State v. Cisco

2013 Ohio 5412

• Court: Ohio Court of Appeals
• Decided: December 9, 2013
• Docket: 13 CAA 04 0026
• Status: Published

Opinion

[Cite as State v. Cisco, 2013-Ohio-5412.]

COURT OF APPEALS DELAWARE 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. 13 CAA 04 0026 : SCOTT V. CISCO : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, case no. 12CR-I-11- 0430

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: December 9, 2013

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

CAROL HAMILTON O’BRIEN WILLIAM T. CRAMER DELAWARE COUNTY PROSECUTOR 470 Olde Worthington Road, Suite 200 ERIC C. PENKAL Westerville, OH 43082 140 North Sandusky St. Delaware, OH 43015 Delaware County, Case No.13 CAA 04 0026 2

Delaney, J.

{¶1} Appellant Scott Cisco appeals from the March 15, 2013 Judgment Entry

on Sentence entered in the Delaware County Court of Common Pleas. Appellee is the

state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} A statement of the facts underlying appellant’s criminal convictions will be

made infra where pertinent to the procedural history.

{¶3} Appellant was originally charged by indictment with ten criminal offenses

including three counts of kidnapping, one count of abduction, and six counts of rape. All

but two counts were dismissed by appellee: Count Four, abduction, a violation of R.C.

2905.02(A)(2), a felony of the third degree, and Count Ten, rape, a violation of R.C.

2907.02(A), a felony of the first degree.

The Change-of-Plea Hearing: Appellant’s Allocution

{¶4} On January 16, 2013, appellant appeared before the Delaware County

Court of Common Pleas to enter pleas of guilty to Counts Four and Ten pursuant to a

Crim.R. 11(F) negotiated plea agreement. The trial court discussed the rights appellant

waived by changing his pleas and advised appellant the issue of merger would be

determined at sentencing, noting the parties did not agree whether the rape and

abduction offenses merged. Appellant stated he understood this meant he could be

sentenced separately upon each count; his “exposure” on the rape count was a

maximum of eleven years in prison and he faced an additional maximum sentence of

thirty-six months on the count of abduction. Delaware County, Case No.13 CAA 04 0026 3

{¶5} The trial court also stated appellant would be referred for a presentence

investigation (P.S.I.).

{¶6} The trial court next gave appellant an opportunity for allocution. Appellant

stated on October 25, 2012, after meeting the victim online, he picked her up in

Indianapolis and drove her to his home in Sunbury, Delaware County, Ohio. Once at

his home, appellant claimed the victim disrobed and he bound her ankles and wrists

and gagged her. Appellant stated he raped the victim vaginally and anally, both digitally

and with objects. He stated the victim said “no” but he disregarded her protests.

Appellant claimed the victim was bound for a total of approximately 15 minutes; he then

released her and she went to the bathroom and cleaned herself up. Appellant admitted

he knew the victim was 17 years old. This statement concluded appellant’s allocution.

The P.S.I.

{¶7} The following facts are adduced from the P.S.I., which is ordinarily a

confidential document but which the parties have made part of the record in this case.

The trial court indicated facts in the P.S.I. would be taken into account in determining

whether the rape and abduction offenses merged for sentencing.

{¶8} On October 25, 2012, around 2:15 p.m., the Sunbury Police Department

received a call from the 17-year-old victim and responded to appellant’s apartment.

Upon arrival, police found the victim in a state of panic; she stated she had been

kidnapped by appellant and tied up at his residence while he went to work. She stated

she broke free and called for help after finding her clothing and cell phone which

appellant had hidden in the back yard. Delaware County, Case No.13 CAA 04 0026 4

{¶9} The victim told police she met appellant online in a sexual chatroom and

snuck out of her home in Indianapolis to meet him; although her online profile said she

was 18, the victim told appellant she was really 17. She rode with appellant back to his

home in Ohio. Upon arrival, appellant gave her alcohol. The victim stated appellant

made her take her clothes off and call him “master,” then bound her, gagged her, and

penetrated her vaginally and anally, both digitally and with objects. The victim stated

appellant also made her perform oral sex on him that night and the next morning. The

victim described in detail various sexual acts appellant performed upon her. She stated

he gave her a “safe word” to say if she wanted him to stop. She said the safe word

several times but appellant didn’t stop.

{¶10} The victim stated appellant bound her again in the bedroom, hid her

clothing and cell phone in the backyard, and left for work the next day. She was

subsequently able to escape, find her clothes and phone, and call police.

