State v. Pine

2018 Ohio 4889

• Court: Ohio Court of Appeals
• Decided: December 6, 2018
• Docket: CT2017-0042
• Status: Published

Opinion

[Cite as State v. Pine, 2018-Ohio-4889.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. CT2017-0042 ROBERT L. PINE : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum County Court of Common Pleas, Case No. CR2017-0093

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 6, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

GERALD ANDERSON II ERIC ALLEN 27 North Fifth Street 4605 Morse Road, Suite 201 Box 189 Gahanna, OH 43230 Zanesville, OH 43702 [Cite as State v. Pine, 2018-Ohio-4889.]

Gwin, P.J.

{¶1} Appellant Robert Pine appeals the June 20, 2017 sentencing entry of the

Muskingum County Court of Common Pleas. Appellee is the State of Ohio.

Facts & Procedural History

{¶2} On February 3, 2017, a Muskingum County sheriff’s deputy was dispatched

to the area of Coopermill Road to look for two vehicles that had been reported as driving

recklessly and that appeared to be chasing each other. When the deputy arrived in the

area, he found an Ohio State Highway Patrolman handling a rollover crash. Witnesses

who were following the crashed vehicle stated they first saw the crashed vehicle, a blue

2005 Ford, on Gard Lane. The witnesses further stated that as they were pulling up to

the vehicle, the driver attempted to pull away so quickly that he backed into a mailbox

and then drove around the vehicle being driven by the witnesses. The witnesses spotted

a young female, approximately thirteen years of age, in the vehicle. She was topless and

was trying to put her shirt on. The other person the witnesses saw in the car was the

driver, a male they described as being in his 40’s. The witnesses turned their vehicle

around to follow the Ford in hopes of obtaining a license plate number, but stopped

following the Ford after it drove off the road several times.

{¶3} A short time later, as the witnesses were driving, they discovered the Ford

had crashed. The driver, identified as appellant, was outside the vehicle on his hands

and knees wearing only his underwear. The young female, later identified as P.M., with

the date of birth of December 12, 2003, was found outside the vehicle. She was putting

on a jacket, was not wearing any shoes, was putting on a shirt, did not have a bra on, and

was attempting to put on sweatpants. Muskingum County, Case No. CT2017-0042 3

{¶4} P.M. stated that appellant had taken her out on the secluded road, got into

the back seat with her, and had her get naked. Appellant crawled on top of her, began

kissing and touching her, and stuck the tip of his penis inside her vagina. Upon being

discovered by the witnesses driving down the road, appellant attempted to flee and

crashed the car.

{¶5} P.M. suffered broken bones. Appellant indicated he had been drinking

beers and smoking marijuana at the time of the accident.

{¶6} On March 1, 2017, appellant was indicted on the following charges: Count

One, rape, a first-degree felony in violation of R.C. 2907.02(A)(2); Count Two, aggravated

vehicular assault, a second-degree felony in violation of R.C. 2903.08(A)(1)(a); Count

Three, aggravated vehicular assault, a third-degree felony in violation of R.C.

2903.08(A)(2)(b); Count Four, OVI, a first-degree misdemeanor in violation of R.C.

4511.19(A)(1)(a); and Count 5, OVI, a first-degree misdemeanor in violation of R.C.

4511.19(A)(1)(j). Appellant was arraigned on March 8, 2017 and entered a plea of not

guilty to all charges.

{¶7} The trial court held a change of plea hearing on May 1, 2017. The trial court

issued an entry on May 3, 2017 finding appellant’s plea to be voluntary, accepting his

plea of guilty, finding him guilty of Counts 1 – 5, and ordering a pre-sentencing

investigation prior to sentencing. Additionally, the trial court found that Counts Two and

Three merge, with appellee electing to sentence under Count Two; and Counts Four and

Five merge, with appellee electing to sentence under Count Four. On May 24, 2017, the

trial court denied appellant’s oral motion to withdraw plea. Muskingum County, Case No. CT2017-0042 4

{¶8} The trial court held a sentencing hearing on June 12, 2017. At the hearing,

the trial court noted that this is appellant’s seventh felony conviction and reviewed his

prior felony convictions with appellant, including convictions for burglary and theft in 2011,

failure to comply with the order of a police officer and vandalism in 2000, theft and burglary

in 1999, possession of a controlled substance in 1996, selling/possession of a controlled

substance in 1992, and burglary in 1989. Appellant also confirmed that he has had the

following misdemeanor convictions: aggravated disorderly conduct in 2009, theft,

menacing, and criminal trespass in 2006, obstructing official business, criminal trespass,

public indecency, and disorderly conduct in 2000, and taking a vehicle without permission

in 1989.

{¶9} At the hearing, the trial court sentenced appellant to eleven years in prison

on Count One and eight years in prison on Count Two. The trial court stated that the two

prison terms will run consecutively for an aggregate prison sentence of nineteen years,

concurrent with the six-month jail sentence for the OVI in Count Four. The trial court

stated as follows:

The Court finds that consecutive sentences are necessary to protect

the public and punish the offender and consecutive sentences in this case

are not disproportionate to the seriousness of the conduct or the danger

posed to the public as evidenced – as evidenced of this sentencing.

