State v. McMillen

2022 Ohio 1212

• Court: Ohio Court of Appeals
• Decided: April 7, 2022
• Docket: 21AP0005
• Status: Published

Opinion

[Cite as State v. McMillen, 2022-Ohio-1212.]

COURT OF APPEALS MORGAN COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 21AP0005 LONNIE MCMILLEN, SR.

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Morgan County Court of Common Pleas, Case No. 20CR0047

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 7, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MARK HOWDYSHELL BRIAN W. BENBOW Morgan County, Ohio Benbow Law Offices, LLC Assistant Prosecuting Attorney 265 Sunrise Center Drive 109 E. Main Street Zanesville, Ohio 43701 McConnelsville, Ohio 43756 Morgan County, Case No. 21AP0005 2

Hoffman, P.J. {¶1} Defendant-Appellant Lonnie D. McMillen, Sr., appeals the judgment entered

by the Morgan County Common Pleas Court convicting him following his pleas of guilty

to four counts of pandering obscenity involving a minor (R.C. 2907.0321(A)(1)), one count

of sexual battery (R.C. 2907.03(A)(5)), and two counts of gross sexual imposition (R.C.

2907.05(A)(1)), and sentencing him to an aggregate term of seventeen years and six

months incarceration. Appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} Beginning around 2011, when his two granddaughters were the ages of ten

and twelve, and extending through the time the girls were in high school, Appellant

engaged in sexual activity with his granddaughters. He recorded this activity on VHS

tapes, which he later transferred to DVD.

{¶3} On November 10, 2020, Appellant was indicted on fifteen felony charges by

the Morgan County Grand Jury: ten counts of pandering obscenity of a minor, two counts

of rape, one count of sexual battery, and two counts of gross sexual imposition.

{¶4} On August 18, 2021, Appellant entered guilty pleas to four counts of

pandering obscenity involving a minor, one count of sexual battery, and two counts of

gross sexual imposition. In exchange for his guilty pleas, the remaining counts were

dismissed by the State.

{¶5} The matter proceeded to sentencing on September 29, 2021. The trial court

sentenced Appellant to eight years incarceration for count one of pandering obscenity, to

be served consecutively to the sentences imposed for sexual battery and one count of

gross sexual imposition. The trial court sentenced Appellant to eight years incarceration

for counts two through four of pandering obscenity, to be served concurrently with all Morgan County, Case No. 21AP0005 3

other sentences. The court sentenced Appellant to eight years incarceration for sexual

battery, to be served consecutively to the sentences imposed for one count of pandering

obscenity and for one count of gross sexual imposition. The trial court sentenced

Appellant to eight months incarceration on each count of gross sexual imposition, with

the sentence on one count to be served consecutively to the sentence for count one of

pandering obscenity and the sentence for sexual battery. The trial court further ordered

Appellant to pay court costs and the costs of his court-appointed counsel within four years.

{¶6} It is from the October 1, 2021 judgment of the trial court Appellant

prosecutes this appeal, assigning as error:

I. THE COURT ERRED IN IMPOSING MAXIMUM CONSECUTIVE

SENTENCES THAT WERE NOT SUPPORTED BY THE RECORD AND

THUS CONTRARY TO LAW.

II. THE TRIAL COURT ABUSED ITS DISCRETION BY ORDERING

APPELLANT TO PAY COURT COSTS AND APPOINTED COUNSEL

FEES WITHOUT CONSIDERING APPELLANT’S FUTURE ABILITY TO

PAY WITHIN FOUR YEARS OF A SEVENTEEN AND A HALF YEAR

SENTENCE.

{¶7} We note, this matter comes before this Court pursuant to the accelerated

calendar and App. Rule 11.1. Accordingly, it is sufficient compliance with Appellate Rule

12(A) for the statement of the reason for this Court’s decision as to each error to be in Morgan County, Case No. 21AP0005 4

brief and conclusionary form. We also note the State has failed to file a brief in the instant

case.

I.

{¶8} In his first assignment of error, Appellant argues the trial court erred in

sentencing him to maximum and consecutive sentences.

