[Cite as State v. Hale, 2014-Ohio-262.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-13-17
v.
RICHARD L. HALE, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court Trial Court No. 12-CR-562
Judgment Affirmed
Date of Decision: January 27, 2014
APPEARANCES:
David H. Lowther for Appellant
David J. Stamolis for Appellee Case No. 9-13-17
PRESTON, J.
{¶1} Defendant-appellant, Richard L. Hale, appeals the Marion County
Court of Common Pleas’ judgment entry of sentence. We affirm.
{¶2} On November 21, 2012, the Marion County Grand Jury indicted Hale
on 36 counts of pandering sexually oriented matters involving a minor, violations
of R.C. 2907.322(A)(1) and second-degree felonies. (Doc. No. 1). Hale was
indicted for creating multiple obscene photographs and videos of a minor girl from
January 2009 to November 13, 2012. (Id.); (Bill of Particulars, Doc. No. 18). For
purposes of Counts One through Six, it was alleged that Hale took six photographs
of the minor girl performing fellatio on him. (Bill of Particulars, Doc. No. 18).
For purposes of Counts Seven through Thirty-Six, it was alleged that Hale
provided the minor girl with a video camera and money to film herself
masturbating. (Id.).
{¶3} On November 26, 2012, Hale entered not guilty pleas. (Doc. No. 3).
{¶4} On February 12, 2013, Hale pled guilty to Counts One and Two,
pursuant to a written plea agreement. (Feb. 12, 2013 Tr. at 1-2, 15-16); (Doc. No.
20). In exchange, the State dismissed the remaining 34 counts and recommended
a total of 14 years of imprisonment. (Id. at 2); (Id.). The trial court accepted
Hale’s guilty pleas and ordered a pre-sentence investigation (“PSI”) report. (Feb.
12, 2013 Tr. at 17-23).
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{¶5} On March 1, 2013, the trial court sentenced Hale to seven years
imprisonment on each count and ordered that Hale serve the terms consecutively
for a total of 14 years. (Mar. 1, 2013 Tr. at 18). On March 5, 2013, the trial court
filed its judgment entry of sentence. (Doc. No. 24).
{¶6} On March 22, 2013, Hale filed a notice of appeal. (Doc. No. 29).
Hale raises three assignments of error. We will combine his second and third
assignments of error for discussion.
Assignment of Error No. I
The trial court erred to the prejudice of the defendant-appellant by imposing a sentence that is contrary to the purposes and principles of felony sentencing.
{¶7} In his first assignment of error, Hale argues that the trial court
conducted an independent investigation into his conduct revealing facts different
than those agreed to by the parties. In particular, Hale argues that, for purposes of
sentencing, the parties agreed that there were no other victims in this case. Hale
also argues that he disputed some of the factual statements in the PSI report, and
therefore, the trial court was required to make factual findings pursuant to R.C.
2951.03(B)(5).
{¶8} R.C. 2929.19 provides, in relevant part:
(A) The court shall hold a sentencing hearing before imposing a
sentence under this chapter upon an offender who was convicted of
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or pleaded guilty to a felony * * *. 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. * * *
(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 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.
(Emphasis added). R.C. 2951.03(B)(5) provides:
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;
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(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.
{¶9} Hale first argues that the trial court conducted an independent
investigation of his conduct, referencing an alleged email the trial court judge sent
to counsel regarding the case. The trial court judge acknowledged that he sent an
email to both the prosecutor and defense counsel, copied to the PSI writer, asking
the parties to clarify some factual issues at the sentencing hearing. (Mar. 1, 2013
Tr. at 14). The email was admitted into the record at the sentencing hearing as
court’s exhibit 1. (Id. at 13-14). In his February 25, 2013 email, the judge
indicated that he was “carefully evaluat[ing] the defendant’s conduct due to the
seriousness of this case and the sentence which has been recommended.” (Court’s
Ex. 1). The judge requested that the parties be prepared to discuss, at the
sentencing hearing, the victim’s age when the offenses occurred, the victim’s age
when Hale began photographing her, the victim’s age when the sexual conduct
occurred, the extent of the sexual conduct, and whether any other victims had been
identified and, if so, how many. (Id.).
