State v. Blair-WalkerState v. Blair-Walker
COLLEEN MARY O‘TOOLE, J.
{¶1} Joseph Blair-Walker appeals from the August 28, 2012 judgment entry of the Portage County Court of Common Pleas, sentencing him to prison for one count of rape and multiple counts of gross sexual imposition, and finding him to be a sexually violent predator. Mr. Blair-Walker asserts the trial court failed to consider the appropriate statutes in sentencing him, and that the finding he is a sexually violent predator is supported by insufficient evidence. Finding no error, we affirm.
{¶3} Jury trial commenced July 17, 2012. July 20, 2012, the jury returned its verdict, finding Mr. Blair-Walker guilty on one count of rape, and all of the counts of gross sexual imposition.1 The jury failed to enter a verdict on the second count of rape, whereby the trial court declared a mistrial on that count, later entering nolle prosequi on it at the state‘s motion.
{¶4} July 31, 2012, bench trial was held regarding the sexually violent predator specifications. The state introduced evidence that Mr. Blair-Walker had pleaded guilty to three counts of gross sexual imposition in 2004, in Summit County, Ohio. Those crimes were remarkably similar to those presently before the court: Mr. Blair-Walker molested girls aged six, seven, and eleven, one being the daughter of the girlfriend with
{¶5} Sentencing hearing went forward August 27, 2012; the trial court held a resentencing hearing the next day. By its judgment entry filed August 28, 2012, the trial court sentenced Mr. Blair-Walker to serve 25 years to life on the rape. One count of gross sexual imposition merged with the rape for sentencing purposes. The trial court further sentenced Mr. Blair-Walker to 5 years to life on each remaining count of gross sexual imposition, the terms to be served concurrently with each other, but consecutive to that for rape.
{¶6} This appeal timely ensued, Mr. Blair-Walker assigning two errors. The first reads: “The trial court erred in sentencing the appellant by imposing more than the minimum sentence and by imposing an improper consecutive sentence.” The issue presented for review is, “Whether the trial court erred to the appellant‘s prejudice by imposing more than the minimum sentence and by imposing an improper consecutive sentence?” Mr. Blair-Walker makes three assertions in support of this assignment of error: (1) the trial court failed to consider the purposes of felony sentencing,
{¶7} Initially, we must determine the standard of review applicable to alleged sentencing errors. Prior to 2006, Ohio sentencing law created presumptions that offenders be given minimum, concurrent terms of incarceration. See former
{¶8} In 2006, the Ohio Supreme Court held that under Apprendi and Blakely, Ohio‘s sentencing statutes that required a judge to make factual findings in order to increase a sentence beyond presumptive minimum or concurrent terms unconstitutionally infringed on the jury‘s function in violation of the Sixth Amendment. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. As a result, the Court severed those sections and held that courts have full discretion to sentence within the applicable statutory range and to order sentences to be served consecutively. Id. at ¶99-100.
{¶9} In applying Foster, the Ohio Supreme Court later held in 2008 that appellate courts must apply a two-step procedure for review of a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. In the first step, the Kalish Court held that appellate courts shall examine the sentencing court‘s compliance with “all applicable rules and statutes in imposing the sentence” to determine whether the sentence is clearly and convincingly contrary to law, the standard found in
{¶11} Thereafter, in 2009, the reasoning in Foster was partially called into question by Oregon v. Ice, 555 U.S. 160 (2009), where the United States Supreme Court held that a state could require judicial findings of fact to impose consecutive rather than concurrent sentences without infringing on a defendant‘s Sixth Amendment rights. In 2010, the Ohio Supreme Court subsequently determined that Foster remained valid after Ice and the judiciary was not required to make findings of fact prior to imposing maximum or consecutive sentences in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320. However, a trial court was still required to consider the sentencing purposes in
{¶12} On September 30, 2011, Ohio‘s sentencing statutes were revised pursuant to H.B. 86. The Ohio General Assembly enacted a new, but slightly different, requirement of judicial fact-finding under H.B. 86, containing many amendments to criminal sentencing provisions. For example, H.B. 86 revived the language provided in former
{¶13} In reviewing a felony sentence,
{¶14} “(2) The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
{¶15} “The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
{¶16} “(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
{¶17} “(b) That the sentence is otherwise contrary to law.”
{¶18} The Eighth District recently stated in Venes, supra, at ¶20-21:
{¶20} “It is also important to understand that the clear and convincing standard used by
{¶21} Mr. Blair-Walker contends the trial court failed to consider the purposes of felony sentencing. H.B. 86 revised
{¶22} “(A) A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. 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 that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. To achieve those purposes, the sentencing court shall 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.”
