[Cite as State v. Holbrook, 2013-Ohio-3786.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-13-06
v.
JAMIE B. HOLBROOK, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Common Pleas Court Trial Court No. 2012-CR-65
Judgment Affirmed
Date of Decision: September 3, 2013
APPEARANCES:
Gerald F. Siesel for Appellant
Edwin A. Pierce for Appellee Case No. 2-13-06
PRESTON, P.J.
{¶1} Defendant-appellant, Jamie B. Holbrook, appeals the Auglaize County
Court of Common Pleas’ judgment entry of sentence. We affirm.
{¶2} On March 16, 2012, the Auglaize County Grand Jury indicted
Holbrook on nine counts of unlawful sexual conduct with a minor in violation of
R.C. 2907.04(A)(B)(3), third-degree felonies, stemming from separate incidents
with two female victims over the course of several months. (Doc. No. 1).
{¶3} On May 1, 2012, Holbrook filed a written plea of not guilty. (Doc.
No. 20).
{¶4} On November 1, 2012, Holbrook pled guilty to Counts One, Eight,
and Nine of the indictment. (Nov. 1, 2012 Tr. at 15-16); (Doc. No. 38). Pursuant
to the parties’ written plea agreement, the State dismissed the remaining counts.
(Id.); (Id.). The State alleged that Count One charged Holbrook of engaging in
sexual conduct—in particular fellatio—with a female victim (15 years old), and
Counts Eight and Nine charged Holbrook of engaging in sexual conduct—
specifically, vaginal intercourse—with a female victim (13 years old). (Nov. 1,
2012 Tr. at 16-17). The defense requested a pre-sentence investigation (“PSI”)
report, which the State did not oppose pursuant to the plea agreement, and which
the trial court ordered. (Id. at 18-21); (Doc. Nos. 38, 42).
-2- Case No. 2-13-06
{¶5} On January 16, 2013, the trial court held a combined sexual offender
classification/sentencing hearing. The trial court classified Holbrook as a Tier II
Sexual Predator. (Jan. 16, 2013 Tr. at 5). Thereafter, the trial court sentenced
Holbrook to 60 months imprisonment on Count One, 60 months imprisonment on
Count Eight, and 54 months imprisonment on Count Nine. (Id. at 17). The trial
court further ordered that Holbrook serve the terms consecutive to each other for
an aggregate sentence of 174 months imprisonment. (Id. at 18). The trial court
filed its judgment entry of sentence that same day. (Doc. No. 48).
{¶6} On February 14, 2013, Holbrook filed a notice of appeal. (Doc. No.
62). Holbrook now raises the following assignment of error:
Assignment of Error
The trial court’s sentence of consecutive prison terms for unlawful sexual conduct with a minor consisting of 60 months for Count One, 60 months for Count Eight, and 54 months for Count Nine of the indictment for a combined total of 174 months was contrary to law and constituted an abuse of discretion in failing to properly consider and apply the felony sentencing guidelines set forth in Ohio Revised Code, Section 2929.11 and 2929.12.
{¶7} In his sole assignment of error, Holbrook argues that the record is
unclear whether the trial court considered R.C. 2929.11 and 2929.12 at the
sentencing hearing, and the trial court failed to reference specific criteria under the
sentencing guidelines. He further argues that, had the trial court properly
-3- Case No. 2-13-06
considered the sentencing factors, it would not have sentenced him to consecutive
terms of imprisonment totaling 174 months.
{¶8} 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).
{¶9} 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
-4- Case No. 2-13-06
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).
{¶10} A trial court must consider R.C. 2929.11 and 2929.12 when
sentencing an offender. State v. Pence, 3d Dist. Auglaize No. 2-11-18, 2012-
Ohio-1794, ¶ 9. However, the trial court is not required to use specific language
regarding its consideration of the seriousness and recidivism factors. State v.
Smith, 3d Dist. Auglaize No. 2-06-37, 2007-Ohio-3129, ¶ 26, citing State v.
Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶ 38. See also State v. Arnett, 88 Ohio
St.3d 208, 215 (2000) and State v. Snyder, 3d Dist. Seneca No. 13-12-38, 2013-
Ohio-2046, ¶ 25. Further, there is no requirement in R.C. 2929.12 that the trial
court state on the record that it has considered the statutory criteria. Smith at ¶ 26,
citing State v. Polick, 101 Ohio App.3d 428, 431 (4th Dist.1995).
{¶11} R.C. 2929.14(C)(4) requires a trial court to make specific findings
when imposing consecutive sentences. State v. Rust, 3d Dist. Marion No. 9-12-49,
2013-Ohio-2151, ¶ 13, citing State v. Bentley, 3d Dist. Marion No. 9-12-31, 2013-
Ohio-852, ¶ 11. Although R.C. 2929.14(C)(4) requires the trial court to make
findings before imposing a consecutive sentence, the statute does not require the
trial court to give its reasons for imposing the sentence. Id. at ¶ 14 (citations
omitted).
