STATE OF OHIO, Plaintiff-Appellee, v. DONALD HAWLEY, Defendant-Appellant.
No. 108254
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
April 2, 2020
[Cite as State v. Hawley, 2020-Ohio-1270.]
MARY J. BOYLE, P.J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-622290-A
JUDGMENT: REVERSED, MODIFIED, AND REMANDED
RELEASED AND JOURNALIZED: April 2, 2020
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Carl Sullivan, Assistant Prosecuting Attorney, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and Erika Cunliffe, Assistant Public Defender, for appellant.
MARY J. BOYLE, P.J.:
{¶ 1} Defendant-appellant, Donald Hawley, appeals his sentence. He raises one assignment of error for our review:
Mr. Hawley‘s sentence is excessive, contrary to law, and violates due process because the trial court imposed multiple maximum consecutive terms, which are not supported by this record, and did so * * * without making the requisite statutory findings.
{¶ 2} Finding merit to his assigned error, we vacate the consecutive portion of Hawley‘s sentence, invoke our power under the
I. Procedural History and Factual Background
{¶ 3} In October 2017, Hawley was charged with nine counts of illegal use of a minor in nudity-oriented material or performance in violation of
{¶ 4} The charges arose after Hawley gave his cell phone to his wife when he was admitted to the psychiatric unit of a hospital. When his wife got home, she found a video on his phone that appeared to have been taken through the keyhole of their bathroom door. The video depicted her daughter (Hawley‘s stepdaughter) showering and getting out of the shower. Hawley admitted the acts to police and also told them that he took his stepdaughter‘s underwear and used them to masturbate. He also told police that “some of the underwear” may have been ripped because he would “stick his penis inside of the crotch panels.” He would then hide
{¶ 5} Hawley pleaded guilty in January 2018, to an amended indictment of seven counts of illegal use of a minor and one count of possessing criminal tools. The remaining counts were nulled. As part of his plea, Hawley agreed that the offenses were not allied and would not merge for purposes of sentencing. The trial court continued the sentencing so that a presentence investigation could be conducted.
{¶ 6} At the sentencing hearing, defense counsel explained to the trial court that Hawley immediately took responsibility for his actions. He said that Hawley never denied that he did it. Defense counsel further explained that Hawley has “had depression issues and [a] suicide attempt related to the shame that he suffers from this.” Defense counsel stated that Hawley said that he did most of “these activities” while “he was using a heavy amount of cocaine that interfered with his judgment,” which he knew was wrong as well. Defense counsel further stated that Hawley was truly remorseful for his actions and was “very sorry he put his family through this.” Defense told the court that Hawley had a “fairly rough upbringing with physical abuse and no real good relationship with his own father.” Defense counsel further stated that although Hawley produced the videos, he did not distribute them for commercial gain, which would have been the worst form of this offense and would have caused more harm to the victim.
{¶ 8} The trial court imposed a sentence of eight years in prison on each count of illegal use of a minor and ordered that they be served consecutive to one another. It also imposed 12 months for possessing criminal tools and ordered that it be served concurrent to the other counts, for an aggregate sentence of 56 years in prison.
{¶ 9} The trial court further notified Hawley that he would be subject to a mandatory period of five years of postrelease-control upon his release from prison and be classified as a Tier II sex offender. The court also notified Hawley of the consequences he would face if he violated the conditions of his postrelease-control and notified him of the Tier II registration requirements as well as the consequences for violating them. It is from this judgment that Hawley now appeals.
II. Consecutive Sentences
{¶ 10} There are two ways that a defendant can challenge consecutive sentences on appeal. First, the defendant can argue that consecutive sentences are contrary to law because the court failed to make the necessary findings required by
{¶ 11}
{¶ 12} The Ohio Supreme Court has explained that when reviewing the imposition of consecutive sentences, ”
(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.
{¶ 14} In each step of this analysis, the statutory language directs that the trial court must “find” the relevant sentencing factors before imposing consecutive sentences.
This court does find that consecutive sentences are necessary to protect the public from future crime. The court further finds that consecutive sentences are necessary to punish the offender. The court finds that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct. And the court lastly finds that consecutive sentences are not disproportionate to the danger the offender poses to the public.
