{¶ 1} “My object all sublime
I shall achieve in time—
To let the punishment fit the crime—
The punishment fit the crime.”
Gilbert and Sullivan, The Mikado (1885), A more humane Mikado.
{¶ 2} Ralph Bowser appeals what he believes is a punishment that does not fit the crime. Under a plea agreement, the prosecutor ceased prosecuting an indicted count of gross sexual imposition, and Bowser pleaded no contest'to a misdemeanor charge of child endangerment. Despite the nonsexual nature of his plea, the trial court conditioned its community-control sanction on, among other things, Bowser being supervised by a sex-offender specialist and successfully completing a male-sex-offender treatment program. By imposing these conditions, Bowser argues, the court abused its discretion and violated his procedural due-process rights under the United States and Ohio Constitutions.
{¶ 3} We disagree. We think that the trial court could reasonably believe that based on the prеsentence investigation report (“PSI”), its punishment fit Bowser’s true crime, and that the conditions fit what the court saw as the facts underlying the offense to which he pleaded. Therefore, we will affirm.
I
{¶ 4} In April 2008, the grand jury indicted Bowser on one count of gross sexual imposition with a substantially impaired person, a violation of R.C. 2907.05(A)(5) and a fourth-degree felony. Prompting the indictment had been Bowser’s stepdaughter S.E.’s allegations that he had sexual intercourse with her. Bowser often cared for S.E. during the day — she has significant mental impairment — when he lived with S.E. and her mother, his former wife. (Bowser had since moved out because he and S.E.’s mother separated and were pursuing divorce.) Not until June 2009 did Bowser reach a plea agreement with the prosecutor. The prosecutor agreed to cease prosecution (nolle prosequi) of the indicted felony, and Bowser agreed tо plead no contest to a bill of information that charged him with the misdemeanor offense of child endangerment, a violation of R.C. 2919.22(A).
{¶ 6} Roughly a month later, Bowser reappeared before the court for sentencing. After defense counsel spoke, the court allowed S.E.’s mother to speak. Her mother told the court of the tеrrible effects that Bowser’s abuse had on the family and on S.E.; she characterized the abuse as both physical and sexual. She concluded by reading a statement from S.E. to the judge in which S.E. told the judge that Bowser had sexually abused her. Almost immediately after S.E.’s mother finished speaking, and without any introductory comments, the court sentenced Bowser to 15 days in jail and community control. The community-control conditions the court imposed on Bowser included the provisions that while on probation he be supervised by a sex-offender specialist and that he attend and successfully complete a male-sex-offender treatment program.
{¶ 7} Bowser timely appealed his sentence, and he now contests these two conditions.
II
{¶ 8} Bowser argues that the trial court’s decision to impose the contested conditions is erroneous for two reasons: (1) the decision reflects an abuse of discretion and (2) the conditions violate his procedural due-process rights under the United States and Ohio Constitutions. We are not persuaded by either reason.
A
{¶ 9} Bowser’s first assignment of error reads:
{¶ 10} “The trial court abused its discretion in sentencing Bowser to sexually related community control sanctions where he entered a no contest plea to a nonsexual offense.”
{¶ 11} In essence, Bowser argues that the court cannot impose the community-control conditions on him because he pleaded no contest only to a nonsexual offense and stipulated only to nonsexual facts. We do not think the trial court abused its discretion. See In re D.S.,
{¶ 12} The misdemeanor sentencing statutes give courts broad discretion to fashion sentences that are appropriate to each case. See R.C. 2929.22(A). An appropriate sentence, according to the statutes, is one reasonably calculated to achieve the statutory purposes and principles of sentencing. See R.C. 2929.22(A); see also R.C. 2929.21(B). The purposes of sentencing are two-fold— to protect the public and to punish the offender. R.C. 2929.21(A). And a principle of sentencing is that sаnctions should be designed with an eye to changing the offender’s behavior and rehabilitating him. See R.C. 2929.21(A). So when deciding what conditions should accompany a community-control sanction, courts must consider how to achieve these purposes and principles in the unique circumstances of the particular case. See In re D.S. at ¶ 6 (juvenile courts must consider the statutory purposes of juvenile disposition when determining conditions under a community-control sanction).
