[Cite as State v. Wooten, 2014-Ohio-745.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2013-A-0044 - vs - :
FLOYD WOOTEN, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2011 CR 297.
Judgment: Affirmed.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047-1092 (For Plaintiff-Appellee).
Judith M. Kowalski, 333 Babbitt Road, Suite 323, Euclid, OH 44123 (For Defendant- Appellant).
THOMAS R. WRIGHT, J.
{¶1} This appeal is from the Ashtabula County Court of Common Pleas. A jury
convicted appellant Floyd Wooten of rape in violation of R.C. 2907.02(A)(1)(c), a felony
of the first degree and unlawful sexual conduct with a minor in violation of R.C.
2907.04(A), a felony of the third degree. At his original sentencing hearing he was
sentenced to a definite prison term of six years for rape and a definite prison term of
five years for unlawful sexual conduct with a minor to be served concurrently. This court reversed that judgment because the unlawful sexual contact with a minor offense
and rape offense were allied offenses of similar import. On remand, the trial court held
a sentencing hearing to comply with our order and sentenced Wooten to six years in
prison for rape. Wooten now appeals the judgment that re-sentenced him.
{¶2} The facts of this case have already been stated in a previous opinion.
See State v. Wooten, 11th Dist. Ashtabula No. 2012-A-0021, 2013-Ohio-1841.
Therefore, a complete recitation of facts is not necessary. As his first assignment of
error, Wooten alleges that:
{¶3} “The trial court abused its discretion and erred to the prejudice of appellant
by sentencing him to six years imprisonment, in that said prison sentence is excessive
for the purposes set forth in Ohio Revised Code Section 2929.11 (A) and (B) and is not
necessary to protect the public.”
{¶4} Within this assignment of error, Wooten claims the trial court abused its
discretion by not giving the reasons why it made its decision to sentence the defendant
for six years. He also claims it was error for the trial court to not state its reason for the
sentence at the sentencing hearing. Finally, he claims that the sentence was
disproportionate because he has no recent prior convictions and the victim experienced
a de minims amount of trauma. The state responds that the trial court was not required
to delineate the reasons for its decision and that the trial court explained the factors
and evidence it considered in the sentencing judgment entry. The state also claims we
only review the trial court’s decision to see if it did not consider the R.C. 2929.12
factors.
{¶5} In reviewing the propriety of a felony sentence, an appellate court must
engage in a two-part test. “First, [appellate courts] must examine the sentencing
2 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.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶4. The
term “abuse of discretion” is one of art, “connoting judgment exercised by a court,
which neither comports with reason, nor the record.” State v. Underwood, 11th Dist.
Lake No. 2008-L-113, 2009-Ohio-2089, ¶30. When an appellate court is reviewing a
pure issue of law, “the mere fact that the reviewing court would decide the issue
differently is enough to find error[.] * * * By contrast, where the issue on review has
been confined to the discretion of the trial court, the mere fact that the reviewing court
would have reached a different result is not enough, without more, to find error.” State
v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶67.
{¶6} When analyzing the second prong, we only look to see whether the trial
court has considered the R.C. 2929.12 factors. Such a consideration does not require
the trial court to “use specific language or make specific findings on the record in order
to evince the requisite consideration of the applicable seriousness and recidivism
factors (of R.C. 2929.12.).” State v. Webb, 11th Dist. Lake No. 2003-L-078, 2004-
Ohio-4198, ¶10, quoting State v. Arnett, 88 Ohio St.3d 208, 215, 2000-Ohio-302. The
Ohio Supreme Court has found that “[a] silent record raises the presumption that a trial
court considered the factors contained in R.C. 2929.12.” State v. Adams, 37 Ohio
St.3d 295 (1988), paragraph three of the syllabus; State v. Greitzer, 11th Dist. Portage
No. 2006-P-0090, 2007-Ohio-6721, ¶28. The burden is on the defendant to present
evidence to rebut the presumption that the court considered the sentencing criteria.
State v. Cyrus, 63 Ohio St.3d 164, 166 (1992). In order to rebut this presumption, “a
3 defendant must either affirmatively show that the court failed to [consider the statutory
factors], or that the sentence the court imposed is ‘strikingly inconsistent’ with the
statutory factors as they apply to his case.” State v. Bigley, 9th Dist. Medina No.
08CA0085-M, 2009-Ohio-2943, ¶14, quoting State v. Rutherford, 2d Dist. No. 08CA11,
2009-Ohio-2071, ¶34.
{¶7} At sentencing, the trial court merged Wooten’s conviction of unlawful
sexual contact with a minor with his conviction of rape and sentenced him to six years
in prison on the rape conviction. Pursuant to R.C. 2907.02(B), rape is considered a
first degree felony. First degree felonies carry a prison term of three, four, five, six,
seven, eight, nine, ten, or eleven years. R.C. 2929.14(A)(1). Because six years is a
prison term that falls within that range, the first prong of Kalish is satisfied.
