[Cite as State v. Taft, 2019-Ohio-1565.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT HURON COUNTY
State of Ohio Court of Appeals No. H-18-003
Appellee Trial Court No. CRI 2017-0291
v.
Patrick Allen Taft, Jr. DECISION AND JUDGMENT
Appellant Decided: April 26, 2019
*****
James James Sitterly, Huron County Prosecuting Attorney, and Bambi S. Couch, Assistant Prosecuting Attorney, for appellee.
Danielle C. Kulik and Kenneth R. Bailey, for appellant.
MAYLE, P.J.
{¶ 1} Appellant, Patrick Taft Jr., appeals the April 20, 2018 judgment of the
Huron County Court of Common Pleas sentencing him to 10 years in prison for
convictions of sexual battery. For the following reasons, we affirm. I. Background and Facts
{¶ 2} On March 24, 2017, Taft was indicted on five counts of rape in violation of
R.C. 2907.02(A)(2),1 all first-degree felonies, and five counts of sexual battery in
violation of R.C. 2907.03(A)(5), all third-degree felonies. The charges stemmed from
Taft engaging in sexual activity with his foster daughter, L.H., over a period of nearly 18
months, beginning when she was 16 years old.
{¶ 3} Although Taft initially denied engaging in any sexual activity with L.H., he
agreed to plead guilty to two counts of sexual battery after a DNA test proved that Taft
fathered L.H.’s child. The trial court accepted his pleas and found him guilty.
{¶ 4} At Taft’s sentencing hearing, in addition to hearing arguments from counsel,
the trial court heard from (1) L.H., whose statement was read by her “big sister” from a
youth outreach program; (2) L.H.’s mother; (3) Taft’s wife, Tamie Taft; (4) Taft’s
treating psychologist, Dr. Darlene Barns; and (5) Taft.
{¶ 5} L.H., in her letter to the court, said that Taft first raped her on August 26,
2016. Around 4:00 a.m. that day, she woke with Taft’s hand over her mouth. He told
L.H. to move to the floor so that they did not wake the 4-year-old foster child who shared
the room with her. L.H. said that Taft raped her daily for months and she was “paralyzed
with fear” each time. When L.H. cried, Taft told her that no one would believe her if she
reported the abuse and insinuated that he would abuse the 4-year-old if L.H. left the
1 Effective March 22, 2019, Ohio’s criminal statutes were extensively amended by 2017 S.B. No. 201. None of the amendments are applicable to Taft’s case, however, so all of our citations to the Revised Code refer to the former versions of the statutes that are applicable to Taft’s crimes. 2. Tafts’ home. L.H. told the court that Taft knew that she had been sexually abused by her
uncle and raped years earlier, and that Taft chose to put her through the same type of
trauma over and over.
{¶ 6} L.H. stated that she learned that she was pregnant in February 2017, after
she was removed from the Tafts’ home. She “desperately prayed” that her boyfriend—
not Taft—fathered the child. When she learned that Taft was the father, her “heart fel
[sic] to the ground.” She felt angry at Taft for raping her, sad that she would have to tell
friends and family that Taft was the child’s father, and terrified of the effects that the
situation would have on her son. She also said that Taft and his family members harassed
her “non-stop” during her pregnancy, both online and while she was working.
{¶ 7} L.H.’s letter concluded by asking the trial court to hold Taft accountable for
his actions by imposing the maximum sentence.
{¶ 8} L.H.’s mother testified at the hearing. She said that after L.H. disclosed the
abuse, Tamie (Taft’s wife) sent Facebook messages to L.H.’s friends that included
derogatory comments about L.H. and stated that Taft was the father of L.H.’s baby.
L.H.’s mother asked the court to impose the most severe prison sentence on Taft because
he ruined L.H.’s life by impregnating her by rape, and because L.H.’s child will
inevitably suffer psychological trauma when he finds out that he was conceived by rape.
{¶ 9} Tamie also presented a statement to the court. She described Taft as steady,
kind, and hard-working, and said that he was extremely remorseful. She did not blame
Taft for the sexual relationship between him and L.H. Rather, Tamie blamed herself for
3. failing to “protect” her family from L.H. and implied that L.H. was to blame because she
always followed Taft around, wanted to sit on his lap, and “dance[d] around.”
