State of Ohio, Plaintiff-Appellee, v. [J.H.S.], Defendant-Appellant.
No. 14AP-399 (C.P.C. No. 13CR-3403)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
January 27, 2015
[Cite as State v. J.H.S., 2015-Ohio-254.]
(REGULAR CALENDAR)
Rendered on January 27, 2015
Ron O‘Brien, Prosecuting Attorney, and Valerie B. Swanson, for appellee.
Yeura R. Venters, Public Defender, and Emily L. Huddleston, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶ 1} This is an appeal by defendant-appellant, J.H.S., from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas following his entry of a guilty plea to four counts of sexual battery.
{¶ 2} On June 26, 2013, appellant was indicted on four counts of sexual battery, in violation of
{¶ 3} During the plea proceedings, the prosecutor presented the following factual background. The Hilliard Division of Police received information that appellant “is the
{¶ 4} A paternity test performed in 2011 “indicated the defendant was the biological father of R.D. to a probability of 99.99 percent.” (Jan. 21, 2014 Tr. 4.) The relationship began when appellant “found out the paternity results and began writing to [R.D.] while he was incarcerated.” (Jan. 21, 2014 Tr. 4.) Appellant also sent R.D. letters in which he “expressed his love for his daughter and explicitly described what he wanted to do to her sexually when he was released.” (Jan. 21, 2014 Tr. 4.) R.D. placed a controlled call, during which appellant “admitted to having sex with her and that it was okay because she‘s 16 and of the age of consent. He was very concerned in that call about her cell phone and who has it.” (Jan. 21, 2014 Tr. 5.)
{¶ 5} The cell phone was recovered and a detective examined it, discovering “numerous text messages, photos, videos. The text messages expressed their love for each other.” (Jan. 21, 2014 Tr. 5.) Appellant sent one message “stating, ‘I can‘t wait to make love to you,’ and there were some videos that the victim had described sending where she was fondling herself or masturbating. They found photos of the defendant‘s erect penis and also of the victim posing.” (Jan. 21, 2014 Tr. 5.)
{¶ 6} During an interview with law enforcement officials, appellant admitted he gave R.D. the cell phone. Appellant “claimed that he had spoken to a Franklin County detective who told him that it was legal to have sex with your daughter after she‘s over the age of 16.” (Jan. 21, 2014 Tr. 5.) When “asked more specifics * * * about having sex,” appellant responded, “I guess so.” (Jan. 21, 2014 Tr. 5.)
{¶ 7} After accepting appellant‘s guilty plea, the trial court ordered preparation of a presentence investigation report. On March 27, 2014, the court conducted a sentencing hearing. By judgment entry filed April 16, 2014, the court sentenced appellant to 60
{¶ 8} On appeal, appellant sets forth the following three assignments of error for this court‘s review:
First Assignment of Error: The trial court erred by imposing consecutive sentences without making findings required by
R.C. 2929.14(C)(4) and State v. Bonnell, [140 Ohio St.3d 209], 2014-Ohio-3177.Second Assignment of Error: The trial court erred by imposing a sentence that is contrary to law in that it failed to properly evaluate the proportionality and consistency of the sentence pursuant to
R.C. 2929.11 .Third Assignment of Error: Trial counsel provided ineffective assistance of counsel in violation of appellant‘s rights according to the Sixth Amendment to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.
{¶ 9} Under the first assignment of error, appellant asserts the trial court erred in failing to make the requisite findings under
{¶ 10} Following the General Assembly‘s enactment of Am.Sub.H.B. No. 86, effective September 20, 2011, “a sentencing court is required to make certain factual findings when imposing consecutive sentences.” State v. Moore, 11th Dist. No. 2104-G-3183, 2014-Ohio-5182, ¶ 19.
{¶ 11}
(4) 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 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 , 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.
{¶ 12} Thus,
{¶ 13} The Supreme Court of Ohio recently construed
When imposing consecutive sentences, a trial court must state the required findings as part of the sentencing hearing, and by doing so it affords notice to the offender and to defense counsel. See Crim.R. 32(A)(4). And because a court speaks through its journal * * * the court should also incorporate its statutory findings into the sentencing entry. However, a word-for-word recitation of the language of the statute is not required, and 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.
A trial court‘s inadvertent failure to incorporate the statutory findings in the sentencing entry after properly making those findings at the sentencing hearing does not render the sentence contrary to law; rather, such a clerical mistake may be corrected by the court through a nunc pro tunc entry to reflect what actually occurred in open court. * * * But a nunc pro tunc entry cannot cure the failure to make the required findings at the time of imposing sentence. See State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, * * * ¶ 16 (“a nunc pro tunc order cannot cure the failure of a judge to impose restitution in the first instance at sentencing“).