{¶10} Nothing in the email indicates that the trial court was investigating
outside of the record, or that the trial court was seeking anything other than
information related to issues it had already raised in the case. At the change of
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plea hearing, the trial court asked the prosecution whether there were other
photographed victims. (Feb. 12, 2013 Tr. at 5). The prosecution represented that
the other photographed individuals “appear to be over the age of 18. They span --
(inaudible) -- of over maybe 30 years, Your Honor.” (Id.). The prosecutor also
represented that the 36 counts in the indictment were for the same victim, but
“[t]here’s other Counts that could be floating around out there with other victims.
We have photographs but -- in those photographs the victims all appear to be * * *
18 years of age or older. There’s no way to tell if they’re under 18.” (Id. at 18-
19). Many of the other photographed individuals, according to the State, could not
be identified because of the age of the photographs. (Id. at 20-21). The trial court
also asked the prosecutor the age of the victim for purposes of the photographs
underlying Counts One and Two (i.e., the victim’s age when the sexual conduct
occurred), and the victim’s age when Hale began photographing her. (Id. at 7, 20).
{¶11} At the sentencing hearing, the trial court questioned the prosecution
again concerning the possibility of other victims:
THE COURT: * * * it’s my understanding that, you know, you have
a number of photographs with multiple different girls or women in a
state of undress. There’s also some information provided on that in
the -- in the PSI --
MR. STAMOLIS: Sure, Judge.
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THE COURT: -- as well. I think that, you know, you weren’t able
to identify most of the victims or other people. It’s unclear to me
how many of the others were under 18 and maybe that’s just unclear.
I’m not --
MR. STAMOLIS: Of the -- of the photographs that were found by
the Police Department, Judge, other than the ones with the victim in
this case, they can’t identify any of those under the age of 18.
THE COURT: Okay. When you say they can’t identify * * * are
they saying they’re under 18 but we don’t know who they are or they
can’t tell whether they’re under 18?
MR. STAMOLIS: They can’t tell whether they’re under 18.
THE COURT: Okay.
MR. STAMOLIS: We’ve received reports of -- from some other
individuals of some things that happened back in the 70’s, maybe
early 80’s but, you know, things well past the statute that were not
looked into any further by the Police Department.
THE COURT: Those people report this happened to them when
they were under 18?
MR. STAMOLIS: A few people, I believe, it was two individuals
reported some type of sexual abuse. Whether under the age of 18,
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back in the 70’s -- one of those individuals advised us some
photographs were taken, you know, back in that era, and there were
several other individuals that she believed were under 18 when
photographs were taken. We don’t have those photographs. They
haven’t talked to those people.
THE COURT: Okay. Thank you.
PSI WRITER: Your Honor, may I say something?
THE COURT: You may.
PSI WRITER: I saw those photographs at the Marion Police
Department and I think it’s fair to say that many of those girls were
under the age of -- well under the age of 18. My opinion.
(Mar. 1, 2013 Tr. at 3-5). Defense counsel argued that the trial court could not
consider the PSI writer’s opinion concerning the age of the individuals in the other
photographs. (Id. at 5). Defense counsel indicated that he had seen “a number of
photographs,” but he was not sure if he had seen the photographs to which the PSI
writer and the prosecution were referring. (Id. at 6). Defense counsel also stated
that Hale disputed the fact that any of the other photographed individuals were
under 18, and the parties did not agree that there were other victims. (Id.). During
his arguments, defense counsel also stated that the victim was 16 or 17—but not
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any younger—when the offenses occurred, and the victim was at least 17 when the
sexual conduct occurred. (Id. at 12-13).
{¶12} Based upon the record, we are not persuaded that the trial court
inappropriately “conducted its own investigation”; rather, the trial court emailed
both parties asking them to clarify certain relevant factual issues at the sentencing
hearing. The State and defense had no agreement concerning other victims—the
parties agreed only that the indictment concerned the same victim. In its statement
of facts on appeal, the State specifically noted that it did not agree with Hale’s
assertion that none of the other photographs depicted other victims under the age
of 18. (Appellee’s Brief at 1). The prosecution made it clear that there could be
future charges in the event other victims were identified or came forward. (Feb.