{¶ 10} Dr. Barns testified that she saw Taft approximately 20 times from August
2017 to January 2018. She gave Taft a “psychological sexual assessment” to determine if
he was a sexual predator. Based on that assessment, Dr. Barns determined that Taft was
not a sexual predator or pedophile, but was “slowly emotionally seduced, and sexually
seduced” by L.H. “into living a fantasy that would fulfill some erotic need.”
{¶ 11} Dr. Barns reported that Taft had no history of sexual deviancy and was
“really a family man.” He was very remorseful, realized that he had made a “giant
mistake,” and wanted to take responsibility for and help raise the child he fathered with
L.H. Dr. Barns believed that Taft was not a threat to the community, would never do
anything like this again, and could be rehabilitated.
{¶ 12} When it was his turn to speak, Taft said that he had been employed for over
30 years, was faithful to his wife, and the crimes were out of character for him. He
apologized for the “terrible, crazy, stupid thing” that he did and expressed remorse for
embarrassing his wife and ruining his family life. According to Taft, the extent of his
sexual involvement with L.H. was having sex with her three times over the course of
approximately one week.
{¶ 13} When the state addressed the court, it noted that Taft denied sexual
involvement with L.H. from the time that the case was filed until he pleaded guilty.
Although Taft finally admitted to engaging in sexual activity with L.H. after a DNA test
showed that he fathered her child, he continued to deny many of the allegations of sexual
4. abuse and continued to claim that L.H. initiated the sexual activity with him. The state
also pointed out that the foster parent-foster child relationship between Taft and L.H.
gave Taft the opportunity to commit his crimes. The state argued that Taft “fits neatly
within the worst form of offender” and asked the court to impose a five-year sentence on
each count and run the sentences consecutively.
{¶ 14} In response, defense counsel said that the court should “judge [Taft] as a
human being more than * * * about what he did or didn’t do.” Counsel noted that L.H.
was almost 18 years old when the alleged conduct happened; Dr. Barns determined that
Taft was not a threat to the community; destroying Taft’s family would not undo what
happened; and Taft had no criminal record, was employed, and could financially support
the child he fathered with L.H. if he was placed on community control.
{¶ 15} After hearing from both sides, the trial court said that it had considered the
principles and purposes of sentencing in R.C. 2929.11(A)-(C). Regarding the seriousness
factors in R.C. 2929.12(B), the court noted that L.H. had suffered serious psychological
harm because of the repeated sexual abuse by Taft; the crime resulted in L.H. becoming
pregnant and having a child that she will have to raise on her own; Taft held a position of
trust as L.H.’s foster parent, which facilitated the offenses; and Taft repeated his abusive
conduct, despite many opportunities to reflect on, change, and take responsibility for his
actions. The court found that none of the less-serious factors in R.C. 2929.12(C) applied.
{¶ 16} As to the recidivism factors in R.C. 2929.12(D), the court found that Taft
did not express genuine remorse for his offenses because, although Taft expressed
remorse at sentencing, he did not have any remorse at the time of the offenses or during
5. the pendency of the case, denied fathering L.H.’s child until DNA test results showed that
he was the father, and seemed to regret the sanction he was likely to receive, not the
impact that his actions had on L.H. and her child. The court also noted, under R.C.
2929.12(E), that Taft had never been adjudicated a delinquent child, had never been
convicted of or pleaded guilty to a criminal offense, and had led a law-abiding life until
he committed the instant offenses.
{¶ 17} The court concluded that Taft’s actions constituted the worst form of the
offenses and sentenced him to five years in prison on each count. The court ordered Taft
to serve the sentences consecutively, for an aggregate prison term of 10 years. The court
determined that consecutive sentences were necessary to protect the public from future
crimes and adequately punish Taft and were not disproportionate to the seriousness of
Taft’s conduct or the danger he poses to the public. The court also found that Taft
committed at least two of the offenses as part of a course of conduct and the harm he
caused was so great that no single prison sentence would adequately reflect the
seriousness of his conduct.
