[Cite as State v. Irwin, 2019-Ohio-4462.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 108099 v. :
JEFFREY IRWIN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: October 31, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-628638-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Fallon Radigan, Assistant Prosecuting Attorney, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and Noelle A. Powell, Assistant Public Defender, for appellant.
EILEEN A. GALLAGHER, J.:
Defendant-appellant Jeffrey Irwin appeals his 25-year sentence after
he pleaded guilty to committing multiple sexual crimes against his daughter when
she was between 9 and 13 years old. We affirm. Irwin was originally charged in an 11-count indictment that consisted
of four counts of rape, four counts of kidnapping, two counts of gross sexual
imposition and one count of endangering children. Irwin pleaded guilty to two
amended counts of rape, two counts of gross sexual imposition and the count of
endangering children. The trial court imposed an aggregate 25-year sentence. This
appeal follows.
Irwin challenges his sentence in two interrelated assignments of
error:
1. The trial court imposed a sentence contrary to law on Mr. Irwin, a first time offender, when it applied incorrect assumptions about recidivism and failed to apply the factors weighing heavily against recidivism.
2. Jeffrey Irwin was denied his right to due process as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and by Article I, Sections 10 and 16 of the Ohio Constitution when the judge imposed his sentence based on improper considerations.
We address these assignments of error together.
Relevant Factual and Procedural Background
Before Irwin pleaded guilty, the court informed him of the degrees of
the offenses to which he would be pleading guilty as well as the possible penalties
for each. The rape counts, both felonies of the first degree, would each subject Irwin
to a prison term between 3 and 11 years. Irwin’s gross sexual imposition counts were
“high-tier” felonies of the third degree, each exposing him to a prison sentence
between 12 and 60 months. The endangering children count, a felony of the second
degree, would further subject Irwin to a prison term between two and eight years. The court explained that it could impose consecutive sentences. Irwin confirmed
that he understood the potential penalties and that he had no questions.
The court sentenced Irwin to ten years for each count of rape, five
years for each count of gross sexual imposition and six years for the count of
endangering children. It ordered consecutive sentences for the counts of rape as
well as one count of gross sexual imposition. For the remaining count of gross sexual
imposition as well as the child endangering count, the court ordered those sentences
to run concurrent.
Law and Analysis
A trial court must do two things before it imposes a felony sentence:
(1) it must ensure that the sentence falls within the statutory range prescribed by the
degree of the felony and (2) it must consider the purposes of felony sentences as
contained in R.C. 2929.11 as well as the applicable seriousness and recidivism
factors outlined in R.C. 2929.12. State v. Lariche, 8th Dist. Cuyahoga No. 106106,
2018-Ohio-3581, ¶ 14-16.
An appellate court reviews a felony sentence pursuant to R.C.
2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 1, 21-23. Where a trial court imposes a sentence “solely after consideration
of the factors in R.C. 2929.11 and 2929.12,” an appellate court may disturb a
sentence “that is not clearly and convincingly contrary to law only if the appellate
court finds by clear and convincing evidence that the record does not support the
sentence.” State v. Ware, 8th Dist. Cuyahoga No. 106176, 2018-Ohio-2294, ¶ 8, quoting Marcum at ¶ 23. Because appellate courts do not review a felony sentence
for abuse of discretion, we are prohibited from substituting our judgment for that of
the trial court. State v. Taylor, 8th Dist. Cuyahoga No. 107881, 2019-Ohio-3367,
¶ 10.
Although a trial court must comply with R.C. 2929.11 and 2929.12
when it imposes sentence on a particular felony, it is under no obligation to use
particular language or to make specific finding on the record to demonstrate this
compliance. State v. Gaines, 8th Dist. Cuyahoga No. 103476, 2016-Ohio-4863, ¶ 11.
Even where a trial court does not reference its consideration of R.C. 2929.11 and
2929.12 at the sentencing hearing or in its sentencing journal entry, this court has
held that such compliance can be presumed unless the defendant shows otherwise.
See, e.g., State v. Jones, 8th Dist. Cuyahoga No. 99759, 2014-Ohio-29, ¶ 13.
As stated, each of Irwin’s felony sentences fall within the applicable
sentencing ranges. Moreover, the trial court confirmed in its sentencing journal
entry that it “considered all required factors of the law” and found that “prison is
consistent with the purpose of R.C. 2929.11.” The court thus complied with its
statutory obligations when sentencing Irwin.
Irwin nevertheless argues that the trial court erred because his
“lengthy 25-year sentence is not supported by the record and is, in fact, contrary to
law as it does not meet the purposes of felony sentencing.” We do not construe Irwin’s claims as challenging consecutive sentences.1 Irwin does not challenge the
sentence for any particular count but, instead, challenges his aggregate sentence, on
the basis that the court failed to comply with R.C. 2929.11 and 2929.12.
