State v. Pore

2014 Ohio 790

• Court: Ohio Court of Appeals
• Decided: March 3, 2014
• Docket: 2013CA00119
• Status: Published

Opinion

[Cite as State v. Pore, 2014-Ohio-790.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. : -vs- : : CHARLES R. PORE : Case No. 2013CA00119 : : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Common Pleas Court, Case No. 2011-CR-0354

JUDGMENT: Affirmed

DATE OF JUDGMENT: March 3, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO EARLE E. WISE, JR. Prosecuting Attorney 122 Central Plaza, North Canton, OH 44702

By: RONALD MARK CALDWELL Assistant Prosecuting Attorney 110 Central Plaza South, Suite 510 Canton, OH 44702 Stark County, Case No.2013CA00119 2

Baldwin, J.

{¶1} Appellant Charles R. Pore appeals a judgment of the Stark County

Common Pleas Court sentencing him to an aggregate term of 47 years to life

imprisonment for one count of rape with a sexually violent predator specification and a

repeat violent offender specification, one count of aggravated burglary with a repeat

violent offender specification, and one count of notice of change of address, registration

of new address. Appellee is the State of Ohio.

STATEMENT OF FACTS AND CASE

{¶2} Appellant was released from prison on December 20, 2010, after serving a

sentence for felonious assault and abduction. Appellant had also been convicted of

abduction and attempted rape in 1996. Without being employed or having money,

appellant approached E.T. at her residence, which was for sale. Pore had ascertained

that E.T. lived there with a roommate, A.B. Appellant inquired about the house, and

E.T. told him to talk with A.B. since she was the owner of the house. When appellant

called A.B., she told him to go through the realtor, who was Deb McCracken. Appellant

called McCracken, told her his name was Mike Davis, and pretended to be interested in

buying the house.

{¶3} On February 27, 2011, appellant came to the house in mid-afternoon and

found E.T. home alone. Appellant told her that he wanted to leave some contact

information, so she let him into the house and led him to the kitchen, where appellant

could write on a table. Appellant asked her for a tissue as he had a runny nose, so she

turned to get a tissue. Appellant pulled a steak knife, which he had taken from his Stark County, Case No.2013CA00119 3

girlfriend's kitchen, and ordered E.T. to do what he told her to do and she would not get

hurt.

{¶4} Appellant next marched E.T. into a bedroom and ordered her to take off

her clothes. He used the knife to cut off her bra. After she had undressed, appellant

marched her to the front door of the residence and had her lock the front door.

Appellant led her back to the bedroom, still armed with his knife. Appellant had E.T. get

on the bed doggie-style first, and then on her back, as he attempted to penetrate her

vaginally with his penis. Before trying to enter her, appellant used his finger to stimulate

E.T.'s vagina in order to make entry easier. According to appellant, he was still unable

to enter her, in part because E.T. allegedly would not keep still. E.T. kept asking

appellant why he was doing this, and asking him to leave. Appellant claimed that he

reassured the frightened woman by telling her that he was not going to hurt her. After

some 30 minutes, appellant finished and left the home. He later threw away his clothing

and the knife in a dumpster in the neighborhood.

{¶5} According to the lab report prepared by a forensic scientist of the Canton–

Stark County Crime Laboratory, a semen sample was obtained from the rape kit

performed at Aultman Hospital. The results of a comparison analysis revealed that to a

reasonable degree of certainty (excluding identical twins), Charles R. Pore is the source

of the semen on the vaginal swabs.

{¶6} Appellant was indicted on April 11, 2011. He was charged with one count

of rape with a sexually violent predator specification and a repeat violent offender

specification; one count of kidnapping with a sexual motivation specification, a sexually

violent predator specification and a repeat violent offender specification; one count of Stark County, Case No.2013CA00119 4

aggravated burglary with a repeat violent offender specification; and one count of notice

of change of address; registration of new address. Pore pled guilty as charged on July

