[Cite as State v. Berry, 2016-Ohio-3022.]
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : FRANKLIN J. BERRY : Case No. 15-COA-009 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of Common Pleas, Case No. 14-CRI-144
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 16, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER R. TUNNELL CHRISTINA I. REIHELD Prosecuting Attorney P.O. Box 532 Danville, Ohio 43014 By: GARY D. BISHOP Assistant Prosecuting Attorney 110 Cottage Street Ashland, Ohio 44805 Ashland County, Case No. 15-COA-009 2
Baldwin, J.
{¶1} Appellant Franklin J. Berry appeals a judgment of the Ashland County
Common Pleas Court convicting him of rape (R.C. 2907.02(A)(1)(b)) and three counts of
gross sexual imposition (R.C. 2907.05(A)(4)) and sentencing him to an aggregate term
of imprisonment of 30 years to life. Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} Over the course of a year, appellant committed multiple acts of sexual
abuse on a female family member, who was seven/eight years old at the time. The acts
included grooming activities, such as showing her pornography and asking her if she
knew about sex, causing her to touch his penis, touching her vagina with possible
penetration, performing oral sex on the victim, having the child perform fellatio on him,
and having her rub her vagina on his penis on multiple occasions.
{¶3} Appellant moved out of state, and the incidents stopped. Six years later,
the victim told an adult. Appellant was indicted by the Ashland County Grand Jury with
four counts of rape and five counts of gross sexual imposition. On December 1, 2014,
he entered a plea of guilty to one count of rape and three counts of gross sexual
imposition. The remaining counts were dismissed. The court sentenced appellant to
fifteen years to life imprisonment for rape and sixty months incarceration on each count
of gross sexual imposition, to be served consecutively.
{¶4} Counsel for appellant originally filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967). Upon review, this Court found the appeal to not be wholly frivolous
as is required to file an Anders brief. We ordered the trial court to appoint replacement
counsel for appellant, who assigns the following error: Ashland County, Case No. 15-COA-009 3
{¶5} “THE TRIAL COURT IMPOSED A SENTENCE WHICH WAS CONTRARY
TO LAW AND NOT SUPPORTED BY THE RECORD WHEN IT LEVIED CONSECUTIVE
SENTENCES AGAINST MR. BERRY BASED IN PART UPON UNSUPPORTED
ALLEGATIONS CONCERNING AN UNNAMED SECOND VICTIM IN VIOLATION OF
MR. BERRY’S CONSTITUTIONAL RIGHTS TO DUE PROCESS.”
{¶6} R.C. 2929.14(C)(4) provides for the imposition of consecutive sentences as
follows:
(4) 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. Ashland County, Case No. 15-COA-009 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.
{¶7} The trial court stated on the record during the sentencing hearing:
I am further finding that consecutive sentences in the case is not
disproportionate to the seriousness of your conduct and to the danger you
pose to the public, and there is information that there might be actually a
second victim out there in Oregon. I think that you received consideration
in the reduction in charges that was negotiated in exchange for a plea and
I am further finding that at least two of these offenses were committed as
part of one or more courses of conduct, and the harm caused collectively
by the offense so committed was so great or unusual that no single prison
term committed for the offenses committed as part of the course of the
conduct adequately reflects the seriousness of your conduct simply
because as Mr. Tunnell pointed out, this is not just an offense that, oops,
you were tempted at that moment, that was a planned activity where you
groomed the child and gradually increased the activity with an ultimate
purpose in mind that went well beyond the initial contact.
{¶8} Tr. 30-31.
{¶9} In the sentencing entry, the court found that consecutive sentences were
necessary to protect the public from future crime, to punish appellant, and that
consecutive sentences were not disproportionate to the seriousness of his conduct and
the danger appellant poses to the public. The court also found that at least two of the Ashland County, Case No. 15-COA-009 5
offenses were committed as a part of one or more courses of conduct, and the harm
caused was so great or unusual that no single prison term adequately reflected the
seriousness of his conduct.
{¶10} Appellant argues that the evidence concerning a second victim was
unsubstantiated and based solely on suspicions of the family because appellant had a
picture of a girl on his phone. Upon review of the sentencing transcript and the
presentence investigation report, we find that any error in considering this information
was harmless because the other information in the record supported the imposition of
consecutive sentences.
{¶11} The court did not include the second victim in the sentencing entry, and it is
not clear from the passing comment in the transcript that the court based the imposition
of consecutive sentences on this possibility. The PSI report is rife with information
concerning the extreme emotional and financial harm caused to the victim and to her
family as a result of appellant’s crimes. The victim suffers from post-traumatic stress
disorder, and has dropped out of school to be homeschooled as a result. Her mother is
unable to work and contribute financially to the family due to the time required for
counseling appointments and to homeschool the victim.
{¶12} Further, as noted by the court during the sentencing hearing, appellant did
not appear to fully accept responsibility for his behavior. He stated in open court that he
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[Cite as State v. Berry, 2016-Ohio-3022.]
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : FRANKLIN J. BERRY : Case No. 15-COA-009 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of Common Pleas, Case No. 14-CRI-144
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 16, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER R. TUNNELL CHRISTINA I. REIHELD Prosecuting Attorney P.O. Box 532 Danville, Ohio 43014 By: GARY D. BISHOP Assistant Prosecuting Attorney 110 Cottage Street Ashland, Ohio 44805 Ashland County, Case No. 15-COA-009 2
Baldwin, J.
