State v. Morrin

2014 Ohio 5594

• Court: Ohio Court of Appeals
• Decided: December 19, 2014
• Docket: L-13-1200
• Status: Published

Opinion

[Cite as State v. Morrin, 2014-Ohio-5594.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals Nos. L-13-1200

Appellee Trial Court Nos. CR0201202727 v.

Michael Morrin DECISION AND JUDGMENT

Appellant Decided: December 19, 2014

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and David F. Cooper, Assistant Prosecuting Attorney, for appellee.

Joseph J. Urenovitch, for appellant.

***** SINGER, J.

{¶ 1} Appellant, Michael Morrin, appeals from the Lucas County Common Pleas

Court judgment imposing consecutive sentences and finding community notification

appropriate. For the reasons set forth below, we affirm the judgment of the trial court. {¶ 2} Appellant sets forth the following assignments of error:

Assignment of Error No. 1: The trial court failed to make the

necessary findings under R.C. 2929.14(C)(4) for imposition of consecutive

sentences.

Assignment of Error No. 2: It was an abuse of the trial court’s

discretion when it found community notification under R.C. 2950.11(F)(2)

appropriate.

{¶ 3} On October 18, 2012, appellant was indicted on three counts of rape,

felonies of the first degree, in violation of R.C. 2907.02(A)(1)(b) and (B), and three

counts of gross sexual imposition, felonies of the third degree, in violation of R.C.

2907.05(A)(4) and (C). Appellant pled not guilty to these charges.

{¶ 4} On August 14, 2013, appellant was charged by information with two

additional charges: one count of rape, a felony of the first degree, in violation of R.C.

2907.02(A)(2) and (B), and one count of attempted rape, a felony of the second degree, in

violation of R.C. 2923.02 and R.C. 2907.02(A)(2) and (B). On August 15, 2013,

appellant entered pleas to these two counts pursuant to North Carolina v. Alford, 400

U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

{¶ 5} On August 29, 2013, a sentencing hearing was held. Appellant was

classified as a Tier III sexual offender, required to register as a sex offender for life. The

court held a community notification hearing after which the court found appellant will be

subject to community notification. Appellant was then sentenced to nine years in prison

2. on the rape charge and seven years in prison on the attempted rape charge. The sentences

were ordered to be served consecutively. At the state's request, a nolle prosequi was

entered as to counts one through six of the indictment. Appellant appealed.

{¶ 6} The standard of appellate review of felony sentences is set forth in R.C.

2953.08. This court outlined that standard of review in State v. Tammerine, 6th Dist.

Lucas No. L-13-1081, 2014-Ohio-425:

R.C. 2953.08(G)(2) establishes that an appellate court may increase,

reduce, modify, or vacate and remand a dispute[d] sentence 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(B) or (D), 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. Id. at ¶ 11,

quoting R.C. 2953.08(G)(2).

{¶ 7} Here, appellant contends the trial court failed to make all of the findings

required under R.C. 2929.14(C). Appellant submits the first two findings were made, but

the trial court failed to make any finding as to subsections (a), (b) or (c).

{¶ 8} The state counters the trial court made the required findings under R.C.

2929.14(C)(4) in the sentencing entry as well as at the sentencing hearing.

3. {¶ 9} R.C. 2929.14(C)(4) states:

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 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.

4. {¶ 10} The Supreme Court of Ohio recently held in State v. Bonnell, 140 Ohio

St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus:

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.

{¶ 11} Here, a review of the record, including the transcript of the sentencing

hearing, shows the trial court found “a consecutive sentence is necessary to protect the

public from future crime or to punish the Defendant.” This is the first required finding

under R.C. 2929.14(C)(4).

{¶ 12} The second statutory requirement under R.C. 2929.14(C)(4) was made by

the trial court when the court found that a consecutive sentence is “not disproportionate to

the seriousness of the Defendant’s conduct or the danger the Defendant poses.”

{¶ 13} Next, the trial court determined, in accordance with R.C. 2929.14(C)(4)(b),

“that the harm caused was so great or unusual that no single prison term for any of these

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

seriousness of the offender’s conduct.”

{¶ 14} We conclude the trial court made the statutory findings required under R.C.

2929.14(C)(4) at the sentencing hearing to impose consecutive sentences. We further

conclude the evidence in the record supports the trial court's findings under R.C.

5. 2929.14(C)(4) and imposition of consecutive sentences for the two felonies. Therefore,

appellant’s first assignment of error is not well-taken.

{¶ 15} In his second assignment of error, appellant argues the trial court abused its

discretion by imposing community notification.

