Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2012 CR 0116.
Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, Assistant Prosecutor, (For Plaintiff-Appellee).
Leonard J. Breiding, II, (For Defendant-Appellant).
COLLEEN MARY OTOOLE, J.
(¶1} Joseph Blair-Walker appeals from the August 28, 2012 judgment entry of the Portage County Court of Common Pleas, sentencing him to prison for one count of rape and multiple counts of gross sexual imposition, and finding him to be a sexually violent predator. Mr. Blair-Walker asserts the trial court failed to consider the appropriate statutes in sentencing him, and that the finding he is a sexually violent predator is supported by insufficient evidence. Finding no error, we affirm.
(¶2} February 23, 2012, the Portage County Grand Jury returned an indictment in ten counts against Mr. Blair-Walker: two counts of rape, in violation of R.C. 2907.02(A)(1)(b) and (B), felonies of the first degree; three counts of gross sexual imposition, in violation of R.C. 2907.05(A)(4), felonies of the third degree; three counts of gross sexual imposition, in violation of R.C. 2907.05(B), felonies of the third degree; and two counts of disseminating matter harmful to juveniles, in violation of R.C. 2907.31(A), felonies of the fourth degree. All of the rape and gross sexual imposition counts included sexually violent predator specifications, R.C. 2941.148. The indictment stemmed from conduct occurring over a lengthy period with the daughter of Mr. Blair-Walker's girlfriend, with whom he lived. The child was 11 years old at the time of indictment. February 24, 2012, Mr. Blair-Walker pleaded not guilty to each count.
(¶3} Jury trial commenced July 17, 2012. July 20, 2012, the jury returned its verdict, finding Mr. Blair-Walker guilty on one count of rape, and all of the counts of gross sexual imposition. The jury failed to enter a verdict on the second count of rape, whereby the trial court declared a mistrial on that count, later entering nolle prosequi on it at the state's motion.
(¶4} July 31, 2012, bench trial was held regarding the sexually violent predator specifications. The state introduced evidence that Mr. Blair-Walker had pleaded guilty to three counts of gross sexual imposition in 2004, in Summit County, Ohio. Those crimes were remarkably similar to those presently before the court: Mr. Blair-Walker molested girls aged six, seven, and eleven, one being the daughter of the girlfriend with whom he then lived, the others being her friends. The trial court found Mr. Blair-Walker to be a sexually violent predator from the bench.
(¶5} Sentencing hearing went forward August 27, 2012; the trial court held a resentencing hearing the next day. By its judgment entry filed August 28, 2012, the trial court sentenced Mr. Blair-Walker to serve 25 years to life on the rape. One count of gross sexual imposition merged with the rape for sentencing purposes. The trial court further sentenced Mr. Blair-Walker to 5 years to life on each remaining count of gross sexual imposition, the terms to be served concurrently with each other, but consecutive to that for rape.
(¶6} This appeal timely ensued, Mr. Blair-Walker assigning two errors. The first reads: "The trial court erred in sentencing the appellant by imposing more than the minimum sentence and by imposing an improper consecutive sentence." The issue presented for review is, "Whether the trial court erred to the appellant's prejudice by imposing more than the minimum sentence and by imposing an improper consecutive sentence?" Mr. Blair-Walker makes three assertions in support of this assignment of error: (1) the trial court failed to consider the purposes of felony sentencing, R.C. 2929.11; (2) the trial court failed to make the findings required to impose consecutive sentences, R.C. 2929.14(C)(4); and (3) the trial court failed to consider the seriousness and recidivism factors, R.C. 2929.12.
(¶7} Initially, we must determine the standard of review applicable to alleged sentencing errors. Prior to 2006, Ohio sentencing law created presumptions that offenders be given minimum, concurrent terms of incarceration. See former R.C. 2929.14(B), 2929.14(E)(4), 2919.19(B)(2), and 2929.41. These presumptions could be overcome if the court made specific factual findings regarding the nature of the offense and the need to protect the public. This judicial fact-finding was later called into question by Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), where the United States Supreme Court held that judicial factfinding could infringe upon a defendant's Sixth Amendment right to a jury trial because it invaded the fact-finding function of the jury.
(¶8} In 2006, the Ohio Supreme Court held that under Apprendi and Blakely, Ohio's sentencing statutes that required a judge to make factual findings in order to increase a sentence beyond presumptive minimum or concurrent terms unconstitutionally infringed on the jury's function in violation of the Sixth Amendment. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. As a result, the Court severed those sections and held that courts have full discretion to sentence within the applicable statutory range and to order sentences to be served consecutively. Id. at ¶99-100.
(¶9} In applying Foster, the Ohio Supreme Court later held in 2008 that appellate courts must apply a two-step procedure for review of a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. In the first step, the Kalish Court held that appellate courts shall 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, the standard found in R.C. 2953.08(G). Id. at ¶26. If this first step is satisfied, the Court held that the trial court's decision shall be reviewed under an abuse-of-discretion standard. Id.
(¶10} We note that Kalish, an appeal from this court, State v. Kalish, 11th Dist. Lake No. 2006-L-093, 2007-Ohio-3850 (OToole, J., concurring in part, dissenting in part) is a plurality opinion. Therefore, it is merely persuasive. See State v. Azbill, 11th Dist. Lake No. 2007-L-092, 2008-Ohio-6875, ¶9, fn. 2, citing State v. Bassett, 8th Dist. Cuyahoga No. 90887, 2008-Ohio-5597, ¶24, fn.2. Although the plurality in Kalish indicated that this court did not review the sentence to ensure that the trial court clearly and convincingly complied with the pertinent laws, it nevertheless affirmed this court's judgment, albeit on different grounds.
(¶11} Thereafter, in 2009, the reasoning in Foster was partially called into question by Oregon v. Ice, 555 U.S. 160 (2009), where the United States Supreme Court held that a state could require judicial findings of fact to impose consecutive rather than concurrent sentences without infringing on a defendant's Sixth Amendment rights. In 2010, the Ohio Supreme Court subsequently determined that Foster remained valid after Ice and the judiciary was not required to make findings of fact prior to imposing maximum or consecutive sentences in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320. However, a trial court was still required to consider the sentencing purposes in R.C. 2929.11 and the guidelines contained in R.C. 2929.12. See Foster, supra, at ¶36-42.
(¶12} On September 30, 2011, Ohio's sentencing statutes were revised pursuant to H.B. 86. The Ohio General Assembly enacted a new, but slightly different, requirement of judicial fact-finding under H.B. 86, containing many amendments to criminal sentencing provisions. For example, H.B. 86 revived the language provided in former R.C. 2929.14(E) and moved it to R.C. 2929.14(C)(4), requiring a trial court to make specific findings when imposing consecutive sentences. As a result, we no longer apply the two-step analysis contained in the 2008 Kalish case to defendants sentenced after H.B. 86's enactment. Rather, we apply R.C. 2953.08(G) and the clear and convincing standard to determine whether the sentence is contrary to law. See e.g. State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶10; State v. Drobny, 8th Dist. Cuyahoga No. 98404, 2013-Ohio-937, ¶5, fn.2; State v. Kinstle, 3rd Dist. Allen No. 1-11-45, 2012-Ohio-5952, ¶47; State v. Cochran, 10th Dist. Franklin No. 11AP-408, 2012-Ohio-5899, ¶52.
(¶13} In reviewing a felony sentence, R.C. 2953.08(G) provides:
(¶14} "(2) The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
(¶15} "The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(¶16} "(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 ...