[Cite as State v. Whitt, 2012-Ohio-3094.]
COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Julie A. Edwards, J. -vs- : : STEPHEN H. WHITT : Case No. 12-CA-3 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 09CR0067
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 5, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JASON W. GIVEN STEPHEN H. WHITT, PRO SE 318 Chestnut Street LECI Coshocton, OH 43812 P.O. Box 56 Lebanon, OH 45036 Coshocton County, Case No. 12-CA-3 2
Farmer, J.
{¶1} On July 20, 2009, the Coshocton County Grand Jury indicted appellant,
Stephen Whitt, on two counts of rape in violation of R.C. 2907.02 and two counts of
sexual battery in violation of R.C. 2907.03. Said charges arose from incidents involving
a child when the child was twelve and thirteen years old.
{¶2} A bench trial commenced on April 13, 2010. By judgment entry filed April
15, 2010, the trial court found appellant guilty of all counts. By judgment entry on
sentencing filed June 15, 2010, the trial court sentenced appellant to an aggregate
indefinite term of twenty-five years to life in prison and then merged the sexual battery
counts with the rape counts.
{¶3} Appellant appealed and this court affirmed his conviction, but reversed the
sentences on the sexual battery counts which had been imposed prior to the merge.
See, State v. Whitt, Coshocton App. No. 10-CA-10, 2011-Ohio-3022.
{¶4} On January 30, 2012, the trial court conducted a resentencing hearing.
By judgment entry on resentencing filed February 8, 2012, the trial court merged the
sexual battery counts with the rape counts and sentenced appellant to an aggregate
indefinite term of twenty-five years to life in prison.
{¶5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶6} "THE SENTENCE WAS CONTRARY TO LAW AND ALSO VIOLATED
THE 5TH AND 6TH 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION
DUE PROCESS OF LAW EQUAL PROTECTION OF THE LAW." Coshocton County, Case No. 12-CA-3 3
{¶7} Appellant claims his resentencing was contrary to law. We disagree.
{¶8} We note appellant directly appealed his convictions and sentences on July
9, 2010. This court affirmed appellant's convictions, but reversed the sentences on the
sexual battery counts which had been imposed prior to the merge, stating the following:
{¶9} "The trial court erred in sentencing Appellant on counts three and four, as
those convictions should have merged prior to sentencing, not after. Accordingly, the
trial court must resentence Appellant in accordance with R.C. 2941.25 with respect to
allied offenses.
{¶10} "We do not find Appellant's other arguments regarding sentencing to be
persuasive. We find that the trial court properly advised Appellant of the mandatory
postrelease control provisions, and that it was within the trial court's discretion to impose
a sentence within the statutory range for counts one and three." State v. Whitt,
Coshocton App. No. 10-CA-10, 2011-Ohio-3022, ¶72-73.
{¶11} Therefore, the doctrine of res judicata applies to this case. Res judicata is
defined as "[a] valid, final judgment rendered upon the merits bars all subsequent
actions based upon any claim arising out of the transaction or occurrence that was the
subject matter of the previous action." Grava v. Parkman Twp., 73 Ohio St.3d 379,
1995-Ohio-331, syllabus. The appeal sub judice is limited to any issues arising from the
resentencing entry. State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204.
{¶12} In State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, ¶4, the Supreme
Court of Ohio set forth the following two-step approach in reviewing a sentence: Coshocton County, Case No. 12-CA-3 4
{¶13} "In applying Foster [State v., 109 Ohio St.3d 1, 2006–Ohio–856] to the
existing statutes, appellate courts must apply a two-step approach. First, they must
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. If this first prong is satisfied, the trial court's decision shall be reviewed
under an abuse-of-discretion standard."
{¶14} In order to find an abuse of discretion, we must determine the trial court's
decision was unreasonable, arbitrary or unconscionable and not merely an error of law
or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217.
{¶15} We note although in Oregon v. Ice (2009), 555 U.S. 160, the United States
Supreme Court upheld the constitutional validity of an Oregon statute similar to Ohio's
pre-Foster sentencing statutes, the Supreme Court of Ohio in State v. Hodge, 128 Ohio
St.3d 1, 941 N.E.2d 768, 2010–Ohio–6320, held the Oregon case did not revive the
Foster statutes, and trial courts are not obligated to engage in judicial fact-finding prior
to imposing consecutive sentences.
