from the Franklin County Court of Common Pleas C.P.C. No.
O'Brien, Prosecuting Attorney, and Barbara A. Farnbacher,
for appellee. Argued: Barbara A. Farnbacher.
W. Barstow, for appellant. Argued: Todd W. Barstow.
1} J.L.H., defendant-appellant, appeals from a
judgment of the Franklin County Court of Common Pleas, in
which the court found him guilty of two counts of sexual
battery, violations of R.C. 2907.03 and third-degree
felonies, and one count of gross sexual imposition, a
violation of R.C. 2907.05 and a fourth-degree felony.
2} In June 2018, appellant's 13-year-old
step-granddaughter reported to a child advocacy center that
appellant put his penis in her vagina and touched her vagina
with his penis and hand twice a week during May 2018.
Appellant subsequently admitted to family members that he
engaged in some sexual contact but denied that any
penetration had occurred.
3} On June 27, 2018, appellant was indicted on four
counts of rape and two counts of gross sexual imposition. On
March 15, 2019, appellant pled guilty to two counts of the
stipulated lesser-included offense of sexual battery, and one
count of gross sexual imposition. The trial court held a
sentencing hearing on May 6, 2019. At the conclusion of the
hearing, the trial court made numerous statutorily required
findings, which are the subject of the present appeal. On May
7, 2019, the trial court issued a judgment entry in which it
sentenced appellant to five years incarceration on each
sexual battery count and one year incarceration on the gross
sexual imposition count, to be served consecutively, for a
total sentence of 11 years. Appellant appeals the judgment of
the trial court, asserting the following assignments of
[I.] THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT
BY SENTENCING HIM IN CONTRAVENTION OF OHIO'S FELONY
[II.] THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY
IMPROPERLY SENTENCING HIM TO CONSECUTIVE TERMS OF
INCARCERATION IN CONTRAVENTION OF OHIO'S SENTENCING
4} Appellant argues in his first assignment of error
the trial court erred when it sentenced him to the maximum
sentences on the sexual battery counts in contravention of
Ohio's felony sentencing statutes. Pursuant to R.C.
2953.08(G)(2), an appellate court will reverse a sentence
"only if it determines by clear and convincing evidence
that the record does not support the trial court's
findings under relevant statutes or that the sentence is
otherwise contrary to law." State v. Marcum,
146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. Clear and
convincing evidence is that "which will produce in the
mind of the trier of facts a firm belief or conviction as to
the facts sought to be established." Cross v.
Ledford, 161 Ohio St. 469 (1954), paragraph three of the
5} A trial court's imposition of a maximum
prison term is not contrary to law as long as the court
sentences the offender within the statutory range for the
offense, and in so doing, considers the purposes and
principles of felony sentencing set forth in R.C. 2929.11 and
the seriousness and recidivism factors set forth in R.C.
2929.12. State v. Santos, 8th Dist. No.
103964, 2016-Ohio-5845, ¶ 12. Although a trial court
must consider the factors in R.C. 2929.11 and 2929.12, there
is no requirement that the court state its reasons for
imposing a maximum sentence, or for imposing a particular
sentence within the statutory range. Id. There is no
requirement in R.C. 2929.12 that the trial court states on
the record it has considered the statutory criteria
concerning seriousness and recidivism or even discussed them.
State v. Hayes, 5th Dist. No. 18CA10,
2019-Ohio-1629, ¶ 49, citing State v. Polick,
101 Ohio App.3d 428, 431 (4th Dist.1995).
6} "R.C. 2929.11 provides, in pertinent part,
that the 'overriding purposes of felony sentencing are to
protect the public from future crime and to punish the
offender.'" State v. Smith, 3d Dist. No.
13-15-17, 2015-Ohio-4225, ¶ 10, quoting R.C. 2929.11(A).
"In advancing these purposes, sentencing courts are
instructed to 'consider the need for incapacitating the
offender, deterring the offender and others from future
crime, rehabilitating the offender, and making restitution to
the victim of the offense, the public, or both.'"
Id., quoting R.C. 2929.11(A). "In accordance
with these principles, the trial court must consider the
factors set forth in R.C. 2929.12(B)-(E) relating to the
seriousness of the offender's conduct and the likelihood
of the offender's recidivism." Id., citing
R.C. 2929.12(A)." 'A sentencing court has broad
discretion to determine the relative weight to assign the
sentencing factors in R.C. 2929.12." Id. at
¶ 15, quoting State v. Brimacombe, 195 Ohio
App.3d 524, 2011-Ohio-5032, ¶ 18 (6th Dist.), citing
State v. Arnett, 88 Ohio St.3d 208, 215 (2000).
7} In the present case, appellant argues the trial
court had no evidence from which to conclude that he was
likely to commit sex crimes in the future. He claims that
none of the factors under R.C. 2929.12(D) and (E) apply or
indicate a likelihood of recidivism, and the trial court
based its decision to impose maximum sentences on nonexistent
evidence. He claims there is nothing in the presentence
investigation report that indicated any likelihood of repeat
behavior, and the trial court did not receive any
psychological or other scientific evidence for its claim of
8} R.C. 2929.12(D) provides five factors a trial
court must consider, along with any other relevant factors,
as factors indicating that the offender is likely to commit
future crimes. The listed factors under R.C. 2929.12(D) are
largely inapplicable here. R.C. 2929.12(E) provides five
factors a trial court must consider, along with any other
relevant factors, as factors indicating that the offender is
not likely to ...