{¶ 18} Taft now appeals, raising four assignments of error:
1. THE COURT ERRED IN SENTENCING PATRICK TAFT, JR.
TO MAXIMUM CONSECUTIVE SENTENCES CONTRARY TO THE
FACTS OF THE CASE, THE LAW, THE FACTORS OF SENTENCING,
AND THE PURPOSE OF FELONY SENTENCING.
2. PATRICK TAFT, JR. SUFFERED INEFFECTIVE
ASSISTANCE OF COUNSEL WHERE HE PROVIDED DEFENSE
6. COUNSEL EVIDENCE OF MITIGATION BUT DEFENSE COUNSEL
FAILED TO SUBMIT ANY AS EXHIBITS.
3. PATRICK TAFT, JR. WAS DENIED HIS DUE PROCESS
RIGHT TO CROSS EXAMINE WITNESSES DURING SENTENCING.
4. PATRICK TAFT JR., WAS IMPROPERLY DENIED POST
CONVICTION RELIEF ON ITS FACE AND WITHOUT A HEARING.
II. Law and Analysis
A. Taft’s Sentences are not Contrary to Law
{¶ 19} In his first assignment of error, Taft argues that the trial court improperly
imposed maximum, consecutive sentences. We review sentencing challenges under R.C.
2953.08(G)(2). The statute allows an appellate court to increase, reduce, or otherwise
modify a sentence or vacate the sentence and remand the matter for resentencing only if it
clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law. R.C.
2953.08(G)(2).
{¶ 20} A sentence is not clearly and convincingly contrary to law where the trial
court sentences the defendant within the statutorily permissible range, properly applies
postrelease control, and expressly states that it considered the principles and purposes of
7. sentencing in R.C. 2929.11 and the seriousness and recidivism factors in R.C. 2929.12.
State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 18; see also State
v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 15-16 (recognizing that,
although sentences are reviewed pursuant to R.C. 2953.08 and not under the abuse of
discretion standard announced in Kalish, an appellate court can still use Kalish to guide
its determination of whether a sentence is clearly and convincingly contrary to law).
{¶ 21} If the appellate court finds that a sentence is not clearly and convincingly
contrary to law, it may vacate or modify the sentence “only if the appellate court finds by
clear and convincing evidence that the record does not support the sentence.” State v.
Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23. Notably, “[t]he
appellate court’s standard for review is not whether the sentencing court abused its
discretion.” R.C. 2953.08(G)(2); Marcum at ¶ 22-23.
{¶ 22} Taft argues (1) the trial court failed to comply with R.C. 2929.14(C)(4)
before imposing consecutive sentences, (2) the trial court erred by imposing maximum
sentences, (3) the trial court “ignored” mitigating evidence, and (4) the trial court should
have imposed the statutory minimum sentences.
1. The Trial Court Properly Imposed Consecutive Sentences
{¶ 23} First, we address Taft’s challenge of the trial court’s imposition of
consecutive sentences. Before imposing consecutive sentences, a trial court is required to
make three findings: (1) consecutive sentences are “necessary to protect the public from
future crime or to punish the offender * * *;” (2) imposition of consecutive sentences is
not “disproportionate to the seriousness of the offender’s conduct and to the danger the
8. offender poses to the public * * *;” and (3) one of the factors in R.C. 2929.14(C)(4)(a)-
(c) applies. R.C. 2929.14(C)(4). Pertinent to this appeal, R.C. 2929.14(C)(4)(b) allows
the trial court to impose consecutive sentences if at least two offenses were committed as
part of a course of conduct and the harm caused by the offenses was “so great or unusual
that no single prison term for any of the offenses * * * adequately reflects the seriousness
of the offender’s conduct.”
{¶ 24} A sentencing court must make its findings under R.C. 2929.14(C)(4) at the
sentencing hearing and incorporate them into the sentencing entry. State v. Bonnell, 140
Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. The trial court is not required
to state the reasons behind its findings related to consecutive sentences, however. Id.
