State v. Homa

2021 Ohio 3974

• Court: Ohio Court of Appeals
• Decided: November 8, 2021
• Docket: 2021-L-038
• Status: Published

Opinion

[Cite as State v. Homa, 2021-Ohio-3974.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNTY

STATE OF OHIO, CASE NO. 2021-L-038

Plaintiff-Appellee, Criminal Appeal from the -v- Court of Common Pleas

JOSEPH M. HOMA, Trial Court No. 2020 CR 000289 Defendant-Appellant.

OPINION

Decided: November 8, 2021 Judgment: Affirmed

Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

Edward F. Borkowski, Jr., P.O. Box 609151, Cleveland, OH 44109 (For Defendant- Appellant).

THOMAS R. WRIGHT, J.

{¶1} Appellant, Joseph M. Homa, appeals his sentence after pleading guilty to

two charges. We affirm.

{¶2} Homa was indicted on the following eight felony counts stemming from

allegations that he engaged in sexual conduct and contact with his twelve-year-old

cousin: six counts of rape in violation of R.C. 2907.02(A)(1)(b), attempted rape in violation

of R.C. 2923.02 and 2907.02(A)(1)(b), and gross sexual imposition in violation of R.C.

2907.05(A)(4). {¶3} Thereafter, Homa pleaded guilty to attempted rape, as contained in count

three of the indictment, and one count of rape, as contained in count five of the indictment.

As set forth at the change of plea hearing, count three pertained to Homa’s attempted

rape of the victim, on or between March 14 and 15, 2020, by placing his hands, mouth,

and fingers on the victim’s vaginal area. Count five pertained to Homa engaging in vaginal

intercourse with the victim, on or between March 21 and 22, 2020. The trial court stated,

and both the state and defense counsel agreed, that these offenses occurred one week

apart, and no merger of the offenses was possible. The trial court ordered a presentence

investigation and report, victim impact statement, and comprehensive psychological

evaluation and set the matter for sentencing.

{¶4} At sentencing, the court sentenced Homa to consecutive terms of

imprisonment of 8 to 12 years on count three and 10 years to life on count five and entered

a nolle prosequi on the remaining counts.

{¶5} Homa challenges his sentence in his three assigned errors:

{¶6} “[1.] The trial court failed to make the required findings before imposing

consecutive sentences[.]

{¶7} “[2.] The record does not support the trial court’s consecutive sentence

findings[.]

{¶8} “[3.] Appellant’s sentence is contrary to law because the trial court failed to

properly consider and weigh the relevant statutory factors, and because the record does

not clearly and convincingly support the sentence imposed[.]”

{¶9} R.C. 2953.08(G)(2) provides our standard of review for felony sentences:

The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings 2

Case No. 2021-L-038 underlying the sentence or modification given by the sentencing court.

The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court’s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court’s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

{¶10} “Clear and convincing evidence is that measure or degree of proof which is

more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty

as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in

the mind of the trier of facts a firm belief or conviction as to the facts sought to be

established.” State v. Wasilewski, 11th Dist. Portage No. 2020-P-0025, 2020-Ohio-5141,

¶ 37, quoting State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶

22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

This court has recognized that the “clear and convincing standard” is “highly” deferential, as it “is written in the negative. It does not say that the trial judge must have clear and convincing evidence to support its findings. Instead, it is the court of appeals that must clearly and convincingly find that the record does not support the court’s findings.”

Wasilewski at ¶ 38, quoting State v. Taeusch, 11th Dist. Lake No. 2016-L-047, 2017-

Ohio-1105, ¶ 13, quoting State v. Venes, 2013-Ohio-1891,992 N.E.2d 453, ¶ 21 (8th

Dist.).

Case No. 2021-L-038 {¶11} To facilitate our discussion, we first address Homa’s third assigned error,

wherein he argues that, although the sentences are within the relevant statutory ranges,

the court did not properly consider and weigh the purposes and principles of felony

sentencing contained in R.C. 2929.11 and 2929.12.

