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State v. Wilson

Court of Appeals of Ohio, Eighth District

September 12, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
BRYAN K. WILSON DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-558514

ATTORNEY FOR APPELLANT Richard Agopian The Hilliard Building.

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor BY: Andrew J. Santoli Assistant Prosecuting Attorney The Justice Center.

BEFORE: E.T. Gallagher, J., Stewart, A.J., and Rocco, J.

JOURNAL ENTRY AND OPINION

EILEEN T. GALLAGHER, J.:

(¶l} Defendant-appellant Bryan Wilson ("Wilson") appeals his consecutive sentences. We find no merit to the appeal and affirm the trial court's judgment.

(¶2} On July 31, 2011, Wilson and his brother, Spencer Jordan ("Jordan"), went on a double date with T.K. and her sister H.K. The two couples decided to stay the night in a hotel because Wilson and Jordan lived some distance away from the two women. Everyone except H.K., who was pregnant, consumed alcohol. During the night, Wilson fondled T.K. while she was asleep and had sexual conduct with H.K. against her will. Consequently, Wilson was charged with rape, kidnapping, and sexual battery.

(¶ 3} Pursuant to a plea bargain, Wilson pleaded guilty to sexual battery against T.K. and attempted rape of H.K. The court sentenced Wilson to a one-year prison term for the sexual battery conviction and a four-year prison term for the attempted rape conviction, to be served consecutively for an aggregate five-year prison term. This appeal followed.

(¶ 4} In his sole assignment of error, Wilson argues the trial court erred when it sentenced him to consecutive prison terms. He contends the imposition of consecutive sentences was contrary to law because the trial court failed to comply with the sentencing provisions set forth in R.C. 2929.14(C)(4), as amended by Am.Sub.H.B. No. 86 ("H.B. 86").

(¶5} R.C. 2953.08(G)(2), as amended by H.B. 86, states that when reviewing prison sentences, "[t]he appellate court's standard for review is not whether the sentencing court abused its discretion." Instead, the statute states that if we "clearly and convincingly" find that, (1) "the record does not support the sentencing court's findings under [R.C. 2929.14(C)(4)]" or that, (2) "the sentence is otherwise contrary to law, " then we "may increase, reduce, or otherwise modify a sentence * * * or [we] may vacate the sentence and remand the matter to the sentencing court for re-sentencing." State v. Coins, 8th Dist. Cuyahoga No. 98256, 2013-Ohio-263, ¶ 6, quoting R.C. 2953.08(G)(2).

(¶6} R.C. 2929.14(C)(4), as amended by H.B. 86, requires a sentencing judge to make certain findings before imposing consecutive sentences. State v. Richmond, 8th Dist. Cuyahoga No. 98915, 2013-Ohio-2887, ¶ 11. First, the trial court must find that "consecutive service is necessary to protect the public from future crime or to punish the offender." R.C. 2929.14(C)(4). Second, the trial court must find that "consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public." Id. Finally, the trial court must find that at least one of the following applies:

(a)The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post release control for a prior offense.
(b)At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public ...

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