
{¶23} In this case, the record does support a conclusion that the trial court made
all of the findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive
sentences.
R.C. 2929.14(C)(4): [T]he 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.
{¶24} At sentencing the trial court found,
The Court finds that consecutive sentences are necessary to protect
the public and punish the offender. Consecutive sentences are not Muskingum County, Case No. CT2016-0049 9
disproportionate for the seriousness of the conduct and the danger you
pose to the public.
Sentencing Transcript at 16. The findings are reflecting in the court’s sentencing entries.
Judgment Entry on Sentence, filed August 25, 2016 at 2.
R.C. 2929.14(C)(4)(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.
{¶25} This provision does not apply to Bell’s case.
R.C. 2929.14(C)(4)(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.
{¶26} In the case at bar, the trial court found,
The Court finds that multiple offenses with which you were sentenced
were -- the harm caused by those were so great and unusual that no single
prison term for any of the offenses committed would adequately reflect the
seriousness of your conduct.
Sentencing Transcript at 16. The findings are reflecting in the court’s sentencing entries.
Judgment Entry on Sentence, filed August 25, 2016 at 2. Muskingum County, Case No. CT2016-0049 10
R.C. 2929.14(C)(4)(c): The offender’s history of criminal conduct
demonstrates that consecutive sentences are necessary to protect the public from
future crime by the offender.
{¶27} The Court made no findings concerning this factor in Bell’s case.
{¶28} We find that the record in the case at bar clearly and convincingly supports
the trial court’s findings under R.C. 2929.14(C)(4). Bell abused and breached the trust
of his two young daughters. In the case at bar, the trial court heard victim impact letters
from the two victims, heard a letter from the victims’ mother, heard arguments from the
state and defense counsel, heard Bell's statement, reviewed the presentence
investigation report, read the other letters sent, and had a brief interaction with Bell before
imposing a sentence. Each victim informed the trial court of the particular, significant
harm that she suffered and continues to suffer because of Bell’s actions. Bell fails to
comprehend the damage he caused to his children and expressed little if any remorse for
his action.
R.C. 2929.20.
{¶29} R.C. 2929.20 (I) is inapplicable, as Bell was not applying to the court for
judicial release.
R.C. 2929.11 and R.C. 2929.12 and Maximum Sentences.
{¶30} A trial court’s imposition of a maximum prison term for a felony conviction is
not contrary to law as long as the sentence is within the statutory range for the offense,
and the court considers both the purposes and principles of felony sentencing set forth in
R.C. 2929.11 and the seriousness and recidivism factors set forth R.C. 2929.12. State v.
Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016–Ohio–5234, ¶ 10, 16. Muskingum County, Case No. CT2016-0049 11
{¶31} The Marcum court further noted,
We note that some sentences do not require the findings that R.C.
2953.08(G) specifically addresses. Nevertheless, it is fully consistent for
appellate courts to review those sentences that are imposed solely after
consideration of the factors in R.C. 2929.11 and 2929.12 under a standard
that is equally deferential to the sentencing court. That is, an appellate court
may vacate or modify any sentence that is not clearly and convincingly
contrary to law only if the appellate court finds by clear and convincing
evidence that the record does not support the sentence.
146 Ohio St.3d at ¶23, 2016–Ohio–1002, 59 N.E.3d 1231 (emphasis added).
{¶32} R.C. 2929.11(A) governs the purposes and principles of felony sentencing
and provides that a sentence imposed for a felony shall be reasonably calculated to
achieve the two overriding purposes of felony sentencing, which 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 will accomplish those purposes.
Further, the sentence imposed shall be “commensurate with and not demeaning to the
seriousness of the offender's conduct and its impact on the victim, and consistent with
sentences imposed for similar crimes by similar offenders.” R.C. 2929.11(B).
{¶33} R.C. 2929.12 sets forth the seriousness and recidivism factors for the
sentencing court to consider in determining the most effective way to comply with the
purposes and principles of sentencing set forth in R.C. 2929.11. The statute provides a
non-exhaustive 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. Muskingum County, Case No. CT2016-0049 12
{¶34} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the
court discussed the effect of State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court
severed the judicial-fact-finding portions of R.C. 2929.14, holding that “trial courts have
full discretion to impose a prison sentence within the statutory range and are no longer
required to make findings or give their reasons for imposing maximum, consecutive, or
more than the minimum sentences.” Kalish at ¶ 1 and ¶11, citing Foster at ¶100, See
also, State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306; State v.