{¶12} “R.C. 2929.11 and R.C. 2929.12 apply as a general judicial guide for every

sentencing.” State v. Watson, 11th Dist. Ashtabula No. 2020-A-0038, 2021-Ohio-2549, ¶

22, citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 36. R.C.

2929.11(A) provides that the trial court “shall be guided by the overriding purposes of

felony sentencing,” which are “[1] to protect the public from future crime by the offender

and others, [2] to punish the offender, and [3] to promote the effective rehabilitation of the

offender using the minimum sanctions that the court determines accomplish those

purposes without imposing an unnecessary burden on state or local government

resources.” Watson at ¶ 23. “To ‘achieve those purposes,’ the court ‘shall consider the

need for incapacitating the offender, deterring the offender and others from future crime,

rehabilitating the offender, and making restitution to the victim of the offense, the public,

or both.’” Watson at ¶ 24, quoting R.C. 2929.11(A).

{¶13} “R.C. 2929.12(A) grants the sentencing judge discretion ‘“to determine the

most effective way to comply with the purposes and principles of sentencing.”’” Watson

at ¶ 25, quoting Foster at ¶ 37, quoting R.C. 2929.12(A). “In exercising that discretion,

the court shall consider, along with any other ‘“relevant”’ factors, the seriousness factors

set forth in divisions (B) and (C) and the recidivism factors in divisions (D) and (E) of R.C.

2929.12.” Watson at ¶ 25, quoting Foster at ¶ 37, quoting R.C. 2929.12(A).

{¶14} However, with respect to our review of a felony sentence,

Case No. 2021-L-038 [t]he Supreme Court of Ohio recently clarified in State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, that contrary to the “dicta” in Marcum, R.C. 2953[].08(G)(2)(a) does not provide a basis for an appellate court to modify or vacate a sentence based on the lack of support in the record for the trial court’s findings under R.C. 2929.11 and 2929.12. Id. at ¶ 29; see Marcum at ¶ 23. * * * “Nothing in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in the record and substitute its judgment for that of the trial court concerning the sentence that best reflects compliance with R.C. 2929.11 and 2929.12.” Jones at ¶ 42. Moreover, the Jones majority clarified that the term “otherwise contrary to law” under R.C. 2953.08(G)(2)(b) does not encompass an appellate court’s conclusion that a sentence is not supported by the record under R.C. 2929.11 and R.C. 2929.12. Id. at ¶ 32.

Watson at ¶ 20; see also State v. Chase, 11th Dist. Lake Nos. 2020-L-070 & 2020-L-071,

2021-Ohio-1006, ¶ 10; see also State v. Burton, 11th Dist. Lake No. 2020-L-112, 2021-

Ohio-1364, ¶ 9-12.

{¶15} Here, at sentencing and in its sentencing entry, the trial court stated that it

had considered the overriding purposes of felony sentencing pursuant to R.C. 2929.11

and the seriousness and recidivism factors of R.C. 2929.12. At sentencing, the trial court

expounded:

There are factors that make the offenses more serious. The injury was exacerbated by the age difference between the victim and the offender, being sixteen years. In fact, the offender was well over double the victim’s age. The victim suffered serious psychological harm. The relationship with the victim facilitated the offense. Not only was [the victim] victimized, but her entire immediate family was victimized here. And the Defendant drove a wedge between family members on each side because he is related, and thrust the family into total turmoil. There are no factors that make the offenses less serious. In terms of recidivism there is a factor that makes recidivism more likely. The Defendant is a pedophile. And I don’t think psychological science, psychiatric science has discovered a cure for pedoph[i]lia. In terms of making recidivism less likely. The Defendant has no 5

Case No. 2021-L-038 prior delinquency adjudications and has led a law-abiding life for a significant number of years, and his risk to re-offend according to the Ohio Risk Assessment System is in the low to moderate range. When it comes to genuine remorse, I’m sort of splitting that factor, because I cannot tell whether the remorse that the Defendant does show is related to remorse at how badly he has victimized the [victim’s] family and especially [the victim], or cause [sic] he was caught.