{¶8} As for the second prong, we agree with the state’s position. The victim
was a minor and has continually suffered nightmares as a result of the crime. Wooten
also had access to her as he was renting a place where the minor resided with her
parents. The defense presented mitigating evidence of homelessness, mental health
problems and drug use. Based on this evidence, a sentence of six years was not
strikingly inconsistent with the available evidence.
{¶9} Furthermore, although Crim.R. 32(A) requires a sentencing court to state
its statutory findings and give reasons supporting those findings if needed, the trial
court in this case was only required to conduct a limited sentencing hearing to correct
its sentencing error. Consequently, the trial court did not err in not fully explaining the
reasoning for its sentence at the hearing.
{¶10} The first assignment of error is without merit.
{¶11} As his second assignment of error, Wooten alleges that:
4 {¶12} “The appellant received ineffective assistance of counsel in violation of his
rights pursuant to the Sixth Amendment to the United States Constitution and Section
10, Article I of the Ohio Constitution.”
{¶13} Wooten alleges that his trial counsel erred by not requesting the trial court
to conduct a full sentencing hearing or at the very least make a statement on his behalf
indicating the mitigating circumstances for his sentence. Wooten has failed to indicate
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[Cite as State v. Wooten, 2014-Ohio-745.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2013-A-0044 - vs - :
FLOYD WOOTEN, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2011 CR 297.
Judgment: Affirmed.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047-1092 (For Plaintiff-Appellee).
Judith M. Kowalski, 333 Babbitt Road, Suite 323, Euclid, OH 44123 (For Defendant- Appellant).
THOMAS R. WRIGHT, J.
{¶1} This appeal is from the Ashtabula County Court of Common Pleas. A jury
convicted appellant Floyd Wooten of rape in violation of R.C. 2907.02(A)(1)(c), a felony
of the first degree and unlawful sexual conduct with a minor in violation of R.C.
2907.04(A), a felony of the third degree. At his original sentencing hearing he was
sentenced to a definite prison term of six years for rape and a definite prison term of
five years for unlawful sexual conduct with a minor to be served concurrently. This court reversed that judgment because the unlawful sexual contact with a minor offense
and rape offense were allied offenses of similar import. On remand, the trial court held
a sentencing hearing to comply with our order and sentenced Wooten to six years in
prison for rape. Wooten now appeals the judgment that re-sentenced him.
{¶2} The facts of this case have already been stated in a previous opinion.
See State v. Wooten, 11th Dist. Ashtabula No. 2012-A-0021, 2013-Ohio-1841.
Therefore, a complete recitation of facts is not necessary. As his first assignment of
error, Wooten alleges that:
{¶3} “The trial court abused its discretion and erred to the prejudice of appellant
by sentencing him to six years imprisonment, in that said prison sentence is excessive
for the purposes set forth in Ohio Revised Code Section 2929.11 (A) and (B) and is not
necessary to protect the public.”
{¶4} Within this assignment of error, Wooten claims the trial court abused its
discretion by not giving the reasons why it made its decision to sentence the defendant
for six years. He also claims it was error for the trial court to not state its reason for the
sentence at the sentencing hearing. Finally, he claims that the sentence was
disproportionate because he has no recent prior convictions and the victim experienced
a de minims amount of trauma. The state responds that the trial court was not required
to delineate the reasons for its decision and that the trial court explained the factors
and evidence it considered in the sentencing judgment entry. The state also claims we
only review the trial court’s decision to see if it did not consider the R.C. 2929.12
factors.
{¶5} In reviewing the propriety of a felony sentence, an appellate court must
engage in a two-part test. “First, [appellate courts] must examine the sentencing
2 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.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶4. The
term “abuse of discretion” is one of art, “connoting judgment exercised by a court,
which neither comports with reason, nor the record.” State v. Underwood, 11th Dist.
Lake No. 2008-L-113, 2009-Ohio-2089, ¶30. When an appellate court is reviewing a
pure issue of law, “the mere fact that the reviewing court would decide the issue
differently is enough to find error[.] * * * By contrast, where the issue on review has
been confined to the discretion of the trial court, the mere fact that the reviewing court
would have reached a different result is not enough, without more, to find error.” State
v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶67.
{¶6} When analyzing the second prong, we only look to see whether the trial
court has considered the R.C. 2929.12 factors. Such a consideration does not require
the trial court to “use specific language or make specific findings on the record in order
to evince the requisite consideration of the applicable seriousness and recidivism
factors (of R.C. 2929.12.).” State v. Webb, 11th Dist. Lake No. 2003-L-078, 2004-
Ohio-4198, ¶10, quoting State v. Arnett, 88 Ohio St.3d 208, 215, 2000-Ohio-302. The
Ohio Supreme Court has found that “[a] silent record raises the presumption that a trial
court considered the factors contained in R.C. 2929.12.” State v. Adams, 37 Ohio
St.3d 295 (1988), paragraph three of the syllabus; State v. Greitzer, 11th Dist. Portage
No. 2006-P-0090, 2007-Ohio-6721, ¶28. The burden is on the defendant to present
evidence to rebut the presumption that the court considered the sentencing criteria.