Firouzmandi, 5th Dist. Licking No. 2006-CA-41, 2006-Ohio-5823.
{¶35} “Thus, a record after Foster may be silent as to the judicial findings that
appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶ 12.
However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C.
2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶13,
see also State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1; State v.
Firouzmandi supra at ¶ 29.
{¶36} Thus, post-Foster, “there is no mandate for judicial fact-finding in the
general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster
at ¶ 42. State v. Rutter, 5th Dist. No. 2006-CA-0025, 2006-Ohio-4061; State v. Delong,
4th Dist. No. 05CA815, 2006-Ohio-2753 at ¶ 7-8. Therefore, post-Foster, trial courts are
still required to consider the general guidance factors in their sentencing decisions.
{¶37} There is no requirement in R.C. 2929.12 that the trial court states on the
record that it has considered the statutory criteria concerning seriousness and recidivism
or even discussed them. State v. Polick, 101 Ohio App.3d 428, 431(4th Dist. 1995); State Muskingum County, Case No. CT2016-0049 13
v. Gant, 7th Dist. No. 04 MA 252, 2006-Ohio-1469, at ¶60 (nothing in R.C. 2929.12 or the
decisions of the Ohio Supreme Court imposes any duty on the trial court to set forth its
findings), citing State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d 94(1992); State v.
Hughes, 6th Dist. No. WD-05-024, 2005-Ohio-6405, ¶10 (trial court was not required to
address each R.C. 2929.12 factor individually and make a finding as to whether it was
applicable in this case), State v. Woods, 5th Dist. No. 05 CA 46, 2006-Ohio-1342, ¶19
(“... R.C. 2929.12 does not require specific language or specific findings on the record in
order to show that the trial court considered the applicable seriousness and recidivism
factors”). (Citations omitted).
{¶38} In the case at bar, the trial court heard victim impact letters from the two
victims, heard a letter from the victims’ mother, heard arguments from the state and
defense counsel, heard Bell's statement, reviewed the presentence investigation report,
read the other letters sent, and had a brief interaction with Bell before imposing a
sentence.
{¶39} In the case at bar, the record shows that the trial court considered all
relevant factors, including the harm caused to the victims, that Bell's relationship to his
victims facilitated the offenses and the delayed prosecution of the victimization, and that
Bell still failed to realize that he victimized his daughters. (Sentencing Transcript at 9-11,
15). "You victimized your own children, and then when I say that, you look at me
quizzically like it didn't happen. You victimized your children. They are victims. You're
the perpetrator. You still show no remorse, and I find that astounding.” Sentencing
Transcript at 15.
{¶40} Accordingly, the trial court considered the purposes and principles of Muskingum County, Case No. CT2016-0049 14
sentencing [R.C. 2929.11] as well as the factors that the court must consider when
determining an appropriate sentence. [R.C. 2929.12]. The trial court has no obligation
to state reasons to support its findings. Nor is it required to give a talismanic incantation
of the words of the statute, provided that the necessary findings can be found in the record
and are incorporated into the sentencing entry.
{¶41} Upon review, we find that the trial court's sentencing on the charges
complies with applicable rules and sentencing statutes. The sentence was within the
statutory sentencing range. Furthermore, the record reflects that the trial court
considered the purposes and principles of sentencing and the seriousness and recidivism
factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised Code and
advised Bell regarding post-release control. Upon a thorough review, we find the record
clearly and convincing supports the sentence imposed by the trial court.
{¶42} We find the trial court properly considered the purposes and principles of
sentencing set forth in R.C. 2929.11, as well as the applicable factors set forth in R.C.
2929.12, along with all other relevant factors and circumstances. While Bell may disagree
with the weight given to these factors by the trial judge, Bell’s sentence was within the
applicable statutory range for a felony of the third degree and a felony of the fourth degree
and therefore, we have no basis for concluding that it is contrary to law.
{¶43} Bell’s first and second assignments of error are overruled. Muskingum County, Case No. CT2016-0049 15
{¶44} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By Gwin, P.J.,
Wise, J., and
Baldwin, J., concur