12, 2013 Tr. at 18-19). A trial court is permitted to consider evidence of other
crimes—even unindicted ones—for purposes of sentencing. See State v. Cooey,
46 Ohio St.3d 20, 35 (1989), superseded by constitutional amendment as stated in
State v. Smith, 80 Ohio St.3d 89 (1997). See also State v. Burton, 52 Ohio St.2d
21, 23 (1977) (per curiam). Furthermore, R.C. 2929.19(A)—cited by Hale—
expressly permits the trial court to hear relevant information during the sentencing
hearing from “any other person.” Therefore, the trial court was within its
discretion to listen to the PSI writer’s opinion concerning the age of the other
photographed individuals.
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{¶13} Next, Hale argues that the trial court should have made findings
pursuant to R.C. 2951.03(B), because he pointed out several factual errors in the
PSI. In particular, Hale argues that the PSI “contained disputed information about
other so-called victims.” (Appellant’s Brief at 5). The original PSI’s only
reference to other women Hale photographed is the following: “[d]uring the
interview, the Defendant acknowledged that he has taken many photos of nude
women, but all of them were over the age of 18, except [the victim].” (Feb. 20,
2013 PSI). The updated PSI—a one-page document with three pages from a
police report attached thereto—has the following under the topic “Other victims”:
a. The names of the victims referenced in the PSI were found with
the details of the police report, both adult and adolescent. Attached
are three pages from the police report, and I have highlighted the
points of interest and names of other victims referenced in the PSI.
b. The extent of the Defendant’s “collection” of personal
photography and nude photos is massive. There are no doubt
thousands of photographs in evidence at the Marion Police
Department. After viewing only a small portion of those
photographs, many of the girls could have easily been underage, but
there is simply no way to confirm that. There were photographs that
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appeared to be from different decades, i.e[.], the 1980’s, the 1990’s,
2000, and recent.
(Feb. 25, 2013 PSI).
{¶14} To begin, we note that neither the updated PSI nor the original PSI
mentioned any other victims by name—only the police report attached to the
updated PSI names other victims. We also note that neither the original PSI nor
the updated PSI had any information concerning the sentencing factors. (Compare
PSI and Updated PSI to Mar. 1, 2013 Tr. at 11, 16). That said, the trial court did
not commit reversible error by failing to make factual findings under R.C.
2951.03(B)(5)(a). On the issue of other victims, the trial court specifically noted
the dispute between the parties and, nevertheless, concluded that “there is certainly
* * * information that suggests that, you know, at least some of those” other
women were under 18. (Id. at 16). R.C. 2951.03(B)(5)(a) does not require the
trial court to state “I make the following finding,” and here it is clear that the trial
court found evidence of other victims despite Hale’s assertions. See State v.
Othman, 149 Ohio App.3d 82, 2002-Ohio-4029, ¶ 22 (8th Dist.).
{¶15} Hale also argues that the trial court erred by failing to make an R.C.
2951.03(B)(5)(a) factual finding regarding the representation in the PSI that the
photographs and sexual conduct occurred when the victim was under 17. (Mar. 1,
2013 Tr. at 13). We disagree. The trial court did not make any express findings
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regarding the age of the victim when the photographs for Counts One and Two
occurred. (Id. at 17). The trial court did note, however, that the photographs
depicted the victim performing oral sex on Hale, which appears to have been more
of a concern for the trial court. (Id.). Since the trial court did not rely upon the
age of the victim, as much as the sexual conduct, to craft its sentence, the trial
court’s failure to make a finding on the victim’s age is harmless. State v.
Williamson, 5th Dist. Richland No. 04 CA 75, 2005-Ohio-3524, ¶ 24-26.
{¶16} For all these reasons, Hale’s first assignment of error is overruled.
Assignment of Error No. II
The trial court erred to the prejudice of the defendant-appellant by imposing consecutive sentences without making the required findings contained in R.C. 2929.14(C).
Assignment of Error No. III
The trial court erred to the prejudice of the defendant-appellant by imposing consecutive sentences without adequate justification.
{¶17} In his second assignment of error, Hale argues that the trial court
erred by failing to make findings under R.C. 2929.14(C) before imposing
consecutive sentences. In his third assignment of error, Hale argues that the trial
court abused its discretion by imposing a 14-year sentence after reviewing R.C.
2929.12.
