STATE OF OHIO, PLAINTIFF-APPELLEE, v. RYAN D. EAGER, DEFENDANT-APPELLANT.
CASE NO. 7-15-02
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HENRY COUNTY
August 31, 2015
[Cite as State v. Eager, 2015-Ohio-3525.]
PRESTON, J.
Appeal from Henry County Common Pleas Court Trial Court No. 14-CR-0092
Judgment Affirmed
Date of Decision: August 31, 2015
APPEARANCES:
Billy D. Harmon for Appellant
J. Hawken Flanagan for Appellee
{1} Defendant-appellant, Ryan D. Eager (“Eager“), appeals the February 25, 2015 judgment entry of sentence of the Henry County Court of Common Pleas. For the reasons that follow, we affirm the judgment of the trial court.
{2} On October 16, 2014, the Henry County Grand Jury indicted Eager on seven counts: Counts One through Seven of gross sexual imposition in violation of
{3} On October 24, 2014, Eager appeared for arraignment and entered pleas of not guilty. (Doc. No. 11).
{4} On January 8, 2015, Eager withdrew his pleas of not guilty and entered guilty pleas, under a written plea agreement, to Counts One, Two, Three, and Four. (Doc. No. 14); (Jan. 8, 2015 Tr. at 10-11). In exchange for his change of pleas, the State agreed to dismiss Counts Five, Six, and Seven. (Id.); (Id. at 2). The trial court accepted Eager‘s guilty pleas, found him guilty on Counts One, Two, Three, and Four, dismissed Counts Five, Six, and Seven, and ordered a presentence investigation (“PSI“). (Doc. Nos. 16, 17); (Jan. 8, 2015 Tr. at 11).
{5} On February 20, 2015, the trial court sentenced Eager to three years in prison on Count One, three years in prison on Count Two, three years in prison on Court Three, and three years in prison on Count Four and ordered that Eager serve
{6} On February 25, 2015, the trial court filed its judgment entry of sentence. (Doc. No. 17).
{7} On March 2, 2015, Eager filed his notice of appeal. (Doc. No. 20). He raises one assignment of error for our review.
Assignment of Error
The Sentence Imposed upon Defendant-Appellant was Contrary to Law and an Abuse of Discretion.
{8} In his assignment of error, Eager argues that the trial court erred in imposing consecutive sentences because there is no evidence in the record that the victim‘s harm was great or unusual as required by
{9} A trial court‘s sentence will not be disturbed on appeal absent a defendant‘s showing by clear and convincing evidence that the sentence is unsupported by the record; that the sentencing statutes’ procedure was not followed or there was not a sufficient basis for the imposition of a prison term; or that the sentence is contrary to law. State v. Ramos, 3d Dist. Defiance No. 4-06-24, 2007-Ohio-767, ¶ 23 (stating that “the clear and convincing evidence standard of review set forth under
{10} Clear and convincing evidence is that “which will produce 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 (1954), paragraph three of the syllabus; State v. Boshko, 139 Ohio App.3d 827, 835 (12th Dist.2000). An appellate court should not, however, substitute its judgment for that of the trial court because the trial court is “‘clearly in the better position to judge the defendant‘s dangerousness and to ascertain the effect of the crimes on the victims.‘” State v. Watkins, 3d Dist. Auglaize No. 2-04-08, 2004-Ohio-4809, ¶ 16, quoting State v. Jones, 93 Ohio St.3d 391, 400 (2001).
{11} “Except as provided in * * * division (C) of section 2929.14, * * * a prison term, jail term, or sentence of imprisonment shall be served concurrently with any other prison term, jail term, or sentence of imprisonment imposed by a court of this state, another state, or the United States.”
(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, 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, or 2929.18 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.
{12}
{13} The trial court must state the required findings at the sentencing hearing prior to imposing consecutive sentences and incorporate those findings into its sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-4140, ¶ 50, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 29. A trial court “has no obligation to state reasons to support its findings” and is not “required to give a talismanic incantation of the words of the statute, provided that the necessary findings can be found in the record and are incorporated into the sentencing entry.” Bonnell at ¶ 37.
{14} Eager concedes that the trial court made the three statutorily required findings before imposing consecutive sentences at the sentencing hearing and incorporated those findings into its sentencing entry. Specifically, at the sentencing hearing, the trial court said:
Now I‘ve looked at all those factors and it is fair to say that I do deem the consecutive sentences are appropriate. It is necessary to protect the public from future crime and to punish the offender and that consecutive sentences are not disproportionate to the seriousness
of the offenders [sic] conduct. This was a small child, this was an innocent child and the danger that you pose to the public because you were in a position of trust, it would be very easy for someone to trust you again. The Court would further find that the offenses were committed as part of a course of conduct and the harm caused by these multiple offenses was so great and unusual that no single prison term for any of the offenses committed is part of the course of conduct adequately reflects the seriousness of the offenders conduct. I don‘t find that the sentence that I am about it impose is disproportionate given the conduct.
