Criminal Appeal from Common Pleas Court, Case No. 10CR15.
For Plaintiff-Appellee: Attorney Robert Herron Prosecuting Attorney Attorney Timothy McNicol Assistant Prosecuting Attorney
For Defendant-Appellant: Attorney Dominic Frank
Hon. Joseph J. Vukovich Hon. Cheryl L. Waite Hon. Mary DeGenaro
(¶1} Defendant-appellant Paul Power appeals the decision of the Columbiana County Common Pleas Court sentencing him to consecutive four year sentences on two counts of gross sexual imposition. Appellant argues that the judge showed bias and impartiality at sentencing and should have disqualified himself. He also contends that the court erred in imposing consecutive sentences by failing to fulfill its judicial fact-finding duties under R.C. 2929.14(C). For the following reasons, the judgment of the trial court is affirmed.
STATEMENT OF THE CASE
(¶2} On January 29, 2010, appellant was indicted for raping his granddaughter by performing oral sex on her in 2009 when she was four or five years old. This was a felony-life offense. See R.C. 2907.02(A)(1)(b) (sexual conduct with child under 13), (B) (rape of child under 10). Appellant was also indicted for gross sexual imposition for having sexual contact with this child by touching her vaginal area in March or April of 2009, just before her fifth birthday.
(¶3} On January 17, 2012, appellant entered a plea to two counts of gross sexual imposition after the state reduced the rape count to its lesser included offense. Both offenses were third degree felonies with sentencing options ranging from 12 to 60 months. See R.C. 2929.14(A)(3). A presentence investigation report was ordered.
(¶4} At the March 9, 2012 sentencing hearing, the state recommended consecutive three-year sentences. In seeking consecutive sentences, the prosecutor asked the court to consider the nature of the offenses and the special harm caused to the victim. The prosecutor referenced the relationship, trust, and position of authority appellant held over his granddaughter. (Sent. Tr. 4-5). The defense asked for a lesser sentence or community control, stating that appellant previously led a law-abiding and productive life. (Sent. Tr. 5-6).
(¶5} The victim's mother, who is appellant's daughter, read a prepared statement. She related that the last two years of her daughter's life have been a nightmare as she no longer feels safe out of her mother's arms, explaining that the child also experienced emotional abuse due to these acts committed against her and now suffers socially and academically as well. She expressed regret that she had always told her daughter that appellant was the one man who would never hurt her and would protect her at all costs, and she voiced incomprehension as to how her father, who had always protected her, could do this to her daughter, characterizing him as a monster and a stranger. (Sent. Tr. 8-9). She expressed disagreement with the plea to the lesser included offense and voiced that he should get life with parole no earlier than after twenty years. (Sent. Tr. 10).
(¶6} The court then criticized the victim's mother, which discussion is quoted under assignment of error number one. (Sent. Tr. 11-12). (The court's criticism was derived from the fact that the victim's mother did not report the abuse when the victim's grandmother told her that she caught appellant spreading the child's labia in the bathtub.)
(¶7} Appellant then spoke, stating that he accepted full responsibility for the charges in the interest of sparing his granddaughter from the continued trauma of having to testify in court. The court inquired if he committed the acts, and appellant answered that he was accepting responsibility. The court noted that it had read appellant's statement, and appellant responded that he did what it said in his statement. (Sent. Tr. 13). (His statement only said that he touched her one time in a joking manner while she was urinating in the bathtub). Appellant then apologized to the victim and his family. (Sent. Tr. 13-14).
(¶8} The court sentenced appellant to consecutive four-year sentences on each count and ordered him to register as a tier II sexual offender for a period of 25 years. The court expressed that its job was to protect the public, punish offenders, and decree a fair sentence under the purposes and principles of the felony sentencing law. (Sent. Tr. 14-15). The court then opined that what appellant did was despicable and beyond understanding. (Sent. Tr. 15). The court voiced that it was imposing consecutive sentences because the harm was so great and so unusual that a single term would be insufficient. (Sent. Tr. 16).
(¶9} The March 13, 2012 sentencing entry explained that consecutive sentences were imposed because a single term would be insufficient to punish the offender and protect the public, consecutive terms were appropriate due to the great harm to the victim, and anything less than consecutive terms would fail to reflect the seriousness of appellant's conduct. Appellant filed a timely notice of appeal.
ASSIGNMENT OF ERROR NUMBER ONE
(¶10} Appellant sets forth two assignments of error, the first of which alleges:
(¶11} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY THE JUDGE NOT DISQUALIFYING HIMSELF DUE TO BIAS OR IMPARTIALITY AFFECTING THE SENTENCING OF THE APPELLANT AND THEREBY DENIED THE APPELLANT OF HIS RIGHT TO AN IMPARTIAL SENTENCING AS WELL AS HIS RIGHT TO DUE PROCESS UNDER THE OHIO AND UNITED STATES CONSTITUTIONS."
(¶12} Appellant urges that the court was biased in sentencing him to consecutive four-year sentences instead of the consecutive three-year sentences recommended by the state. He provides two examples from the sentencing hearing, which he believes demonstrate bias: the court's criticism of the victim's mother and the court's criticism of appellant. Appellant ...