State v. Wood

2017 Ohio 916

• Court: Ohio Court of Appeals
• Decided: March 15, 2017
• Docket: 28037
• Status: Published

Opinion

[Cite as State v. Wood, 2017-Ohio-916.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 28037

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE DOMINIQUE A. WOOD COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 14 02 0465

DECISION AND JOURNAL ENTRY

Dated: March 15, 2017

HENSAL, Judge.

{¶1} Dominique Wood appeals her sentence for rape from the Summit County Court of

Common Pleas. For the following reasons, this Court affirms.

I.

{¶2} Ms. Wood pleaded guilty to one count of rape under Revised Code Section

2907.02(A)(2) for digitally penetrating and performing cunnilingus on her five-year-old cousin.

The trial court sentenced her to eight years imprisonment. Ms. Wood has appealed her sentence,

assigning as error that it is clearly and convincingly unsupported by the record.

II.

ASSIGNMENT OF ERROR

THE COURT’S SENTENCE IS CLEARLY AND CONVINCINGLY UNSUPPORTED BY THE RECORD AS THE FACTS AND CIRCUMSTANCES OF THIS MATTER AS DEMONSTRATED IN THE RECORD DO NOT PROVIDE FOR THE SENTENCE OF EIGHT YEARS INCARCERATION. 2

{¶3} Ms. Wood asserts that the length of her prison sentence is excessive, arguing that

it is longer than necessary to fulfill the purposes of criminal sentencing. In reviewing a felony

sentence, this Court’s “standard for review is not whether the sentencing court abused its

discretion.” R.C. 2953.08(G)(2). “[This Court] may vacate or modify a felony sentence on

appeal only if it determines by clear and convincing evidence” that: (1) “the record does not

support the trial court’s findings under relevant statutes,” or (2) “the sentence is otherwise

contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. “That is, [this

Court] may vacate or modify any sentence that is not clearly and convincingly contrary to law

only if [it] finds by clear and convincing evidence that the record does not support the sentence.”

Id. at ¶ 23. Clear and convincing evidence is that “which will produce in the mind of the trier of

facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161

Ohio St. 469 (1954), paragraph three of the syllabus.

{¶4} In support of her argument, Ms. Wood notes that, at the time of the offense, she

was only 19, had no criminal history, had a consistent employment history, and had also taken

some college courses. She accepted responsibility for her acts, was remorseful, and fully

cooperated with police, even though she was too intoxicated at the time of the offense to

remember what happened. Ms. Wood also notes that a psychologist opined that her offense fell

outside the usual categories for female sex offenders and that it appeared to be situational and

unplanned. The psychologist also opined that Ms. Wood was amenable to treatment, that she

showed no indications of recidivism, and that there is only a low to moderate risk that she may

reoffend. Ms. Wood further notes that, although the victim’s mother described the pain the

victim has experienced since the offense, there is no objective evidence that the victim suffered

serious psychological harm. 3

{¶5} A violation of Section 2907.02(A)(2) is a felony of the first degree, for which the

trial court must sentence the offender to a term of three, four, five, six, seven, eight, nine, ten, or

eleven years. R.C. 2907.02(B); R.C. 2929.13(F)(2); R.C. 2929.14(A)(1). At sentencing, the

prosecution noted that Ms. Wood was originally charged with violating Section

2907.02(A)(1)(b), for which she faced life imprisonment. It argued that, in exchange for her

guilty plea, the State had amended the indictment so Ms. Wood could avoid a life sentence.

Arguing that Ms. Wood, therefore, had already received a break, and noting that she had harmed

a close family member who trusted her, the prosecution argued that the court should sentence

Ms. Wood to eleven years, despite the “glowing” report she received from the psychologist.

{¶6} In determining Ms. Wood’s sentence, the trial court stated that it had considered

the plea negotiations, the presentence investigation, the testimony that was presented at the

sentencing hearing, and the letters and statements from the victim’s and defendant’s family. It

stated that, upon consideration of the relevant sentencing factors, the minimum sentence that

would protect the public and punish Ms. Wood without imposing an unnecessary burden on state

or local resources was eight years. In reaching that determination, the court explained that it had

considered Ms. Wood’s amenability for treatment and rehabilitation, the amount of punishment

required by statute, and the pain that the offense had caused. In its sentencing entry, the court

wrote that it had considered the record and oral statements as well as the principles and purposes

of sentencing under Section 2929.11 and the seriousness and recidivism factors under Section

2929.12.

{¶7} Upon review of the record, we cannot find by clear and convincing evidence that

it does not support the eight-year sentence imposed by the trial court. Marcum, 146 Ohio St.3d

516, 2016-Ohio-1002, at ¶ 23. As Ms. Wood concedes that her sentence is not otherwise 4

contrary to law, there are no grounds for this Court to modify the sentence under Section

2953.08(G). Id. Ms. Wood’s assignment of error is overruled.

III.

{¶8} Ms. Wood’s assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

JENNIFER HENSAL FOR THE COURT 5

CARR, P. J. SCHAFER, J. CONCUR.

APPEARANCES:

RICHARD P. KUTUCHIEF, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.