State v. BellState v. Bell
For Plaintiff-Appellee
GERALD ANDERSON II Assistant Prosecutor 27 North Fifth St. Zanesville, OH 43702-0189
For Defendant-Appellee
ERIC ALLEN 4605 Morse Road, Suite 201 Gahanna, OH 43240
{¶1} Defendant-appellant, Michael A. Bell (“Bell“), appeals from the consecutive maximum sentences imposed for Sexual Battery and Gross Sexual Imposition.
Facts and Procedural History
{¶2} Bell was indicted on or about August 19, 2015, on four counts of Gross Sexual Imposition, each a felony of the third degree, three counts of Rape, each count a felony of the first degree, and three counts of Sexual Battery, each a felony of the third degree. The victim of those offenses is Bell‘s daughter. That case was given case number CR2015-02461.
{¶3} Bell was subsequently indicted on or about March 9, 2016, on two counts of Gross Sexual Imposition, each count a felony of the fourth degree, and one count of Endangering Children, a felony of the second degree. The victim of those offenses was Bell‘s other daughter. That case was given case number CR2016-0102.
{¶4} Bell resolved both of these cases together in a universal plea negotiation. On July 19, 2016, Bell pled guilty to one count of Sexual Battery on the CR2015-0246 case, and one count of Gross Sexual Imposition on the CR2016-0102 case. All of the other counts were dismissed by the state. Part of the reason for such a plea negotiation was the consideration of the victims and their desire not to relive their experiences on trial. (Sentencing Transcript at 11).
{¶5} Bell was sentenced on both cases on August 22, 2016. Prior to imposing sentence, the trial court heard letters from the mother of the victims and the victims expressing the injury caused to them by being sexually assaulted by their father and the
Assignments of Error
{¶6} “I. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO CONSECUTIVE SENTENCES AS THE COURT FAILED TO ENGAGE IN THE REQUISITE THREE PART ANALYSIS REQUIRED TO SENTENCE A DEFENDANT TO CONSECUTIVE SENTENCES BY FAILING TO FIND THAT ANY OF THE THREE FACTORS LISTED IN R.C. 2929.14(C)(4)(a)-(e) APPLIED.
{¶7} “II. THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT TO THE MAXIMUM SENTENCE FOR BOTH COUNTS.”
Law and Analysis
{¶8} In accordance with
{¶9} We review felony sentences using the standard of review set forth in
{¶10} Accordingly, pursuant to Marcum this Court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that: (1) the record does not support the trial court‘s findings under relevant statutes, or (2) the sentence is otherwise contrary to law.
{¶11} Clear and convincing evidence is that evidence “which will provide 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, 120 N.E.2d 118(1954), paragraph three of the syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the degree of proof required to sustain an issue must be clear and convincing, a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477 120 N.E.2d 118.
R.C. 2929.13(B).
{¶12}
{¶13} In relevant part the statute provides,
(b) The court has discretion to impose a prison term upon an offender who is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence or that is a qualifying assault offense if any of the following apply:
* * *
(v) The offense is a sex offense that is a fourth or fifth degree felony violation of any provision of Chapter 2907. of the Revised Code.
{¶14} Accordingly, the trial court had discretion to impose a prison term for Gross Sexual Imposition.
R.C. 2929.13(D).
{¶15}
R.C. 2929.14 (B)(2)(e).
{¶16}
R.C. 2929.14 (C)(4) Consecutive Sentences.
{¶17}
{¶18} In Ohio, there is a statutory presumption in favor of concurrent sentences for most felony offenses.
{¶19}
If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to
section 2929.16 ,2929.17 , or2929.18 of the Revised Code , or was under post-release control for a prior offense.(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶20} Thus, in order for a trial court to impose consecutive sentences the court must find that consecutive sentences are necessary to protect the public from future crime or to punish the offender. The court must also find that consecutive sentences are not disproportionate to the offender‘s conduct and to the danger the offender poses to the public. Finally, the court must make at least one of three additional findings, which include that (a) the offender committed one or more of the offenses while awaiting trial or sentencing, while under a sanction imposed under
{¶21} Recently, in State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659, syllabus, the Supreme Court of Ohio stated that:
In order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by
R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry, but it has no obligation to state reasons to support its findings.