{¶24} “The Court considered the purpose of felony sentencing which is to protect the public from future crimes by the Defendant and to punish the Defendant using the minimum sanctions that the Court determines to accomplish those purposes without imposing an unnecessary burden on state or local government resources.
{¶25} “The Court also considered the need for incapacitating the Defendant, deterring the defendant and others from future crime, rehabilitating the Defendant, making restitution to the victim of the offense, the public or both.
{¶26} “The Court also considered the evidence presented by counsel, oral statements, any victim impact statements, the Pre-Sentence Report and the defendant‘s statement.”
{¶27} This language generally adheres to that set forth at
{¶28} Consequently, we find no error relating to the trial court‘s consideration of the purposes of felony sentencing.
{¶29} Mr. Blair-Walker also contends the trial court failed to make the findings required to impose consecutive sentences. These are now set forth at
{¶30} “(4) 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
{¶31} “(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, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
{¶32} “(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.
{¶33} “(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.”
{¶34} In its judgment entry of sentence, the trial court stated:
{¶35} “The Court further finds that the consecutive sentence is necessary to protect the public from future crime or to punish the Defendant; that consecutive sentences are not disproportionate to the seriousness of the Defendant‘s conduct and to the danger the defendant poses to the public. Further, at least two of the multiple offenses were committed as a part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses committed was so great or unusual that
{¶36} These findings, again, closely adhere to the language set forth at
{¶37} We find no error in the trial court‘s findings in support of consecutive sentences.
{¶38} Mr. Blair-Walker also asserts the trial court erred in failing to consider the seriousness and recidivism factors enumerated in
{¶39} “A sentencing court must consider * * * the seriousness and recidivism factors in
{¶40} In this case, the trial court did not include any findings regarding the seriousness and recidivism factors. Again, such findings, even if not required, are useful for appellate review. However, the record in this case contains obvious factors indicating that Mr. Blair-Walker‘s conduct was more serious than normal. The injuries, mental and physical, suffered by his victim are exacerbated by her youth.
{¶41} We find no error in the trial court‘s consideration of the seriousness and recidivism factors.
{¶42} The trial court did not err in sentencing Mr. Blair-Walker to more than minimum terms of imprisonment, or to consecutive terms. The first assignment of error lacks merit.
{¶43} The second assignment or error is, “The trial court committed plain error when it found the appellant to be a violent sexual predator under
{¶44} Regarding a challenge to the sufficiency of evidence, this court has held:
{¶46} “‘“* * * The test (for sufficiency of the evidence) is whether after viewing the probative evidence and the inference drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all of the elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. (Emphasis added.)’
{¶47} “In other words, the standard to be applied on a question concerning sufficiency is: when viewing the evidence ‘in a light most favorable to the prosecution,’ ‘(a) reviewing court (should) not reverse a jury verdict where there is substantial evidence upon which the jury could reasonably conclude that all of the elements of an offense have been proven beyond a reasonable doubt.‘” (Citations omitted.) State v. Schlee, 11th Dist. Lake No. 93-L-082, 1994 Ohio App. LEXIS 5862, *13-14 (Dec. 23, 1994).
{¶48} The term “sexually violent predator” is defined at
{¶49} “(H)(1) ‘Sexually violent predator’ means a person who, on or after January 1, 1997, commits a sexually violent offense and is likely to engage in the future in one or more sexually violent offenses.
{¶50} “(2) For purposes of division (H)(1) of this section, any of the following factors may be considered as evidence tending to indicate that there is a likelihood that the person will engage in the future in one or more sexually violent offenses:
{¶52} “(b) The person has a documented history from childhood, into the juvenile developmental years, that exhibits sexually deviant behavior.
{¶53} “(c) Available information or evidence suggests that the person chronically commits offenses with a sexual motivation.
{¶54} “(d) The person has committed one or more offenses in which the person has tortured or engaged in ritualistic acts with one or more victims.
{¶55} “(e) The person has committed one or more offenses in which one or more victims were physically harmed to the degree that the particular victim‘s life was in jeopardy.
{¶56} “(f) Any other relevant evidence.”
{¶57} Essentially, Mr. Blair-Walker relies on
{¶58} We disagree. As several appellate courts have noted, the decision in Smith was premised on a former version of
{¶59} “In response to Smith, the legislature amended
{¶61} The judgment of the Portage County Court of Common Pleas is affirmed.
{¶62} It appearing from the record that appellant is indigent, costs are waived.
{¶63} The court finds there were reasonable grounds for this appeal.
TIMOTHY P. CANNON, P.J.,
DIANE V. GRENDELL, J.,
concur.