Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2011 CR 0705.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, (For Plaintiff-Appellee).
Nathan A. Ray, (For Defendant-Appellant).
COLLEEN MARY OTOOLE, J.
(¶1}William Mullins appeals his conviction and sentence entered by the Portage County Court of Common Pleas on one count of gross sexual imposition. For the reasons which follow, we affirm.
(¶2}On November 9, 2011, Mullins was indicted on one count of rape, a first-degree felony in violation of R.C. 2907.02 and one count of gross sexual imposition, a third-degree felony in violation of R.C. 2907.05. The substance of the indictment charged Mullins with felony sexual conduct with his nephew, who was under the age of 13 at the time, on one occasion between December of 2003 and December 2004. Mullins entered a plea of not guilty to both charges.
(¶3} On July 25, 2012, Mullins entered a written and oral plea of guilty to gross sexual imposition, R.C. 2907.05(A)(4). Nolle prosequi was entered on the remaining count of rape. After providing the requisite post-release control notification, the trial court referred the matter to the Adult Probation Department for a pre-sentence investigation and report.
(¶4} Sentencing was held on October 5, 2012. The court then proceeded with sentencing and sexual-offender classification hearing. The court imposed the maximum term of five years imprisonment on the gross sexual imposition count and declared that Mullins is a Tier II sex offender. The court also imposed five years of mandatory postrelease control.
(¶5} This appeal timely followed. Mullins assigns a single error for review, which states:
(¶6} "The trial court erred in sentencing appellant to the maximum sentence."
(¶7} In support of his assignment, Mullins asserts that the court abused its discretion when it failed to follow the felony sentencing statutes in fashioning the appropriate sentence. Mullins argues that the trial court did not focus on the fact that he sought psychological help before he was arrested; his lack of any significant criminal record; that the victim's mother (his sister) did not want him to go to prison; and the support of his family.
(¶8} Instead, Mullins argues, the trial court focused its attention upon the dismissed rape count, which carries a life sentence. Balancing these factors, Mullins argues that the court failed to properly consider the sentencing factors in R.C. 2929.11 and the seriousness and recidivism factors in 2929.12. It is Mullins' position that, had the trial court properly considered these factors, he would not have received the maximum sentence.
(¶9} 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 fact-finding could infringe upon a defendant's Sixth Amendment right to a jury trial because it invaded the factfinding function of the jury.
(¶10} 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 ...