{¶1} Appellant Franklin J. Berry appeals a judgment of the Ashland County
Common Pleas Court convicting him of rape (R.C. 2907.02(A)(1)(b)) and three counts of
gross sexual imposition (R.C. 2907.05(A)(4)) and sentencing him to an aggregate term
of imprisonment of 30 years to life. Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} Over the course of a year, appellant committed multiple acts of sexual
abuse on a female family member, who was seven/eight years old at the time. The acts
included grooming activities, such as showing her pornography and asking her if she
knew about sex, causing her to touch his penis, touching her vagina with possible
penetration, performing oral sex on the victim, having the child perform fellatio on him,
and having her rub her vagina on his penis on multiple occasions.
{¶3} Appellant moved out of state, and the incidents stopped. Six years later,
the victim told an adult. Appellant was indicted by the Ashland County Grand Jury with
four counts of rape and five counts of gross sexual imposition. On December 1, 2014,
he entered a plea of guilty to one count of rape and three counts of gross sexual
imposition. The remaining counts were dismissed. The court sentenced appellant to
fifteen years to life imprisonment for rape and sixty months incarceration on each count
of gross sexual imposition, to be served consecutively.
{¶4} Counsel for appellant originally filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967). Upon review, this Court found the appeal to not be wholly frivolous
as is required to file an Anders brief. We ordered the trial court to appoint replacement
counsel for appellant, who assigns the following error: Ashland County, Case No. 15-COA-009 3
{¶5} “THE TRIAL COURT IMPOSED A SENTENCE WHICH WAS CONTRARY
TO LAW AND NOT SUPPORTED BY THE RECORD WHEN IT LEVIED CONSECUTIVE
SENTENCES AGAINST MR. BERRY BASED IN PART UPON UNSUPPORTED
ALLEGATIONS CONCERNING AN UNNAMED SECOND VICTIM IN VIOLATION OF
MR. BERRY’S CONSTITUTIONAL RIGHTS TO DUE PROCESS.”
{¶6} R.C. 2929.14(C)(4) provides for the imposition of consecutive sentences as
follows:
(4) 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. Ashland County, Case No. 15-COA-009 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.
{¶7} The trial court stated on the record during the sentencing hearing:
I am further finding that consecutive sentences in the case is not
disproportionate to the seriousness of your conduct and to the danger you
pose to the public, and there is information that there might be actually a
second victim out there in Oregon. I think that you received consideration
in the reduction in charges that was negotiated in exchange for a plea and
I am further finding that at least two of these offenses were committed as
part of one or more courses of conduct, and the harm caused collectively
by the offense so committed was so great or unusual that no single prison
term committed for the offenses committed as part of the course of the
conduct adequately reflects the seriousness of your conduct simply
because as Mr. Tunnell pointed out, this is not just an offense that, oops,
you were tempted at that moment, that was a planned activity where you
groomed the child and gradually increased the activity with an ultimate
purpose in mind that went well beyond the initial contact.
{¶8} Tr. 30-31.
{¶9} In the sentencing entry, the court found that consecutive sentences were
necessary to protect the public from future crime, to punish appellant, and that
consecutive sentences were not disproportionate to the seriousness of his conduct and
the danger appellant poses to the public. The court also found that at least two of the Ashland County, Case No. 15-COA-009 5
offenses were committed as a part of one or more courses of conduct, and the harm
caused was so great or unusual that no single prison term adequately reflected the
seriousness of his conduct.
{¶10} Appellant argues that the evidence concerning a second victim was
unsubstantiated and based solely on suspicions of the family because appellant had a
picture of a girl on his phone. Upon review of the sentencing transcript and the
presentence investigation report, we find that any error in considering this information
was harmless because the other information in the record supported the imposition of
consecutive sentences.
{¶11} The court did not include the second victim in the sentencing entry, and it is
not clear from the passing comment in the transcript that the court based the imposition
of consecutive sentences on this possibility. The PSI report is rife with information
concerning the extreme emotional and financial harm caused to the victim and to her
family as a result of appellant’s crimes. The victim suffers from post-traumatic stress
disorder, and has dropped out of school to be homeschooled as a result. Her mother is
unable to work and contribute financially to the family due to the time required for
counseling appointments and to homeschool the victim.
{¶12} Further, as noted by the court during the sentencing hearing, appellant did
not appear to fully accept responsibility for his behavior. He stated in open court that he
did not hold what happened against the victim. Similarly, in his interview for the
presentence investigation report, he noted that the victim did not object to what happened
between them, and referred to the sexual acts that she “liked” to do with him. Based on
his continued suggestion that the child victim was in some way responsible for the crimes Ashland County, Case No. 15-COA-009 6
he committed against her, the court did not err in finding that consecutive sentences were
not disproportionate to the seriousness of his conduct and the danger appellant poses to
the public.
{¶13} The court’s findings concerning consecutive sentences are supported by
abundant evidence in the record, independent of the family’s suspicions that a second
victim existed in Oregon. The assignment of error is overruled.
By: Baldwin, J.
Delaney, J. concurs.
Hoffman, P.J. dissents. Ashland County, Case No. 15-COA-009 7
Hoffman, P.J., dissenting
{¶14} I respectfully dissent from the majority opinion.
{¶15} I agree there was ample evidence in the record to support the imposition of
consecutive sentences. I further agree it is not clear the trial court based its decision on
the unsubstantiated suspicion of a second out-of-state victim.
{¶16} While the trial court’s reference to the possibility of a second victim may well
have been what the majority describes as a “passing comment”, it, nevertheless, was
considered. I believe justice is best served by vacating Appellant’s sentence and
remanding the matter to the trial court to resentence Appellant without consideration of a
possible second victim.