Thus, the trial court’s “mere regurgitation” of the statute is sufficient to support the
imposition of consecutive sentences. State v. Braswell, 6th Dist. Lucas No. L-16-1197,
2018-Ohio-3208, ¶ 40, citing State v. Ault, 6th Dist. Ottawa No. OT-13-037, 2015-Ohio-
556, ¶ 12.
{¶ 25} The transcript of Taft’s sentencing hearing shows that the trial court made
the findings required by R.C. 2929.14(C)(4):
The Court is going to find that consecutive sentences here are
necessary to protect the public from future crimes and to adequately punish
the offender in this case.
The Court finds consecutive sentences are not disproportionate to the
seriousness of his conduct nor to the danger that he poses to the public, and
here, at least two of the multiple offenses were committed as part of one or
9. more courses of conduct, and the harm that was caused by those multiple
offenses was so great no single prison sentence for any of the offenses
caused would adequately reflect the seriousness of his conduct.
The court also included its R.C. 2929.14(C)(4) findings in the sentencing entry. This is
all that was required for the trial court to impose consecutive sentences. See Bonnell at
syllabus; State v. Nierman, 6th Dist. Ottawa No. OT-15-020, 2017-Ohio-672, ¶ 15. We
conclude, therefore, that the imposition of consecutive sentences was not clearly and
convincingly contrary to law.
{¶ 26} Moreover, Taft has not shown that the record clearly and convincingly fails
to support consecutive sentences. Although Taft complains that there is no evidence of
“great or unusual” harm, the trial court determined that Taft was L.H.’s foster parent, his
position as a foster parent allowed him to commit the offenses, he committed multiple
offenses against L.H. over a period of time, he impregnated L.H. with a child whom she
will have to raise alone, and he continued to deny his “responsibilities” until the DNA
test proved that he fathered L.H.’s child. This is sufficient to support a finding under
R.C. 2929.14(C)(4)(b) that the harm caused by Taft’s offenses was “so great or unusual
that no single prison term * * * adequately reflects the seriousness of the offender’s
conduct.” See, e.g., State v. Jones, 8th Dist. Cuyahoga No. 105527, 2017-Ohio-9020, ¶ 8
(record supported finding of great or unusual harm when the victim was underage and
appellant was one of the victim’s caregivers, abused the victim over a prolonged period
of time, and fathered two children with the victim).
10. {¶ 27} Because the trial court made the findings required by R.C. 2929.14(C)(4)
and Taft has failed to show by clear and convincing evidence that the trial court’s
findings are not supported by the record, we find that the trial court properly imposed
consecutive sentences.
2. The Trial Court Properly Imposed Maximum Sentences
{¶ 28} Taft also argues that the trial court improperly imposed maximum
sentences for three separate reasons. He argues that the trial court (a) did not make
certain findings before imposing maximum sentences, (b) improperly used an element of
the offense as an aggravating factor, and (c) allegedly violated his constitutional right to
remain silent by using his silence as a basis for imposing maximum sentences. We find
each of these arguments unpersuasive.
(a). The Trial Court was not Required to Make Factual Findings
{¶ 29} Taft’s claim that the trial court was required to make certain factual
findings before imposing maximum sentences is flatly incorrect. He cites cases
interpreting a version of R.C. 2929.14 that was ruled unconstitutional by the Supreme
Court of Ohio in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.
Since Foster, trial courts have “‘full discretion to impose a prison sentence within the
statutory range,’” up to and including the maximum sentence for a given crime. Marcum,
146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231 at ¶ 13, quoting Foster at ¶ 100.
And although the Ohio legislature reenacted portions of R.C. 2929.14 that the Supreme
Court excised in Foster, Marcum at ¶ 15, the requirement that the trial court make
11. specific findings before imposing maximum sentences was not one of them. State v.
Kubat, 6th Dist. Sandusky No. 17 CAS 0012, 2018-Ohio-3088, ¶ 18. So, under the
applicable version of R.C. 2929.14, a trial court is not required to make any special
findings before imposing maximum sentences. Id. Thus, the trial court’s failure to make
such findings was not error.
