State v. Stephens

2014 Ohio 2759

• Court: Ohio Court of Appeals
• Decided: June 26, 2014
• Docket: 99051
• Status: Published

Opinion

[Cite as State v. Stephens, 2014-Ohio-2759.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99051

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

TONY L. STEPHENS DEFENDANT-APPELLANT

JUDGMENT: SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-12-560547-A

BEFORE: McCormack, J., E.A. Gallagher, P.J., and Stewart, J.

RELEASED AND JOURNALIZED: June 26, 2014 ATTORNEY FOR APPELLANT

Michael H. Murphy 20325 Center Ridge Road, Suite 512 Rocky River, OH 44116

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: Katherine Mullin Assistant County Prosecutor 9th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, J.:

{¶1} Tony Stephens appeals from his consecutive sentence imposed by the trial

court after he pled guilty to one count of endangering children, a second-degree felony,

and two counts of gross sexual imposition, a third-degree felony. He was sentenced to

six years for endangering children, and two years for each count of gross sexual

imposition, to be served consecutively, for a total of ten years.

{¶2} The incident that led to Stephens’s conviction involved an eight-year-old

girl. Stephen was a boyfriend of the girl’s aunt. One night while the girl was staying

overnight at her aunt’s house, after everyone went to bed for the night, Stephens

approached the girl, who was lying on the couch, and kissed her on the lips. He also

touched her buttocks both over and under her underwear. He then made the eight-year-old

pose for pictures, which depicted her buttocks with her pajama pants down.

{¶3} Investigators subsequently recovered 190 images on Stephens’s cell phone.

The images included those of the eight-old-victim as well as approximately 170 images

of women’s buttocks, which appeared to be taken without the subjects’ knowledge.

{¶4} At sentencing, Stephens’s counsel acknowledged Stephens had a prior

criminal history, but noted he had serious mental health issues. The state alleged

Stephens was possibly malingering and exaggerating his mental health symptoms.

Before the court, Stephens accepted responsibility for his conduct and expressed remorse. {¶5} On appeal, Stephens raises three assignments of error, all relating to his

consecutive sentence. Under the first assignment of error, he claims his consecutive

sentence is not “commensurate with the crime committed”; under the second assignment

of error, he claims his consecutive sentence was “contrary to law” in violation of R.C.

2953.08; and under the third assignment of error, he claims the trial court failed to make

the statutory findings required by R.C. 2929.14(C)(4).

{¶6} The state concedes the third assignment of error. The conceded error

necessitates a reversal of Stephens’s sentence and a remand for resentencing. State v.

Venes, 2013-Ohio-1891, 992 N.E.2d 453. Upon remand, the trial court is to determine if

the statutory findings it failed to make would be warranted under the circumstances of the

case and, if so, to make the findings prior to imposing consecutive sentences. State v.

Nia, 8th Dist. Cuyahoga No. 99387, 2014-Ohio-2527, ¶ 28. The conceded error renders

the first and second assignments of error moot.

{¶7} Sentence affirmed in part, vacated in part, and remanded.

It is ordered that appellant recover of said appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

______________________________________________ TIM McCORMACK, JUDGE

EILEEN A. GALLAGHER, P.J., and MELODY J. STEWART, J., CONCUR