As discussed, R.C. 2929.11 and 2929.12 relate to the particular
sentence that a court imposes relative to an individual count. See State v. Saxon,
109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 8 (“Ohio’s felony-
sentencing scheme is clearly designed to focus the judge’s attention on one offense
at a time.”). These statutes do not otherwise provide a basis to challenge an
aggregate sentence. See State v. Choate, 9th Dist. Summit No. 27612, 2015-Ohio-
4972, ¶ 27 (“R.C. 2929.11 clearly is aimed at the sentence for each individual offense,
not the sentences in the aggregate * * *.”); see State v. Kirkman, 8th Dist. Cuyahoga
No. 103683, 2016-Ohio-5326, ¶ 9 (“R.C. 2929.12 guides a sentencing judge’s
discretion only on individual counts * * *”). Accordingly, Irwin’s challenge to his
aggregate sentence on the basis of the court’s R.C. 2929.11 and 2929.12 compliance
necessarily fails.
Even if we were to interpret Irwin’s claims on appeal as challenging a
particular felony sentence rather than his entire 25-year sentence, his arguments
would still fail.
1 We note that a consecutive sentence challenge in this case would fail. Review of the record indicates the court imposed consecutive sentences in compliance with R.C. 2929.14(C)(4) by making the requisite findings at the sentencing hearing and by reflecting that it did so in its journal. See State v. Tidmore, 8th Dist. Cuyahoga No. 107369, 2019- Ohio-1529, ¶ 17-18. Irwin claims the trial court determined his sentence based “upon its
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Irwin, 2019-Ohio-4462.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 108099 v. :
JEFFREY IRWIN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: October 31, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-628638-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Fallon Radigan, Assistant Prosecuting Attorney, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and Noelle A. Powell, Assistant Public Defender, for appellant.
EILEEN A. GALLAGHER, J.:
Defendant-appellant Jeffrey Irwin appeals his 25-year sentence after
he pleaded guilty to committing multiple sexual crimes against his daughter when
she was between 9 and 13 years old. We affirm. Irwin was originally charged in an 11-count indictment that consisted
of four counts of rape, four counts of kidnapping, two counts of gross sexual
imposition and one count of endangering children. Irwin pleaded guilty to two
amended counts of rape, two counts of gross sexual imposition and the count of
endangering children. The trial court imposed an aggregate 25-year sentence. This
appeal follows.
Irwin challenges his sentence in two interrelated assignments of
error:
1. The trial court imposed a sentence contrary to law on Mr. Irwin, a first time offender, when it applied incorrect assumptions about recidivism and failed to apply the factors weighing heavily against recidivism.
2. Jeffrey Irwin was denied his right to due process as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and by Article I, Sections 10 and 16 of the Ohio Constitution when the judge imposed his sentence based on improper considerations.
We address these assignments of error together.
Relevant Factual and Procedural Background
Before Irwin pleaded guilty, the court informed him of the degrees of
the offenses to which he would be pleading guilty as well as the possible penalties
for each. The rape counts, both felonies of the first degree, would each subject Irwin
to a prison term between 3 and 11 years. Irwin’s gross sexual imposition counts were
“high-tier” felonies of the third degree, each exposing him to a prison sentence
between 12 and 60 months. The endangering children count, a felony of the second
degree, would further subject Irwin to a prison term between two and eight years. The court explained that it could impose consecutive sentences. Irwin confirmed
that he understood the potential penalties and that he had no questions.
The court sentenced Irwin to ten years for each count of rape, five
years for each count of gross sexual imposition and six years for the count of
endangering children. It ordered consecutive sentences for the counts of rape as
well as one count of gross sexual imposition. For the remaining count of gross sexual
imposition as well as the child endangering count, the court ordered those sentences
to run concurrent.
Law and Analysis
A trial court must do two things before it imposes a felony sentence:
(1) it must ensure that the sentence falls within the statutory range prescribed by the
degree of the felony and (2) it must consider the purposes of felony sentences as
contained in R.C. 2929.11 as well as the applicable seriousness and recidivism
factors outlined in R.C. 2929.12. State v. Lariche, 8th Dist. Cuyahoga No. 106106,
2018-Ohio-3581, ¶ 14-16.
An appellate court reviews a felony sentence pursuant to R.C.
2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 1, 21-23. Where a trial court imposes a sentence “solely after consideration
of the factors in R.C. 2929.11 and 2929.12,” an appellate court may disturb a
sentence “that is not clearly and convincingly contrary to law only if the appellate
court finds by clear and convincing evidence that the record does not support the
sentence.” State v. Ware, 8th Dist. Cuyahoga No. 106176, 2018-Ohio-2294, ¶ 8, quoting Marcum at ¶ 23. Because appellate courts do not review a felony sentence
for abuse of discretion, we are prohibited from substituting our judgment for that of
the trial court. State v. Taylor, 8th Dist. Cuyahoga No. 107881, 2019-Ohio-3367,
¶ 10.