(b). The Trial Court did not Improperly Consider an Element of the Offense
{¶ 30} Taft also relies on pre-Foster cases to argue that the trial court cannot use
an element of the offense as a basis for imposing maximum sentences. He cites a single
post-Foster case―State v. Stroud, 7th Dist. Mahoning No. 07 MA 91, 2008-Ohio-
3187―that is distinguishable.
{¶ 31} In Stroud, the Seventh District Court of Appeals reversed the defendant’s
sentence for voluntary manslaughter when the only reason the trial court gave for
imposing a maximum sentence was that the defendant caused the victim’s death—which
was one of the elements of the crime—and “the trial court did not explain why that fact
was more than simply an element of the offense.” Id. at ¶ 2. In contrast, as discussed
more fully below, the trial court here relied on more than Taft “having a relationship with
his foster child” (i.e., Taft engaging in sexual conduct with L.H. while he was her
“guardian, custodian, or person in loco parentis * * *,” as prohibited by R.C.
2907.03(A)(5)) when it crafted Taft’s sentence. Moreover—and most importantly—we
reiterate that the trial court was not required to make any special findings before
imposing maximum sentences. Kubat at ¶ 18.
12. (c). The Trial Court did not Penalize Taft for Remaining Silent
{¶ 32} We have reviewed the record, and we find that the trial court did not
penalize Taft for exercising his constitutional right to remain silent when it imposed
maximum sentences.
{¶ 33} Generally speaking, a defendant’s right against self-incrimination under the
Fifth Amendment to the U.S. Constitution and Ohio Constitution, Article I, Section 10,
survives sentencing, and a trial court may not draw an adverse inference from the
defendant’s silence. State v. Dahms, 6th Dist. Sandusky No. S-11-028, 2012-Ohio-3181,
¶ 9, citing Mitchell v. United States, 526 U.S. 314, 321, 119 S.Ct. 1307, 143 L.Ed.2d 424
(1999). However, because lack of remorse is a sentencing factor under R.C. 2929.12,
“even where a defendant does not speak at sentencing, the court’s statement that the
defendant demonstrated a lack of remorse and an unwillingness to take responsibility,
does not demonstrate that a court’s sentencing decision is based upon the silence but
shows only that the court was considering the statutory sentencing factors.” State v.
Hodges, 8th Dist. Cuyahoga No. 101145, 2014-Ohio-4690, ¶ 11, citing State v. Clunen,
7th Dist. Columbiana No. 12 CO 30, 2013-Ohio-5525, ¶ 21, and State v. Moore, 11th
Dist. Geauga No. 2011-G-3027, 2012-Ohio-3885, ¶ 47. Put another way, a trial court
does not violate a defendant’s right against self-incrimination when it notes that the
defendant’s silence shows a lack of remorse or an unwillingness to take responsibility for
the crime because it is not using the silence “to draw adverse inferences about the
circumstances of the crime in order to punish [the defendant] more severely.” See State
v. Duhl, 2d Dist. Champaign No. 2016-CA-30, 2017-Ohio-5492, ¶ 31.
13. {¶ 34} Here, the trial court cited Taft’s silence and refusal to acknowledge his
wrongdoing as evidence that Taft did not have genuine remorse. This was a proper
consideration for sentencing under R.C. 2929.12 and did not violate Taft’s constitutional
rights.
3. The Trial Court did not “Ignore” Mitigating Evidence
{¶ 35} Taft argues that the trial court failed to comply with R.C. 2929.12 because
it supposedly “ignored” mitigating evidence presented at the sentencing hearing—
specifically, evidence that L.H. induced or facilitated the offense by “emotionally
seduc[ing]” Taft.
{¶ 36} Under R.C. 2929.12, the trial court has discretion to determine the most
effective way to comply with the principles and purposes of sentencing in R.C. 2929.11.
