State v. Poling

2018 Ohio 4630

• Court: Ohio Court of Appeals
• Decided: November 16, 2018
• Docket: 27882
• Status: Published

Opinion

[Cite as State v. Poling, 2018-Ohio-4630.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 27882 : v. : Trial Court Case No. 2016-CR-2157 : DANIEL P. POLING : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 16th day of November, 2018.

MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

JAY A. ADAMS, Atty. Reg. No. 0072135, 36 North Detroit Street, Suite 102, Xenia, Ohio 45385 Attorney for Defendant-Appellant

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TUCKER, J. -2-

{¶ 1} Defendant-appellant, Daniel P. Poling, appeals from his conviction for

unlawful sexual conduct with a minor, a third degree felony pursuant to R.C. 2907.04(A)

and (B)(3). Raising one assignment of error, Poling contends that the trial court erred by

sentencing him to serve five years in prison, the maximum term of imprisonment permitted

by R.C. 2929.14(A)(3)(a). We find that Poling has not established by citation to clear

and convincing evidence that the record does not support the sentence or that the

sentence is otherwise contrary to law. Therefore, Poling’s conviction is affirmed.

I. Facts and Procedural History

{¶ 2} On July 20, 2016, a Montgomery County grand jury issued an indictment

against Poling, charging him as follows: Count 1, rape—a violation of R.C. 2907.02(A)(2);

Count 2, kidnapping—a violation of R.C. 2905.01(A)(4); and Count 3, unlawful sexual

conduct with a minor—a violation of R.C. 2907.04(A). Poling appeared before the trial

court on December 13, 2017, and pleaded guilty to Count 3 as part of a plea agreement

with the State. In exchange for Poling’s plea, the State dismissed Counts 1 and 2.

{¶ 3} At his sentencing hearing on January 16, 2018, the trial court sentenced

Poling to a term of imprisonment of five years, the maximum sentence the court could

impose “[f]or a felony of the third degree that is a violation of [R.C.] 2907.04.” R.C.

2929.14(A)(3)(a). The court further found Poling to be a Tier II sex offender, advised him

of the associated registration requirements, and informed him that he would be subject to

five years of postrelease control. Poling timely filed his notice of appeal on January 31,

2018.

II. Analysis -3-

{¶ 4} For his assignment of error, Poling contends that:

THE TRIEAL [SIC] COURT ERRED IN IMPOSING THE MAXIMUM

SENTENCE ALLOWABLE BY LAW[.]

{¶ 5} Poling argues that the record in this case does not support the sentence he

received because “the trial court did not properly weigh the factors set forth in [R.C.

2929.11 and 2929.12].” Appellant’s Br. 4 and 6. As well, he argues that the court “did

not give * * * due weight to the genuine remorse [he expressed] at the time of sentencing.”

Id.

{¶ 6} A “trial court has full discretion to impose any sentence within the authorized

statutory range, and [it] is not required to make any findings or give its reasons for

imposing maximum or more than minimum sentences.” State v. King, 2013-Ohio-2021,

992 N.E.2d 491, ¶ 45 (2d Dist.), citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,

845 N.E.2d 470, paragraph seven of the syllabus. On review of a felony sentence, an

appellate court may vacate or modify the sentence “only if it determines by clear and

convincing evidence” that the record of the case does not warrant the sentence, pursuant

to the relevant statutes, or that the sentence is otherwise contrary to law.1 See State v.

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.2d 1231, ¶ 1; see also R.C.

2953.08(G)(2). A sentence “is not contrary to law [if it falls] within the statutory range

1 Clear and convincing evidence is a “degree of proof [greater] than a mere ‘preponderance of the evidence’ ” that produces in the mind of the trier of fact “a firm belief or conviction as to the facts sought to be established”; evidence that satisfies this standard need not satisfy the higher standard of “ ‘beyond a reasonable doubt,’ ” which applies in criminal trials. Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus; State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.2d 1231, ¶ 22. -4-

[and the trial court] expressly state[s] that it * * * considered the purposes and principles

of sentencing [under] R.C. 2929.11 [and] 2929.12.” (Citation omitted.) State v.

Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, ¶ 32 (2d Dist.).