21, 2011 and was sentenced on August 3, 2011 as follows: rape 10 years, sexually

violent predator specification 15 years to life consecutive to rape, repeat violent offender

specification 8 years consecutive to rape; kidnapping 10 years, consecutive to rape,

sexual motivation specification 15 years to life merged with the sexually violent predator

specification for rape, repeat violent offender specification 8 years consecutive to the

kidnapping and merged with the repeat violent offender specification for rape;

aggravated burglary 10 years consecutive to rape and kidnapping, repeat violent

offender specification 8 years consecutive to the aggravated burglary and merged with

the repeat violent offender specification for rape; notice of change of address, 2 years

consecutive to rape, kidnapping and aggravated burglary. The Court further imposed a

sanction of 2 years for violation of post release control to be served consecutive to all

other counts. Thus, the aggregate sentenced imposed was a total period of

incarceration of fifty-seven (57) years to life imprisonment. Appellant was further

designated as a Tier III offender pursuant to R.C. 2950.01(G). Finally, appellant was

ordered to serve mandatory periods of post release control.

{¶7} On appeal to this Court, we found that the trial court committed plain error

by failing to merge appellant’s convictions and sentences for rape and kidnapping, and

we remanded for resentencing. At the resentencing hearing, both the prosecution and

the defense jointly recommended a prison term of 35 years. Appellant stipulated to the

record established at the original sentencing hearing and the trial court incorporated the

record of the original hearing, including the court’s earlier findings, into the current Stark County, Case No.2013CA00119 5

record. The court rejected the recommended sentence and instead sentenced

appellant to an aggregate term of 47 years to life, as follows: rape 10 years, sexually

violent predator specification 15 years to life consecutive to rape, repeat violent offender

specification 8 years consecutive to rape; aggravated burglary 10 years consecutive to

rape, repeat violent offender specification 8 years consecutive to the aggravated

burglary and merged with the repeat violent offender specification for rape; notice of

change of address, 2 years consecutive to rape and aggravated burglary. The Court

further imposed a sanction of 2 years for the violation of post release control to be

served consecutive to all other counts.

{¶8} Appellant assigns two errors on appeal:

{¶9} “I. THE TRIAL COURT ERRED IN SENTENCING MR. PORE TO A

SENTENCE OF 47 YEARS TO LIFE IN VIOLATION OF THE EIGHTH AMENDMENT

OF THE CONSTITUTION OF THE UNITED STATES AND SECTION 9, ARTICLE I OF

THE OHIO CONSTITUTION, WHICH PROHIBITS CRUEL AND UNUSUAL

PUNISHMENT.

{¶10} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING

MR. PORE TO 47 YEARS TO LIFE IMPRISONMENT IN VIOLATION OF MR. PORE’S

RIGHT TO DUE PROCESS UNDER THE FIFTH AMENDMENT TO THE UNITED

STATES CONSTITUTION.”

I.

{¶11} In his first assignment of error, appellant argues that his sentence

constitutes cruel and unusual punishment in violation of the United States and Ohio

Constitutions. He specifically argues that his sentence is extreme and disproportionate. Stark County, Case No.2013CA00119 6

He argues that he did not remove the victim from the home, did not physically injure her,

expressed remorse, and cooperated fully with the police.

{¶12} The Eighth Amendment to the United States Constitution prohibits

“[e]xcessive” sanctions. It provides: “Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflicted.” 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 punishments inflicted.”

{¶13} The Eighth Amendment does not require strict proportionality between

crime and sentence, but only forbids 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

(1991),(Kennedy, J., concurring in part and in judgment). In Solem v. Helm, 463 U.S.

277, 290-292, 103 S.Ct 3001, 3010-3011, 77 L.Ed.2d 637, 649-50 (1983), the United

States Supreme Court set forth a three-part test for determining whether a sentence is

disproportionate to the crime: (i) the 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. A

sentence does not violate the constitutional prohibition against cruel and unusual

punishment unless the sentence is so grossly disproportionate to the offense as to

shock the sense of justice in the community. State v. Chaffin, 30 Ohio St.2d 13, 59

O.O.2d 51, 282 N.E.2d 46 (1972).

{¶14} Further, for purposes of the Eighth Amendment and Section 9, Article I of

the Ohio Constitution, proportionality review should focus on individual sentences rather Stark County, Case No.2013CA00119 7

than on the cumulative impact of multiple sentences imposed consecutively. State v.