{¶16} Appellant argues the trial court erred in making factual findings regarding
the consecutive nature of the sentences. In addition, appellant makes a convoluted and
confusing argument regarding allied offenses of similar import.
{¶17} A review of the January 30, 2012 resentencing hearing transcript and the
February 8, 2012 judgment entry on resentencing reveals the trial court did not make
any factual findings on the worst form of the offense as argued by appellant.
{¶18} The rape counts and the sexual battery counts were allied offenses and
the trial court was instructed by this court on remand to merge the two rape counts with Coshocton County, Case No. 12-CA-3 5
the two sexual battery counts prior to imposing sentence, rather than sentencing
appellant on all four counts and then merging the sentences. A review of the judgment
entry on resentencing establishes that the trial court correctly followed this court's
instructions.
{¶19} If appellant is arguing there should have been one conviction only for the
merged rape/sexual battery counts, we find the Supreme Court of Ohio in State v.
Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶26-27, addressed this issue as follows:
{¶20} "On remand, the trial court should fulfill its duty in merging the offenses for
purposes of sentencing, but remain cognizant that R.C. 2941.25(A)'s mandate that a
'defendant may be convicted of only one' allied offense is a proscription against
sentencing a defendant for more than one allied offense. Nothing in the plain language
of the statute or in its legislative history suggests that the General Assembly intended to
interfere with a determination by a jury or judge that a defendant is guilty of allied
offenses. As the state asserts, by enacting R.C. 2941.25(A), the General Assembly
condemned multiple sentences for allied offenses, not the determinations that the
defendant was guilty of allied offenses.
{¶21} "Because R.C. 2941.25(A) protects a defendant only from being punished
for allied offenses, the determination of the defendant's guilt for committing allied
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[Cite as State v. Whitt, 2012-Ohio-3094.]
COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Julie A. Edwards, J. -vs- : : STEPHEN H. WHITT : Case No. 12-CA-3 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 09CR0067
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 5, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JASON W. GIVEN STEPHEN H. WHITT, PRO SE 318 Chestnut Street LECI Coshocton, OH 43812 P.O. Box 56 Lebanon, OH 45036 Coshocton County, Case No. 12-CA-3 2
Farmer, J.
{¶1} On July 20, 2009, the Coshocton County Grand Jury indicted appellant,
Stephen Whitt, on two counts of rape in violation of R.C. 2907.02 and two counts of
sexual battery in violation of R.C. 2907.03. Said charges arose from incidents involving
a child when the child was twelve and thirteen years old.
{¶2} A bench trial commenced on April 13, 2010. By judgment entry filed April
15, 2010, the trial court found appellant guilty of all counts. By judgment entry on
sentencing filed June 15, 2010, the trial court sentenced appellant to an aggregate
indefinite term of twenty-five years to life in prison and then merged the sexual battery
counts with the rape counts.
{¶3} Appellant appealed and this court affirmed his conviction, but reversed the
sentences on the sexual battery counts which had been imposed prior to the merge.
See, State v. Whitt, Coshocton App. No. 10-CA-10, 2011-Ohio-3022.
{¶4} On January 30, 2012, the trial court conducted a resentencing hearing.
By judgment entry on resentencing filed February 8, 2012, the trial court merged the
sexual battery counts with the rape counts and sentenced appellant to an aggregate
indefinite term of twenty-five years to life in prison.
{¶5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶6} "THE SENTENCE WAS CONTRARY TO LAW AND ALSO VIOLATED
THE 5TH AND 6TH 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION
DUE PROCESS OF LAW EQUAL PROTECTION OF THE LAW." Coshocton County, Case No. 12-CA-3 3
{¶7} Appellant claims his resentencing was contrary to law. We disagree.
{¶8} We note appellant directly appealed his convictions and sentences on July
9, 2010. This court affirmed appellant's convictions, but reversed the sentences on the
sexual battery counts which had been imposed prior to the merge, stating the following:
{¶9} "The trial court erred in sentencing Appellant on counts three and four, as
those convictions should have merged prior to sentencing, not after. Accordingly, the
trial court must resentence Appellant in accordance with R.C. 2941.25 with respect to
allied offenses.
{¶10} "We do not find Appellant's other arguments regarding sentencing to be
persuasive. We find that the trial court properly advised Appellant of the mandatory
postrelease control provisions, and that it was within the trial court's discretion to impose
a sentence within the statutory range for counts one and three." State v. Whitt,
Coshocton App. No. 10-CA-10, 2011-Ohio-3022, ¶72-73.