-5- Case No. 2-13-06
{¶12} At the hearing, the State and defense counsel made statements to the
trial court outlining the different factors it should consider in sentencing Holbrook.
(Jan. 16, 2013 Tr. at 7-8). The trial court inquired into the nature of the sexual
offenses, including the age of the victims, and Holbrook’s previous sexual offense
against his wife’s nine-year-old sister. (Id. at 14-15). Thereafter, the trial court
stated:
After consideration of the information provided to the Court by the
parties and the PreSentence Investigation, the Court SENTENCES
THE DEFENDANT AS FOLLOWS * * *. THE COURT FINDS
THAT CONSECUTIVE SERVICE IS NECESSARY TO
PROTECT THE PUBLIC FROM FUTURE CRIME AND TO
PUNISH THE OFFENDER AND THAT CONSECUTIVE
SENTENCES ARE NOT DISPROPORTIONATE TO THE
SERIOUSNESS OF THE OFFENDER’S CONDUCT AND THE
DANGER THE OFFENDER POSES TO THE PUBLIC. AND
THE COURT ALSO FINDS THAT CONSECUTIVE SENTENCES
ARE NECESSARY TO PROTECT THE PUBLIC FROM FUTURE
CRIMES BY THE OFFENDER. (Id. at 17-18).
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[Cite as State v. Holbrook, 2013-Ohio-3786.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-13-06
v.
JAMIE B. HOLBROOK, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Common Pleas Court Trial Court No. 2012-CR-65
Judgment Affirmed
Date of Decision: September 3, 2013
APPEARANCES:
Gerald F. Siesel for Appellant
Edwin A. Pierce for Appellee Case No. 2-13-06
PRESTON, P.J.
{¶1} Defendant-appellant, Jamie B. Holbrook, appeals the Auglaize County
Court of Common Pleas’ judgment entry of sentence. We affirm.
{¶2} On March 16, 2012, the Auglaize County Grand Jury indicted
Holbrook on nine counts of unlawful sexual conduct with a minor in violation of
R.C. 2907.04(A)(B)(3), third-degree felonies, stemming from separate incidents
with two female victims over the course of several months. (Doc. No. 1).
{¶3} On May 1, 2012, Holbrook filed a written plea of not guilty. (Doc.
No. 20).
{¶4} On November 1, 2012, Holbrook pled guilty to Counts One, Eight,
and Nine of the indictment. (Nov. 1, 2012 Tr. at 15-16); (Doc. No. 38). Pursuant
to the parties’ written plea agreement, the State dismissed the remaining counts.
(Id.); (Id.). The State alleged that Count One charged Holbrook of engaging in
sexual conduct—in particular fellatio—with a female victim (15 years old), and
Counts Eight and Nine charged Holbrook of engaging in sexual conduct—
specifically, vaginal intercourse—with a female victim (13 years old). (Nov. 1,
2012 Tr. at 16-17). The defense requested a pre-sentence investigation (“PSI”)
report, which the State did not oppose pursuant to the plea agreement, and which
the trial court ordered. (Id. at 18-21); (Doc. Nos. 38, 42).
-2- Case No. 2-13-06
{¶5} On January 16, 2013, the trial court held a combined sexual offender
classification/sentencing hearing. The trial court classified Holbrook as a Tier II
Sexual Predator. (Jan. 16, 2013 Tr. at 5). Thereafter, the trial court sentenced
Holbrook to 60 months imprisonment on Count One, 60 months imprisonment on
Count Eight, and 54 months imprisonment on Count Nine. (Id. at 17). The trial
court further ordered that Holbrook serve the terms consecutive to each other for
an aggregate sentence of 174 months imprisonment. (Id. at 18). The trial court
filed its judgment entry of sentence that same day. (Doc. No. 48).
{¶6} On February 14, 2013, Holbrook filed a notice of appeal. (Doc. No.
62). Holbrook now raises the following assignment of error:
Assignment of Error
The trial court’s sentence of consecutive prison terms for unlawful sexual conduct with a minor consisting of 60 months for Count One, 60 months for Count Eight, and 54 months for Count Nine of the indictment for a combined total of 174 months was contrary to law and constituted an abuse of discretion in failing to properly consider and apply the felony sentencing guidelines set forth in Ohio Revised Code, Section 2929.11 and 2929.12.
{¶7} In his sole assignment of error, Holbrook argues that the record is
unclear whether the trial court considered R.C. 2929.11 and 2929.12 at the
sentencing hearing, and the trial court failed to reference specific criteria under the
sentencing guidelines. He further argues that, had the trial court properly
-3- Case No. 2-13-06
considered the sentencing factors, it would not have sentenced him to consecutive
terms of imprisonment totaling 174 months.
{¶8} 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).
{¶9} 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
-4- Case No. 2-13-06
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).