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{¶18} A trial court’s sentence will not be disturbed on appeal absent a
defendant’s showing by clear and convincing evidence that the sentence is
unsupported by the record; the sentencing statutes’ procedure was not followed or
there was not a sufficient basis for the imposition of a prison term; or that the
sentence is contrary to law. State v. Ramos, 3d Dist. Defiance No. 4-06-24, 2007-
Ohio-767, ¶ 23 (the clear and convincing evidence standard of review set forth
under R.C. 2953.08(G)(2) remains viable with respect to those cases appealed
under the applicable provisions of R.C. 2953.08(A), (B), and (C) * * *); State v.
Rhodes, 12th Dist. Butler No. CA2005-10-426, 2006-Ohio-2401, ¶ 4; State v.
Tyson, 3d Dist. Allen Nos. 1-04-38 and 1-04-39, 2005-Ohio-1082, ¶ 19, citing
R.C. 2953.08(G).
{¶19} Clear and convincing evidence is that “which will produce 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 (1954), paragraph three of the
syllabus; State v. Boshko, 139 Ohio App.3d 827, 835 (12th Dist.2000). An
appellate court should not, however, substitute its judgment for that of the trial
court because the trial court is ‘“clearly in the better position to judge the
defendant’s dangerousness and to ascertain the effect of the crimes on the
victims.”’ State v. Watkins, 3d Dist. Auglaize No. 2-04-08, 2004-Ohio-4809, ¶ 16,
quoting State v. Jones, 93 Ohio St.3d 391, 400 (2001).
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{¶20} R.C. 2929.14(C)(4), as amended by H.B. 86, now requires a trial
court to make specific findings on the record before imposing consecutive
sentences. State v. Hites, 3d Dist. Hardin No. 6-11-07, 2012-Ohio-1892, ¶ 11;
State v. Peddicord, 3d Dist. Henry No. 7-12-24, 2013-Ohio-3398, ¶ 33.
Specifically, the trial court must find (1) consecutive sentences are necessary to
either protect the public or punish the offender; (2) the sentences would not be
disproportionate to the offense committed; and (3) one of the factors in R.C.
2929.14(C)(4)(a), (b), or (c) applies. Id.; Id.
{¶21} The trial court here specifically stated the following before imposing
consecutive sentences:
I will make the finding that the [consecutive] sentence is necessary
to punish the offender or to protect the public from future crime. It’s
not disproportionate to the conduct or the danger imposed by the
Defendant and that two or more offenses were committed as part of
the course of conduct and the harm is so great or unusual that a
single prison term would not adequately reflect the seriousness of
the conduct.
(Mar. 1, 2013 Tr. at 18). The trial court incorporated these findings into its
judgment entry of sentence. (Mar. 5, 2013 JE, Doc. No. 24). Therefore, the trial
court made the requisite findings before imposing consecutive sentences.
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{¶22} Next, Hale argues that the trial court’s 14-year sentence was not
supported by R.C. 2929.12’s sentencing factors. We begin by noting that, prior to
sentencing, defense counsel highlighted the relevant R.C. 2929.12 factors. (Mar.
1, 2013 Tr. at 9-13). Prior to sentencing Hale, the trial court stated that it
considered the principles and purposes of sentencing as well as the statutory
sentencing factors concerning seriousness and recidivism. (Id. at 15-16). The trial
court found that Hale did not have any serious criminal record (R.C.
2929.12(D)(2), (E)(1)-(2)). (Id. at 16). The trial court, however, found that Hale
admitted that his conduct occurred over a several-year period resulting in hundreds
of sexually oriented photographs (R.C. 2929.12(B) (other factor)). (Id.); (PSI).
The trial court also found relevant that the record contained evidence that Hale
photographed other minor girls. (R.C. 2929.12(B) (other factor)). (Mar. 1, 2013
Tr. at 15-16). The trial court also noted that the victim could not consent to being
photographed since she was under 18 (R.C. 2929.12(C)(1)). (Id.). At the same
time, the trial court noted that the victim’s mother may have brought the victim to
Hale for photographing for money (R.C. 2929.12(C)(1), (4)). (Id. at 16-17).
