State v. HerbertState v. Herbert
OPINION
{¶ 1} Thе defendant-appellant, David Edmond Herbert (“Herbert“), appeals the May 26, 2005 Judgment of conviction and sentence еntered in the Court of Common Pleas of Wyandot County, Ohio.
{¶ 2} On March 10, 2005, the Prosecuting Attorney of Wyandot County filed a Bill of Information сharging Herbert with six counts: Count 1: Rape, a violation of
{¶ 3} On March 28, 2005, Herbert waived indictment and рlead guilty to each of the offenses set forth in the Bill of Information. Herbert agreed to a Stipulation of Facts stating the following:
1) That the Defendant in this matter, David Edmund Herbert is the maternal grandfather of victim K.A.F. as named in the Bill of Information.
2) That victim K.A.F. has rеsided with Defendant, David Edmund Herbert, at his place of residence, 2801 County Highway 9 Sycamore, Ohio 44882 since the spring of 2003.
3) The Defendаnt further stipulates to the introduction of certain evidence at the time of sentencing. The evidence consists of thе following:
a. Photograph of victim K.A.F. relating to Count One of the Bill of Information.
b. Photographs of victim K.A.F. relating to Count Three оf the Bill of Information. Information depicting the child victim in a state of nudity.
c. Photographs of victims K.A.F. and B.L.P. relating to Count Four and Fivе of the Bill of Information depicting the victims in a State of Nudity.
d. Photographs relating to Count Six of the Bill of Information depicting сhild victims engaged in sexual activity.
The trial court then explained his rights and accepted his guilty pleas. The trial court also acknowledged that if Herbert chose to plead guilty to the charges the trial court would be required to hold a hearing to determine whether he was a sexual predator.
{¶ 4} On May 24, 2005, the trial court held a combined sexual predator and sеntencing hearing. During the sexual predator hearing, the State presented Lieutenant Fry who testified that Herbert seemed tо have no remorse. He also claimed that Herbert had thousands of child pornographic images on his computеrs. During the sentencing portion of the hearing, the State called Abigail Lama-Gaffney, a professional clinical cоunselor, to testify as to the victim‘s feelings and circumstances. The trial court found Herbert to be a sexual predator.
{¶ 5} Then, the trial court proceeded with sentencing. The trial court sentenced Herbert to the following:
[a] basic prison tеrm of nine years on count one; four years on count two; seven years on ____ on count three ____ let me make that clear. Seven years on count three; seven years on count four; seven years on count five; and 17 months on count six, which shall be served in the custody of the Director of Ohio Department of Corrections and Rehabilitations.
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The Court further orders thаt these sentences shall be served count one, count — of nine years; count two of four years; and count five of seven years consecutive to one another, with the sentences in count three, four and six being concurrent with one another and concurrent to the consecutive sentences imposed in count one, count two, and count five. Sо it‘ll be a total of — actual total of 20 years.
Sent Trans. p. 61-62. The trial court found that the defendant was not amenable to community control and that a prison term is consistent with the principles of sentencing as set forth in
Toward these findings the Court finds lеss than prison would not adequately punish you and would not protect the public from future crime by you or others, and would demean the seriousness of the offenses.
You have minimized your conduct and show no remorse for it * * * before today. You have attempted to rationalize your behavior by blaming your victims. You portray your child victims as vixens you couldn‘t resist. You explаin the rape of a 10 year old as an educational exercise and justify putting your fingers in her for alleged medical purposes.
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Your victimization of K.A.F. went on for approximately four and a half years. You taught her it was a way of life for hеr to be violated, betrayed and used all for your pleasure.
The injury inflicted was made worst by the age of your victims. One, an imрressionable young girl who after years of abuse is confused, who reports her whole family is in counseling, who has fits of anger, sсattered emotions and in her words, `weird thoughts‘. A child who is afraid of you and who has lost (according to her) her mom, her friends, and hеr things for which she paid such a heavy price.
Sent. Trans. p. 59-60.
{¶ 6} The trial court made the following specific findings under
The Court finds a shortest prison term possible would demean the seriousness of thе offense. And, would not adequately protect the public from future crime by the offender and others.
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Consecutive terms are necessary to protect the public from future crime as defendant up until today showed little or no remorse and has justified and made excuses for his criminal acts.
Consecutive terms are necessary to punish the offender.
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Consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender imposes to the public.
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The harm caused was so great or unusual that no single prison term can adequately reflect the seriousness of the offender‘s conduct.
Sent. Trans. p. 62-63.
{¶ 7} On Junе 23, 2005, the defendant-appellant filed his notice of appeal raising the following assignment of error:
A TRIAL COURT MAY NOT SENTENCE A DEFENDANT TO NON-MINIMUM SENTENCE AND CONSECUTIVE SENTENCES BASED ON FACTS NOT FOUND BY THE JURY OR ADMITTED BY DEFENDANT. SUCH SENTENCE VIOLATES APPELLANT‘S CONSTITUTIONAL RIGHTS AS GUARANTEED BY THE
FIFTH ,SIXTH ,EIGHTH ANDFOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION ANDARTICLE I, § 10 AND16 OF THE OHIO CONSTITUTION.
{¶ 8} Herbert allegеs that the trial court violated his constitutional rights when it imposed sentences greater than the statutory minimum and consecutivе sentences based on the findings not admitted by him or submitted to a jury. Herbert relies upon the holding in Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, for this proposition. This Court has prеviously ruled that the holding in Blakely does not apply to Ohio‘s sentencing scheme. State v. Trubee, 3rd Dist. No. 9-03-65, 2005-Ohio-552, at ¶ 16-38.
{¶ 9} In sum, Herbert concedes that the trial court made all the necessary findings in the May 26, 2005 Judgment Entry and that those findings are supported by the record. Upon review of the record, we find that the trial court properly made all findings at the sentencing hearing and that those findings are supported by evidence in the record.
{¶ 10} Accordingly, Herbert‘s assignment of error is overruled and the judgment of the Court of Common Pleas of Wyandot County, Ohio is affirmed.
Judgment affirmed.