{¶16} Although Homa argues that the record does not support the sentence under

R.C. 2929.11 and 2929.12, and that the factors should have been weighed differently,

Jones precludes this court from modifying or vacating a sentence on these bases.

Accordingly, Homa’s third assigned error lacks merit.

{¶17} With respect to Homa’s first two assigned errors, which challenge

consecutive service of the sentences, there is a statutory presumption that multiple prison

terms are to be served concurrently. R.C. 2929.41(A). However, R.C. 2929.14(C)(4)

provides:

If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post- release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the

Case No. 2021-L-038 offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

{¶18} “In order to impose consecutive terms of imprisonment, a trial court is

required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing

and incorporate its findings into its sentencing entry, but it has no obligation to state

reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,

16 N.E.3d 659, ¶ 37.

{¶19} Here, the sentencing entry provides:

Pursuant to R.C. 2929.14(C)(4) and R.C. 2929.19(B)(2)(b), the Court finds for the reasons stated on the record that consecutive sentences are necessary to protect the public from future crime or to punish the Defendant and are not disproportionate to the Defendant’s conduct and the danger the Defendant poses to the public, and that 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 committed by the Defendant 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 Defendant’s conduct.

{¶20} On the record at sentencing, the trial court found that consecutive service

of the sentences was “necessary to protect the public and punish the offender. Such

would not be disproportionate to his conduct and the danger he poses, and that the harm

here is so great or unusual that a single term could not adequately reflect the seriousness

of his conduct.” The court further determined that “the offender committed a worst form

of this offense, and he poses the greatest likelihood of recidivism given his pedophilic

disorder.” 7

Case No. 2021-L-038 {¶21} After the court made these findings, defense counsel requested the court to

clarify two findings it had made to support the sentence, the first being that “this this was

the worst form of the offense.” At that point, the court stated that it was “[a] worst form,”

“[t]here are many worst forms,” and “[t]here can’t be just one.” Secondly, defense counsel

requested the court to articulate the factual predicates for consecutive sentences because

counsel did not “see anything in the record that would make this any different than any

offense that [counsel had] seen in [his] career with a[n] underage victim and an individual

that has sexual conduct with that person.” Defense counsel then stated that the offenses

occur[ed] over a two[-]week period, and [the court] indicate[s] that there’s great psychological harm. There’s been all this harm to the family. We have heard a recitation that I don’t feel comfortable in my home, I’m scared, I don’t feel safe. I do not see that there is a scintilla of evidence on that record that supports a finding of psychological harm. So I would ask that you make that finding so that we have something clear for the court of appeals.

{¶22} The court then explained that it had “based [its] finding on all of the victim

impact statements and the pre-sentence report and the comprehensive psychological

evaluation.”

{¶23} In Homa’s first assignment, he maintains that the trial court erred by failing

to find at sentencing that “[a]t least two of the multiple offenses were committed as part

of one or more courses of conduct.”

{¶24} Although the trial court must make its consecutive sentence findings both

at sentencing and in the sentencing entry, “[t]he trial court is not required ‘to give a

talismanic incantation of the words of the statute, provided that the necessary findings

can be found in the record and are incorporated into the sentencing entry.’” State v.

Davis, 11th Dist. Lake No. 2019-L-170, 2021-Ohio-237, ¶ 213, appeal not allowed, 163 8

Case No. 2021-L-038 Ohio St.3d 1429, 2021-Ohio-1721, 168 N.E.3d 525, quoting Bonnell, 2014-Ohio-3177, at

¶ 37.

{¶25} The record here, particularly the indictment, plea hearing transcript, and

sentencing transcript, support that there were “multiple offenses” for purposes of R.C.