{¶11} Therefore, the doctrine of res judicata applies to this case. Res judicata is
defined as "[a] valid, final judgment rendered upon the merits bars all subsequent
actions based upon any claim arising out of the transaction or occurrence that was the
subject matter of the previous action." Grava v. Parkman Twp., 73 Ohio St.3d 379,
1995-Ohio-331, syllabus. The appeal sub judice is limited to any issues arising from the
resentencing entry. State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204.
{¶12} In State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, ¶4, the Supreme
Court of Ohio set forth the following two-step approach in reviewing a sentence: Coshocton County, Case No. 12-CA-3 4
{¶13} "In applying Foster [State v., 109 Ohio St.3d 1, 2006–Ohio–856] to the
existing statutes, appellate courts must apply a two-step approach. First, they must
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. If this first prong is satisfied, the trial court's decision shall be reviewed
under an abuse-of-discretion standard."
{¶14} In order to find an abuse of discretion, we must determine the trial court's
decision was unreasonable, arbitrary or unconscionable and not merely an error of law
or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217.
{¶15} We note although in Oregon v. Ice (2009), 555 U.S. 160, the United States
Supreme Court upheld the constitutional validity of an Oregon statute similar to Ohio's
pre-Foster sentencing statutes, the Supreme Court of Ohio in State v. Hodge, 128 Ohio
St.3d 1, 941 N.E.2d 768, 2010–Ohio–6320, held the Oregon case did not revive the
Foster statutes, and trial courts are not obligated to engage in judicial fact-finding prior
to imposing consecutive sentences.
{¶16} Appellant argues the trial court erred in making factual findings regarding
the consecutive nature of the sentences. In addition, appellant makes a convoluted and
confusing argument regarding allied offenses of similar import.
{¶17} A review of the January 30, 2012 resentencing hearing transcript and the
February 8, 2012 judgment entry on resentencing reveals the trial court did not make
any factual findings on the worst form of the offense as argued by appellant.
{¶18} The rape counts and the sexual battery counts were allied offenses and
the trial court was instructed by this court on remand to merge the two rape counts with Coshocton County, Case No. 12-CA-3 5
the two sexual battery counts prior to imposing sentence, rather than sentencing
appellant on all four counts and then merging the sentences. A review of the judgment
entry on resentencing establishes that the trial court correctly followed this court's
instructions.
{¶19} If appellant is arguing there should have been one conviction only for the
merged rape/sexual battery counts, we find the Supreme Court of Ohio in State v.
Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶26-27, addressed this issue as follows:
{¶20} "On remand, the trial court should fulfill its duty in merging the offenses for
purposes of sentencing, but remain cognizant that R.C. 2941.25(A)'s mandate that a
'defendant may be convicted of only one' allied offense is a proscription against
sentencing a defendant for more than one allied offense. Nothing in the plain language
of the statute or in its legislative history suggests that the General Assembly intended to
interfere with a determination by a jury or judge that a defendant is guilty of allied
offenses. As the state asserts, by enacting R.C. 2941.25(A), the General Assembly
condemned multiple sentences for allied offenses, not the determinations that the
defendant was guilty of allied offenses.
{¶21} "Because R.C. 2941.25(A) protects a defendant only from being punished
for allied offenses, the determination of the defendant's guilt for committing allied
offenses remains intact, both before and after the merger of allied offenses for
sentencing.***Thus, the trial court should not vacate or dismiss the guilt determination."
(Footnote omitted.)
{¶22} Upon review, we find appellant's resentencing is not contrary to law.
{¶23} The sole assignment of error is denied. Coshocton County, Case No. 12-CA-3 6
{¶24} The judgment of the Court of Common Pleas of Coshocton County, Ohio
is hereby affirmed.
By Farmer, J.
Delaney, P.J. and
Edwards, J. concur.
s/ Sheila G. Farmer________________
s/ Patricia A. Delaney______________
s/ Julie A. Edwards________________
JUDGES
SGF/sg 614 [Cite as State v. Whitt, 2012-Ohio-3094.]
IN THE COURT OF APPEALS FOR COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : STEPHEN H. WHITT : : Defendant-Appellant : CASE NO. 12-CA-3
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Coshocton County, Ohio is affirmed. Costs
to appellant.