{¶ 16} An abuse of discretion “‘implies that the court's attitude is unreasonable,

arbitrary or unconscionable.’” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144

(1980).

{¶ 17} A Tier III sexual offender is required to register with the local sheriff every

90 days for life, and community notification requires the sheriff to notify certain

individuals in the community with the sex offender's personal information. R.C.

2950.06(B)(3); R.C. 2950.11.

{¶ 18} R.C. 2950.11(F)(2) states:

The notification provisions of this section do not apply to a person

described in division (F)(1)(a), (b), or (c) of this section if a court finds at a

hearing after considering the factors described in this division that the

person would not be subject to the notification provisions of this section

that were in the version of this section that existed immediately prior to

January 1, 2008. In making the determination of whether a person would

have been subject to the notification provisions under prior law as

described in this division, the court shall consider the following factors:

6. (a) The offender's or delinquent child's age;

(b) The offender's or delinquent child's prior criminal or

delinquency record regarding all offenses, including, but not limited to, all

sexual offenses;

(c) The age of the victim of the sexually oriented offense for which

sentence is to be imposed or the order of disposition is to be made;

(d) Whether the sexually oriented offense for which sentence is to

be imposed or the order of disposition is to be made involved multiple

victims;

(e) Whether the offender or delinquent child used drugs or alcohol

to impair the victim of the sexually oriented offense or to prevent the victim

from resisting;

(f) If the offender or delinquent child previously has been convicted

of or pleaded guilty to, or been adjudicated a delinquent child for

committing an act that if committed by an adult would be, a criminal

offense, whether the offender or delinquent child completed any sentence or

dispositional order imposed for the prior offense or act and, if the prior

offense or act was a sex offense or a sexually oriented offense, whether the

offender or delinquent child participated in available programs for sexual

offenders;

7. (g) Any mental illness or mental disability of the offender or

delinquent child;

(h) The nature of the offender's or delinquent child's sexual conduct,

sexual contact, or interaction in a sexual context with the victim of the

sexually oriented offense and whether the sexual conduct, sexual contact, or

interaction in a sexual context was part of a demonstrated pattern of abuse;

(i) Whether the offender or delinquent child, during the commission

of the sexually oriented offense for which sentence is to be imposed or the

order of disposition is to be made, displayed cruelty or made one or more

threats of cruelty;

(j) Whether the offender or delinquent child would have been a

habitual sex offender or a habitual child victim offender under the

definitions of those terms set forth in section 2950.01 of the Revised Code

as that section existed prior to January 1, 2008;

(k) Any additional behavioral characteristics that contribute to the

offender's or delinquent child's conduct.

{¶ 19} Here, the trial court held a community notification hearing prior to

sentencing. At the hearing, the prosecutor presented information relative to each of the

factors in R.C. 2950.11(F)(2)(a)-(k), which included the following. During the time

period set forth in the indictment, appellant was between the ages of 16 to 19 and the

victim was 5 to 8 years of age. Appellant had no prior criminal record, and therefore had

8. no prior sexual offenses, nor would he have been a habitual sex offender under the

definitions set forth in R.C. 2950.01 that existed prior to the effective date of this

amendment. Appellant had one victim and there was no evidence that appellant used

drugs or alcohol to impair the victim or to prevent the victim from resisting. Appellant

did not have any mental illness or mental disability, although a doctor did find any mental

disorder was probably the result of appellant’s substance abuse. The sexual contact

between appellant and the victim included appellant touching the victim’s breasts with

his hands, digital penetration, fellatio and cunnilingus. Appellant is the victim’s uncle

and the incidents occurred when the victim was visiting at her grandparents’ home, where

appellant lived. In addition, appellant’s brother, the victim’s other uncle, also had sexual

contact with the victim. Appellant and his brother told the victim not to tell anyone about

the incidents or something bad would happen to them, which made the victim feel that

she would be held responsible if she told or if something bad happened to them. As the

victim’s uncles, appellant and his brother were authority-type figures.

{¶ 20} Following this presentation, the prosecutor recommended community

notification. Defense counsel did not offer any information or evidence or oppose

community notification. The record shows the trial court then weighed the factors set

forth in R.C. 2950.11(F)(2), including that appellant was in a position of trust, and

determined appellant will be subject to community notification.

{¶ 21} Based upon the foregoing, we find the court's decision was not

unreasonable, arbitrary or unconscionable. Accordingly, the trial court did not abuse its

9. discretion in ordering appellant be subject to community notification. Appellant's second

assignment of error is therefore not well-taken.

{¶ 22} The judgment of the Lucas County Court of Common Pleas is hereby

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. The

clerk is ordered to serve all parties with notice of this decision.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ James D. Jensen, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.

10.