2929.14(C)(4)(b). See Wasilewski, 2020-Ohio-5141, at ¶ 50 (where guilty pleas were

entered to more than one offense not subject to merger, sentencing involved “multiple

offenses” subject to R.C. 2929.14(C)(4)(b)). Moreover, the record demonstrates the

offenses occurred on consecutive weekends, and the offenses were similar in nature and

committed against the same victim. See Wasilewski at ¶ 52 (two offenses against same

victim may constitute a “course of conduct” where there is some connection between the

offenses); see also State v. Stone, 11th Dist. Geauga No. 2013-G-3154, 2014-Ohio-2699,

¶ 17 (holding that “[t]here can be no doubt these crimes were ‘committed as part of one

or more courses of conduct’” where there was not “an isolated instance of child

molestation, but numerous instances, committed over a period of time”). Because the

record supports that the trial court engaged in the appropriate analysis under R.C.

2929.14(C)(4)(b), its failure to specifically recite at sentencing that “[a]t least two of the

multiple offenses were committed as part of one or more courses of conduct” is not

reversible error. Accordingly, Homa’s first assigned error lacks merit.

{¶26} With respect to Homa’s second assigned error, he maintains that the record

does not support consecutive service because Homa, who is now 30 years old, was not

awaiting trial or under judicial supervision or sanction at the time of his offenses, had only

one prior conviction for theft in 2011, repeatedly accepted responsibility and expressed

remorse for the present offenses, and was found to be in the “average risk category” of

Case No. 2021-L-038 recidivism pursuant to the psychological evaluation. Further, Homa argues that the trial

court erred in finding this was the “worst” form of the offense.

{¶27} With respect to the first paragraph of R.C. 2929.14(C)(4), the court found

both that consecutive service was needed to punish Homa and to protect the public.

Further it found that the consecutive sentences were not disproportionate to Homa’s

conduct and the danger he poses to the public. As set forth above, the trial court

considered this “a” worst form of the offense and specifically stated that it had considered

the victim impact statements, the pre-sentence report, and the psychological evaluation.

The record demonstrates that Homa was over double the victim’s age and a member of

her family, and this relationship facilitated the offense, as the victim’s parents regularly

permitted Homa to stay at their home overnight. Although Homa has a limited criminal

record, the Ohio Risk Assessment System assessed his likelihood to reoffend as

“medium.” Further, pursuant to the psychological evaluation, Homa suffers from

pedophilic disorder.

{¶28} With respect to the harm caused to the victim pursuant to R.C.

2929.14(C)(4)(b), although this may be “difficult to quantify,” the victim and her family

suffered significantly as a result of Homa’s actions, which occurred in the victim’s home,

and caused a divide in their family. See State v. Cornelison, 11th Dist. Lake No. 2013-L-

064, 2016-Ohio-8419, ¶ 36 (“although the harm caused by appellant’s actions is difficult

to quantify, the victim impact statements indicate the anxieties suffered by several of the

victims was significant; to wit, one victim quit her job and had nightmares and one

business had to double its staff due to fears the robbery triggered in its employees”).

Although written victim impact statements were not transmitted with the record on appeal,

Case No. 2021-L-038 at sentencing, the victim and her family provided oral statements. The victim stated that,

after the rape, she did not know how to live anymore, and she suffered from confusion,

guilt, panic attacks, anxiety, depression and suicidal thoughts. She cried herself to sleep

many nights and had wanted to hurt herself. She recalled the rape every time she passed

the living room in her house, where the offenses occurred. The victim’s parents stated

that the crimes had made the victim feel unsafe in her own home and had driven a wedge

through the family.

{¶29} After review of the record, we cannot clearly and convincingly conclude that

it does not contain evidence supporting the trial court’s consecutive sentence findings.

{¶30} The judgment is affirmed.

CYNTHIA WESTCOTT RICE, J.,

JOHN J. EKLUND, J.,

concur.

Case No. 2021-L-038