Nevertheless, the trial court observed that Hale did not only photograph the victim
but engaged in sexual conduct with her. (R.C. 2929.12(B) (other factor)). (Id. at
17). State v. Bowser, 186 Ohio App.3d 162, 2010-Ohio-951, ¶ 15 (trial court may
consider allegations of uncharged conduct among other sentencing factors). The
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trial court also found that the victim suffered serious psychological harm (R.C.
2929.12(B)(2)). (Mar. 1, 2013 Tr. at 17).
{¶23} Hale has failed to clearly and convincingly demonstrate that the trial
court’s 14-year sentence was not supported by the record. Hale was originally
indicted on 36 second-degree felonies, each carrying a possible eight years of
imprisonment, for a total possible sentence of 288 years. Hale’s criminal conduct
with the victim occurred over several years and included more than just
photographs. Hale was providing the victim with pregnancy tests and purchased
the victim a cell phone if she promised not to get pregnant before she was 16.
(PSI). Hale also admitted that he put his penis into the victim’s mouth “about”
three times during 2012. (PSI). Hale used his friendship with the victim’s family
to facilitate the offenses. R.C. 2929.12(B)(6). Hale reported that the victim’s
brother did not like the fact that his sister was posing nude, but the victim’s
brother “thought it was better from [Hale] then there [sic] mom having her get it
from men on the street. That was his fear and mine.” (PSI). Furthermore, there
was evidence to suggest that there were other victims. It is clear from the
sentencing hearing that the trial court weighed the appropriate factors and
reviewed the PSI when crafting its sentence.
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{¶24} Because the trial court made R.C. 2929.14(C) findings prior to
imposing consecutive sentences and the sentence is supported by the record, we
overrule Hale’s second and third assignments of error.
{¶25} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
WILLAMOWSKI, P.J., concurs in Judgment Only.
/jlr
ROGERS, J., Concurring in Part and Dissenting in Part.
{¶26} I concur with the opinion of the majority as to the second assignment
of error, but I respectfully dissent in regard to the first and third assignments of
error.
{¶27} I must first express that my position on this issue is my legal opinion
and is not intended to in any way condone Appellant’s actions or to minimize the
seriousness of Appellant’s conduct.
{¶28} In sentencing Appellant, the trial court stated:
It will be my judgment to sentence the Defendant to seven years on Count 1, seven years on Count 2, run those sentences consecutively for a total sentence of 14 years.
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I will make findings that the sentence is necessary to punish the offender or to protect the public from future crime. It’s not disproportionate to the conduct or to the danger imposed by the Defendant and that two or more offenses were committed as part of the course of conduct and the harm is so great or unusual that a single prison term would not adequately reflect the seriousness of the conduct.
(Emphasis added.) Sentencing Tr., p. 18.
{¶29} Without question, the trial court sufficiently regurgitated the
statutory language necessary to impose consecutive sentences. The trial court
found that the harm is so great or unusual that a single prison term would not
adequately reflect the seriousness of the conduct. However, I find that the trial
court erred in imposing consecutive sentences and disagree with the majority’s
opinion for two reasons: (1) the trial court improperly relied on disputed
information contained in the presentence investigation report when sentencing;
and (2) there is no evidence that the victim’s harm was great or unusual under the
statutory construction of R.C. 2929.14, which limits the evidence a trial court can
consider when imposing consecutive sentences.
The Presentence Investigation Report
{¶30} The majority asserts that the sentencing court, in general, may
consider uncharged conduct when determining an appropriate sentence.
However, this authority is not absolute. To determine whether a trial court’s
sentence is appropriate, an appellate court’s review is limited to (1) the pre-
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sentence investigation report (PSI); (2) the record from the trial court; and (3) any
oral or written statements made to or by the court at the sentencing hearing. R.C.
2953.08; accord State v. Tolliver, 9th Dist. No. 03CA0017, 2003-Ohio-5050, ¶ 24.
