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State v. J.L.H.

Court of Appeals of Ohio, Tenth District

December 5, 2019

State of Ohio, Plaintiff-Appellee,
v.
[J.L.H.], Defendant-Appellant.

          APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 18CR-3651

          Ron O'Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellee. Argued: Barbara A. Farnbacher.

          Todd W. Barstow, for appellant. Argued: Todd W. Barstow.

          DECISION

          BROWN, J.

         {¶ 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 error:

[I.] THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY SENTENCING HIM IN CONTRAVENTION OF OHIO'S FELONY SENTENCING STATUTES.
[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 STATUTES.

         {¶ 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 syllabus.

         {¶ 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 likely recidivism.

         {¶ 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 ...


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