State v. Martin

2012 Ohio 6282

Opinion

[Cite as State v. Martin, 2012-Ohio-6282.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: STATE OF OHIO : W. Scott Gwin, P.J. : William B. Hoffman, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. 12-COA-020 : : PAUL J. MARTIN : OPINION

Defendant-Appellant

CHARACTER OF PROCEEDING: Criminal Appeal from Ashland County Court of Common Pleas Case No. 12-CRI-009

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 24, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RAMONA FRANCESCONI ROGERS MATTHEW J. MALONE Ashland County Prosecutor 11 ½ East Second Street Ashland County, Ohio Ashland, Ohio 44805

DANIEL J. PETRICINI Assistant Prosecuting Attorney 110 Cottage Street, Third Floor Ashland, Ohio 44805 [Cite as State v. Martin, 2012-Ohio-6282.]

Edwards, J.

{¶1} Appellant, Paul J. Martin, appeals a judgment of the Ashland County

Common Pleas Court convicting him of gross sexual imposition (R.C. 2907.05(A)(4))

and attempted gross sexual imposition (R.C. 2907.05(A)(4), R.C. 2923.02(A)) upon a

plea of guilty. Appellee is the State of Ohio.

STATEMENT OF FACTS AND CASE

{¶2} In 2011, the nine-year-old daughter of appellant’s girlfriend, disclosed to a

family member that appellant had touched her inappropriately on several occasions.

Ashland County Department of Job and Family Services investigated the complaint.

The victim told a caseworker that appellant touched her vagina on at least five

occasions while her mother was at work. On one occasion, appellant told the victim to

come into her bedroom and remove her pants. He placed his hand down her

underwear and rubbed her vaginal area with his fingers. He also undressed and

instructed her to touch his underwear.

{¶3} When police spoke to appellant, he admitted that he touched the child’s

vagina once or twice and compared the touching to petting a cat.

{¶4} Appellant was charged with two counts of gross sexual imposition and one

count of attempted rape. Pursuant to a plea agreement, appellant pleaded guilty to one

count of gross sexual imposition and one count of attempted gross sexual imposition.

The court sentenced appellant to sixty months incarceration for gross sexual imposition

and eighteen months incarceration for attempted gross sexual imposition, to be served

consecutively. Appellant assigns two errors on appeal: Ashland County App. Case No. 12-COA-020 3

{¶5} “I. THE COURT OF COMMON PLEAS OF ASHLAND COUNTY, OHIO,

IMPOSED CONSECUTIVE SENTENCES UPON DEFENDANT/APPELLANT

PURSUANT TO OHIO REVISED CODE SECTION 2929.14(C)(4); SAID

CONSECUTIVE SENTENCES EXCEEDED THE MAXIMUM PRISON TERM

PURSUANT TO OHIO REVISED CODE SECTION 2929.14(A)(3)(A), AND WERE NOT

CONSISTENT WITH THE DIRECTIVES ESTABLISHED IN OHIO REVISED CODE

SECTION 2929.14(C)(4) AND/OR WERE CLEARLY AND CONVINCINGLY

CONTRARY TO LAW.

{¶6} “II. THE SENTENCES IMPOSED BY THE COURT OF COMMON PLEAS

OF ASHLAND COUNTY, OHIO, CREATED AN UNNECESSARY BURDEN ON STATE

AND/OR LOCAL GOVERNMENT RESOURCES IN VIOLATION OF OHIO REVISED

CODE SECTION 2929.11(A).”

I

{¶7} In his first assignment of error, appellant argues that the court did not

articulate appropriate findings to support consecutive sentences. He also argues that

based on the facts of the case, consecutive sentences were contrary to law because the

offenses were not “excessively serious in nature,” appellant expressed remorse and he

is not likely to commit future offenses.

{¶8} Appellant was sentenced on May 23, 2012, pursuant to the newly enacted

House Bill 86. 2011 Am. Sub. H.B. No. 86, which became effective on September 30,

2011, revived the language provided in former R.C. 2929.14(E) and moved it to R.C.

