State v. Newman

2022 Ohio 4262

Opinion

[Cite as State v. Newman, 2022-Ohio-4262.]

COURT OF APPEALS MUSKINGUM 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. CT2022-0010 JUSTIN NEWMAN

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. CR2021-0242

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 28, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RONALD L. WELCH CHRIS BRIGDON PROSECUTING ATTORNEY 8138 Somerset Road TAYLOR P. BENNINGTON Thornville, Ohio 43076 ASSISTANT PROSECUTOR 27 North Fifth Street, P. O. Box 189 Zanesville, Ohio 43701 Muskingum County, Case No. CT2022-0010 2

Wise, J.

{¶1} Defendant-Appellant Justin Newman appeals his sentence from the

Muskingum County Court of Common Pleas after entering a plea of guilty to one count

of Gross Sexual Imposition in violation of R.C. §2907.05(A)(1), and one count of Sexual

Battery in violation of R.C. §2907.03(A)(1). Plaintiff-Appellee is the State of Ohio. The

relevant facts leading to this appeal are as follows.

FACTS AND PROCEDURAL HISTORY

{¶2} On May 5, 2021, Appellant was indicted on one count of Kidnapping in

violation of R.C.§ 2905.01(A)(4), three counts of Gross Sexual Imposition in violation of

R.C. §2907.05(A)(4), one count of Attempted Rape in violation of R.C. §2923.02(A), and

two counts of Rape in violation of R.C. §2923.02(A).

{¶3} On August 5, 2021, Appellant entered a plea of guilty to one count of Gross

Sexual Imposition, in violation of R.C. §2907.05(A)(1) and one count of Sexual Battery,

in violation of R.C. §2907.03(A)(1).

{¶4} The trial court sentenced Appellant to eighteen months on the count of

Gross Sexual Imposition, and eight to twelve years on the count of Sexual Battery to be

served consecutively.

Assignments of Error

{¶5} Appellant timely filed a notice of appeal and herein raises the following two

Assignments of Error.

{¶6} “I. CONSECUTIVE SENTENCES WERE UNLAWFUL AND A VIOLATION

OF DUE PROCESS. Muskingum County, Case No. CT2022-0010 3

{¶7} “II. THE PROPORTIONALITY OF THE SENTENCE WAS INCONSISTENT

WITH O.R.C. 2929.11(B).”

I.

{¶8} In Appellant’s First Assignment of Error, Appellant argues the trial court

erred by imposing consecutive sentences. We disagree.

{¶9} R.C. §2953.08(G)(2) sets forth the standard of review for all felony

sentences. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶1.

Pursuant to R.C. §2953.08(G)(2), an appellate court may only “increase, reduce, or

otherwise modify a sentence * * * or may vacate the sentence and remand the matter to

the sentencing court for resentencing” if the court finds by clear and convincing evidence

“(a) [t]hat the record does not support the sentencing court’s findings[,]” or “(b) [t]hat the

sentence in otherwise contrary to law.” R.C. §2953.08(G)(2)(a)-(b).

{¶10} R.C. §2929.14(C)(4) concerns the imposition of consecutive sentences. In

Ohio, there is a statutory presumption in favor of concurrent sentences for most felony

offenses. R.C. §2929.41(A). The trial court may overcome this presumption by making

the statutory, enumerated findings set forth in R.C. §2929.14(C)(4). State v. Bonnell, 140

Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶23. This statute requires the trial court

to undertake a three-part analysis in order to impose consecutive sentences.

{¶11} R.C. §2929.14(C)(4) provides:

(C)(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 Muskingum County, Case No. CT2022-0010 4

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.

{¶12} Thus, in order for a trial court to impose consecutive sentences, the court

must find that consecutive sentences are necessary to protect the public from future

crime or to punish the offender. The court must also find that consecutive sentences are

not disproportionate to the offender’s conduct and to the danger the offender poses to

the public. Finally, the court must make at least one of three additional findings, which

include that (a) the offender committed one or more of the offenses while awaiting trial

or sentencing, while under a sanction imposed under R.C. §2929.16, §2929.17, or

§2929.18, or while under post release control for a prior offense; (b) at least two of the Muskingum County, Case No. CT2022-0010 5

multiple offenses were committed as part of one or more courses of conduct, and the

harm caused by two or more of the offenses 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 would

adequately reflect the seriousness of the offender’s conduct; or (c) the offender’s criminal

history demonstrates that consecutive sentences are necessary to protect the public

from future crime by the offender. See, State v. White, 5th Dist. Perry No. 12-CA-00018,

2013-Ohio-2058, ¶36.

