State v. JensenState v. Jensen
L. Scott Petroff, Athens, Ohio, for appellant1.
Anneka P. Collins, Highland County Prosecuting Attorney, and Adam J. King, Assistant Prosecuting Attorney, Hillsboro, Ohio, for appellee.
{¶1} This is an appeal from a Highland County Common Pleas Court judgment of conviction and sentence. Zachary Jensen, defendant below and appellant herein, raises one assignment of error for review:“THE SENTENCING COURT ERRED WHEN IT IMPOSED CONSECUTIVE SENTENCES DESPITE FINDING THAT THE RECORD DEMONSTRATES THAT APPELLANT DOES NOT POSE A RISK TO THE PUBLIC.”
{¶2} In April 2024, a Highland County Grand Jury returned an indictment that charged appellant with (1) one count of gross
{¶3} Subsequently, appellee filed a Bill of Information that charged appellant with (1) one count of unlawful sexual conduct with a minor in violation of
{¶4} On October 29, 2024, the trial court held a plea hearing at which appellee recited the plea agreement that (1) appellant would plead guilty to counts 5 and 6 of the indictment and counts 7 and 8 of the bill of information, (2) appellant would be designated a Tier II sex offender, and (3) appellee would dismiss the remaining counts and take no position regarding sentencing. The court conducted a
{¶5} The trial court also explained the maximum penalties, postrelease control, and reminded appellant that the parties’ sentencing recommendation did not bind the court‘s sentencing decision. Specifically, the court stated that:
the penalty for these four offenses . . . carry a possible prison term of 12 months to 60 months. . . There is also available a fine of $10,000.00, and those sentences could be imposed to run consecutively, meaning that the total minimum sentence could be 12 months, as a total maximum sentence, could be 240 months, so that would be one to... twenty years.
{¶6} Appellant expressed his understanding and agreement at each stage of the plea colloquy and affirmed his execution of the written plea form. In addition, the trial court verified that appellant discussed the plea with his counsel and appellant acknowledged his satisfaction with counsel.
{¶7} The plea agreement reflects that on October 30, 2024, appellant entered a plea of guilty to Counts 5 (unlawful sexual conduct with a minor), 6 (unlawful sexual conduct with a minor),
{¶8} At the December 17, 2024 sentencing hearing, the trial court reviewed the Tier II sex offender registration requirements. The court provided appellant with allocution, considered his stepmother‘s statement, the parties’ statements, and the record. The court noted that the sexual abuse of the victim, appellant‘s sister, began when she was approximately seven years old and continued for several years, and the court stated that appellant minimized his culpability by stating that he “[was] in a sexual relationship with [his] half-sister.” The court noted that the pre-sentence report indicated that appellant had “a serious sexual addiction to pornography, even encouraging the victim to download and use pornographic sites on her phone.” In addition, the court noted that the record
{¶9} The trial court stated that it had considered the oral statements, facts of the offenses, the
{¶10} The trial court noted that consecutive sentences are necessary to protect the public from future crime
because as I have indicated in my statements, there is not just one victim here, it‘s occurred over a long period of time. I think you‘ve been trying to minimize the seriousness of this by trying to apply, in fact, I saw one reference in one of your statements to I think it was one family member that at some point she had made advances to you later on in the relationship which suggest that perhaps she was also - and again, even though it may have been consensual under the law of the offense you committed the law says that children this age can‘t legally consent because they don‘t have the maturity or the capability of knowing what is right and
{¶11} The trial court further found that the sentences are not disproportionate to the seriousness of the offense and the danger appellant poses to the public. The court noted that the victim is in a residential treatment facility “due to the impact that [appellant‘s] victimization has had upon her . . .” The court further found that the offenses were committed as part of a long-term course of conduct and repeated victimization.
{¶12} After consideration, the trial court sentenced appellant to (1) serve a 30-month prison term on Count 5, (2) serve a 30-month prison term on Count 6, (3) serve a 30-month prison term on Count 7, (4) serve a 30-month prison term on Count 8, all to be served consecutively for a total of 120 months, (5) serve a mandatory 5-year postrelease control term, and (6) pay costs. This appeal followed.
