State v. BakerState v. Baker
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas Court, Case No. 11CR156.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Christopher Berhalter, Prosecuting Attorney, Attorney Daniel Fry, Assistant Prosecuting Attorney, 147-A West Main Street, St. Clairsville, Ohio 43950
For Defendant-Appellant: Attorney Thomas Ryncarz, 3713 Central Avenue, Shadyside, Ohio 43947
{¶1} Defendant-appellant Craig Dean Baker appeals the sentence entered by the Belmont County Common Pleas Court upon his guilty pleas to four counts of unlawful sexual conduct with a minor. He contends that the court abused its discretion in ordering his four six-year sentences to run consecutively. He also argues that defense counsel was ineffective at sentencing by failing to ask for concurrent sentences and by failing to present mitigating evidence. For the following reasons, the judgment of the trial court is affirmed.
STATEMENT OF THE CASE
{¶2} Appellant, who was forty-two years of age at the time of the offense, met a fourteen-year-old girl on the internet in November of 2010 while they were playing an online game. She apparently told him that she was nineteen. They conversed online, in telephone calls, and in text messages. They told each other that they loved each other, had “cyber-sex” in the online game, exchanged photographs of themselves (including close-ups of their private parts), and engaged in “phone sex.”
{¶3} In June of 2011, appellant traveled from Iowa to Belmont County, Ohio to meet the girl. He stayed in the woods behind her mother‘s house for five days. When the mother left for work, appellant entered the house and had sexual intercourse with the girl. This occurred four times while he lived in the woods.
{¶4} He was indicted on four counts of unlawful sexual conduct in violation of
ASSIGNMENT OF ERROR NUMBER ONE
{¶6} Appellant sets forth two assignments of error, the first of which provides:
{¶7} “THE TRIAL COURT COMMITTED ERROR IN IMPOSING CONSECUTIVE SENTENCES BECAUSE THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING SAID SENTENCES UPON THE APPELLANT.”
{¶8} Under the two-fold approach to our review of a sentence, we first ensure that the sentence is not clearly and convincingly contrary to law, and we then determine whether the trial court abused its discretion in selecting the sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, at ¶ 4, 17-18 (O‘Connor, J., plurality); State v. Mann, 7th Dist. No. 08JE12, 2008-Ohio-6365, ¶ 24 (adopting plurality decision). An abuse of discretion means more than an error of judgment; it implies that the court‘s attitude is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). In the context of felony sentencing, an abuse of discretion can be found if the sentencing court unreasonably or arbitrarily weighed the factors in
{¶9} Appellant was sentenced to six years on each offense for which the statutory range was two to eight years. See
{¶10} The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions to accomplish this without imposing an unnecessary burden on government resources.
{¶11} The seriousness factors indicating that the offender‘s conduct is more serious than conduct normally constituting the offense include: (1) the victim‘s physical or mental injury was exacerbated due to the victim‘s physical or mental condition or age; (2) the victim suffered serious physical, psychological, or economic harm; (3-5) relating to the offender‘s public office, position of trust in the community, or profession; (6) the offender‘s relationship with the victim facilitated the offense; (7) the offender committed the offense for hire or as a part of an organized criminal activity; (8) the offender was motivated by prejudice based on race, ethnic background, gender, sexual orientation, or religion; and (9) certain offenses against family or household members.
{¶12} The seriousness factors that indicate that the offender‘s conduct is less serious than conduct normally constituting the offense include: (1) the victim induced or facilitated the offense; (2) the offender acted under strong provocation; (3) the offender did not cause or expect to cause physical harm to any person or property; and (4) there are substantial grounds to mitigate the offender‘s conduct, although the grounds are not enough to constitute a defense.
{¶14} The recidivism factors indicating that the offender is not likely to commit future crimes include: (1) prior to committing the offense, the offender was not adjudicated a delinquent child; (2) prior to committing the offense, the offender was not convicted of a criminal offense; (3) prior to committing the offense, the offender led a law-abiding life for a significant number of years; (4) the offense was committed under circumstances not likely to recur; and (5) the offender shows genuine remorse for the offense.