{¶10} A trial court must consider R.C. 2929.11 and 2929.12 when
sentencing an offender. State v. Pence, 3d Dist. Auglaize No. 2-11-18, 2012-
Ohio-1794, ¶ 9. However, the trial court is not required to use specific language
regarding its consideration of the seriousness and recidivism factors. State v.
Smith, 3d Dist. Auglaize No. 2-06-37, 2007-Ohio-3129, ¶ 26, citing State v.
Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶ 38. See also State v. Arnett, 88 Ohio
St.3d 208, 215 (2000) and State v. Snyder, 3d Dist. Seneca No. 13-12-38, 2013-
Ohio-2046, ¶ 25. Further, there is no requirement in R.C. 2929.12 that the trial
court state on the record that it has considered the statutory criteria. Smith at ¶ 26,
citing State v. Polick, 101 Ohio App.3d 428, 431 (4th Dist.1995).
{¶11} R.C. 2929.14(C)(4) requires a trial court to make specific findings
when imposing consecutive sentences. State v. Rust, 3d Dist. Marion No. 9-12-49,
2013-Ohio-2151, ¶ 13, citing State v. Bentley, 3d Dist. Marion No. 9-12-31, 2013-
Ohio-852, ¶ 11. Although R.C. 2929.14(C)(4) requires the trial court to make
findings before imposing a consecutive sentence, the statute does not require the
trial court to give its reasons for imposing the sentence. Id. at ¶ 14 (citations
omitted).
-5- Case No. 2-13-06
{¶12} At the hearing, the State and defense counsel made statements to the
trial court outlining the different factors it should consider in sentencing Holbrook.
(Jan. 16, 2013 Tr. at 7-8). The trial court inquired into the nature of the sexual
offenses, including the age of the victims, and Holbrook’s previous sexual offense
against his wife’s nine-year-old sister. (Id. at 14-15). Thereafter, the trial court
stated:
After consideration of the information provided to the Court by the
parties and the PreSentence Investigation, the Court SENTENCES
THE DEFENDANT AS FOLLOWS * * *. THE COURT FINDS
THAT CONSECUTIVE SERVICE IS NECESSARY TO
PROTECT THE PUBLIC FROM FUTURE CRIME AND TO
PUNISH THE OFFENDER AND THAT CONSECUTIVE
SENTENCES ARE NOT DISPROPORTIONATE TO THE
SERIOUSNESS OF THE OFFENDER’S CONDUCT AND THE
DANGER THE OFFENDER POSES TO THE PUBLIC. AND
THE COURT ALSO FINDS THAT CONSECUTIVE SENTENCES
ARE NECESSARY TO PROTECT THE PUBLIC FROM FUTURE
CRIMES BY THE OFFENDER. (Id. at 17-18).
In its judgment entry of sentence, the trial court stated that it considered R.C.
2929.11 and 2929.12 in rendering its sentence. (Jan. 16, 2013 JE, Doc. No. 48).
-6- Case No. 2-13-06
Based upon the foregoing, we are not persuaded that the trial court failed to
consider the applicable sentencing statutes.
{¶13} Next, Holbrook argues that, had the trial court properly considered
the statutory factors, it would not have sentenced him to consecutive sentences
totaling 174 months imprisonment. We disagree. Holbrook was originally
indicted on nine counts of unlawful sexual conduct with a minor involving two
victims over the course of several months. Each count carried a potential sixty-
month term of imprisonment (R.C. 2929.14(A)(3)(a)) for an aggregate potential of
540 months imprisonment. Holbrook, however, pled guilty and was sentenced on
only three of those nine counts, thereby reducing his potential sentence to 180
months. Holbrook’s criminal record was extensive, including a previous sexual
offense against a nine-year-old, several probation violations, passing bad checks,
receiving stolen property, and felony theft, to name a few. (PSI). The sexual
offenses in this case occurred just shortly after Holbrook finished his mandatory
post-release control from another case. (Jan. 16, 2013 Tr. at 10). (See R.C.
2929.12(D)(1)). The first victim in this case, like his previous victim, was a
fifteen-year-old relative who functioned with the mental capacity/maturity of a
nine-year-old. (PSI). (See R.C. 2929.12(B)(6)). This first victim alleged that
Holbrook had forced her to have vaginal and anal sex an estimated thirteen times.
(PSI). The second victim, the thirteen-year-old cousin of the first victim, alleged
-7- Case No. 2-13-06
that Holbrook “raped” her approximately 30 times over a one-year period. (Id.).
Holbrook denied ever forcing the girls to have sex; instead, he alleged that they
asked him for sex. (Id.). Holbrook minimized his criminal behavior and blamed it
on his failure to take his medications. (Id.).
{¶14} Upon review of the entire record, we are not persuaded that the trial
court should have imposed a lesser, i.e. concurrent, sentence in this case.
{¶15} Holbrook’s assignment of error is, therefore, overruled.
{¶16} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr
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