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State v. Stephens

Court of Appeals of Ohio, Eleventh District, Portage

August 5, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
HEATHER M. STEPHENS, Defendant-Appellant.

          Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2018 CR 00373.

         Judgment: Affirmed.

          Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, For Plaintiff-Appellee.

          Harvey B. Bruner, Harvey B. Bruner Co., LPA, For Defendant-Appellant.

          OPINION

          MATT LYNCH, J.

         {¶1} Defendant-appellant, Heather M. Stephens, appeals from her five-year sentence for Attempted Rape and Gross Sexual Imposition in the Portage County Court of Common Pleas. The issue to be determined in this case is whether a trial court errs when it sentences a defendant to serve a prison term for Attempted Rape and a maximum prison term for Gross Sexual Imposition when she has no criminal record, is not a risk for recidivism, and the court does not state at sentencing that it considered the required sentencing factors. For the following reasons, we affirm the judgment of the lower court.

         {¶2} On April 19, 2018, Stephens was indicted by the Portage County Grand Jury for five counts of Rape, felonies of the first degree, in violation of R.C. 2907.02(A)(1)(b), and three counts of Gross Sexual Imposition, felonies of the third degree, in violation of R.C. 2907.05.

         {¶3} On August 14, 2018, a plea hearing was held at which Stephens pled guilty to two amended counts of Attempted Rape, pursuant to R.C. 2923.02 and 2907.02, felonies of the second degree, and two counts of Gross Sexual Imposition as charged in the indictment. A Nolle Prosequi was entered by the State on the remaining counts. The guilty plea was accepted by the trial court and a Written Plea of Guilty was filed on the same date.

         {¶4} A sentencing hearing was held on October 22, 2018. Defense counsel argued that Stephens had no criminal record, was presently employed as an assistant manager at a gas station, and had family support as well as letters attesting to her good character. He argued that a sex offender evaluation was favorable to her and no factors were present indicating a high risk for recidivism. The State requested a sentence of one year in prison. The court noted that this was an "egregious case" and that Stephens was old enough to understand what she had done was wrong. Stephens apologized to her family and the victim and stated that she accepted responsibility for her actions. The court observed that the prosecutor would have asked for a more severe penalty if Stephens were a man. The court stated that "this type of behavior is not going to be tolerated" and found she was not amenable to community control sanctions. The court stated: "I took into consideration if - - if you didn't have a glowing history and the psychological report did not come back favorable for you, * * * you could've been looking at at least eight years in prison, at least." It sentenced her to four years in prison for each count of Attempted Rape and five years for each count of Gross Sexual Imposition, with the sentences to run concurrently.

         {¶5} The court issued an October 24, 2018 Order and Journal Entry in which it memorialized its sentence and stated that it had considered the purpose of felony sentencing and the evidence, statements, and presentence report.

         {¶6} Stephens timely appeals and raises the following assignments of error:

         {¶7} "[1.] The Trial Court Erred in Sentencing Appellant to a Prison Term.

         {¶8} "[2.] The Trial Court Erred in Sentencing Appellant to a Maximum Term of Imprisonment on Her Convictions for Gross Sexual Imposition."

         {¶9} In her first assignment of error, Stephens argues that the record does not support the trial court's decision to order her to serve ...


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