{¶13} A trial court must make the findings required by R.C. §2929.14(C)(4) into its

sentencing entry; however, the trial court need not state specific reasons to support its

finding. “[A] word-for-word recitation of the language of the statute is not required, and

as long as the reviewing court can discern that the trial court engaged in the correct

analysis and can determine that the record contains evidence to support the findings,

consecutive sentences should be upheld. Bonnell, supra.

{¶14} In the case sub judice, Appellant does not argue the trial court did not make

the proper findings, but rather that consecutive sentences in this instance were

unnecessary to protect the public and were disproportionate to the seriousness of the

offense.

{¶15} However, the trial court found that the harm caused to the victim, a minor,

was so great that a prison term on just one offense was not enough. Appellant, the

victim’s uncle, entered the victim’s room while she was playing with Barbies and engaged

in sexual conduct and sexual contact with the victim. The consecutive sentence was

necessary because of the harm caused and the danger Appellant presented to the

public. Muskingum County, Case No. CT2022-0010 6

{¶16} The trial court made the required findings under R.C. §2929.14(C)(4) for

consecutive sentences. It was not contrary to law and was supported by the record.

{¶17} Appellant’s First Assignment of Error is overruled.

II.

{¶18} In Appellant’s Second Assignment of Error, Appellant argues the trial court

erred by sentencing him disproportionately, and this amounts to cruel and unusual

punishment. We disagree.

{¶19} The Eighth Amendment to the United States Constitution provides:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishment inflicted.”

{¶20} Section 9, Article I of the Ohio Constitution sets forth the same restriction:

“Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual

{¶21} “ ‘The Eighth Amendment does not require strict proportionality between

crime and sentence. Rather it forbids only extreme sentences that are “grossly

disproportionate” to the crime.’ ” State v. Weitbrecht, 86 Ohio St.3d 368, 373, 715 N.E.2d

167 (1999), quoting Harmelin v. Michigan, 501 U.S 957, 1001, 111 S.Ct. 2680, 115

L.Ed.2d 836 (1991), (Kennedy, J., concurring in part and in judgment). “A court’s

proportionality analysis under the Eighth Amendment should be guided by objective

criteria, including (i) gravity of the offense and the harshness of the penalty; (ii) the

sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences

imposed for commission of the same crime in other jurisdictions. (Footnotes omitted.)”

State v. Morin, 5th Dist. Fairfield No. 2008-CA-10, 2008-Ohio-6707, ¶69, citing Solem v. Muskingum County, Case No. CT2022-0010 7

Helm, 463 U.S. 277, 290-292, 103 S.Ct. 3001, 3010-3011, 77 L.Ed.2d 637, 649-650

(1983).

{¶22} “ ‘As a general rule, a sentence that falls within the terms of a valid statute

cannot amount to cruel and unusual punishment.’ ” State v. Hairston, 118 Ohio St.3d

289, 293, 2008-Ohio-2338, 888 N.E.2d 1073, ¶21, quoting McDougle v. Maxwell, 1 Ohio

St.2d 68, 69, 203 N.E.2d 334 (1964).

{¶23} In the case sub judice, Appellant argues that Appellant’s lack of criminal

history should provide for a less severe sentence than a defendant with prior convictions

committing the same crime. Appellant does not challenge the sentencing statutes

pursuant to which he was sentenced, nor does he argue he was not sentenced within a

range permitted by statute. Since the court considered the record, all statements, victim

impact statements, the principles and purposes of felony sentencing under R.C.

§2929.11, and seriousness and recidivism factors under R.C. §2929.12, we find

Appellant has not demonstrated his sentence constitutes cruel and unusual punishment

under the United States and Ohio Constitutions. Muskingum County, Case No. CT2022-0010 8

{¶24} Appellant’s second Assignment of Error is overruled.

{¶25} For the foregoing reasons, the judgment of the Court of Common Pleas of

Muskingum County, Ohio, is hereby affirmed.

By: Wise, J.

Hoffman, P. J., and

Baldwin, J., concur.

JWW/d 1121