{¶15} As for seriousness factors here, it is acknowledged that appellant did not cause physical harm to person or property. See
{¶17} The court did not find that the victim induced or facilitated the offense, and appellant does not argue this now, likely because the victim was a fourteen-year-old girl being courted by a forty-two year old male. See
{¶18} As for recidivism, appellant had been convicted in 2006 of a sex offense in Iowa. See
{¶19} Likewise, it cannot be said that appellant led a law-abiding life for a significant number of years prior to the offense as he had been in prison for a similar offense in the years prior to this offense. See
{¶20} The court noted that appellant seemed to have served honorably in the United States Air Force for a year (although, this had not been verified), that he expressed remorse at sentencing, and that the victim was spared from testifying due to appellant‘s guilty plea. Still, the court believed that appellant lacked genuine remorse and concern for the victim and that he failed to appreciate the serious consequences that his acts had on the victim, her family, and the community. See
{¶21} Although running each six-year sentence consecutively for a total of twenty-four years may seem like a long sentence for a non-violent offense against a person who appellant considers a consenting victim, appellant did engage in sexual conduct with a fourteen-year-old on four separate days. It could be noted that the maximum sentence was eight years on each count for a total of thirty-two years if run consecutively. Considering all of these circumstances, especially the fact that he was on parole for a sexual offense against a minor during his relationship with this minor, we conclude that it was not unreasonable, arbitrary, or unconscionable for the trial court to determine that the sentences should be run consecutively. This assignment of error is overruled.
ASSIGNMENT OF ERROR NUMBER TWO
{¶22} Appellant‘s second assignment of error contends:
{¶24} To prove an allegation of ineffective assistance of counsel, the defendant must satisfy the two-prong Strickland test. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, he must establish that counsel‘s performance fell below an objective standard of reasonable representation. Id. at 687. Second, he must show that he was prejudiced by that deficient performance. Id. A defendant can establish prejudice by showing that, but for counsel‘s errors, the result of the trial would have been different. State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373, ¶ 3 of syllabus.
{¶25} In arguing ineffective assistance of counsel at sentencing, appellant complains that counsel did not present arguments at the sentencing hearing. He argues that counsel should have asked the court to impose concurrent sentences as appellant had asked in his written plea agreement. Appellant also contends that counsel should have presented mitigating evidence such as testimony from appellant‘s family. And, he urges that counsel should have inquired into whether a mental health evaluation had been conducted, noting that counsel asked at the plea hearing if one would be conducted and the court stated that it would like one. (Plea Tr. 10).
{¶26} The failure to present evidence at sentencing is often a strategic decision. See State v. Keith, 79 Ohio St.3d 514, 530, 684 N.E.2d 47 (1997) (capital case); State v. Adams, 7th Dist. No. 08MA246, 2012-Ohio-2719 at ¶ 65. We have thus held that counsel‘s silence at sentencing was not deficient performance as it may have been a tactical decision. State v. Maguire, 7th Dist. No. 08MA188, 2009-Ohio-4393, ¶ 20. We noted that the defendant himself spoke at sentencing, expressing his remorse. Id. We alternatively stated that even if there was deficient performance, prejudice was not established because there was nothing to suggest that the sentence would have been different had counsel asked for concurrent sentences. Id. at 21.
{¶28} As to the failure to present evidence, there is no indication that mitigating evidence would have even existed. That is, we do not know if his family was willing to present evidence or if a mental health evaluation would have been beneficial. Thus, these are not topics for direct appeal. See Adams, 7th Dist. No. 08MA246 at ¶ 66-67 (reopening denied as potential availability of favorable expert testimony for capital case was speculative and de hors the record). Finally, it can also be a tactical decision to avoid blaming the victim in a case such as this. Accordingly, this assignment of error is overruled.
{¶29} For the foregoing reasons, the judgment of the trial court is affirmed.
Donofrio, J., concurs.
DeGenaro, P.J., concurs.