The court notes in its sentencing the following factors as they apply to this case: The court finds that the defendant was in a position of trust to both the mother and the daughter and the son and the two young kids that were in his house; that the mother was the person that was providing for the family; that the mother left these children in the trust of the defendant, and the defendant violated the trust that was placed on him.
The court further finds that this young lady who was the victim in this case has been traumatized with reference to showering and sleeping at night; that the mom has been shattered, because she was in love with the defendant, trusted him, believed in him, tried to make a home and provide for her family, and that he violated all of those areas of trust; and that he shows no remorse.
{¶ 16} The trial court made the first two consecutive-sentences findings but we agree with Hawley that it failed to make the third finding, i.e., one of the three findings under
{¶ 17} We further find that the trial court‘s finding under
{¶ 18} While Hawley‘s actions were reprehensible, there was no evidence that he shared any of the videos or photos of his stepdaughter with anyone. Moreover, and most significantly, based upon the record before us, Hawley masturbated to the videos and photos of his stepdaughter but he never forced her to have sex with him or touch him in a sexual manner, and he never touched her in an inappropriate way. Further, although Hawley does have a criminal history, all of his prior convictions were misdemeanors, he has never been incarcerated, and he does not have any prior sex-offense convictions.
{¶ 19} We further find that Hawley‘s 56-year prison sentence is not “reasonably calculated to achieve” the overriding purposes of felony sentencing set forth in
{¶ 20} First, five of the cases cited by the state are not applicable because the defendants were sentenced before H.B. 86 went into effect.1 Thus, the trial courts in these cases were not required to make any findings before imposing consecutive sentences under
{¶ 22} The state cited to one other case, State v. Taylor, 8th Dist. Cuyahoga No. 100315, 2014-Ohio-3134, for the proposition that “[t]he Eighth District has upheld another similar case by this honorable trial court that was within the statutory range of sentence not too long ago.” (Emphasis added.) Taylor, however, is anything but similar to the present case. In Taylor, the defendant, who was the victim‘s first cousin, digitally and vaginally raped the victim. Despite far more violent crimes, the defendant in Taylor only received a sentence of 24 years in prison.
{¶ 24} Indeed, a cursory review of a few cases that have been before this court show just how the 56-year sentence in this case demeans the seriousness of other more violent offenses. A man who repeatedly raped his stepdaughter over an eight-year period beginning in 1999 when she was eight years old only received an aggregate sentence of 16 years in prison. See State v. Schwarzman, 8th Dist. Cuyahoga No. 100337, 2014-Ohio-2393. A man who lured a 12-year old victim into his house by deception, violently dragged her from the first floor to his bedroom on the second floor, choked her, pulled her pants down, raped her vaginally and anally, and threatened to kill her if she told anyone received an aggregate sentence of 16 years in prison. See State v. Banks, 8th Dist. Cuyahoga No. 82942, 2003-Ohio-6646 (this review was before State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, so we had the same review under
{¶ 26} We therefore vacate the consecutive portion of Hawley‘s sentence, invoke our power under the
{¶ 27} Hawley‘s remaining argument that the trial court was biased against him is moot in light of our disposition of his assigned error.
{¶ 28} Hawley‘s sole assignment of error is sustained.
{¶ 29} We do note, however, that although the trial court properly advised Hawley of postrelease-control at his sentencing hearing, it failed to place anything in the sentencing entry about postrelease-control. Therefore, upon remand, the trial court should issue a nunc pro tunc sentencing entry to include the required postrelease-control notifications. State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 14, citing State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. Case remanded to the trial court for execution of the modified sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., CONCURS; MICHELLE J. SHEEHAN, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE OPINION
STATE OF OHIO, Plaintiff-Appellee, v. DONALD HAWLEY, Defendant-Appellant.
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
MICHELLE J. SHEEHAN, J.
{¶ 31} I concur with the majority opinion that the trial court failed to make all of the required consecutive-sentence findings under
{¶ 32} Under
{¶ 34} I therefore concur with the majority‘s conclusion that the trial court failed to make the requisite consecutive-sentence findings but respectfully dissent from the majority‘s modification of Hawley‘s sentence based upon whether the record “clearly and convincingly” supports the findings that have not been completed by the trial court.