State v. HaynesState v. Haynes
Charles E. Coulson, Lake County Prosecutor, and Kristi L. Winner, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Daniel J. Williams and Jerome Emoff, Dworken & Bernstein Co., LPA, 60 South Park Place, Painesville, OH 44077 (For Defendant-Appellant).
MARY JANE TRAPP, J.
{1} Appellant, Robert C. Haynes (“Mr. Haynes“), appeals the judgment of the Lake County Court of Common Pleas sentencing him to an aggregate prison term of 144 months (i.e., 12 years) following his guilty pleas to four counts of unlawful sexual conduct with a minor and one count of attempted sexual battery.
{2} Mr. Haynes presents three assignments of error, contending that (1) his “sentence” is contrary to law; (2) the trial court erred in imposing consecutive sentences; and (3) the statute that governs appellate review of felony sentences, i.e.,
{3} After a careful review of the record and pertinent law, we find as follows:
{4} (1) Mr. Haynes has not clearly and convincingly established that his “sentence” is contrary to law. Mr. Haynes’ argument relates to the length of his aggregate sentence, while
{5} (2) Mr. Haynes has not established that the trial court erred in imposing consecutive sentences. The trial court expressly made the required statutory findings at the sentencing hearing and incorporated them into its sentencing entry; thus, there is no basis to conclude that the consecutive sentences are contrary to law. In addition, the premise underlying Mr. Haynes’ “support-in-the-record” argument is legally flawed.
{6} (3) Mr. Haynes did not present an existing set of facts under which the statute could be found unconstitutional. This court‘s application of
{7} Thus, we affirm the judgment of the Lake County Court of Common Pleas.
Substantive and Procedural History
{8} In November 2021, the state filed an information charging Mr. Haynes with four counts of unlawful sexual conduct with a minor, third-degree felonies, in violation of
{9} Mr. Haynes waived his right to a grand jury and pleaded guilty to all counts in the information. The trial court held a plea hearing and engaged in a colloquy with Mr. Haynes pursuant to Crim.R. 11. As a factual basis, the state indicated as follows:
{10} “[Mr. Haynes] met the victim * * * as a result of a voluntary coaching position he had at a private gym. He was a Muay Thai coach and the minor female victim took his class. As a result of that initial encounter and her taking that class they became friends along with other folks in the class and that friendship eventually evolved into him giving her rides, picking her up, things like that, going for coffee, going to movies in groups and ultimately it turned into a situation where they began spending time alone.
{11} “During that time alone[,] [Mr. Haynes] would supply alcohol to the minor female victim and ultimately their relationship turned into an intimate relationship. * * *
{12} “And the evidence the state would have brought forth demonstrating that intimate relationship is contained in some very detailed Facebook communication between [Mr. Haynes] and the victim. And what would have been the testimony of the minor female victim in this situation and those pieces of evidence * * * would have demonstrated that there were various forms of sexual conduct that took place between the victim and the defendant, a digital penetration, oral sex performed on the victim, oral sex performed by the victim on [Mr. Haynes] and in one instance intercourse. That particular evidence is what is offered to support Counts 1 through 4, the unlawful sexual conduct with a minor * * * based on the various forms of sexual activity that have just been outlined.
{13} “With respect to Count 5, the attempted sexual battery, this was the last occasion that the relationship between [Mr. Haynes] and the minor female victim occurred on an intimate basis. [Mr. Haynes] attempted sexual conduct, the victim objected, there
{14} “As I outlined in the charge[,] [Mr. Haynes] was ten or more years older than the minor victim, I believe he was 26 years of age at the time that these offenses took place.”
{15} Mr. Haynes agreed that the state‘s factual basis was accurate.
{16} The trial court accepted Mr. Haynes’ guilty pleas and found him guilty. It ordered a presentence investigation (“PSI“) report, a psychological evaluation, and a victim impact statement and set the matter for sentencing.
{17} In January 2022, the trial court held a sentencing hearing. Mr. Haynes addressed the court, and his mother and two friends spoke regarding his good character and remorse. The victim spoke about the effects Mr. Haynes’ conduct had on her life, which included a diagnosis of PTSD and extensive therapy. Counsel for Mr. Haynes and the state also presented arguments regarding the statutory sentencing factors.
{18} Prior to announcing sentence, the trial court stated that it considered the PSI report, the psychological evaluations, the letters in support of Mr. Haynes, Mr. Haynes’ letter, the victim impact statement, all statements made in court, as well as “all aspects of
{19} The trial court sentenced Mr. Haynes to prison terms of 48 months on each of counts 1 through 4 and 12 months on count 5. It ordered Mr. Haynes to serve counts
{20} In ordering consecutive sentences, the court found, “consecutive sentences are necessary to protect the public from future crime by you and to punish the offender“; “consecutive sentences are not disproportionate to the seriousness of your conduct and the danger that you pose“; and “at least two of these offenses were committed as part of one or more courses of conduct and the harm caused to [the victim] by at least two of these offenses committed was so great or unusual that no single prison term for any of these offenses committed as part of this course of conduct adequately reflects the seriousness of the conduct.”