Indeed, the cases cited by the majority allowed evidence that would have been
excluded from the record at the trial to become a part of the record of the
sentencing hearing. However, “[t]he broadening of the scope of admissible
evidence for sentencing hearings * * * is not unlimited but nonetheless subject to
the fundamentals of due process.” State v. Bowers, 10th Dist. Franklin No. 00AP-
1453, 2001 WL 1013090 (Sept. 6, 2001). Therefore, the trial court must only
consider what is properly on the record at sentencing, and cannot rely on
information outside of the record. See State v. Ford, 3d Dist. Union No. 14-10-07,
2010-Ohio-4069, ¶ 12 (trial court properly considered uncharged conduct placed
on record by testimony of police officers at sentencing); Tolliver at ¶ 25 (trial
court properly considered uncharged crimes as they appeared in a PSI that was
made a part of the record); State v. Fisher, 11th Dist. Lake No. 2002-L-020, 2003-
Ohio-3499, ¶ 18-19 (trial court could not base sentence on belief that defendant
was guilty of crime when no evidence appeared on the record to support belief).
Thus, uncharged conduct may be considered as long as it becomes a part of the
record at sentencing.
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{¶31} A PSI may contain uncharged conduct as part of social history. State
v. Cooey, 46 Ohio St.3d 20, 35 (1989). “[I]t is permissible for the court to
consider information [contained in a PSI] concerning a defendant’s previous
criminal history including uncharged yet undisputed conduct.” (Emphasis added.)
State v. Steward, 4th Dist. Washington No. 02CA43, 2003-Ohio-4082, ¶ 26.
Under R.C. 2951.03(B)(5), a defendant has an opportunity to object to the
information contained within the PSI:
(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:
(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.
{¶32} Once the defendant informs the court of the alleged inaccuracies in
the report, it creates “an affirmative duty on the trial court to make a finding
regarding the objection in accordance with [the statute].” State v. Swihart, 3d
Dist. No. 14-12-25, 2013-Ohio-4645, ¶ 63. When a trial court fails to make a
finding as required by the statute but still relies on the disputed parts of the PSI
during sentencing, the sentence is improper and must be vacated and remanded for
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resentencing.1 Id.; see also State v. Rhoades, 5th Dist. Muskingum No. CT2006-
0085, 2007-Ohio-1826, ¶ 20 (trial court relying on disputed admission contained
in PSI during sentencing required reversal); State v. Jackson, 6th Dist. No. E-00-
023, 2001 WL 311256 (Mar. 30, 2001) (trial court relying on disputed criminal
record contained in PSI during sentencing required reversal).
{¶33} At the sentencing hearing, there was no victim impact statement, nor
was any additional evidence presented by the prosecutor in the form of witnesses.
The information regarding the alleged uncharged conduct perpetrated against other
victims was contained in the PSI. This is revealed on the record, as the trial court
discusses with the prosecution:
TRIAL COURT: I mean, we’ve discussed this before and it’s my understanding that, you know, you have number [sic] of photographs with multiple different girls or women in a state of undress. There’s also some information provided on that in the – in the PSI –
PROSECUTION: Sure, Judge.
TRIAL COURT: – as well. I think that, you know, you weren’t able to identify most of the victims or other people. It’s unclear to me how many of the others were under 18 and maybe that’s just unclear. I’m not –
1 Some courts have found that failure to make the requisite finding is harmless error, so long as the trial court’s findings or considerations would not be affected by the alleged inaccuracies. See, e.g. State v. Williams, 5th Dist. No. 04 CA 75, 2005-Ohio-3524, ¶ 25. However, this court has not addressed whether the harmless error analysis is proper when a trial court fails to make the requisite findings. See Swihart at f.n. 6. Further, without the PSI, there is no basis from which to impose consecutive sentences, as no additional evidence was produced during the sentencing hearing.
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PROSECUTION: Of the – of the photographs that were found by the Police Department Judge, other than the ones with the victim in this case, they can’t identify any of those under the age of 18.
***
PROSECUTION: We received reports of – from some other individuals of some things that happened back in the 70’s, maybe early 80’s but, you know, things well past the statute that were not looked into any further by the Police Department.
TRIAL COURT: Those people report this happened to them when they were under 18?
PROSECUTION: A few people, I believe, it was two individuals reported some type of sexual abuse. Whether under the age of 18, back in the 70’s – one of those individuals advised us some photographs were taken, you know, back in that era, and there were several other individuals that she believed were under 18 when photographs were taken. We don’t have those photographs. They haven’t talked to those people.
Sentencing Tr., p. 3-5. All of the information referred to by the prosecution is
contained in the PSI, and the PSI is specifically discussed by the trial judge as the
source of the information.
