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State v. Polizzi

Court of Appeals of Ohio, Eleventh District, Lake

June 24, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
ANTHONY J. POLIZZI, JR., Defendant-Appellant.

          Criminal Appeals from the Lake County Court of Common Pleas. Case Nos. 2017 CR 000853 & 2017 CR 001390.

          Charles E. Coulson, Lake County Prosecutor; Teri R. Daniel and Alexandra Kutz, Assistant Prosecutors, OH 44077 (For Plaintiff-Appellee).

          Mark Roy Devan and William Christopher Livingston, Berkman, Gordon, Murray & Devan, OH 44113 (For Defendant-Appellant).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} Appellant, Anthony J. Polizzi, Jr., appeals from the May 8, 2018 judgment entry of the Lake County Court of Common Pleas, sentencing him to an aggregate total of 33 years in prison following appellant's guilty plea on two separate indictments.

         {¶2} Appellant held a position as a teacher at a Christian high school following an unsuccessful attempt to complete law school. He had an inappropriate relationship with two of his students. One took place in 2008, the other in 2010. Each victim was 17 years old when the conduct commenced, and each was 18 years old when the conduct terminated. Appellant was fired from his position as a teacher when another student reported seeing appellant returning to school with the 2010 victim. In 2012, appellant reached out to this former student with sexually explicit messages under a fictitious name. The victim immediately suspected appellant, who eventually acknowledged it was he who sent the messages. These messages were alarming to the 2010 victim, who subsequently contacted authorities in 2012. For reasons that are not clear in the record, not much happened with the case until 2017, when the 2010 victim was contacted by a new detective.

         {¶3} In the meantime, after being fired from his teaching position, appellant had returned to law school, passed the bar examination, and worked for many years as an attorney. Between the time he was fired as a teacher, and up until sentencing, there is no indication appellant committed any other offense.

         {¶4} On July 31, 2017, appellant was indicted on 24 counts alleging crimes involving sexual misconduct stemming from a series of sexual relations with the student from 2010 who appellant taught at Cornerstone Christian Academy. The case was assigned Lake County Court of Common Pleas Case No. 17-CR-0853.

         {¶5} Subsequently, on December 29, 2017, appellant was indicted on 56 counts alleging crimes involving sexual misconduct stemming from a series of sexual relations with a second student from 2008, who appellant also taught at Cornerstone Christian Academy. The case was assigned Lake County Court of Common Pleas Case No. 17-CR-1390. On March 21, 2018, the trial court granted a motion to consolidate the cases for trial.

         {¶6} After plea negotiations, the state dismissed most of the counts, based on appellant's agreement to enter a plea of guilty to four charges in each case. On March 26, 2018, appellant pled to one count of gross sexual imposition, a felony of the fourth degree, and three counts of sexual battery, felonies of the third degree, in each of the two cases.

         {¶7} Regarding the six counts of sexual battery, in violation of R.C. 2907.03(A)(7), each indictment alleged that appellant engaged in sexual conduct with another, not the spouse of the offender, when the offender was a teacher, administrator, coach, or other person in authority employed by or serving in a school for which the state board of education prescribes minimum standards pursuant to R.C. 3301.07(D), the other person is enrolled in or attends that school, and the offender is not enrolled in and does not attend that school.

         {¶8} The trial court referred appellant to the Department of Adult Probation for a presentence evaluation, psychiatric examination, victim impact statement, and sexual offender report.

         {¶9} At the sentencing hearing on May 4, 2018, appellant, appellant's counsel, and appellant's wife and father, were permitted to address the court. Appellant also filed a sentencing memorandum which included eleven letters in support. The two victims also addressed the trial court. Each indicated how naïve they were at the time appellant pursued them. Each described how their involvement with appellant was their first sexual experience of any kind. Each asked the trial court to impose the maximum sentence.

         {¶10} The trial court reviewed, among other things, a presentence report and sex offender evaluation report from the Department of Adult Probation, the psychological assessment, and a victim impact statement from each of the two victims.

         {¶11} The presentence report contained an Ohio Risk Assessment System rating of "9/Low" regarding risk of recidivism. The report stated, "[appellant] reported that he wishes this never happened and he feels very sorry for what he did. [Appellant] stated that he is truly remorseful and is hoping to be placed on probation, as a result of these offenses." The report also characterized appellant's prognosis as "decent."

         {¶12} The sex offender evaluation report stated that appellant's risk of reoffending under the actuarial risk prediction tool was low. The report, however, ultimately listed his risk of re-offending as "moderate" due to appellant's inability to fully take responsibility for his actions. As the trial court noted, appellant made a statement during the psychological assessment that he wished the victims would experience "misery" for proceeding with these cases. The report indicated that this failure to take responsibility prohibited appellant from having the appropriate remorse necessary to avoid future similar criminal acts.

         {¶13} Each of the victim impact statements described trauma and ongoing psychological harm resulting from appellant's sexual misconduct with each. Both victims reiterated their request that the maximum sentence be imposed by the trial court.

         {¶14} The eleven letters in support of appellant, attached to his sentencing memorandum, were from family members, friends, colleagues, and other individuals with knowledge of appellant from his childhood until the present. Many of the letters reiterated that he remained remorseful for his actions, although the focus in the majority of the letters was on the impact and harm that a harsh sentence would have on appellant and his family, rather than the harm suffered by the victims.

         {¶15} The state recommended an aggregate sentence of ten years in each case, to be served consecutively, totaling twenty years. This recommendation apportioned differing sentence lengths based on the specific physical actions taken by appellant in each charge.

         {¶16} Appellant was eligible for probation or community control. In the event the court sentenced him to prison, the range of the prison term for each of the two counts of gross sexual Imposition, a fourth-degree felony, was 6 to 18 months. For each of the six counts of sexual battery, a third-degree felony, the penalty ranged from 12 to 60 months.

         {¶17} In considering all of the aforementioned, the trial court ordered the maximum sentence for each charge in both cases, as follows:

Case No. 17-CR-0853:
Gross Sexual Imposition (R.C. 2907.05(A)(1))- 18 months;
Sexual Battery (R.C. 2907.03(A)(7))- 60 months;
Sexual Battery (R.C. 2907.03(A)(7))- 60 months;
Sexual Battery (R.C. 2907.03(A)(7))- 60 ...

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