The statute lists general factors that the trial court must consider relating to the
seriousness of the offender’s conduct, the likelihood of recidivism, and, if applicable, the
offender’s service in the U.S. armed forces. The statute also permits the court to
“consider any other factors that are relevant to achieving those purposes and principles of
sentencing.” R.C. 2929.12(A). “A sentencing court has broad discretion to determine the
relative weight to assign the sentencing factors in R.C. 2929.12.” State v. Brimacombe,
195 Ohio App.3d 524, 2011-Ohio-5032, 960 N.E.2d 1042, ¶ 18 (6th Dist.).
{¶ 37} A sentencing court is “not obligated to give a detailed explanation of how it
algebraically applied each seriousness and recidivism factor to the offender.” Id. at ¶ 11.
In fact, no specific recitation is required; merely stating that the court considered the
statutory factors is sufficient. Id. Further, the trial court is not required to give any
14. particular weight or emphasis to any factor; it is merely required to consider the statutory
factors. State v. Burnette, 6th Dist. Lucas Nos. L-16-1272 and L-16-1273, 2017-Ohio-
8424, ¶ 36. And the trial court’s failure to discuss a particular factor does not mean that
the court did not consider that factor. Id.
{¶ 38} Here, the record makes clear that the trial court considered all applicable
seriousness and recidivism factors in R.C. 2929.12. At the sentencing hearing, the trial
court reviewed the factors in R.C. 2929.12 that it found applicable to Taft. In doing so,
the court specifically determined that none of the “less serious” factors in R.C.
2929.12(C)—including that the victim induced or facilitated the offense—applied.
Rather than indicating that the trial court failed to consider the statements from Tamie
and Dr. Barns about how L.H. “seduced” Taft, the court’s statement indicates that it
chose to give those statements no mitigating weight. That is, the court did not ignore the
statements; it took them into account and was not persuaded that the statements showed
that L.H.’s alleged behavior induced Taft to commit sexual battery against L.H. or
facilitated his commission of the crimes.
{¶ 39} Additionally, the court noted in the sentencing entry that it considered the
seriousness and recidivism factors in R.C. 2929.12 and listed the specific factors that it
found applicable to Taft. The trial court’s statements at the hearing and in the sentencing
entry demonstrate that the trial court considered R.C. 2929.12 as required. State v.
Torres, 6th Dist. Ottawa No. OT-18-008, 2019-Ohio-434, ¶ 13. We find that Taft has not
shown that the trial court erred in considering the seriousness and recidivism factors in
this case.
15. 4. The Trial Court was not Required to Impose the Statutory Minimum Sentence
{¶ 40} In Taft’s final argument against his sentence, he contends that the trial
court ignored the directive in R.C. 2929.11 to use the minimum sanctions available in
punishing an offender.
{¶ 41} Under R.C. 2929.11(A), the purposes of felony sentencing are “to protect
the public from future crime by the offender and others, to punish the offender, and to
promote the effective rehabilitation of the offender using the minimum sanctions that the
court determines accomplish those purposes without imposing an unnecessary burden on
state or local government resources.” To achieve these purposes, the sentencing court
must consider “the need for incapacitating the offender, deterring the offender and others
from future crime, rehabilitating the offender, and making restitution to the victim of the
offense, the public, or both.” Id. The sentence imposed shall be reasonably calculated to
achieve the overriding purposes, “commensurate with and not demeaning to the
seriousness of the offender’s conduct and its impact upon the victim, and consistent with
sentences imposed for similar crimes committed by similar offenders.” R.C. 2929.11(B).
{¶ 42} “[C]onsideration of the appropriate factors set forth in R.C. 2929.11 can be
presumed unless the defendant affirmatively shows to the contrary.” State v. Clinton, 135
Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 243. And although the statute requires
the trial court to impose “the minimum sanctions that the court determines accomplish
those purposes without imposing an unnecessary burden on state or local government
resources,” this does not mean that the court must impose the statutory minimum
sentence. Torres at ¶ 18. To the contrary, “the trial court ha[s] full discretion to impose
16. any sentence within the authorized statutory range * * *.” State v. Connors, 2d Dist.
Montgomery No. 26721, 2016-Ohio-3195, ¶ 6.
{¶ 43} The record also makes clear that the trial court considered R.C. 2929.11.