{¶9} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Roberts, 5th Dist. Licking No. 2020 CA 0030, 2020-Ohio-6722, ¶13,

citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. R.C.

2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence

and remand for sentencing where we clearly and convincingly find either the record does

not support the sentencing court's findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(l), or the sentence is otherwise contrary to law. Id.,

citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659.

{¶10} When sentencing a defendant, the trial court must consider the purposes

and principles of felony sentencing set forth in R.C. 2929.11 and the seriousness and

recidivism factors in R.C. 2929.12. State v. Hodges, 8th Dist. Cuyahoga No. 99511, 2013-

Ohio-5025, ¶ 7.

{¶11} “The overriding purposes of felony sentencing are to protect the public from

future crime by the offender and others, to punish the offender, and 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.” R.C. 2929.11(A). To achieve these purposes, the

sentencing court shall consider the need for incapacitating the offender, deterring the Morgan County, Case No. 21AP0005 5

offender and others from future crime, rehabilitating the offender, and making restitution

to the victim of the offense, the public, or both. Id. Further, the sentence imposed shall be

“commensurate with and not demeaning to the seriousness of the offender's conduct and

its impact on the victim, and consistent with sentences imposed for similar crimes by

similar offenders.” R.C. § 2929.11(B).

{¶12} R.C. 2929.12 lists general factors which must be considered by the trial

court in determining the sentence to be imposed for a felony, and gives detailed criteria

which do not control the court's discretion, but which must be considered for or against

severity or leniency in a particular case. The trial court retains discretion to determine the

most effective way to comply with the purpose and principles of sentencing as set forth in

R.C. 2929.11 and R.C. 2929.12.

{¶13} Nothing in R.C. 2953.08(G)(2) permits this Court to independently weigh

the evidence in the record and substitute our own judgment for that of the trial court to

determine a sentence which best reflects compliance with R.C. 2929.11 and R.C.

2929.12. State v. Jones, 169 N.E.3d 649, 2020-Ohio-6729, ¶ 42. Instead, we may only

determine if a sentence is contrary to law. State v. Pettorini, 5th Dist. Licking No. 2020

CA 00057, 2021-Ohio-1512, ¶ 15

{¶14} A sentence is not clearly and convincingly contrary to law where the trial

court “considers the principles and purposes of R.C. 2929.11, as well as the factors listed

in R.C. 2929.12, properly imposes post release control, and sentences the defendant

within the permissible statutory range.” Id. at ¶¶ 14-16, quoting State v. Dinka, 12th Dist.

Warren Nos. CA2019-03-022 & CA2019-03-026, 2019-Ohio-4209, ¶ 36. Morgan County, Case No. 21AP0005 6

{¶15} In the instant case, the sentencing entry states the trial court has considered

all statements in mitigation, the statements of the parties, the presentence investigation,

and any statements from the victims or their representatives, and has considered the

principles and purposes of sentencing set forth in R.C. 2929.11, as well as the

seriousness and recidivism factors in R.C. 2929.12. We find the maximum sentences

imposed are not clearly and convincingly contrary to law in the instant case, and thus we

do not have authority to disturb the sentence on appeal.

{¶16} Appellant also argues the trial court erred in imposing consecutive

sentences.

{¶17} R.C. 2929.14(C)(4) provides:

(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:

(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. Morgan County, Case No. 21AP0005 7

(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.

(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} The trial court must make the R.C. 2929.14(C)(4) findings at the sentencing

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

state reasons to support its findings, nor must it recite certain talismanic words or phrases

in order to be considered to have complied. State v. Smith, 10th Dist. Franklin No. 18AP-

525, 2019-Ohio-5199, ¶ 34, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,

syllabus.

{¶19} Appellant concedes the trial court made the required findings in its

sentencing entry, but argues the trial court failed to make the findings at the sentencing

hearing. The following colloquy occurred during the sentencing hearing:

MR. HOWDYSHELL: Yes, Your Honor. We would ask the Court to

find that concurrent sentencing for all the crimes committed by the

defendant would be demeaning to the purposes and principles of

sentencing and would not adequately punish the offender, nor deter others Morgan County, Case No. 21AP0005 8

from future behavior of such nature, and that it is appropriate to impose

consecutive sentencing in order to protect the purposes and principles of

sentencing and to punish the defendant in an appropriate fashion. It’s a

technical thing.