{¶ 13} From these purposes and principles, it follows that “[probationary conditions are to be related to the circumstances of the offense.” In re D.S. at ¶ 16, citing State v. Jones (1990),
{¶ 14} The practice of considering so much information before sentencing has deep historical roots in this country. The United States Supreme Court has said that “both before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.” Williams v. New York (1949),
{¶ 15} To acquire this grasp, it is well established in Ohio law that the court may consider infоrmation beyond that strictly related to the conviction offense. For example, the statute governing the contents of a PSI report simply says, “[T]he officer making the report shall inquire into the circumstances of the offense and the criminal record, social history, and present condition of the defendant.” R.C. 2951.03(A). The statutory directive no doubt results in the sentencing court considering evidence that would be inadmissible at trial, State v. Davis (1978),
{¶ 17} In his appeal, the offender argued that since he pleaded guilty to a nonviolent crime and the firearm specification was dismissed, the court аbused its discretion by considering the allegations that the defendant used a gun. We concluded that regardless of the plea agreement, based on the evidence presented at the hearing and the information in the PSI report, the trial court could reasonably believe that the defendant in fact did use a gun to commit the robbery. The agreement, we said, changed none of the underlying facts and circumstances of the offеnse. Rather, the prosecutor agreed to reduce the aggravated-robbery charge and to dismiss the firearm specification for other, unrelated reasons — such as to obtain a guilty plea and to avoid a trial. Nothing prohibited the court, we said, from considering what it regarded as the underlying facts. See State v. Frankos (Aug. 23, 2001), Cuyahoga App. No. 78072,
{¶ 18} Consideration of the underlying facts in no way abrogates the offender’s plea agreement, as State v. Huntley, Hocking App. No. 02CA15,
{¶ 19} In his appeal, the offender argued that the court could consider only the stipulated facts in the plea agreement. Since the stipulated facts did not reflect
{¶ 20} As both Blake and Huntley demonstrate, based on how the court perceives true facts in a case, it may believe that the offender committed a crime other than, or in addition to, the one to which he pleaded. In State v. Thompson, Clark App. No. 2001-CA-99,
Bowser’s PSI report justifies the conditions
{¶ 21} Bowser does not contend that the conditions he contests are unlawful, only that they are outside the statutory limits for child endangerment. So we must examine the record and determine whether the contested conditions relate to the circumstances surrounding Bowser’s offense. That is, we must determine whether the trial court’s evident belief that he committed some form of sexual misconduct, despite his no-contest plea to a nonsexual offense, is justified by the evidence in the record. We need look no further than the PSI report (filed under
{¶ 22} Turning to the report, the “OFFENSE SECTION” begins with a report of the offense, which reads like (and perhaps is) the police report. The offense report starts out with the police receiving a complaint of a possible sex offense and ends with Bowser telling police that hе would say no more without his attorney present, which he said at the police department after arriving for a prearranged interview. In between, we read that S.E. told her mother that when Bowser lived with them he had sexual intercourse with her. S.E. described to her mother where and, in somewhat graphic detail, how the act occurred. We read that she later was given a forensic interview at Care House and Children’s Medical Center in Dаyton. There, S.E. repeated what she told her mother, and she used dolls to demonstrate what Bowser did to her. He did it, S.E. said, about four times, and she said Bowser threatened to whip her if she told anyone. The PSI report continues with the offender’s statement in which we read that Bowser adamantly denies any sexual misconduct occurred. The report ends with the probation officer’s recommendation to the court. There, the officer wrоte, “Mr. Bowser has not pled or been found guilty of a sex offense; however, the details of this case are of an obvious sexual nature; and therefore, need to be addressed.” The officer recommends, in addition to 30 days in jail, a sanction of community control accompanied by several conditions, including, “[a] term of Probation Supervision with a Sex Offender Specialist” and “[a] requirement that the offender attend and сomplete male sex offender treatment.”
(¶ 23} The trial court believed that its punishment fit Bowser’s crime — not the crime to which he pleaded but the crime suggested by the underlying facts, as the court perceived them. Bowser received a considerable benefit from his plea agreement — -the maximum punishment for felony gross-sexual-imposition almost surely would be greater than the misdemeanor punishment he received. But Bowser could not entirely escape the evidence regarding the circumstances of his offense. Before accepting his plea, the judge warned Bowser that her sentencing decision would likely be based on the PSI report, and again after accepting his plea, she warned him that she would “be looking at everything carefully” and would make a decision based on all the information given to her. For reasons we explained above, the trial court could believe the sexual-misconduct allegations in the PSI report. Based on those allegations, we think the court could reasonably find sexual misconduct in the facts underlying Bowser’s offense. And given such
{¶ 24} The first assignment of error is overruled.
Second Assignment of Error
{¶ 25} “The trial court violated Bowser’s procedural due process rights guaranteed by the United States and Ohio Constitutions when it imposed a term of probation supervision with a sex offender specialist and required him to attend and complete male sex offender treatment without аny notice that he would be subject to such sanctions.”
{¶ 26} Here, Bowser contends that the trial court did not tell him that he could be subject to these types of conditions. Nor should he have, Bowser contends, an expectation that the court could impose such conditions for a nonsexual offense. Finally, Bowser contends that the condition that he complete a sex-offender treatment program impinges upon his liberty bеcause successful completion of the program would require him to admit sexual misconduct, which he always has denied. Curiously, Bowser does not argue in support of the first two contentions, plausible contentions that suggest that his plea was not entirely voluntary. But since he does not make this argument, and did not ask to withdraw his plea, we will consider only the third contention.
{¶ 27} Bowser claims that his liberty is impinged upon, violating his constitutional rights, because he must admit to sexual misconduct in order to complete a treatment program successfully. Bowser directs us to factually similar cases discussing the constitutional problems with forcing an offender to admit sexual misconduct in order to complete a treatment program when the offender did not admit to sexual misconduct at the plea hearing. But these cases can easily be distinguished on their facts. In each, the offender had tried to complete a treatment program but could not do so successfully because he refused to admit sexual misconduct, like the program required. Because he failed to satisfy a community-control condition, the trial court imposed additional sanctions, which the offender then appealed. Such is not the case here. Bowser does not claim, and we do not see it suggested anywhere in the reсord, that he entered a treatment program and was unable to complete it successfully. Nor do we see in the record what the specific requirements are of the program that he will enter. Anything we say on this issue, then, would be purely advisory. Not being in the
{¶ 28} The second assignment of error is overruled.
Ill
{¶ 29} Having overruled both assignments of error, Bowser’s sentence is affirmed.
Judgment affirmed.
Notes
. Were Bowser correct, scarce judicial resources would be conserved simply by placing a computer on the bench of each sentencing court.