(Feb. 20, 2015 Tr. at 12-13). The trial court incorporated its findings into its sentencing entry. (See Doc. No. 17). Therefore, the trial court made the appropriate
{15} However, Eager argues that his sentence is clearly and convincingly contrary to law because the record does not support the findings the trial court used to justify the imposition of consecutive sentences—that is, Eager argues that the trial court‘s imposition of consecutive sentences was improper because there is no evidence in the record that the victim‘s harm was great or unusual. While a trial court is not required to state reasons in support of its
{16} In support of his argument that the record does not support his sentence, Eager points to a portion of the dissenting opinion in State v. Hale, 3d Dist. Marion No. 9-13-17, 2014-Ohio-262 (Rogers, J., concurring in part and dissenting in part). In particular, Eager relies on that portion of the dissenting opinion in Hale to argue that the trial court erred in imposing consecutive sentences because the trial court did not make separate and distinct findings under
{17} Eager‘s argument is meritless. First, not only does Eager solely rely on a portion of a dissenting opinion in support of his argument, but his reliance on that opinion is misplaced. The portion of the dissenting opinion in Hale on which Eager relies avers that the trial court‘s imposition of consecutive sentences was improper because the trial court relied on evidence outside of the record to conclude that Hale‘s conduct resulted in a great or unusual harm. That is not the case here. At the sentencing hearing, unlike the defendant in Hale, Eager agreed
{18} Moreover, Eager appears to suggest that there must be a victim-impact statement in the record for the trial court to conclude that a child victim of a sexually based offense suffered psychological harm.
(A) In all criminal cases in which a person is convicted of or pleads guilty to a felony, if the offender, in committing the offense, caused, attempted to cause, threatened to cause, or created a risk of physical harm to the victim of the offense, the court, prior to sentencing the offender, shall order the preparation of a victim impact statement * * *
{19} Eager did not object to the trial court‘s failure to order a victim impact statement; therefore, the trial court‘s failure to order the statement must constitute plain error. State v. Shaffner, 12th Dist. Madison No. CA2002-07-012, 2003-Ohio-3872, ¶ 7. “Crim.R. 52(B) provides that ‘[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.‘” Id., quoting Crim.R. 52(B). “For there to be plain error under Crim.R. 52(B), the trial court must have deviated from a legal rule, the error must have been an obvious defect in the proceeding, and the error must have affected a substantial right.” State v. Bagley, 3d Dist. Allen No. 1-13-31,
{20} The trial court‘s failure to order a victim impact statement under
{22} Eager‘s assignment of error is overruled.
{23} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, J., concurs in Judgment Only.
{24} Although the trial court made the mandatory findings to impose consecutive sentences, the record is devoid of any evidence that supports a finding of great or unusual harm. Therefore, I must respectfully dissent.
{25} To impose consecutive sentences upon a defendant, the trial court must find “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[.]”
(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.
(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.
(Emphasis added.)
{26} In sentencing Eager, the trial court stated:
Now I‘ve looked at all those factors and it is fair to say that I do deem the consecutive sentences are appropriate. It is necessary to protect the public from future crime and to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offenders [sic] conduct. * * * The Court would further find that the offenses were committed as part of a course of conduct and the harm caused by these multiple offenses was so great and unusual that no single prison term for any of the offenses committed is part of the course of conduct adequately reflects the seriousness of the offenders (sic) conduct. I don‘t find that the sentence that I am about to impose is disproportionate given the conduct.
Sentencing Tr., p. 12-13. The relevant factor at issue here is
{27} It is clear from the transcript that the trial court regurgitated the statutory language of
{28} The majority relies on Eager‘s counsel‘s statement at the sentencing hearing that the victim suffered “emotional stress” from Eager‘s conduct. (Majority Opin., ¶ 17); Sentencing Tr., p. 7. Nothing is unusual about a claim of emotional stress. Certainly every victim of a sexual crime exhibits some sort of emotional stress, albeit in different degrees. Emotional stress is not unusual in these types of cases, but it can be great. However, this court has no way of knowing the extent of the victim‘s psychological harm due to the State‘s failure to present any evidence at the sentencing hearing. A court is not permitted to assume great or unusual harm without any evidence to support it. See State v. Hale, 3d Dist. Marion No. 9-13-17, 2014-Ohio-262, ¶ 45 (Rogers, J., concurring in part and dissenting in part).
{29} While I agree that Eager‘s conduct is reprehensible and that it created the potential for great or unusual harm, there is simply no evidence in the record that great or unusual harm resulted from Eager‘s actions. See State v. Bruce, 4th Dist. Washington No. 02CA51, 2003-Ohio-4081, ¶ 21. The State cannot say that by simply violating the statute, the harm was automatically great or unusual. See Hale at ¶ 41 (Rogers, J., concurring in part and dissenting in part).
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