The Court also finds that your history of criminal conduct

demonstrates consecutive are necessary to protect the public from future

crime by this offender. Muskingum County, Case No. CT2017-0042 5

{¶10} On June 19, 2017, the trial court held a hearing because there was a

question as to whether or not at the prior sentencing hearing the trial court stated

mandatory time on Counts One and Two together. Thus, the trial court conducted the

hearing to clarify the mandatory time on Counts One and Two. The trial court stated it

reviewed the pre-sentence investigation and noted it considered appellant’s extensive

past record and prior terms of incarceration. With regards to the rape and aggravated

vehicular assault in this case, the trial court stated, “I think they are clearly the worst forms

of those offenses.”

{¶11} The trial court sentenced appellant to eleven years in prison on Count One,

eight years on Count Two, and six months in jail on Count Four, running Counts One and

Two consecutively to each other and concurrently with Count Four. The trial court stated:

The Court finds that consecutive sentences are necessary to protect

the public and punish the offender, and consecutive sentences are not

disproportionate to the seriousness of the conduct and the danger posed to

the public as evidenced in the sentencing at this time.

The Court also finds that you committed – that at least two multiple

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

the harm caused by two or more 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 course of conduct adequately reflects the seriousness

of your conduct. And more importantly, your history of criminal conduct

demonstrates that consecutive sentences are necessary to protect the

public from future crimes of the offender. Muskingum County, Case No. CT2017-0042 6

I will also note for the record, I have received letters from your

mother, from yourself, as well as the victim in this matter, and the victim’s

mother. So Counts 1 and 2 will run consecutive to one another for the

reasons stated for an aggregate prison term of 19 years.

{¶12} The trial court issued a sentencing entry on June 20, 2017. The trial court

found that Counts One and Two shall be served consecutively to one another and the

period of incarceration imposed for Count Four shall be served concurrently to Counts

One and Two for an aggregate prison sentence of nineteen years. Further, as to

consecutive sentences, the trial court stated in its entry the following:

Pursuant to ORC § 2929.14(C)(4), the Court further found that the

imposition of consecutive sentences are necessary to protect the public

from future crime or to punish the Defendant, and that consecutive

sentences are not disproportionate to the seriousness of the Defendant’s

conduct, and to the danger the Defendant poses to the public.

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 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 Defendant’s conduct.

The Defendant’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender. Muskingum County, Case No. CT2017-0042 7

{¶13} Appellant appeals the June 20, 2017 sentencing entry and assigns the

following as error:

{¶14} “I. THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT TO

CONSECUTIVE SENTENCES."

{¶15} Appellant argues the trial court erred when it imposed consecutive

sentences. We disagree.

{¶16} Under R.C. 2953.08(G)(2)(a), we consider whether there is clear and

convincing evidence in the record to support the trial court’s findings under R.C.

2929.14(C)(4) to impose consecutive sentences. State v. Compton, 5th Dist. Muskingum

No. CT2018-0004, 2018-Ohio-2868, citing State v. Deeb, 6th Dist. Erie No. E-14-117,

2015-Ohio-2442.

{¶17} 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 statutorily-enumerated findings set forth in R.C.

2929.14(C)(4). State v. Whitman, 5th Dist. Stark No. 2017CA00079, 2018-Ohio-2924,

citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177. This statute requires the

trial court to undertake a three-part analysis. State v. Alexander, 1st Dist. Hamilton Nos.

C-110828 and C-110829, 2012-Ohio-3349.

{¶18} R.C. 2929.14(C)(4) provides as follows:

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. CT2017-0042 8

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.

{¶19} R.C. 2929.14(C)(4) “provides that a trial court may require the

offender to serve multiple 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 one of three facts specified in subdivisions

(a), (b), and (c).” State v. Compton, 5th Dist. Muskingum No. CT2018-0004, 2018- Muskingum County, Case No. CT2017-0042 9

Ohio-2868, quoting State v. Leet, 2nd Dist. Montgomery No. 25966, 2015-Ohio-

1668.

{¶20} In State v. Bonnell, the Supreme Court of Ohio held that the trial court is

required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing

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

reasons to support its findings. The sentencing court is not required to recite a “word-for-

word recitation of the language of the statute.” Id. “[A]s 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.” Id.

{¶21} Appellant argues the record does not support the imposition of consecutive

sentences. Specifically, appellant contends that it should not have to be a “scavenger

hunt” to tie the statutory words together with the rationale used by the trial court to impose

consecutive sentences. We disagree, as we can discern that the trial court engaged in

the correct analysis and can determine that the record contains evidence to support the

findings.

{¶22} In the present case, the trial court made written findings in accordance with

the language of R.C. 2929.14(C)(4) and subdivisions (b) and (c). Similar oral findings

were made on the record at both the hearing on June 12, 2017 and the hearing on June

19, 2017. The trial court specifically stated the rape and aggravated vehicular assault

were the worst forms of those offenses. The trial court also noted appellant’s extensive

past record. Appellant was previously convicted of two separate charges of theft, three

separate charges of burglary, failure to comply with the order of a police officer, Muskingum County, Case No. CT2017-0042 10

vandalism, and two separate charges of possession of a controlled substance. Appellant

was also convicted of multiple misdemeanors, including aggravated disorderly conduct,

theft, menacing, two separate counts of criminal trespass, obstructing official business,

public indecency, disorderly conduct, and taking a vehicle without permission.

{¶23} Based on the foregoing, we find that the trial court’s findings for imposing

consecutive sentences were supported by the record and the trial court did not err in

imposing consecutive sentences.

{¶24} Appellant’s assignment of error is overruled.

{¶25} The judgment of the Muskingum County Court of Common Pleas is

affirmed.

By Gwin, P.J.,

Hoffman, J., and

Baldwin, J., concur