{¶34} Later, Defense Counsel makes a series of objections to the
information in the PSI. As to the age of any other alleged victims, Defense
Counsel stated:
DEFENSE COUNSEL: I have a couple issues, Your Honor, may it please the Court on behalf of Mr. Hale. Number one, I guess I would start with the comments of the PSI writer forming some opinion as to the age of some of the individuals in the photographs. I don’t believe that’s appropriate. I don’t believe that individual
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would have certainly the qualifications to identify the age of an individual in a photograph.
DEFENSE COUNSEL: [W]e absolutely dispute that any of those individuals were under the age of 18. There is absolutely no agreement that there are any other victims. These individuals that were photographed were photographed with their consent.
DEFENSE COUNSEL: My concern is that the PSI writer is relying on mother’s statements [sic]. You made no attempt to contact this individual at issue here who is now very close of being age –
PROSECUTION: Your Honor, if I may? [I]’m sorry, I’ve spoken with K.S. I know the PSI writer attempted to make contact with K.S. and the mother would not make the child available to the PSI writer.
DEFENSE COUNSEL: None of that information really is contained in the record. And what I’m concerned about is is [sic] that we are assuming facts in this case that we, as in representing my client, we dispute those facts. We dispute that there were any other victims.
Sentencing Tr., p. 5-6, 8-9.
{¶35} It is clear from the record that Hale’s counsel repeatedly objected to
the use of the PSI as it contained factual inaccuracies. However, the trial court
never made a finding regarding the alleged factual inaccuracy, nor did it state that
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it was ignoring the disputed information for the purposes of sentencing. To the
contrary, the trial court, in referencing the PSI, specifically stated:
And certainly there’s things that, you know, there’s some objective and subjective, you know, elements in [the PSI] and people are free to agree or disagree with it. But it – but I think is – it does reflect appropriate things that need to be considered. Now, we may weigh those differently, and evaluate differently * * *.
I think the dispute is to what extent any of those women were under the age of, you know, of 18. There is – there is certainly a, you know, information that suggests that, you know, at least some of those were as well. Maybe not conclusive but we certainly have information to suggest that.
(Emphasis added.) Id. at 14, 16. Here, the court acknowledged that there was a
disagreement over the allegations of uncharged conduct contained in the PSI, but
it never made a finding regarding the alleged factual inaccuracies. Further, it is
clear from the repeated references to the PSI that the court relied on the
information contained in the report when sentencing Hale.
{¶36} As the trial court never made a finding on the disputed allegations
contained in the PSI, but referenced the disputed allegations when sentencing
Hale, it is reversible error. I would remand this matter back to the trial court for
resentencing to make the appropriate findings as to the disputed allegations.
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Statutory Construction of R.C. 2929.14(C)(4)
{¶37} Even if the trial court had made the appropriate findings regarding
the PSI, there is still no evidence in the record to support the trial court’s
imposition of consecutive sentences. While the court is allowed to admit evidence
at sentencing that would be excluded at trial, the amount of evidence the trial court
can rely on for the sentence in general is severely limited under the plain meaning
of R.C. 2929.14(C)(4). The statute allows the imposition of consecutive sentences
when the trial 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:
R.C. 2929.14(C)(4). Determining whether the offender poses a threat to the
public, requires punishment, and that the punishment is not disproportionate to the
crime is similar to the trial court’s consideration of recidivism and the purposes of
sentencing in general, and as a result there is no limitation on the types of evidence
on the record that the court may consider for those purposes.
{¶38} However, the statute states that the court must make an additional
finding. Id. One of the possible additional findings is that:
[a]t 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
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of the courses of conduct adequately reflects the seriousness of the offender’s conduct.
Id. This is the finding that the trial court purported to make when it sentenced
Hale to two consecutive sentences.
{¶39} As this court has stated:
A basic rule of statutory construction requires that words in statutes should not be construed to be redundant, nor should any words be ignored. Statutory language must be construed as a whole and given such interpretation as will give effect to every word and clause in it. No part should be treated as superfluous unless that is manifestly required, and the court should avoid that construction which renders a provision meaningless or inoperative.