THE COURT: That will be - - that will be so noted and – and just for

the record, that I started writing the technical parts of my entry, and one of

the things that the Court will find, that at least two of the multiple offenses

were committed and harm caused to two or more individuals, and that no

single prison sentence for any of the offenses committed reflect the

seriousness of the defendant’s conduct. The Court agrees with the State

on the technical nature of the findings with respect to both concurrent and

consecutive sentencing.

{¶20} Sent. Tr., 19.

{¶21} We find the trial court’s statements, coupled with its adoption of the

language used by the State in its request for findings concerning consecutive sentencing,

constitute sufficient compliance with R.C. 2929.14. We have reviewed the presentence

investigation report included in the record, as well as the statements made to the trial

court by the mother of the victims and by the aunt of the victims, who discovered the

videotapes in Appellant’s home, concerning the devastating effect Appellant’s actions had

on the victims and the family. We find the trial court’s findings concerning consecutive

sentencing are supported by the record.

{¶22} The first assignment of error is overruled. Morgan County, Case No. 21AP0005 9

II.

{¶23} In his second assignment of error, Appellant argues the trial court erred in

ordering him to pay court costs and court-appointed attorney fees without considering his

present and future ability to pay.

{¶24} The case law cited by Appellant discusses consideration of ability to pay in

issuing financial sanctions against a defendant as a part of his sentence. In contrast,

neither court costs nor court-appointed counsel fees are punishment, but rather, are a

civil assessment which is not part of Appellant’s sentence. State v. Davis, 159 Ohio St.3d

31, 2020-Ohio-309, 146 N.E.3d 560, ¶7 (court costs are not punishment and are not part

of sentence); State v. Taylor, 163 Ohio St.3d 508, 2020-Ohio-6786, 171 N.E.3d 290, ¶37

(appointed counsel fees are a civil assessment and not part of sentence).

{¶25} R.C. 2947.23(A)(1)(a) provides, “In all criminal cases, including violations

of ordinances, the judge or magistrate shall include in the sentence the costs of

prosecution, including any costs under section 2947.231 of the Revised Code, and render

a judgment against the defendant for such costs.” This statutory language requires the

trial court to impose court costs against all criminal defendants, indigent or not. State v.

Taylor, 161 Ohio St.3d 319, 2020-Ohio-3514, 163 N.E.3d 486, ¶6. Although in the instant

case Appellant did not move to waive, suspend, or modify court costs, even had such a

motion been made, the trial court would not have been required to consider the

defendant's ability to pay in assessing the motion. Id. at ¶16. We therefore find no error

in the trial court’s failure to consider Appellant’s ability to pay court costs, as the trial court

was required to impose costs by statute, and even had Appellant moved to waive costs,

the trial court need not consider his ability to pay. Morgan County, Case No. 21AP0005 10

{¶26} Regarding the assessment of the costs of court-appointed counsel, R.C.

2941.51(D) provides in pertinent part:

(D) The fees and expenses approved by the court under this section

shall not be taxed as part of the costs and shall be paid by the county.

However, if the person represented has, or reasonably may be expected to

have, the means to meet some part of the cost of the services rendered to

the person, the person shall pay the county an amount that the person

reasonably can be expected to pay.

{¶27} A trial court is not required to make explicit findings on the record regarding

the defendant's ability to pay before assessing court-appointed-counsel fees. State v.

Taylor, 163 Ohio St.3d 508, 2020-Ohio-6786, 171 N.E.3d 290, ¶27. However, in the

instant case, the trial court found in its judgment entry it considered Appellant’s present

and future ability to pay. The trial court had before it Appellant’s financial information, as

well as a full presentence investigation report. We find no error in the trial court’s

assessment of appointed counsel fees. Morgan County, Case No. 21AP0005 11

{¶28} The second assignment of error is overruled. The judgment of the Morgan

County Common Pleas Court is affirmed.

By: Hoffman, P.J. Wise, John, J. and Baldwin, J. concur