The trial court explicitly stated at the sentencing hearing and in the sentencing entry that
it considered the principles and purposes of sentencing in R.C. 2929.11. This is all that is
necessary to show that the trial court considered R.C. 2929.11 as required. Torres at ¶
13.
{¶ 44} Moreover, although it was not required to give the reasons behind its
sentence, Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at syllabus, the
trial court explained to Taft that it found his crimes particularly troubling because of
the position that you were in, the repeated nature of the activities here, the
fact that you were a foster parent, the fact that it resulted in the birth of a
child, [and] the fact you continued to deny your responsibilities up until
you were forced to face them based on the DNA test * * *.
{¶ 45} To contradict the trial court’s findings, Taft points to his low score on the
recidivism assessment that he took during the presentence investigation and Dr. Barns’s
opinion that he is not a threat to the community. The trial court, however, apparently did
not find that these facts outweighed the seriousness of Taft’s crimes. Given the fostering
relationship between Taft and L.H., the ongoing nature of the sexual abuse, L.H.’s
pregnancy, and Taft’s reluctance to accept responsibility for his actions until a DNA test
proved the child’s paternity, we find no error in the trial court’s conclusion.
17. {¶ 46} In sum, we find that Taft has failed to show that the trial court did not
comply with R.C. 2929.14(C)(4), that his sentence is clearly and convincingly contrary to
law as required by R.C. 2953.08(G)(2)(b), or that his sentence is clearly and convincingly
unsupported by the record. Accordingly, we find that Taft’s first assignment of error is
not well-taken.
B. Taft’s Trial Counsel Provided Effective Representation
{¶ 47} In his second assignment of error, Taft argues that his trial counsel was
ineffective because counsel did not submit mitigating evidence (in addition to the
statements from Tamie, Dr. Barns, and Taft) at the sentencing hearing. The state
counters that the failure to present mitigating evidence at the sentencing hearing is
insufficient, without more, to prove that trial counsel was ineffective.
{¶ 48} To establish ineffective assistance of counsel, the appellant must show “(1)
deficient performance of counsel, i.e., performance falling below an objective standard of
reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for
counsel’s errors, the proceeding’s result would have been different.” State v. Hale, 119
Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204. “‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” State v. Sanders, 94
Ohio St.3d 150, 151, 761 N.E.2d 18 (2002), quoting Strickland v. Washington, 466 U.S.
668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶ 49} Properly licensed Ohio lawyers are presumed to be competent, State v.
Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62, and there are
“countless” ways for an attorney to provide effective assistance in a case, so “‘[j]udicial
18. scrutiny of counsel’s performance must be highly deferential.’” State v. Bradley, 42 Ohio
St.3d 136, 142, 538 N.E.2d 373 (1989), quoting Strickland at 689. To that end, counsel is
“strongly presumed” to have rendered adequate assistance and “the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128
(1985), quoting Strickland at 694-695.
{¶ 50} “[C]ounsel’s decision not to present mitigating evidence during sentencing
can be considered sound trial strategy based upon the totality of the circumstances.”
State v. Stan, 7th Dist. Belmont No. 16 BE 0029, 2017-Ohio-7756, ¶ 20; State v. Harris,
6th Dist. Erie No. E-18-013, 2019-Ohio-813, ¶ 11. Generally, trial strategy and tactical
decisions—even debatable ones—cannot form the basis of a claim of ineffective
assistance of counsel. State v. Grissom, 6th Dist. Erie No. E-08-008, 2009-Ohio-2603, ¶
22.
{¶ 51} Here, we presume that Taft’s trial counsel’s failure to present certain
mitigating evidence at sentencing was sound trial strategy, and Taft does not point to
anything in the record that indicates otherwise. Moreover, based on the evidence in the
record and the trial court’s characterization of Taft’s crimes, his argument that he would
have received a lesser sentence if trial counsel had proceeded with Taft’s proposed
victim-blaming strategy is speculative at best. And such speculative claims do not
support a finding of ineffective assistance. See State v. Montgomery, 148 Ohio St.3d 347,
2016-Ohio-5487, 71 N.E.3d 180, ¶ 104. We find, therefore, that Taft’s second
assignment of error is not well-taken.