{¶11} Upon entering the residence and finding the victim, police conducted a

protective sweep. They discovered the residence in disarray with alcoholic beverage

containers on the counter; in the bedroom, they observed clothing, bedding, “sexual

devices lying out, and duct tape in two different spots wrapped around a metal stand at

the head of the bed.”

{¶12} Appellant told police he met the victim on the internet, brought her to Ohio,

drank beer with her, and watched a movie. He stated she slept on the couch and he

slept in the bedroom; further, “if she had any injuries, she did it to herself, and that he

didn’t do anything to her.” Appellant stated he went to work at 8:00 a.m. the next day, Delaware County, Case No.13 CAA 04 0026 5

learned the Indianapolis police were looking for the victim as a runaway, returned home,

and told her to turn herself in before returning to work.

{¶13} Appellant told the Court Investigating Officer he met the victim on a dating

website and she told him she wanted to move. He picked her up and brought her to

Ohio. They watched T.V. and ate dinner; later they “became intimate.” In the past they

had discussed “kinky encounters” and the victim voluntarily submitted to being bound,

gagged, and penetrated as described supra. Appellant continued, “At a point in time

during this, she decided she wanted to stop. No meant no which I disregarded at that

time. The continued (sic) for 5-8 minutes longer before I stopped & untied her.”

The Sentencing Hearing: Trial Court Declines Merger of Offenses

{¶14} Appellant appeared before the trial court for sentencing on March 13 and

March 15, 2013. The trial court inquired whether the parties objected to the facts as set

forth in the P.S.I.; appellee did not, but appellant argued the facts were pulled from the

police report and should not be relied upon to determine whether the offenses merge.

Appellant denied he tied up the victim while he went to work.

{¶15} The trial court questioned whether the victim’s statements in the P.S.I.

could be considered for sentencing purposes. The victim was not present in the

courtroom for sentencing and appellee indicated she was not willing to voluntarily return

to Ohio to testify for sentencing purposes. Appellant argued the only facts properly

before the trial court were those admitted by him during allocution.

{¶16} After argument, the trial court decided the P.S.I. could be used for

sentencing purposes. Pursuant to R.C. 2941.25, in light of the victim’s statements

contained in the P.S.I. about the facts of the offense, to wit, appellant leaving her bound Delaware County, Case No.13 CAA 04 0026 6

before leaving for work, the trial court concluded the offenses of rape and abduction did

not merge.

{¶17} Appellant was thereupon sentenced to a prison term of 11 years for the

rape offense and a consecutive term of 36 months for the abduction offense.

{¶18} Appellant now appeals from the judgment entries of his convictions and

sentences.

ASSIGNMENTS OF ERROR

{¶19} “I. THE TRIAL COURT VIOLATED PRINCIPLES OF DOUBLE

JEOPARDY AND R.C. 2941.25 BY FAILING TO MERGE RAPE AND ABDUCTION

BASED ON HEARSAY FROM A PRESENTENCE INVESTIGATION REPORT.”

{¶20} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING

MAXIMUM SENTENCES CONSECUTIVELY ON BOTH COUNTS.”

ANALYSIS

{¶21} In his first assignment of error, appellant argues the trial court erred in

failing to merge the offenses of rape and abduction for sentencing.

{¶22} R.C. 2941.25 codifies the judicial doctrine of merger and states as follows:

(A) Where the same conduct by defendant can be construed

to constitute two or more allied offenses of similar import, the

indictment or information may contain counts for all such

offenses, but the defendant may be convicted of only one.

(B) Where the defendant's conduct constitutes two or more

offenses of dissimilar import, or where his conduct results in

two or more offenses of the same or similar kind committed Delaware County, Case No.13 CAA 04 0026 7

separately or with a separate animus as to each, the

offenses, and the defendant may be convicted of all of them.

{¶23} A trial court is required to merge allied offenses of similar import at

sentencing. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶

27. The doctrine of merger as codified by the statute implements the protections of the

Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and

Ohio Const. Art. I, Sec. 10, which prohibit punishing an offender twice for the same

offense. The statute requires merger of allied offenses of similar import into a single

conviction for the purpose of sentencing, thereby preventing multiple punishments. The

defendant bears the burden of proving an entitlement to merger at sentencing pursuant

to R.C. 2941.25. State v. Mughni, 33 Ohio St.3d 65, 67, 514 N.E.2d 870 (1987).

{¶24} Appellant entered a negotiated plea. When the plea agreement is silent

on the issue of allied offenses of similar import the trial court is obligated under R.C.