{¶ 7} Under R.C. 2929.11(A), a “court that sentences an offender for a felony shall

be guided” by the “overriding purposes” of punishing the offender and “protect[ing] the

public from future crime by the offender and others,” while “using the minimum sanctions

that [it] determines [likely to] accomplish [these] purposes without imposing an

unnecessary burden on state or local government resources.” Accordingly, the “court

shall consider the need for incapacitating the offender, deterring the offender and others

from future crime, rehabilitating the offender, and making restitution.” Id. R.C.

2929.11(B) adds that a felony sentence “shall be reasonably calculated to achieve the

two overriding purposes of felony sentencing[,] * * * commensurate with and not

demeaning to the seriousness of the offender’s conduct and its impact upon [any]

victim[s], and consistent with sentences imposed for similar crimes committed by similar

offenders.”

{¶ 8} Pursuant to R.C. 2929.12(A), in “exercising [its] discretion” to determine “the

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

[R.C.] 2929.11,” a court must consider, among other things, a list of nine factors

“indicating that [an] offender’s conduct [was] more serious than conduct normally

constituting” the offense for which the offender was convicted; a list of four factors

“indicating that the offender’s conduct [was] less serious than conduct normally

constituting the offense”; a list of five factors “indicating that the offender is likely to commit

future crimes”; and a list of five factors “indicating that the offender is not likely to commit -5-

future crimes.” See also R.C. 2929.12(B)-(E). The court “may [further] consider any

other factors that are relevant to achieving [the] purposes and principles of [felony]

sentencing.” R.C. 2929.12(A).

{¶ 9} Here, when Poling appeared for sentencing, the trial court began by

informing the parties that it had “considered the purposes and principles of sentencing in

[R.C.] 2929.11 and the seriousness and recidivism factors in [R.C.] 2929.12,” along with

the parties’ respective sentencing memoranda; the presentence investigation report; five

letters submitted on Poling’s behalf by personal acquaintances and a sexual offender

treatment specialist; three letters submitted on the victim’s behalf by his mother, his

maternal grandmother, and a detective with the Miamisburg Police Department; the

presentence investigation report prepared in connection with a similar offense for which

Poling was convicted nearly 30 years ago; and two letters submitted by relatives of the

victim of the previous offense. Transcript of Proceedings 28:10-29:22, Jan. 16, 2018.

Poling’s defense counsel afterward read two letters into the record that were written by

Poling himself—an apology addressed to his victim, and another apology addressed to

the court. Id. at 30:3-36:17.

{¶ 10} The court then recited the facts of the case, including a description of the

offenses charged in the indictment, and referred to the remarks Poling made in his letters

of apology. Id. at 36:18-38:15. Turning to the written statement that Poling had

submitted to the presentence investigator, the court observed that “in contrast to” his

letters of apology, Poling appeared to avoid “taking full responsibility [for] what he did”

and “seem[ed] to, at least in that statement, shift some of the responsibility, some blame,

to the victim[,] who [was] a 15-year-old boy with Asperger’s syndrome.” Id. at 38:16- -6-

38:20 and 39:25-40:4. In addition, the court noted that Poling had “lied to the police and

* * * attempted to destroy evidence”; that Poling’s actions had had an especially adverse

impact on the victim; and that Poling had committed a similar offense in the past, for which

he was provided with sex offender treatment. Id. at 40:7-42:22. Finding “a high

likelihood” that Poling would continue to commit such offenses, the court determined that

the appropriate sentence would be “60 months [imprisonment in] the Corrections

Reception Center without judicial release.” Id. at 42:23-43:4.

{¶ 11} The sentence imposed by the trial court is within the range authorized by

R.C. 2929.14(A)(3)(a), and the court “expressly state[ed] that it had considered the

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

R.C. 2929.12.” Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, at ¶ 32. Although the court

deemed Poling’s expression of remorse to be insincere, the court explained that it based

its assessment on the statement Poling submitted to the presentence investigator, in

which he appeared to disclaim responsibility for his actions, and on the fact that Poling

had lied to police and attempted to destroy evidence. Given the record before us, we

cannot conclude that Poling’s sentence was either unsupported by the record or contrary

to law. Poling’s assignment of error is overruled.

III. Conclusion

{¶ 12} Poling has not met his burden to show, by clear and convincing evidence,

that the sentence imposed by the trial court was unsupported by the record or otherwise

contrary to law. Therefore, Poling’s conviction is affirmed.

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FROELICH, J. and HALL, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Sarah E. Hutnik Jay A. Adams Hon. Dennis J. Langer