Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2012 CR 0118.
Victor V. Vigluicci, Portage County Prosecutor, Pamela J. Holder, Assistant Prosecutor, and Kristina Drnjevich, Assistant Prosecutor, For Plaintiff-Appellee.
Michael E. Grueschow, For Defendant-Appellant.
CYNTHIA WESTCOTT RICE, J.
(¶ 1} Appellant, Scott Rardin, appeals from the August 9, 2012 judgment of the Portage County Court of Common Pleas, sentencing him for unlawful sexual conduct with a minor and labeling him a Tier II sex offender. For the reasons in this opinion, we affirm the judgment of the trial court.
(¶ 2} Appellant was indicted on five counts of rape, felonies of the first degree, in violation of R.C. 2907.02(A)(1)(b) and (B); 11 counts of gross sexual imposition, felonies of the third degree, in violation of R.C. 2907.05(A)(4); three counts of disseminating matter harmful to juveniles, felonies of the fourth degree, in violation of R.C. 2907.31(A)(1); and three counts of unlawful sexual conduct with a minor, felonies of the third degree, in violation of R.C. 2907.04(A) and (B)(1) and (3). Appellant pleaded not guilty to all charges.
(¶ 3} Appellant later withdrew his not guilty plea and entered a plea of guilty to one count of unlawful sexual conduct with a minor, a third degree felony, in violation of R.C. 2907.04(A) and (B)(1) and (3). The trial court accepted appellant's plea and the remaining charges were dismissed.
(¶ 4} After a hearing, appellant was sentenced to the maximum term of five years in prison. The court notified appellant that he would be supervised for five years under post-release control after his release. And the court classified appellant a Tier II sex offender. Appellant appeals and asserts the following assignment of error:
(¶ 5} "The trial court erred by sentencing the defendant-appellant to a maximum term of imprisonment."
(¶ 6} "[A]ppellate courts must apply a two-step approach when reviewing felony sentences. First, they must 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. If this first prong is satisfied, the trial court's decision in imposing the term of imprisonment is reviewed under the abuse-of-discretion standard." State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶26.
(¶ 7} Appellant does not assert his sentence was contrary to law; instead, he argues the trial court failed to give appropriate consideration and adequate weight to the following facts: (1) he had no prior criminal record; (2) he expressed genuine remorse; and (3) that the victim is young and, with counseling, will be able to live a full life. A review of the record demonstrates the trial court gave proper consideration to all information it received when it imposed the maximum sentence.
(¶ 8} At the hearing, the court heard from the victim, the victim's mother, and the victim's brother. They detailed, inter alia, the significant difficulties appellant's conduct has caused them. In particular, the victim discussed the tremendous mental and emotional anguish appellant's abuse caused her; she stated she trusted appellant as a father figure and he betrayed her trust. She explained appellant, through his abuse and controlling behavior, robbed her of her childhood and innocence. She further underscored appellant's actions have left her scared, confused, and hurt. Due to the physical, mental, and emotional abuse she suffered at appellant's hands, the victim requested the court to impose the maximum five-year sentence.
(¶ 9} The victim's mother stated she had been dating appellant eight years, "[m]ost of that time he spent sexually abusing [her] daughter." She underscored her concern for her daughter's current and future mental health; and expressed worry that the victim would have problems with future relationships due to the abuse. She emphasized that appellant controlled her daughter with lies and fear and exploited his position of authority to physically, mentally, and emotionally torment and abuse her. And, she advised the court her family is currently homeless, living with family members, as a consequence of appellant's conduct. She also requested appellant receive the maximum sentence.
(¶10} The victim's brother echoed the previous statements and further emphasized that his sister's life had been affected in ways he could never understand by a man she looked up to and trusted. He stated appellant's conduct has caused his sister to live in fear, especially for the future when appellant is eventually released into the public. He then asked the court to impose the maximum sentence, even though, in his view, "that would never be enough."
(¶11} Following the victim impact statements, defense counsel advised the court appellant had no previous criminal record and has expressed profound remorse for his wrongdoing. Counsel further noted that appellant has accepted full responsibility for his actions and, given these points, requested the court to impose either community control or the minimum available sentence.
(¶12} Finally, appellant spoke in allocution. He apologized to the victim and her family. He acknowledged he let them down and requested the court to impose community control so he could "be productive again." He additionally promised the court he would never do anything wrong again.
(¶13} After considering the sentencing statutes, the presentence investigation report, the statements of counsel and appellant, as well as the victim impact statements, the court concluded community control sanctions would be inappropriate. The court then imposed the maximum, authorized sentence.
(¶14} In its judgment entry, the court journalized the maximum sentence. The court reiterated the statements it made at the sentencing and underscoring its considerations in fashioning the sentence; namely, the need to protect the public from future crimes and punish appellant using the minimum sanctions that would accomplish these purposes without unnecessary burden on state resources. The court further acknowledged it weighed the punitive need to incapacitate appellant, the need to deter ...