2941.25 to determine whether the offenses are allied, and if they are, to convict the

defendant of only one offense; if a trial court fails to merge allied offenses of similar

import, the defendant has the right to appeal the sentence.

State v. Underwood, 124 Ohio St.3d 365, 371, 2010-Ohio-1, 922 N.E.2d 923 (2010).

{¶25} The specific issue before us is whether the trial court may properly

consider the information contained in the P.S.I. in determining whether offenses merge

for sentencing. Appellant entered a guilty plea. The facts before the court came from

appellant’s allocution and the P.S.I. Appellant contends the trial court could not properly

take into account the facts stated in the P.S.I. and was limited to the information Delaware County, Case No.13 CAA 04 0026 8

contained in his allocution. We disagree and find the trial court properly considered the

facts contained within the P.S.I in weighing whether to merge the offenses of rape and

abduction.

{¶26} The trial court is statutorily required to take into account the record of the

case, in addition to any victim impact statement and P.S.I. R.C. 2929.19 states the

following regarding the sentencing hearing:

(A) The court shall hold a sentencing hearing before imposing a

sentence under this chapter upon an offender who was convicted of

or pleaded guilty to a felony and before resentencing an offender

who was convicted of or pleaded guilty to a felony and whose case

was remanded pursuant to section 2953.07 or 2953.08 of the

Revised Code. At the hearing, the offender, the prosecuting

attorney, the victim or the victim's representative in accordance with

section 2930.14 of the Revised Code, and, with the approval of the

court, any other person may present information relevant to the

imposition of sentence in the case. The court shall inform the

offender of the verdict of the jury or finding of the court and ask the

offender whether the offender has anything to say as to why

sentence should not be imposed upon the offender.

(B)(1) At the sentencing hearing, the court, before imposing

sentence, shall consider the record, any information presented at

the hearing by any person pursuant to division (A) of this section,

and, if one was prepared, the presentence investigation report Delaware County, Case No.13 CAA 04 0026 9

made pursuant to section 2951.03 of the Revised Code or Criminal

Rule 32.2, and any victim impact statement made pursuant to

section 2947.051 of the Revised Code.

(2) Subject to division (B)(3) of this section, if the sentencing court

determines at the sentencing hearing that a prison term is

necessary or required, the court shall do all of the following:

(a) Impose a stated prison term and, if the court imposes a

mandatory prison term, notify the offender that the prison term is a

mandatory prison term;

(b) In addition to any other information, include in the sentencing

entry the name and section reference to the offense or offenses,

the sentence or sentences imposed and whether the sentence or

sentences contain mandatory prison terms, if sentences are

imposed for multiple counts whether the sentences are to be

served concurrently or consecutively, and the name and section

reference of any specification or specifications for which sentence

is imposed and the sentence or sentences imposed for the

specification or specifications;

* * * *.

{¶27} Defendants are permitted to read portions of P.S.I.s and to comment upon

alleged factual inaccuracies; within its discretion, the trial court may even permit the

defendant to introduce testimony to counter alleged factual inaccuracies. R.C.

2951.03(B) states in pertinent part: Delaware County, Case No.13 CAA 04 0026 10

(B)(1) If a presentence investigation report is prepared pursuant to

this section, section 2947.06 of the Revised Code, or Criminal Rule

32.2, the court, at a reasonable time before imposing sentence,

shall permit the defendant or the defendant's counsel to read the

report, except that the court shall not permit the defendant or the

defendant's counsel to read any of the following:

(a) Any recommendation as to sentence;

(b) Any diagnostic opinions that, if disclosed, the court believes

might seriously disrupt a program of rehabilitation for the defendant;

(c) Any sources of information obtained upon a promise of

confidentiality;

(d) Any other information that, if disclosed, the court believes might

result in physical harm or some other type of harm to the defendant

or to any other person.

(2) Prior to sentencing, the court shall permit the defendant and the

defendant's counsel to comment on the presentence investigation

report and, in its discretion, may permit the defendant and the

defendant's counsel to introduce testimony or other information that

relates to any alleged factual inaccuracy contained in the report.

(3) If the court believes that any information in the presentence

investigation report should not be disclosed pursuant to division

(B)(1) of this section, the court, in lieu of making the report or any

part of the report available, shall state orally or in writing a summary Delaware County, Case No.13 CAA 04 0026 11

of the factual information contained in the report that will be relied

upon in determining the defendant's sentence. The court shall

permit the defendant and the defendant's counsel to comment upon

the oral or written summary of the report.