2929.14(C)(4). The revisions to the felony sentencing statutes under 2011 Am. Sub. Ashland County App. Case No. 12-COA-020 4

H.B. No. 86 now require a trial court to make specific findings when imposing

consecutive sentences. R.C. 2929.14(C)(4) provides, in relevant part:

{¶9} “(4) 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:

{¶10} “(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.

{¶11} “(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 offenses

committed as part of any of the courses of conduct adequately reflects the seriousness

of the offender's conduct.

{¶12} “(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by the

offender.” (Emphasis added).

{¶13} In Section 11, the legislature explained that in amending former R.C.

2929.14(E)(4), it intended “ to simultaneously repeal and revive the amended language

in those divisions that was invalidated and severed by the Ohio Supreme Court's Ashland County App. Case No. 12-COA-020 5

decision in State v. Foster (2006), 109 Ohio St.3d 1.” The General Assembly further

explained that the amended language in those divisions “is subject to reenactment

under the United States Supreme Court's decision in Oregon v. Ice (2009), 555 U.S.

160, and the Ohio Supreme Court's decision in State v. Hodge (2010), Ohio St.3d, Slip

Opinion No. 2010-Ohio-6320.” Thus, it is the legislature's intent that courts interpret the

language in R.C. 2929.14(C)(4) in the same manner as the courts did prior to State v.

Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d 470.

{¶14} The First District Court of Appeals has observed, “The consecutive-

sentence findings required by R.C. 2929.14(C) are not the same as those required by

former R.C. 2929.19(B)(2), which provided that the trial court ‘shall impose a sentence

and shall make a finding that gives its reasons for selecting the sentence * * * (c) If it

imposes consecutive sentences.’ (Emphasis added.) See State v. Comer, 99 Ohio St.3d

463, 2003-Ohio-4165, 793 N.E.2d 473, ¶ 14–16. In 2003, the Ohio Supreme Court held

that the requirement that a trial court give its reasons for selecting consecutive

sentences was ‘separate and distinct from the duty to make the findings,’ and it imposed

an obligation on trial courts to articulate the reasons supporting their findings at the

sentencing hearing. Id. at ¶ 19–20, 793 N.E.2d 473. The trial court's obligation to ‘give

its reasons’ is now gone from the sentencing statutes. Gone with it, we hold, is the

requirement that the trial court articulate and justify its findings at the sentencing

hearing. A trial court is free to do so, of course. But where, as here, there is no statutory

requirement that the trial court articulate its reasons, it does not commit reversible error

if it fails to do so, as long as it has made the required findings. See Phillips, 1st Dist. No.

C–960898, 1997 Ohio App. LEXIS 2615, 1997 WL 330605.” State v. Alexander, 1st Ashland County App. Case No. 12-COA-020 6

Dist. Nos. C-110828, C-110829, 2012-Ohio-3349, ¶ 18. Accord, State v. Frasca, 11th

Dist. 2011–T–0108, 2012–Ohio–3746, ¶ 57.

{¶15} The trial court is not required to recite any “magic” or “talismanic” words

when imposing consecutive sentences, provided it is “clear from the record that the trial

court engaged in the appropriate analysis.” State v. Nowlin, 5th Dist. No. CT2012–

0015, 2012-Ohio-4923, ¶ 70. An appellate court may only sustain an assignment of

error challenging the imposition of consecutive sentences under R.C. 2929.14 if the

appellant shows that the judgment was clearly and convincingly contrary to law. Id.

{¶16} The trial court stated in the judgment entry of sentencing that consecutive

sentences are necessary to protect the public from future crime, that consecutive

sentences are not disproportionate to the seriousness of the appellant’s conduct and

the danger he poses to the public, and due to appellant’s history of criminal conduct

consecutive sentences are necessary to protect the public from future crime by

appellant. The trial court stated from the bench during the sentencing hearing:

{¶17} “I have reviewed and considered and weighed all of the various factors

that the Court must consider and weigh when deciding on an appropriate sentence. I

would note that (inaudible) score in this particular case indicates that your risk level for

reoffending is high. We have had prior prison terms, you were on probation at the time

of the offense, and I agree somewhat with the Prosecutor’s interpretation of whether or

not you’ve shown remorse with regard with the way that you described how the victims

would have felt….