{¶23} In this case, the record does support a conclusion that the trial court made all of the findings required by
{¶24} At sentencing the trial court found,
The Court finds that consecutive sentences are necessary to protect the public and punish the offender. Consecutive sentences are not
disproportionate for the seriousness of the conduct and the danger you pose to the public.
Sentencing Transcript at 16. The findings are reflecting in the court‘s sentencing entries. Judgment Entry on Sentence, filed August 25, 2016 at 2.
{¶25} This provision does not apply to Bell‘s case.
{¶26} In the case at bar, the trial court found,
The Court finds that multiple offenses with which you were sentenced were -- the harm caused by those were so great and unusual that no single prison term for any of the offenses committed would adequately reflect the seriousness of your conduct.
Sentencing Transcript at 16. The findings are reflecting in the court‘s sentencing entries. Judgment Entry on Sentence, filed August 25, 2016 at 2.
{¶27} The Court made no findings concerning this factor in Bell‘s case.
{¶28} We find that the record in the case at bar clearly and convincingly supports the trial court‘s findings under
R.C. 2929.20.
{¶29}
R.C. 2929.11 and R.C. 2929.12 and Maximum Sentences.
{¶30} A trial court‘s imposition of a maximum prison term for a felony conviction is not contrary to law as long as the sentence is within the statutory range for the offense, and the court considers both the purposes and principles of felony sentencing set forth in
We note that some sentences do not require the findings that
R.C. 2953.08(G) specifically addresses. Nevertheless, it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors inR.C. 2929.11 and2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.
146 Ohio St.3d at ¶23, 2016-Ohio-1002, 59 N.E.3d 1231 (emphasis added).
{¶32}
{¶33}
{¶35} “Thus, a record after Foster may be silent as to the judicial findings that appellate courts were originally meant to review under
{¶36} Thus, post-Foster, “there is no mandate for judicial fact-finding in the general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster at ¶ 42. State v. Rutter, 5th Dist. No. 2006-CA-0025, 2006-Ohio-4061; State v. Delong, 4th Dist. No. 05CA815, 2006-Ohio-2753 at ¶ 7-8. Therefore, post-Foster, trial courts are still required to consider the general guidance factors in their sentencing decisions.
{¶37} There is no requirement in
{¶38} In the case at bar, the trial court heard victim impact letters from the two victims, heard a letter from the victims’ mother, heard arguments from the state and defense counsel, heard Bell‘s statement, reviewed the presentence investigation report, read the other letters sent, and had a brief interaction with Bell before imposing a sentence.
{¶39} In the case at bar, the record shows that the trial court considered all relevant factors, including the harm caused to the victims, that Bell‘s relationship to his victims facilitated the offenses and the delayed prosecution of the victimization, and that Bell still failed to realize that he victimized his daughters. (Sentencing Transcript at 9-11, 15). “You victimized your own children, and then when I say that, you look at me quizzically like it didn‘t happen. You victimized your children. They are victims. You‘re the perpetrator. You still show no remorse, and I find that astounding.” Sentencing Transcript at 15.
{¶40} Accordingly, the trial court considered the purposes and principles of
{¶41} Upon review, we find that the trial court‘s sentencing on the charges complies with applicable rules and sentencing statutes. The sentence was within the statutory sentencing range. Furthermore, the record reflects that the trial court considered the purposes and principles of sentencing and the seriousness and recidivism factors as required in
{¶42} We find the trial court properly considered the purposes and principles of sentencing set forth in
{¶43} Bell‘s first and second assignments of error are overruled.
By Gwin, P.J.,
Wise, J., and
Baldwin, J., concur