(4) Any material that is disclosed to the defendant or the

defendant's counsel pursuant to this section shall be disclosed to

the prosecutor who is handling the prosecution of the case against

the defendant.

(5) If the comments of the defendant or the defendant's counsel,

the testimony they introduce, or any of the other information they

introduce alleges any factual inaccuracy in the presentence

investigation report or the summary of the report, the court shall do

either of the following with respect to each alleged factual

inaccuracy:

(a) Make a finding as to the allegation;

(b) Make a determination that no finding is necessary with respect

to the allegation, because the factual matter will not be taken into

account in the sentencing of the defendant.

{¶28} We are not persuaded by appellant’s argument that the statements

contained in the P.S.I. are hearsay and therefore untrustworthy. The Ohio Rules of

Evidence do not apply to sentencing hearings. Evid.R. 101(C)(3). Moreover, appellant

has the opportunity outlined in the statute, supra, to bring alleged inaccuracies to the

court’s attention. The burden of proof regarding any inaccuracy in the P.S.I. is on the Delaware County, Case No.13 CAA 04 0026 12

defendant who alleges that the report is inaccurate. R.C. 2951.03(B)(2), supra.

Appellant made no such request nor offered any evidence beyond his self-serving

allocution to dispute the facts in the report, which the trial court elected to accept.

Appellant has failed to demonstrate the trial court abused its discretion in doing so.

State v. Sims, 184 Ohio App.3d 741, 746, 2009-Ohio-5751, 922 N.E.2d 298 (2nd Dist.

Greene).

{¶29} R.C. 2941.25 is a sentencing statute. State v. May, 11th Dist. Lake No.

2010-L-131, 2011-Ohio-5233, ¶ 77, appeal not allowed, 131 Ohio St.3d 1458, 2012-

Ohio-648, 961 N.E.2d 1137, citing State v. Kent, 68 Ohio App.2d 151, 428 N.E.2d 453,

(8th Dist.1980), paragraph one of the syllabus. The trial court is required to rely upon

the entire record in sentencing defendant, including determining whether offenses

merge.

{¶30} The trial court does not err in relying upon facts contained in a P.S.I. in

sentencing a defendant. State v. Steimle, 8th Dist. Cuyahoga No. 82183, 2003-Ohio-

4816, ¶ 14, appeal not allowed, 101 Ohio St.3d 1424, 2004-Ohio-123, 802 N.E.2d 155;

State v. Gunnell, 10th Dist. Franklin Nos. 11AP-811, 11AP-814, 11Ap-812, 11AP-815,

11AP-813, 2012-Ohio-1614, ¶ 14-15, appeal not allowed, 132 Ohio St.3d 1485, 2012-

Ohio-3334, 971 N.E.2d 962; State v. Dudenas, 8th Dist. Cuyahoga No. 81461, 2003-

Ohio-1000, ¶ 9, abrogated on other grounds by State v. Norman, 8th Dist. Cuyahoga

No. 91302, 2009-Ohio-4044. We conclude the trial court does not err in relying upon

the P.S.I. in deciding whether to merge offenses for pursuant to R.C. 2941.25.

{¶31} Appellant’s position is that the victim was not bound when he left for work,

the critical factor in the trial court’s sentencing decision. The trial court advised the Delaware County, Case No.13 CAA 04 0026 13

parties this detail was crucial to the merger decision but appellant offered no evidence

beyond his self-serving allocution. If we were to accept appellant’s argument, he would

have the benefit of entering guilty pleas to two offenses and then by virtue of his

allocution, dictating the facts upon which the trial court makes its merger decision, a

position which would give appellee no incentive to offer appellant a plea in the first

place. Moreover, such a conclusion would eliminate the sentencing discretion of the

trial court.

{¶32} The trial court did not err in relying upon the P.S.I. in assessing whether

the offenses of rape and abduction were allied offenses of similar import which merged

for sentencing. We further agree with the trial court’s decision that under the facts of

this case, the offenses do not merge.

{¶33} In State v. Johnson, the Ohio Supreme Court modified the test for

determining whether offenses are allied offenses of similar import. 128 Ohio St.3d 1405,

2010–Ohio–6314. The Court directed us to look at the elements of the offenses in

question and determine whether or not it is possible to commit one offense and commit

the other with the same conduct. If the answer to such question is in the affirmative, the

court must then determine whether or not the offenses were committed by the same

conduct. If the answer to the above two questions is yes, then the offenses are allied

offenses of similar import and will be merged. If, however, the court determines that

commission of one offense will never result in the commission of the other, or if there is

a separate animus for each offense, then the offenses will not merge according to

Johnson, supra. Delaware County, Case No.13 CAA 04 0026 14

{¶34} Appellant was indicted upon, convicted of, and sentenced upon one count

of rape pursuant to R.C. 2907.02(A) and one count of abduction pursuant to

2905.02(A)(2). Appellant argues the trial court erred in failing to merge these offenses

for purposes of sentencing; we disagree.

