State v. Apger
2012 Ohio 1360
Ohio Ct. App.2012Background
- In February 2011, Apger was charged by a 16-count indictment for rape, kidnapping, and gross sexual imposition arising from raping his biological daughter beginning when she was nearly six.
- Plea agreement resulted in guilty pleas to three amended rape counts; remaining charges were Nolled and SVP specs removed from the counts.
- Counts 2, 4, and 6 were amended to R.C. 2907.02(A)(2); the sexually violent predator specification was deleted from each count.
- September 22, 2011: the trial court sentenced Apger to 10 years on each of Counts 2, 4, and 6, consecutive, aggregate 30 years, and classified him as a Tier III sexual offender.
- September 26, 2011: on defense request, the court held a second sentencing hearing and sentenced 8 years on each count, consecutive, aggregate 24 years; continued Tier III classification.
- Crim.R. 32 journalization issue: the 9/22/2011 sentence was not journalized, prompting the court to conduct the subsequent hearing under authority recognized by State ex rel. White v. Junkin and related cases.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the sentence is contrary to law. | Apger argues the court failed to consider R.C. 2929.11/2929.12 factors. | State contends the court properly considered factors and imposed a lawful sentence within range. | Not contrary to law. |
| Whether the 24-year sentence was an abuse of discretion. | Apger claims the court relied on groundless speculation and ignored remorse. | State argues the court properly weighed actions, impact, and psychiatric reports. | No abuse of discretion. |
Key Cases Cited
- State v. Kalish, 120 Ohio St.3d 23 (2008-Ohio-4912) (two-step review for felony sentencing under Foster framework)
- State v. Foster, 109 Ohio St.3d 1 (2006-Ohio-856) (removal of mandatory judicial findings; discretionary sentencing standard)
- State ex rel. White v. Junkin, 80 Ohio St.3d 335 (1997) (authority to correct nonjournalized judgments)
- State v. Baker, 119 Ohio St.3d 197 (2008-Ohio-3330) (clarified sentencing review standards post-Foster)
- State v. Lester, 130 Ohio St.3d 303 (2011-Ohio-5204) (modification of sentencing procedures after Foster)
- State v. Carlisle, 131 Ohio St.3d 127 (2011-Ohio-6553) (post-Foster sentencing considerations and procedures)
- State v. Carlisle, 131 Ohio St.3d 127 (2011-Ohio-6553) (see above)