{21} The trial court filed a judgment entry memorializing Mr. Haynes’ sentences, which it subsequently amended.
{22} Mr. Haynes appealed and raises the following three assignments of error:
{23} “[1.] Clear And Convincing Evidence Affirmatively Demonstrates That The Trial Court Failed To Consider The Principles And Purposes Of Felony Sentencing Mandated In
{24} “[2.] The Trial Court Erred In Imposing Consecutive Sentences.
{25} “[3.]
Individual Felony Sentences
{26} In his first assignment of error, Mr. Haynes contends that his “sentence” is contrary to law. Specifically, Mr. Haynes contends that the trial court failed to consider
{27} The standard of review for felony-sentencing appeals is governed by
{28} “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.
{29} “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 of 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:
{30} “(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section
{31} “(b) That the sentence is otherwise contrary to law.”
{32} “Clear and convincing evidence is that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be
{33} We conclude that Mr. Haynes has not clearly and convincingly established that his “sentence” is contrary to law.
{34}
{35}
{36} Mr. Haynes’ argument relates to his aggregate prison sentence of 12 years, which resulted from the trial court‘s decision to run Mr. Haynes’ prison sentences on counts 1 through 3 consecutively. The Supreme Court of Ohio has held that ”
{37} Even if Mr. Haynes had properly challenged his individual sentences, there would be no basis to conclude that the trial court did not consider the purposes and principles of felony sentencing. A sentencing court fulfills its duty when it states that it has considered the factors under
{38} Further, to the extent Mr. Haynes sought to challenge the trial court‘s application of
{39} Although Mr. Haynes asks us to find that Jones was wrongly decided, we have no authority to do so. “‘As an intermediate appellate court, we are bound to follow precedent set by the Supreme Court of Ohio[,] and we cannot issue a decision in conflict with a decision of the Supreme Court that has not been reversed or overruled.‘” State v. Bruce, 10th Dist. Franklin No. 21AP-376, 2022-Ohio-909, ¶ 40, appeal not accepted, 167 Ohio St.3d 1527, 2022-Ohio-3322, 195 N.E.3d 163, quoting State v. Tatom, 10th Dist. Franklin No. 17AP-758, 2018-Ohio-5143, ¶ 24. Rather, the authority to examine previous decisions is vested in the Supreme Court itself. See Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 43 (“[A] supreme court not only has the right, but is entrusted with the duty to examine its former decisions and, when reconciliation is impossible, to discard its former errors.“).
{40} Mr. Haynes’ first assignment of error is without merit.
Consecutive Sentences
{41} In his second assignment of error, Mr. Haynes contends that the trial court erred in imposing consecutive sentences.
{42} An appellate court reviews the trial court‘s imposition of consecutive sentences pursuant to
{43}
{44} “(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
{45} “(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
{46} “(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.”
{47} The Supreme Court of Ohio has held that “[i]n order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by
{48} In addition, “as long as the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record contains evidence to support the findings, consecutive sentences should be upheld.” Id. at ¶ 29. In other words, “If the court has properly made the required findings in order to impose consecutive sentences, we must affirm those sentences unless we ‘clearly and convincingly’ find ‘[t]hat the record does not support the court‘s findings[.]‘” State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 19 (8th Dist.), quoting
{49} Here, the trial court expressly made the required statutory findings at the sentencing hearing and incorporated them into its sentencing entry. Thus, there is no basis to conclude that the trial court‘s imposition of consecutive sentences is contrary to law.
{50} In addition, the premise underlying Mr. Haynes’ “support-in-the-record” argument is legally flawed. According to Mr. Haynes, the trial court “emphasized” nine particular facts in its ”
{51} Accordingly, Mr. Haynes has not established that the trial court erred in imposing consecutive sentences.
{52} Mr. Haynes’ second assignment of error is without merit.
Constitutional Challenge
{53} In his third and final assignment of error, Mr. Haynes contends that
{54} Mr. Haynes acknowledges that he did not raise this constitutional challenge at sentencing. “Failure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes a waiver of such issue and a deviation from this state‘s orderly procedure, and therefore need not be heard for the first time on appeal.” State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus. The waiver doctrine in Awan, however, is discretionary. In re M.D., 38 Ohio St.3d 149 (1988), syllabus (“Even where waiver is clear, this court reserves the right to consider constitutional challenges to the application of statutes in specific cases of plain error or where the rights and interests involved may warrant it.“)
{55} Even if a plain error analysis was warranted in this case, we find it unnecessary to reach the merits of Mr. Haynes’ constitutional argument. State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, ¶ 9 (courts should avoid answering constitutional questions unless it is absolutely necessary). In an as-applied constitutional challenge, the challenging party “bears the burden of presenting clear and convincing evidence of a presently existing set of facts that make the statute[] unconstitutional and void when applied to those facts.” (Emphasis added.) Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 38. “A person to whom a statute may be constitutionally applied may not be heard to challenge the statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the court.” (Emphasis added.) State v. Taubman, 78 Ohio App.3d 834, 845, 606 N.E.2d 962 (2d Dist.1992).