{¶ 14} Under the facts of Bonnell, the court concluded that the trial court‘s “description of Bonnell‘s criminal record as atrocious and its notation of his lack of respect for society do not permit us to conclude that the trial court had made the mandated statutory findings in accordance with
{¶ 15} In the present case, appellant cites to the following statements by the trial court during the sentencing hearing:
THE COURT: All right. * * * And you were out on bond before – when the offense was committed. You have a prior pretty bad criminal history. There‘s no question about that. I think we can all agree on that.
You haven‘t responded favorably in the past to sanctions imposed for your criminal convictions. You‘ve demonstrated a pattern of drug abuse, drug or alcohol abuse, and refused to acknowledge a pattern. You don‘t show too much remorse. The remorse is questionable. I mean, you might be sorry in some sense for the situation that you‘re in; but I‘m not so sure that you‘re sorry for the damage, the mental injury, that you‘ve caused this girl, or you fully – fully realize it.
So, you know, in terms of the seriousness factors, there is significant injury, it sounds like, to the victim in this case. You took complete advantage of your daughter. There‘s proof that she is your daughter. There‘s no denying that, 99 percent results here indicating that you are 99.9 percent the father in this matter. She suffered serious physical or psychological mental harm as a result of your manipulation. It was a relationship with a family member, and there is a clear need for severe punishment for your actions and to protect the community.
So all those issues, all those factors, have been clearly met in this case; and I‘m not hearing any real rebuttal or response on your behalf as to why I shouldn‘t impose the maximum sentence and run it consecutive. So with that being the case, the court will impose the following sentence: For Counts 1, 2, 3, and 4 – they‘re all the same counts here. They‘re all sexual battery, felonies of the third degree, which have a five-year prison sentence – the court will impose five years for Counts 1, 2, 3, and 4 to run consecutive for a total of 20 years.
(Mar. 27, 2014 Tr. 21-22.)
{¶ 16} Appellant maintains that the above findings by the trial court fail to satisfy the requirements of
{¶ 17} This court has consistently held that “when the record demonstrates that the trial court failed to make the findings required by
{¶ 18} Upon review, we conclude that the trial court failed to make the requisite findings under
{¶ 19} Based upon the foregoing, appellant‘s first assignment of error is sustained.
{¶ 20} Under the second assignment of error, appellant contends the trial court imposed a sentence contrary to law in that it failed to evaluate the proportionality and consistency of the sentence under
{¶ 21} In sentencing a felony offender, a trial court “must consider
{¶ 22} As noted, appellant contends the trial court was so preoccupied with the relationship between appellant and the victim that it failed to engage in the proper analysis required by
{¶ 23} Appellant‘s second assignment of error is not well-taken and is overruled.
{¶ 24} Under the third assignment of error, appellant contends his trial counsel was ineffective by failing to offer any objection or mitigation in response to the state‘s request for the maximum sentence. According to appellant, counsel failed to point out mitigating factors such as the fact he entered a plea bargain and that he had accepted responsibility for his actions.
{¶ 25} Under Ohio law, in order to prevail on a claim of ineffective assistance of counsel, a defendant is required to “show, first, that counsel‘s performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.” State v. Smith, 89 Ohio St.3d 323, 327 (2000), citing Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to establish prejudice, the defendant is required to prove that “there exists a reasonable probability that, were it not for counsel‘s errors, the result of the trial would have been different.” State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph three of the syllabus.
{¶ 26} Appellant contends that trial counsel, by failing to point out that a 20-year sentence did not achieve the overriding purpose of felony sentencing under
{¶ 27} Moreover, even assuming he could demonstrate that trial counsel‘s performance was somehow deficient, appellant has not shown resulting prejudice. During the sentencing hearing, the trial court indicated it had read the presentence investigation report, which indicated a lengthy criminal history. Further, prior to the state‘s request that the court enter the maximum sentence, the court stated to appellant: “[T]here‘s no question you‘re going to do a long time; you‘re going to do some time here for prison. But * * * assuming you‘re able to survive it for another two decades or so, you‘ll be released.” (Mar. 27, 2014 Tr. 13.) In addition to noting the significant physical and psychological harm to R.D., the trial court cited appellant‘s criminal history, his failure to respond favorably to past sanctions, a refusal to acknowledge a pattern of drug or alcohol abuse, and lack of remorse. The record also indicates that appellant was on post-release control at the time of the offenses. Upon review, appellant has failed to show a reasonable probability that the trial court would have pronounced a different sentence in the absence of counsel‘s alleged failures.
{¶ 28} Appellant‘s third assignment of error is not well-taken and is overruled.
{¶ 29} Accordingly, appellant‘s first assignment of error is sustained, and his second and third assignments of error are overruled. Based upon the foregoing, the judgment of the Franklin County Court of Common Pleas is affirmed in part and reversed in part, and this matter is remanded to that court for resentencing.
Judgment affirmed in part and reversed in part; cause remanded.
TYACK and LUPER SCHUSTER, JJ., concur.
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