State v. Leopard

2011 Ohio 3864, 957 N.E.2d 55, 194 Ohio App. 3d 500
CourtOhio Court of Appeals
DecidedAugust 5, 2011
Docket2010-CA-87
StatusPublished
Cited by131 cases

This text of 2011 Ohio 3864 (State v. Leopard) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Leopard, 2011 Ohio 3864, 957 N.E.2d 55, 194 Ohio App. 3d 500 (Ohio Ct. App. 2011).

Opinions

Hall, Judge.

{¶ 1} Charles W. Leopard II appeals from his conviction and sentence following a guilty plea to two counts of unlawful sexual conduct with a minor, felonies of the third degree.

{¶ 2} The charges against Leopard stemmed from allegations that on multiple occasions, he had inserted his finger into J.R.’s and B.M.’s vaginas, engaged in [503]*503vaginal intercourse with them, and performed cunnilingus on the girls, who were both 15 years old.

{¶ 3} The record reflects that 42-year-old Leopard met the two minors by permitting children in the neighborhood to come into his home to “hang out,” drink alcohol, and use marijuana. His home was a well-known gathering spot for neighborhood teens. Leopard created an environment that condoned illegal activity and provided alcohol for the teens, knowing that young girls would be at his home drinking and partying. Once the girls were in his home, he made it clear that he was interested in them sexually. He used his access to them to eventually engage in sexual activity with both victims. This activity occurred on multiple occasions over several months. Both victims had recordings on their cellular devices where Leopard confessed to engaging in numerous, separate, sexual encounters with them.

{¶ 4} Based on the foregoing activity, Leopard was indicted on six counts of unlawful sexual conduct with a minor, in violation of R.C. 2907.04(A), with specifications that he was ten or more years older than his victims. At arraignment, Leopard entered a plea of not guilty. Following a plea bargain, however, he entered a guilty plea to two counts of unlawful sexual conduct with a minor, each with the ten-or-more-years-older specification. The guilty plea involved one count for each of his two victims.

{¶ 5} The trial court ordered a presentence investigation (“PSI”) report and revoked Leopard’s bail. At sentencing, the trial court imposed consecutive four-year prison sentences for a total of eight years. It also imposed five years of mandatory postrelease control and classified Leopard as a Tier II sexual offender. This appeal followed.

{¶ 6} Leopard advances three assignments of error on appeal. First, he contends that his sentence is contrary to law because the trial court failed to make certain necessary findings before imposing consecutive sentences. Second, he claims that his sentence is contrary to law because the trial court failed to properly consider the statutory principles and purposes of sentencing and the seriousness and recidivism factors. Third, he asserts that the trial court abused its discretion by imposing more than minimum and consecutive sentences.

{¶ 7} When reviewing felony sentences, an appellate court must first determine whether the sentencing court complied with all applicable rules and statutes in imposing the sentence, including R.C. 2929.11 and 2929.12, in order to find whether the sentence is contrary to law. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. If the sentence is not clearly and convincingly contrary to law, the trial court’s decision when imposing the term of imprisonment must be reviewed under an abuse-of-discretion standard. Id.

[504]*504{¶ 8} In his first assignment of error, Leopard asserts that Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, effectively overruled State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, thus reviving the requirement in R.C. 2929.14(E)(4) that a court make certain findings before imposing consecutive sentences. Because the trial court did not make those findings, Leopard contends his sentence is contrary to law. We disagree.

{¶ 9} The requirement in R.C. 2929.14(E)(4) that the trial court make certain findings before imposing consecutive sentences was found unconstitutional and severed from that statute in Foster. Leopard’s argument that Foster’s holding was effectively overruled by Ice is unpersuasive. In State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, syllabus, the Ohio Supreme Court held that Ice does not revive R.C. 2929.14(E)(4). See also State v. Ferguson, Montgomery App. No. 23857, 2011-Ohio-752, 2011 WL 579204, ¶ 12. Therefore, pursuant to Foster, a trial court is not required to make findings or give reasons for the sentences that it imposes; the court is vested with the full discretion to impose whatever prison term it chooses within the statutory range. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 37. The first assignment of error is overruled.

{¶ 10} In his second assignment of error, Leopard claims that the trial court failed to properly consider the statutory principles and purposes of sentencing and the seriousness and recidivism factors.

{¶ 11} When exercising its sentencing discretion, a trial court must consider the statutory policies that apply to every felony offense, including those set out in R.C. 2929.11 and 2929.12. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, at ¶ 38. In that regard, R.C. 2929.11 provides:

{¶ 12} “(A) A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender. To achieve those purposes, the sentencing 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.
{¶ 13} “(B) A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender’s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.”

{¶ 14} In turn, R.C. 2929.12 states:

[505]*505{¶ 15} “(B) The sentencing court shall consider all of the following that apply regarding the offender, the offense, or the victim, and any other relevant factors, as indicating that the offender’s conduct is more serious than conduct normally constituting the offense:
{¶ 16} “(1) The physical or mental injury suffered by the victim of the offense due to the conduct of the offender was exacerbated because of the physical or mental condition or age of the victim.
{¶ 17} “(2) The victim of the offense suffered serious physical, psychological, or economic harm as a result of the offense.
{¶ 18} “(3) The offender held a public office or position of trust in the community, and the offense related to that office or position.
{¶ 19} “(4) The offender’s occupation, elected office, or profession obliged the offender to prevent the offense or bring others committing it to justice.

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Bluebook (online)
2011 Ohio 3864, 957 N.E.2d 55, 194 Ohio App. 3d 500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-leopard-ohioctapp-2011.