Hairston, 118 Ohio St. 3d 289, 888 N.E.2d 1073, 2008-Ohio-2338, ¶20. Where none of

the individual sentences imposed on an offender are grossly disproportionate to their

respective offenses, an aggregate prison term resulting from consecutive imposition of

those sentences does not constitute cruel and unusual punishment. Id. As a general

rule, a sentence that falls within the terms of a valid sentencing statute cannot constitute

cruel and unusual punishment. Id. at ¶21.

{¶15} Appellant does not challenge the sentencing statutes pursuant to which he

was sentenced, nor does he argue that he was not sentenced within a range permitted

by statute. Further, we reject appellant’s claim that the aggregate term of 47 years to

life imprisonment constitutes cruel and unusual punishment pursuant to Hairston, supra.

{¶16} Appellant does appear to make an argument that the sentence for rape is

disproportionate to the crime because he did not use the knife to harm the victim, he did

not strike or beat her, he did not tie her up or hold her for a prolonged period of time,

and the act of penetration was neither rough nor prolonged.

{¶17} However, the trial court outlined the heinous nature of appellant’s crimes,

and his criminal history. Appellant admitted at the sentencing hearing that he has a

sexual addiction that he cannot control. Sent. Tr. August 3, 2011, p. 6. The instant

crime was committed only 69 days after he was released from prison for a 2004

conviction of felonious assault and abduction, and he had been convicted in 1996 of

abduction and attempted rape. By his own admission to police, he began stalking the

victim shortly after his release from prison. He found E.T. living with a roommate in a

house put up for sale by her roommate. He pretended to be a potential buyer for the Stark County, Case No.2013CA00119 8

home, giving the realtor a false name. He gained entry to the home when E.T. was

home alone by pretending he needed to leave contact information regarding the sale of

the home. While he didn’t physically harm E.T. with the knife he carried with him to the

house, he used the knife to cut her bra off after ordering her to undress, and he held the

knife to her neck while telling her not to scream. Under the facts and circumstances of

the offense and considering appellant’s past violent criminal history and his

demonstrated recidivism rate, the sentence for rape is not grossly disproportionate to

the crime.

{¶18} The first assignment of error is overruled.

II.

{¶19} In his second assignment of error, appellant argues that the court abused

its discretion in sentencing him to a term of 47 years to life imprisonment, and that such

abuse of discretion violates due process under the Fifth Amendment to the U.S.

Constitution. Appellant argues that the facts of the case, his conduct, his cooperation

with police and his demonstrated remorse mitigate against the lengthy sentence.

{¶20} The Supreme Court of Ohio in State v. Kalish, 120 Ohio St.3d 23, 2008–

Ohio–4912, 896 N.E.2d 124 set forth a two step process for examining felony

sentences. The first step is to “examine the sentencing court's compliance with all

applicable rules and statutes in imposing the sentence to determine whether the

sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If this first step is

satisfied, the second step requires the trial court's decision be reviewed under an abuse

of discretion standard. Id. An abuse of discretion implies that the court's attitude is

unreasonable, arbitrary, or unconscionable. Kalish, supra, at ¶ 19. Stark County, Case No.2013CA00119 9

{¶21} Appellant has not demonstrated that the court abused its discretion. While

appellant argues that the court placed too much emphasis on his prior record, appellant

has demonstrated a tendency to reoffend, committing the instant crimes only 69 days

after his release from prison after serving a sentence of six years for felonious assault

and abduction. Appellant was on post release control at the time of the crimes and

stalked the victim prior to the crimes. Further, appellant was convicted of attempted

rape and abduction in 1996. As noted by the court, there are no factors indicating that

recidivism is unlikely. Appellant used the subterfuge of being a potential buyer of the

home where the victim lived to gain entry to the home. While he didn’t physically harm

E.T. with the knife he carried with him to the house, he used the knife to cut her bra off

after ordering her to undress, and he held the knife to her neck while telling her not to

scream. He used the knife to move her throughout the house, and the ordeal lasted

between 30-40 minutes. Based on the facts of the case and appellant’s criminal history,

the court did not abuse its discretion in sentencing him to a term of imprisonment of 47

years to life.

{¶22} The second assignment of error is overruled. Stark County, Case No.2013CA00119 10

{¶23} The judgment of the Stark County Common Pleas Court is affirmed.

Costs are assessed to appellant.

By: Baldwin, J.

Gwin, P.J. and

Wise, J. concur.