{56} As explained above, Mr. Haynes’ first assignment of error challenges the length of his aggregate sentence, while
{57} Mr. Haynes’ third assignment of error is without merit.
{58} For the foregoing reasons, the judgment of the Lake County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, J., concurs,
JOHN J. EKLUND, P.J., concurs with a Concurring Opinion.
JOHN J. EKLUND, P.J., concurs with a Concurring Opinion.
{59} For the following reasons, I concur in the judgement.
{60} Within his first assignment of error, Haynes makes three arguments: (1) that the trial court failed to consider the purposes and principals of felony sentencing set forth in
{61} The majority addresses Haynes’ argument that his sentence is not reasonably calculated to promote his effective rehabilitation by stating that a “sentencing court fulfills its duty when it states that it has considered the factors under
{62} I next address Haynes’ third argument within his first assignment of error: That his sentence is not consistent with sentences imposed for similar crimes committed by similar offenders.
{63} I acknowledge that this court has long held that “sentencing consistency is not derived from the trial court‘s comparison of the current case to prior sentences for similar offenders and similar offenses,” but, rather, it is the “proper application of the statutory sentencing guidelines that ensures consistency.” (Citations omitted.) State v. Phifer, 11th Dist. Trumbull No. 2020-T-0010, 2020-Ohio-4694, ¶ 35. However, if
{64} Other appellate districts have held that reviewing the record to ensure compliance with the statutory sentencing guidelines is not the only avenue to review whether a sentence is “consistent.” The Tenth, First, and Fifth District Appellate Courts have held alternatively that:
Consistency * * * does not necessarily mean uniformity. Instead, consistency aims at similar sentences. Accordingly, consistency accepts divergence within a range of sentences and takes into consideration a trial court‘s discretion to weigh relevant statutory factors [as provided in
R.C. 2929.12(A) ]. The task of an appellate court is to examine the available data, not to determine if the trial court has imposed a sentence that is in lockstep with others, but to determine whether the sentence is so unusual as to be outside the mainstream of local judicial practice. Although offenses may be similar, distinguishing factors may justify dissimilar sentences.
State v. Battle, 10th Dist. Franklin. No. 06AP–863, 2007-Ohio-1845, ¶ 24, quoting State v. King, 5th Dist. Muskingum No. CT06–0020, 2006-Ohio-6566, ¶ 23, quoting State v. Ryan, 1st Dist. Hamilton App. No. C–020283, 2003-Ohio-1188, ¶ 10.
{65} I would take this opportunity to have this court adopt that approach as an additional analytic tool. Whether under that approach or under our current precedent, I believe we should address Appellant‘s contention.
{66} Here, Haynes plead guilty to five offenses. Four were felonies of the third-degree and one was a fourth-degree felony. It is not so unusual as to be outside the mainstream of local judicial practice for an offender to be sentenced to 12 years imprisonment after pleading guilty to five sexual offenses with a minor. I would not have
{67} Lastly, I would find that this court should fully address Haynes’ third assignment of error, in which he contends that ”
There is also no reason to believe that a trial court‘s consideration under
R.C. 2929.11 and2929.12 is wholly unreviewable. First, although, as the majority opinion explains,R.C. 2929.11 and2929.12 do not require a trial court to make any specific findings on the record, those statutes are not optional. Both statutes use the term “shall” multiple times in relation to other matters. For example,R.C. 2929.11(A) and2929.12(A) through (F) set forth matters that a sentencing court “shall consider,” andR.C. 2929.11(A) provides that the trial court “shall be guided by” the three overriding purposes of felony sentencing.R.C. 2929.11(B) further states that the sentence imposed by the trial court “shall” meet certain specific criteria. * * * Second,R.C. 2953.08(G)(2) expressly requires an appellate court to “review the record, including the findings underlying the sentence.” The breadth of this statutory provision necessarily means that if a trial court does make findings underR.C. 2929.11 and2929.12 , the appellate court may review those findings for certain limited purposes. Third,R.C. 2953.08(G)(2)(b) provides that an appellate court can modify or vacate a sentence on the ground that it is “otherwise contrary to law.” This court‘s holding today specifies what an appellate court may not do under this provision: it may not conduct an independent review of whether the record supports the sentence and substitute its own judgment regarding the appropriate sentence.
{68} State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649 ¶ 46 (Fischer J., concurring).
{69} I find Justice Fisher‘s analysis compelling, and would hold that
{70} I otherwise agree with the majority‘s analysis, and I concur in the judgment.
18
Case No. 2022-L-009