{¶35} As the trial court pointed out, separate offense and separate animus arise

from the fact that appellant bound the victim when he left for work the next day. In other

words, he didn’t commit the abduction solely for the purpose of accomplishing the rape.

Appellant’s actions constituted both separate conduct and separate animus under these

circumstances. Id. Appellant was properly convicted of and sentenced upon two

separate offenses.

{¶36} We find each of these offenses was committed with separate conduct and

a separate animus, and the trial court properly declined to merge the offenses for

sentencing. Appellant’s first assignment of error is overruled.

II.

{¶37} In his second assignment of error, appellant argues the trial court erred in

imposing the maximum sentence.

{¶38} Appellant acknowledges the prison terms of eleven years and 36 months

are within the statutory range for these offenses but asserts the trial court failed to

“properly consider the statutory purposes and factors of statutory sentencing.”

{¶39} 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 Delaware County, Case No.13 CAA 04 0026 15

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.

{¶40} We first note that 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.

{¶41} Appellant also challenges the trial court’s imposition of consecutive terms.

2011 Am.Sub.H.B. No. 86, which became effective on September 30, 2011, revived

language provided in former R.C. 2929.14(E) and moved it to R.C. 2929.14(C)(4). The

General Assembly has thus expressed its intent to revive the statutory fact-finding

provisions pertaining to the imposition of consecutive sentences that were effective pre-

Foster. See State v. Wells, 8th Dist. Cuyahoga No. 98428, 2013–Ohio–1179, ¶ 11.

These revisions to the felony sentencing statutes now require a trial court to make

specific findings when imposing consecutive sentences. Nonetheless, “[a]lthough H.B.

86 requires the trial court to make findings before imposing a consecutive sentence, it

does not require the trial court to give its reasons for imposing the sentence.” State v.

Bentley, 3rd Dist. Marion No. 9–12–31, 2013–Ohio–852, ¶ 12, citing State v. Frasca,

11th Dist. Trumbull No. 2011–T–0108, 2012–Ohio–3746, ¶ 57. The record must clearly Delaware County, Case No.13 CAA 04 0026 16

demonstrate that consecutive sentences are not only appropriate, but are also clearly

supported by the record. See State v. Queer, 5th Dist. Ashland No. 12-COA-041, ,

2013-Ohio-3585, ¶ 21.

{¶42} R.C. 2929.14(C)(4) provides, in relevant part:

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. Delaware County, Case No.13 CAA 04 0026 17

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from

future crime by the offender.

{¶43} We note appellant asks us to disregard the victim’s statements which are

not favorable to his merger argument, supra, and to accept the victim’s statements

which are favorable to his maximum sentence argument. He argues the trial court

abused its discretion in sentencing him to consecutive maximum terms upon one count

of rape and one count of abduction because this offense began as “consensual

dominant/submissive play” and appellant apologized at the sentencing hearing. We

disagree with appellant’s characterization of the record and note the ongoing trauma

and distress experienced by the 17-year-old victim1 as evidenced by the P.S.I. and the

victim impact statement. The trial court specifically noted a consecutive sentence was

not disproportionate to appellant’s conduct and was necessary to punish appellant and

protect the public.

{¶44} Upon review, we find the trial court adequately made the findings required

by R.C. 2929.14(C)(4) in considering appellant's sentence, and consecutive sentences

in this matter are not unreasonable, arbitrary or unconscionable. In short, we have

reviewed the record of this case and find the trial court did not abuse its discretion in

sentencing appellant to consecutive maximum terms.

{¶45} Appellant’s second assignment of error is overruled.

1 Appellant is age 47. Delaware County, Case No.13 CAA 04 0026 18

CONCLUSION

{¶46} Appellant’s two assignments of error are overruled and the judgment of

the Delaware County Court of Common Pleas is affirmed.

By: Delaney, J. and

Hoffman, P.J.

Farmer, J., concur.

HON. PATRICIA A. DELANEY

HON. WILLIAM B. HOFFMAN

HON. SHEILA G. FARMER