{¶18} “Further making a finding that consecutive service of the two prison

sentences is necessary to protect the public from future crimes and consecutive Ashland County App. Case No. 12-COA-020 7

sentences are not disproportionate to the seriousness of the offender’s conduct, this

being a nine-year-old girl, and I don’t think it’s disproportionate to the danger that you

continued to pose to the public.

{¶19} “I am further finding and making a determination that your history of

criminal conduct demonstrates the consecutive sentences are necessary to protect the

public from future crimes by you, Mr. Martin.” Tr. 8-10.

{¶20} The trial court made sufficient findings to justify consecutive sentencing.

Further, we cannot find that consecutive sentences in the instant case were clearly and

convincingly contrary to law. Appellant had served prior prison terms and was on

probation at the time of the offense. While he claimed at the hearing to feel remorse, he

had earlier expressed that he believed touching the victim in this manner made her feel

loved and admired. The victim was the nine-year-old daughter of his girlfriend, who he

watched while his girlfriend was at work. The presentence investigation report stated

that he was at high risk to reoffend.

{¶21} The first assignment of error is overruled.

II

{¶22} In his second assignment of error, appellant argues that the sentence

imposed by the court created an unnecessary burden on state resources in violation of

R.C. 2929.11(A).

{¶23} R.C. 2929.11(A) provides:

{¶24} “(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 Ashland County App. Case No. 12-COA-020 8

offender using the minimum sanctions that the court determines accomplish those

purposes without imposing an unnecessary burden on state or local government

resources. 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.”

{¶25} As we noted in State v. Ferenbaugh, 5th Dist. No. 03COA038, 2004–

Ohio–977 at paragraph 7, “[t]he very language of the cited statute grants trial courts

discretion to impose sentences. Nowhere within the statute is there any guideline for

what an ‘unnecessary burden’ is.” Moreover, in State v. Shull, 5th Dist. No. 2008-COA-

036, 2009-Ohio-3105, this Court reviewed a similar claim. We found that, although

burdens on State resources may be a relevant sentencing criteria, state law does not

require trial courts to elevate resource conservation above seriousness and recidivism

factors, Shull, at paragraph 22, citing State v. Ober, 2nd Dist. No. 97CA0019, 1997 WL

624811 (October 10, 1997).

{¶26} In the instant case, a prison sentence is not an unnecessary burden on

state resources. Appellant had a lengthy criminal history and had served prior terms of

imprisonment. He was on probation at the time of the offense, and had previously

shown an inability to comply with community control sanctions. While in the courtroom

he expressed remorse, he had earlier compared touching the nine-year-old victim’s

vaginal area to petting a cat, and had told authorities that he thought touching her in this

manner made her feel loved and admired. His presentence investigation revealed that

his likelihood of recidivism was high. Ashland County App. Case No. 12-COA-020 9

{¶27} The second assignment of error is overruled.

{¶28} The judgment of the Ashland County Common Pleas Court is affirmed.

By: Edwards, J.

Gwin, P.J. concurs and

Hoffman, J. concurs separately

______________________________

JUDGES

JAE/r1101 Ashland County App. Case No. 12-COA-020 10

Hoffman, J., concurring

{¶29} I concur in the majority’s analysis and disposition of Appellant’s second

assignment of error.

{¶30} I further concur in the majority’s disposition of Appellant’s first assignment

of error, but do so for the reasons set forth in my concurring opinion in State v. Nowlin,

5th Dist. No. CT 2012-0015, 2012-Ohio-4923.

________________________________ HON. WILLIAM B. HOFFMAN [Cite as State v. Martin, 2012-Ohio-6282.]

IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : PAUL J. MARTIN : : Defendant-Appellant : CASE NO. 12-COA-020

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Ashland County Court of Common Pleas is affirmed. Costs assessed

to appellant.

_________________________________