2005 Ohio 5300 | Ohio Ct. App. | 2005
{¶ 3} The victims in this case were appellant's 15 and 11 years old step-daughters. On March 31, 2004, appellant entered pleas of guilty to two of the charges of gross sexual imposition and no contest to all of the remaining charges with the exception of one count of sexual battery which was dismissed by the State.
{¶ 4} A sentencing hearing was held on May 19, 2004, wherein the trial court sentenced appellant to a total prison term of fourteen (14) years. The court imposed a three year sentence on each of the ten counts of rape with three of the sentences to be served consecutively to one another and concurrently with the remaining seven rape counts; two year sentences were imposed on each of the GSI counts to be served concurrently to one another but consecutive to the rape sentences; two year sentences were also imposed on each of the counts of sexual battery with such sentences to run concurrent with one another but consecutive to the rape and GSI sentences; and a one year sentence was imposed on the sole count of corruption of a minor, with such sentence also ordered to be served consecutively to the other sentences.
{¶ 5} A sexual predator hearing was conducted on the same date in accordance with Revised Code Chapter
{¶ 6} On appeal, this Court reversed and remanded to the trial court with instructions to specifically determine appellant's habitual sex offender status and to make the requisite findings on the record pursuant to R.C. Section
{¶ 7} On February 14, 2005, appellant moved the trial court to conduct an evidentiary hearing to determine if any of the sexually oriented offenses were allied offenses of similar import, and for appointment of an independent expert on the issue of his classification as a sexual predator. The trial court denied both motions.
{¶ 8} Also on February 14, 2005, the trial court conducted a hearing finding appellant not to be a habitual sex offender, and sentencing appellant to consecutive sentences.
{¶ 9} Appellant now appeals, assigning as error:1
{¶ 10} "I. THE TRIAL COURT ERRED BY SENTENCING DEFENDANT/APPELLANT TO CONSECUTIVE SENTENCES.
{¶ 11} "II. APPELLANT CONTENDS THAT THE TRIAL COURT ERRED BY LABELING HIM AS A SEXUAL PREDATOR AND THAT THE TRIAL COURT ERRED BY NOT APPOINTING AN INDEPENDENT EXPERT TO ASSIST IN HIS DEFENSE AT THE SEXUAL PREDATOR HEARING."
{¶ 13} Appellant submits his separate convictions for rape and gross sexual imposition constitute allied offenses of similar import pursuant to R.C.
{¶ 14} Upon review, appellant's arguments could have been assigned as error in his previous direct appeal. Therefore, res judicata applies and bars him from raising them for the first time in this appeal.
{¶ 15} Further, appellant contends the trial court failed to make specific oral findings on remand justifying the imposition of consecutive sentences. Specifically, appellant asserts the trial court failed to follow the mandates of the Ohio Supreme Court in State v. Comer,
{¶ 16} In order to impose consecutive sentences, a trial court must comply with R.C.
{¶ 17} "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 sentence 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:
{¶ 18} "(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
{¶ 19} "(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.
{¶ 20} "(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender."
More concisely as pertinent here, R.C.
{¶ 21} "Consecutive sentences are reserved for the worst offenses and offenders." Comer, supra. Thus, in imposing consecutive sentences, the trial court must support its decision with specific findings as to all three requirements of R.C.
{¶ 22} On remand, this Court instructed the trial court to make the requisite findings on the record under R.C.
{¶ 23} Pursuant to this Court's limited remand, the trial court conducted a sentencing hearing on February 14, 2005, finding on the record:
{¶ 24} "The Court further finds that consecutive sentences are necessary given your crime being so great or so unusual that a single term does not adequately reflect the seriousness of conduct in the case. Specifically, Mr. Craig, your victim was a girl who you developed a relationship with prior to marrying her mother and continued your sexual relationship with her. And, in fact, you developed this relationship with her after developing a relationship also with her older sister. One of the girls you videotaped while she is performing oral sex on you, which was, I believe, an exhibit in their case here. The victim listed over 200 incidents.
{¶ 25} "The Court further notes you had prior convictions while as an adult for contributing, for having sex with a minor. You've been picked up for soliciting prostitutes.
{¶ 26} "The Court finds between that history and your actions here involving the two girls demonstrates the harm is so great or unusual that a single term does not adequately reflect the seriousness of the conduct and demonstrates that consecutive counts are necessary to protect the public, which I believe would satisfy the findings made out — set out under State versus Comer as required by the appellate decision on January 10th."
{¶ 27} Upon review, the trial court failed to find on the record consecutive sentences "are not disproportionate to the seriousness of the offender's conduct and the danger the offender poses to the public" pursuant to R.C. 2924.14(E)(4). Accordingly, we find the trial court failed to comply with the sentencing guidelines and Comer in imposing consecutive sentences, and we remand the matter to the trial court for re-sentencing.
{¶ 28} Appellant further contends the trial court enhanced his sentence based upon facts not found by a jury or admitted by appellant in violation of Blakely v. Washington (2004),
{¶ 29} Appellant did not raise this issue on direct appeal, and numerous courts have determined Blakely does not apply retroactively. See, e.g., In re Dean (C.A.11, 2004),
{¶ 30} Appellant's first assignment of error is sustained as to the trial court's failure to make the requisite findings justifying consecutive sentences.
{¶ 32} Again, appellant raised the identical argument on direct appeal. This Court held:
{¶ 33} "In the instant case, at the sentencing and classification hearing, the court reviewed the relevant facts of the case and considered all the factors contained in R.C. §
{¶ 34} Based on the foregoing, we find that the trial court did not err in classifying appellant as a sexual predator." State v. Craig (Jan. 10, 2005), Licking App. No. 2004CA00047.
{¶ 35} Appellant did not argue in his previous direct appeal trial court error in failing to appoint an expert; therefore, res judicata again applies.
{¶ 36} The second assignment of error is overruled.
{¶ 37} Appellant's February 14, 2005 sentence is reversed and remanded for further findings in accordance with R.C. 2924.14(e)(4), and appellant's sexual predator classification in the Licking County Court of Common Pleas is affirmed.
Hoffman, J. Gwin, P.J. and Edwards, J. concur