19. C. The Trial Court Properly Considered the Victim’s Statement
{¶ 52} In his third assignment of error, Taft claims that he was denied his due
process right to cross-examine L.H. during the sentencing hearing because the trial court
improperly allowed someone else to read L.H.’s hearsay statements, which included
statements regarding additional criminal conduct by Taft. The state contends that the trial
court’s admission of L.H.’s statement was not prejudicial because the Rules of Evidence
do not apply to sentencing hearings, the trial court was statutorily required to consider a
victim impact statement, Taft did not have a right to cross-examine L.H., and dismissed
charges can be considered at sentencing.
{¶ 53} The victim of a crime has a right under R.C. 2930.14(A) to make a
statement to the court prior to it imposing sentence on the defendant. The victim is
permitted to present her statement to the court through a representative—who can be any
person the victim designates—and the designated representative “may exercise the rights
of the victim * * *.” R.C. 2930.02(A); R.C. 2929.19(A). If the victim chooses to make a
statement at sentencing, the trial court is required to consider the statement along with all
other sentencing considerations. R.C. 2930.14(B); R.C. 2929.19(B)(1).
{¶ 54} Although R.C. 2929.19(A) requires that a statement “present information
relevant to the imposition of sentence in the case,” R.C. 2930.14 “does not expressly limit
the content of the victim-impact statement—it only sets forth what the court is required to
consider. Other information is not forbidden by statute.” State v. Brown, 146 Ohio
App.3d 654, 660, 767 N.E.2d 1192 (1st Dist.2001). Relevant information can include
facts relating to charges in the same case that were dismissed because “evidence of a
20. charge dismissed pursuant to a plea agreement is a permissible sentencing consideration
unless otherwise provided in the agreement.” State v. Ratcliffe, 6th Dist. Wood No. WD-
18-002, 2019-Ohio-308, ¶ 21, citing State v. Lewis, 6th Dist. Wood No. WD-14-082,
2015-Ohio-4629, ¶ 7.
{¶ 55} Our review of the sentencing hearing shows that the trial court properly
allowed L.H.’s “big sister” from a youth outreach program—whom L.H. designated as
her representative—to read the letter that L.H. wrote. L.H. had the right to make a
statement at sentencing and was statutorily permitted to designate someone else to speak
to the court on her behalf. Furthermore, the content of L.H.’s statement was proper
because her descriptions of Taft raping and impregnating her were related to the five rape
charges that the state dismissed in exchange for Taft’s guilty pleas, and nothing in the
plea agreement prevented the court from considering the dismissed rape charges at
sentencing. Accordingly, we find no error in the trial court considering L.H.’s statement.
{¶ 56} Taft’s third assignment of error is not well-taken.
D. Taft did not Appeal the Trial Court’s Decision on Postconviction Relief
{¶ 57} Finally, in Taft’s fourth assignment of error, he argues that on June 1, 2018,
the trial court improperly denied his petition for postconviction relief without holding a
hearing.
{¶ 58} A trial court’s decision granting or denying a petition for postconviction
relief is a final, appealable order. R.C. 2953.23(B). Under App.R. 3(A) and 4(A), a party
wishing to appeal a judgment must file a notice of appeal within 30 days of the date on
which the judgment was entered. An appellate court does not have jurisdiction to
21. consider the issues raised on appeal if the party fails to properly file a notice of appeal.
State ex rel. Pendell v. Adams Cty. Bd. of Elections, 40 Ohio St.3d 58, 60, 531 N.E.2d
713 (1988).
{¶ 59} Taft did not file a notice of appeal of the trial court’s postconviction
decision. Consequently, we do not have jurisdiction to consider the issues he raises
regarding the trial court’s denial of his petition for postconviction relief. We find that
Taft’s fourth assignment of error is not well-taken.
III. Conclusion
{¶ 60} Based on the foregoing, the April 20, 2018 judgment of the Huron County
Court of Common Pleas is affirmed. Taft is ordered to pay the costs of this appeal pursuant
to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. _______________________________ JUDGE Christine E. Mayle, P.J. _______________________________ Gene A. Zmuda, J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6. 22.