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State v. Perry

Court of Appeals of Ohio, Seventh District, Mahoning

June 26, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
ARNOLD J. PERRY, Defendant-Appellant.

          Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2016 CR 1045

          Affirmed. Atty. Paul J. Gains, Mahoning County Prosecutor and Atty. Ralph M. Rivera, for Plaintiff-Appellee

          Atty. Wesley A. Johnston, for Defendant-Appellant.

          BEFORE: Cheryl L. Waite, Gene Donofrio, David A. D'Apolito, Judges.

          OPINION AND JUDGMENT ENTRY

          WAITE, P.J.

         {¶1} Appellant Arnold J. Perry appeals his 27 year sentence entered June 12, 2018 in the Mahoning County Common Pleas Court. Appellant received this prison term following his convictions on two counts of rape and one count of sexual battery. Based on the record in this matter, Appellant's sentence is not clearly and convincingly contrary to law and the record supports the sentence. Appellant's assignment is without merit and the judgment of the trial court is affirmed.

         Factual and Procedural History

         {¶2} The underlying facts in the record are limited. Appellant was apparently homeless for a time and the victims' mother allowed him to stay in her home. Appellant subsequently repeatedly raped the mother's 14 year old twins and another 12 year old daughter. All three children subsequently became pregnant at approximately the same time. One of the 14 year old children's pregnancy was detected early and the pregnancy was terminated. Because the other two children's pregnancies were not detected until later in gestation, these children gave birth. The infants reside in the home with the victims and the victims' mother who acts as the primary caretaker.

         {¶3} Appellant was indicted on September 15, 2016 on two charges of rape, felonies in the first degree, and two counts of unlawful sexual conduct with a minor, felonies in the third degree. On February 16, 2017, an amended superseding indictment was filed charging Appellant with two counts of rape, in violation of R.C. 2907.02(A)(2), (B), felonies in the first degree; three counts of unlawful sexual conduct with a minor, in violation of R.C. 2907.04(A), (B)(3), felonies in the third degree; one count of sexual battery, in violation of R.C. 2907.03(A)(3), (B), felonies in the third degree; and one count of rape, in violation of R.C. 2907.02(A)(1)(b), (B), felony/life.

         {¶4} On November 14, 2017, Appellant pleaded guilty to two counts of rape, each a felony in the first degree; and one count of sexual battery, a third degree felony. The state dismissed the remaining charges.

         {¶5} A sentencing hearing was held on February 8, 2018. Appellant was sentenced to eleven years of incarceration for count one, rape, in violation of R.C. 2907.02(A)(2), (B); a felony in the first degree; five years for count five, sexual battery, in violation of R.C. 2907.03(A)(3), (B), a felony of the third degree; and eleven years on count seven, rape, in violation of R.C. 2907.02(A)(2), (B), a felony of the first degree.

         {¶6} Defendant filed a delayed notice of appeal on June 4, 2018. App.R. 5(A) allows a criminal defendant to file a motion for leave to appeal after the expiration of the 30-day period provided by App.R. 4(A). Appellant contended that he was not timely notified of his right to appeal and his right to counsel on appeal. While his sentencing entry indicates that Appellant was notified of his appellate rights under R.C. 2953.08, there is no mention of the right to counsel or of his Crim.R. 32(B) appellate rights. Thus, we concluded on July 12, 2018, that the delay in filing this appeal was reasonable.

         ASSIGNMENT OF ERROR

         THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO CONSECUTIVE PRISON TERMS WHEN CLEARLY AND CONVINCINGLY THE ...


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