Although a trial court must comply with R.C. 2929.11 and 2929.12
when it imposes sentence on a particular felony, it is under no obligation to use
particular language or to make specific finding on the record to demonstrate this
compliance. State v. Gaines, 8th Dist. Cuyahoga No. 103476, 2016-Ohio-4863, ¶ 11.
Even where a trial court does not reference its consideration of R.C. 2929.11 and
2929.12 at the sentencing hearing or in its sentencing journal entry, this court has
held that such compliance can be presumed unless the defendant shows otherwise.
See, e.g., State v. Jones, 8th Dist. Cuyahoga No. 99759, 2014-Ohio-29, ¶ 13.
As stated, each of Irwin’s felony sentences fall within the applicable
sentencing ranges. Moreover, the trial court confirmed in its sentencing journal
entry that it “considered all required factors of the law” and found that “prison is
consistent with the purpose of R.C. 2929.11.” The court thus complied with its
statutory obligations when sentencing Irwin.
Irwin nevertheless argues that the trial court erred because his
“lengthy 25-year sentence is not supported by the record and is, in fact, contrary to
law as it does not meet the purposes of felony sentencing.” We do not construe Irwin’s claims as challenging consecutive sentences.1 Irwin does not challenge the
sentence for any particular count but, instead, challenges his aggregate sentence, on
the basis that the court failed to comply with R.C. 2929.11 and 2929.12.
As discussed, R.C. 2929.11 and 2929.12 relate to the particular
sentence that a court imposes relative to an individual count. See State v. Saxon,
109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 8 (“Ohio’s felony-
sentencing scheme is clearly designed to focus the judge’s attention on one offense
at a time.”). These statutes do not otherwise provide a basis to challenge an
aggregate sentence. See State v. Choate, 9th Dist. Summit No. 27612, 2015-Ohio-
4972, ¶ 27 (“R.C. 2929.11 clearly is aimed at the sentence for each individual offense,
not the sentences in the aggregate * * *.”); see State v. Kirkman, 8th Dist. Cuyahoga
No. 103683, 2016-Ohio-5326, ¶ 9 (“R.C. 2929.12 guides a sentencing judge’s
discretion only on individual counts * * *”). Accordingly, Irwin’s challenge to his
aggregate sentence on the basis of the court’s R.C. 2929.11 and 2929.12 compliance
necessarily fails.
Even if we were to interpret Irwin’s claims on appeal as challenging a
particular felony sentence rather than his entire 25-year sentence, his arguments
would still fail.
1 We note that a consecutive sentence challenge in this case would fail. Review of the record indicates the court imposed consecutive sentences in compliance with R.C. 2929.14(C)(4) by making the requisite findings at the sentencing hearing and by reflecting that it did so in its journal. See State v. Tidmore, 8th Dist. Cuyahoga No. 107369, 2019- Ohio-1529, ¶ 17-18. Irwin claims the trial court determined his sentence based “upon its
erroneous belief that [he] was more likely to commit future sexual offenses” based
on evidence that “[he] was himself a victim of childhood sexual abuse,” and because
his crimes were crimes of incest. Irwin offers that the trial court should have instead
concluded that his status as a victim of sexual abuse himself, “alone[,] does not make
him more likely to offend,” and further, that the incestuous nature of his crimes
“make him less likely to reoffend than any other sexual offender.” We find no
support in the record for Irwin’s claim that the trial court impermissibly used his
status as a victim of sexual abuse against him.2
Additionally, Irwin claims that the record does not support his
sentence to the extent that: (1) he had no criminal history, (2) he was “extremely
emotional and crying the majority of the interview” for his presentence investigation
report, (3) his drug and alcohol addiction played a role the crimes and (4) he was
“candid and remorseful.” Assuming that the above is true, we find no basis to
conclude that the trial court did not consider it.
By asserting that the trial court “rested its sentencing decision upon”
on inappropriate conclusions, Irwin’s claims amount to an argument that the trial
court incorrectly considered R.C. 2929.11 and 2929.12 and that this court should,
therefore, evaluate them differently. In essence, Irwin asks us to do something we
2 To the contrary, the court recognized that there was “no information to suggest” that Irwin would reoffend on the basis that he was himself abused. The court did recognize that the presentence investigation report found Irwin to be at a “high risk” of reoffending. are not empowered to do, namely substitute our judgment for the trial court and re-
weigh the sentencing factors. See State v. Franklin, 8th Dist. Cuyahoga No. 107482,
2019-Ohio-3760, ¶ 36 (an appellate court may not substitute its judgment for the
trial court); see Taylor, 2019-Ohio-3367, at ¶ 17 (an appellate court may not
independently weigh the sentencing factors).
Accordingly, we are unable to conclude by clear and convincing
evidence that the trial court’s R.C. 2929.11 and 2929.12 considerations are not
supported by the record or that Irwin’s sentences are contrary to law. We overrule
the assignments of error.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry out this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
MARY EILEEN KILBANE, A.J., and FRANK D. CELEBREZZE, JR., J., CONCUR