State v. BellomyState v. Bellomy
For Plaintiff-Appellee
KYLE WITT
Fairfield County Prosecutor
239 West Main Street
Lancaster,, OH 43130
For Defendant-Appellant
JAMES A. ANZELMO
446 Howland Drive
Gahanna, OH 43230
{¶1} Appellant, Frederick Bellomy [“Bellomy“], appeals from the December 2, 2019 Judgment Entry of the Fairfield County Court of Common Pleas imposing consecutive sentences after a negotiated guilty plea.
Facts and Procedural History
{¶2} Bellomy was indicted by the Fairfield County Grand Jury on April 10, 2019 on one count of Rape, a felony of the first degree, in violation of
{¶3} Bellomy entered a plea to the counts of Rape and Importuning on October 23, 2019. The count of Tampering with Evidence was dismissed at that time. The trial court during the plea colloquy informed Bellomy,
On Count One, the State is asking, from what I‘m getting, 11 years. You and your counsel are hoping for 10. You‘re hoping that Count Two runs concurrent with Count One. The state is hoping that Count Two runs consecutive with Count One. Sounds like the State wants the full 36 months on Count Two. You‘re hoping for concurrent penalty, which means that you‘re hoping that the total sentence will be 10 years.
Change of Plea hearing, October 23, 2019 at 11-12.
{¶4} On November 20, 2019, a sentencing hearing was held. At that hearing the mother and stepfather of the two victims, C.M. and A.M., gave statements as to the impact that the Rape and Importuning offenses had on each of the children. Bellomy‘s attorney noted that he had confessed to the crimes. Sent. T. Nov. 20, 2019 at 12-13. Counsel further referred to a report from Dr. Smith that indicated as a child and teenager, Bellamy was repeatedly molested by different perpetrators. Sent. T. Nov. 20, 2019 at 23. The molestation was “particularly destructive” to Bellomy, according to the psychiatrist who examined him. Id. Bellomy‘s mother also spoke at the sentencing hearing.
{¶5} Having heard the arguments of the State of Ohio and Bellomy‘s counsel, as well as the statements of the victims’ family members, and, having reviewed the pre sentence investigation report, the trial court sentenced Bellomy to serve consecutive sentences of eleven years on the count of Rape and three years on the count of Importuning for a total sentence of fourteen years.
Assignment of Error
{¶6} Bellomy raises one Assignment of Error,
{¶7} “I. THE TRIAL COURT UNLAWFULLY ORDERED BELLOMY TO SERVE CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS, GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.”
Law and Analysis
{¶8} In his first assignment of error, Bellomy argues that the Court should vacate the trial court‘s decision to impose consecutive sentences because the record does not support the imposition of consecutive sentences. [Appellant‘s Brief at 4].
Law and Analysis
Standard of Appellate Review.
{¶9} We review felony sentences using the standard of review set forth in
{¶10} In State v. Gwynne, a plurality of the Supreme Court of Ohio held that an appellate court may only review individual felony sentences under
{¶11}
{¶12} 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
{¶13} As the Ohio Supreme Court noted in Gwynne,
Because
R.C. 2953.08(G)(2)(a) specifically mentions a sentencing judge‘s findings made underR.C. 2929.14(C)(4) as falling within a court of appeals’ review, the General Assembly plainly intendedR.C. 2953.08(G)(2)(a) to be the exclusive means of appellate review of consecutive sentences. See State v. Vanzandt, 142 Ohio St.3d 223, 2015-Ohio-236, 28 N.E.3d 1267, ¶ 7 (“We primarily seek to determine legislative intent from the plain language of a statute“). WhileR.C. 2953.08(G)(2)(a) clearly applies to consecutive-sentencing review,R.C. 2929.11 and2929.12 both clearly apply only to individual sentences.
158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, ¶¶16-17(emphasis in original).
{¶14} “In order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by
ISSUE FOR APPEAL.
A. Whether the trial court properly imposed consecutive sentences in Bellomy‘s case.
R.C. 2929.14 (C)(4) Consecutive Sentences.
{¶15}
{¶16}
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.
{¶17} 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
{¶18} In this case, the record does support a conclusion that the trial court made all of the findings required by
R.C. 2929.14(C)(4): [T]he 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.
{¶19} In the case at bar, the trial court made this finding on the record and in its sentencing entry. Sent. T., Nov. 20, 2019 at 39-45; Sentencing Entry, filed Dec. 2, 2019 at 3.
R.C. 2929.14(C)(4)(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.
{¶20} This factor does not apply in Bellomy‘s case.
R.C. 2929.14(C)(4)(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.
{¶21} The Court made no findings concerning this factor in Bellomy‘s case.
R.C. 2929.14(C)(4)(c): The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶22} In the case at bar, the trial court made this finding on the record and in its sentencing entry. Sent. T., Nov. 20, 2019 at 39-45; Sentencing Entry, filed Dec. 2, 2019 at 3.
B. Whether the trial court‘s decision to impose consecutive sentences in Bellomy‘s case is supported by the record.
{¶23} According to the Ohio Supreme Court, “the record must contain a basis upon which a reviewing court can determine that the trial court made the findings required by
{¶24} The plurality of the Ohio Supreme Court in Gwynne held that appellate courts may not review consecutive sentences for compliance with
{¶25} In the case at bar, the trial court heard from the parents of the victims, heard from the witnesses presented by Bellomy, heard arguments from the state and defense counsel and reviewed the presentence investigation report before imposing a sentence.
{¶26} In the case at bar, the record supports that the harm caused to the victims was “more serious” because of the age of the victims [
{¶27} Given that the trial court is not obligated to refer to every factor listed in
{¶28} Accordingly, the trial court considered the purposes and principles of sentencing [
{¶29} 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. We also find that the record in the case at bar supports the trial court‘s findings under
{¶30} Bellomy has failed to clearly and convincingly show that the trial court failed to consider the principles of felony sentencing, or that the sentence is otherwise contrary to law.
{¶31} 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. Further, the record contains evidence supporting the trial court‘s findings under
{¶32} Bellomy‘s sole Assignment of Error is overruled.
{¶33} The judgment of the Fairfield County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Wise, John, J., and
Baldwin, J., concur