State v. Cyrus, 63 Ohio St.3d 164, 166 (1992). In order to rebut this presumption, “a
3 defendant must either affirmatively show that the court failed to [consider the statutory
factors], or that the sentence the court imposed is ‘strikingly inconsistent’ with the
statutory factors as they apply to his case.” State v. Bigley, 9th Dist. Medina No.
08CA0085-M, 2009-Ohio-2943, ¶14, quoting State v. Rutherford, 2d Dist. No. 08CA11,
2009-Ohio-2071, ¶34.
{¶7} At sentencing, the trial court merged Wooten’s conviction of unlawful
sexual contact with a minor with his conviction of rape and sentenced him to six years
in prison on the rape conviction. Pursuant to R.C. 2907.02(B), rape is considered a
first degree felony. First degree felonies carry a prison term of three, four, five, six,
seven, eight, nine, ten, or eleven years. R.C. 2929.14(A)(1). Because six years is a
prison term that falls within that range, the first prong of Kalish is satisfied.
{¶8} As for the second prong, we agree with the state’s position. The victim
was a minor and has continually suffered nightmares as a result of the crime. Wooten
also had access to her as he was renting a place where the minor resided with her
parents. The defense presented mitigating evidence of homelessness, mental health
problems and drug use. Based on this evidence, a sentence of six years was not
strikingly inconsistent with the available evidence.
{¶9} Furthermore, although Crim.R. 32(A) requires a sentencing court to state
its statutory findings and give reasons supporting those findings if needed, the trial
court in this case was only required to conduct a limited sentencing hearing to correct
its sentencing error. Consequently, the trial court did not err in not fully explaining the
reasoning for its sentence at the hearing.
{¶10} The first assignment of error is without merit.
{¶11} As his second assignment of error, Wooten alleges that:
4 {¶12} “The appellant received ineffective assistance of counsel in violation of his
rights pursuant to the Sixth Amendment to the United States Constitution and Section
10, Article I of the Ohio Constitution.”
{¶13} Wooten alleges that his trial counsel erred by not requesting the trial court
to conduct a full sentencing hearing or at the very least make a statement on his behalf
indicating the mitigating circumstances for his sentence. Wooten has failed to indicate
what mitigating circumstances trial counsel should have presented if his trial counsel
was given the opportunity to address the court. The state argues that making
arguments in support of mitigating circumstances would not have changed his
sentence.
{¶14} In order to prevail on a claim of ineffective assistance of counsel, appellant
must establish that: (1) the performance of defense counsel was seriously flawed and
deficient; and (2) the result of appellant's trial would have been different if defense
counsel had provided proper representation. See Strickland v. Washington, 466 U.S.
668 (1984). Trial counsel benefits from a strong presumption of competence. See
State v. Smith, 17 Ohio St.3d 98 (1985). In other words, defense counsel is not
ineffective unless his or her performance fell below an objective standard of reasonable
representation, and the defendant is prejudiced from that performance. State v.
Bradley, 42 Ohio St.3d 136 (1989). Nevertheless, analysis of whether counsel's
performance was deficient is not necessary if a claim can be disposed of by showing a
lack of sufficient prejudice. Id.
{¶15} In our previous judgment, we found the trial court erred in finding the
unlawful sexual contact with a minor and rape were not allied offenses of similar import.
Wooten, supra, ¶59. Accordingly, we remanded “for further proceedings consistent
5 with the opinion.” Id., ¶63. Although the remand instruction is broad, it is clear from
the opinion that the only error in the original sentence dealt with the issue of allied
offenses of similar import. The trial court is not required to conduct a de novo
sentencing hearing because an appellate court found error in the original sentence.
State v. Morgan, 2d Dist. Champaign No. 09CA21, 2010-Ohio-2925, ¶14. Rather, a
trial court is only required to conduct the tasks that are necessary to correct the error in
its previous judgment
{¶16} Nothing in our prior opinion or the nature of the sentencing error indicates
that Wooten was entitled to a de novo sentencing hearing. Furthermore, the trial court
had already heard trial counsel’s mitigating statement. Wooten has not provided any
reason why a mitigating statement by trial counsel would have affected his sentence
and we do not see how a new statement concerning mitigating circumstances would
affect his sentence. As such, Wooten was not prejudiced by trial counsel’s failure to
request an opportunity to provide a mitigating statement at the re-sentencing hearing.
{¶17} The second assignment of error is without merit.
{¶18} The judgment of the trial court is affirmed.
TIMOTHY P. CANNON, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.