(Citations omitted.) State v. Stults, 195 Ohio App.3d 488, 2011-Ohio-4328, ¶ 18
(3rd Dist.). As a result, each finding required by the statute must be separate and
distinct. A reading that makes any two findings substantially similar should be
rejected by the court over a reading that would give effect to every word and
clause.
{¶40} A plain reading of the statute requires that the two offenses were part
of a course of conduct and that the harm caused, as a result of the course of
conduct the offender is being sentenced for, was so great or unusual that
consecutive sentences are necessary. Further, this is a separate and distinct finding
from whether the offender represents a danger to society or must otherwise be
punished. In other words, the defendant’s criminal history is irrelevant as to
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whether the offenses created a course of conduct, otherwise these two findings
would be the same inquiry.
{¶41} Instead, the statute must mean that the course of conduct is limited to
the offenses that the defendant is being convicted of, not of a general course of
conduct. This does not limit what can be admitted on the record, instead it limits
what can be considered when making this determination. As a result, the trial
court could only consider whether the two offenses that Hale pleaded guilty to
created a course of conduct that resulted in a great or unusual harm. The pictures
of the other girls cannot be a part of this finding, as they do not relate to the course
of conduct of the offenses for which Hale is being convicted.
{¶42} With this limitation in mind, the trial court can only consider how
these two specific offenses created a great or unusual harm against the single
victim. It is apparent that the trial court was offended by the nature of the activity
between Appellant and the victim.
I mean, you know, the ramification of this type of, you know, activity, you know, it’s difficult to quantify, difficult to even, you know, even understand. So I mean, I would, you know, I, you know, I think the record is more than sufficient in terms of serious, you know emotional, you know, injury as far as that –that goes.
Sentencing Tr., p. 17. The trial court assumes that the victim endured
psychological harm. As Defense Counsel pointed out, “[t]here was some
assumption that this victim had serious physical harm or serious mental harm.
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And there’s absolutely no facts in the record that support a conclusion that the –
the victim suffered some injury that would make this more serious than not.” Id.
at 11. “Again, we have many conclusions that are being drawn or assumptions
that are being made and again, we have no basis for those, no support for those
either in the court record * * *.” Id. at 13.
{¶43} The trial court is going outside of the record to state that it is obvious
that there was trauma in this case as a result of the nature of the crime being
charged. The trial court did reference the fact that when the victim first reported
this case to people at her school “[s]he’s crying, she needed help, turn her life
around.” Id. at 17. However, the victim also acknowledged using drugs and her
mother selling and using drugs. There is nothing in the record to suggest that the
conduct Appellant is being convicted of caused more problems than her home life
with her mother. Further, although requested, there is no victim impact statement,
let alone one alleging emotional distress as a result of this conduct. There is no
suggestion that this activity has led to counseling, or any specific emotional
complications. The court cannot assume the evidence exists; it must be on the
record.
{¶44} The trial court also found that the sexual conduct between the victim
and the Appellant was relevant. The fact that there was sexual conduct between
the victim and Appellant is not a proper justification for consecutive sentences
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because she insists that it did not happen until after her sixteenth birthday, which
means consensual sex between them is not a criminal offense. Further, the statute
necessarily requires that the minor child be participating in sexual activity. R.C.
2907.322(A)(1). The court cannot say that by simply violating the statute the
harm is automatically great or unusual. Arguably, had the defendant distributed
the sexually explicit material, it could have caused great or unusual harm. Since
there is no indication that Appellant ever shared the photographs or videos with
any other person, we do not consider the argument.
{¶45} While the conduct of Appellant may be reprehensible, there is
nothing in the record to warrant the trial court’s finding that the victim suffered
serious psychological harm, or to justify the finding that the harm was so great or
unusual that a single prison term would not adequately reflect the seriousness of
the conduct. The trial court assumed that the incidents caused great or unusual
harm, without any justification on the record as to how these two offenses caused
that great or unusual harm. Without more than the usual harm caused by such
conduct, or greater harm than is typical, I cannot support affirmance of the
consecutive sentence in this case.
{¶46} The record clearly and convincingly demonstrates that the trial
court’s sentence was based on matters it was not authorized to consider, and that
the trial court made a finding that, while mechanically correct, is not supported by
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the record. Therefore, the imposition of consecutive sentences in this case was
contrary to law and an abuse of discretion.
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