{¶13} In his sole assignment of error, appellant asserts that the trial court erred when it sentenced him to serve consecutive sentences, despite finding that the record demonstrates that appellant does not pose a risk to the public. Specifically, appellant contends that the court (1) made no recidivism findings in the sentencing entry, (2) noted that appellant had no criminal history and had led a law-abiding life for a significant number of years, and (3) explicitly found
{¶14} In general, appellate courts should give broad deference to a trial court‘s sentencing decision and not serve as a “second-tier sentencing court.” State v. Blanton, 2025-Ohio-237, ¶ 30 (4th Dist.), citing State v. Glover, 2024-Ohio-5195, ¶ 39. Ordinarily, appellate courts defer to the broad discretion trial courts have in making sentencing decisions, and
{¶15}
The court hearing an appeal [of a felony sentence that includes consecutive sentences] ... shall review the
record, including the findings underlying the sentence or modification given by the sentencing court. 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 for 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:
(a) That the record does not support the sentencing court‘s findings under ... (C)(4) of section 2929.14 ...;
(b) That the sentence is otherwise contrary to law.
{¶16} Thus, this statute does not allow an appellate court to reverse or modify a sentence because a trial court arguably abused its discretion. Glover at ¶ 45; Blanton at ¶ 31. An appellate court may increase, decrease, or otherwise modify consecutive sentences only if it clearly and convincingly finds that the record does not support the trial court‘s findings or it clearly and convincingly finds that the sentence is contrary to law. Glover at ¶ 42. ” ‘[C]lear and convincing evidence’ is a degree of proof that is greater than preponderance of the evidence but less than the beyond-a-reasonable-doubt standard used in criminal cases.” Id. at ¶ 46. Furthermore, “[n]owhere does the appellate-review statute direct an appellate court to consider the defendant‘s aggregate sentence.” Instead, we limit our review to the trial court‘s consecutive sentencing findings under
{¶17} We initially observe that at the sentencing hearing, because appellant did not object to the court‘s imposition of consecutive sentences, he forfeited all but plain error. See State v. Grate, 2020-Ohio-5584, ¶ 204; State v. Grashel, 2025-Ohio-580, ¶ 22 (4th Dist.). A party asserting plain error must demonstrate the following: (1) an error occurred; (2) the error was obvious; and (3) a reasonable probability that the error affected the outcome of the proceeding. State v. Echols, 2024-Ohio-5088, ¶ 50. However, even when a defendant demonstrates that a plain error or defect affected the defendant‘s substantial rights, the Ohio Supreme Court has repeatedly emphasized that courts should “notice plain error ‘with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.’ ” State v. Barnes, 94 Ohio St.3d 21, 27 (2002), quoting State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus; e.g., State v. Bailey, 2022-Ohio-4407, ¶ 14 (“the plain-error doctrine is warranted only under exceptional circumstances to prevent injustice“). However, consecutive sentences imposed without making the requisite findings or a sentence that is contrary to law does constitute plain error that an appellate court may
{¶18} In the case sub judice, our review of the sentencing transcript reveals that the trial court made the appropriate
The Court further finds that pursuant to Section
2929.12(B)(1) ORC, the following factors indicating that the offender‘s conduct is more serious than conduct normally constituting the offense are present:. . .
The victim suffered serious physical, psychological or economic harm.
. . .
The offender‘s relationship with the victim facilitated the offense.
{¶19} Although the trial court did not explicitly select any factors under
And my concern is this, you know it‘s clear you have real sexual deviant problems and the experience that I have and the data that I am aware of shows that sex offenders are in a high, high risk of reoffending. I don‘t understand the science to understand what those motivators are, you now, we do see a lot of situations, like I said, of abuse in your own childhood which could certainly be a factor. But then there is also a lot of people that have PTSD that don‘t commit sex offenses. A lot of times it‘s physical abuse, or it‘s other things, other crimes, but not that.
{¶20} The trial court also went on to discuss other similar cases, in which the defendants quickly violated their community control. Although the court did not check the appropriate boxes on the sentencing entry, we believe that its statements during the sentencing hearing indicate that it considered the
{¶21} The main question, however, in the case sub judice is whether the trial court erred when it sentenced appellant to serve consecutive sentences. Under Ohio‘s statutory sentencing structure, a presumption exists that a defendant‘s multiple prison sentences should be served concurrently,
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 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.
{¶22} To impose consecutive sentences, a trial court is required to make the
{¶23} In the case sub judice, appellant argues that, in spite of the
{¶24} First, we observe that the trial court in the case at bar did not make a finding that appellant is “not likely to reoffend.” Rather, the court acknowledged that appellant had no prior criminal history, is married, and supports his family. The court, however, also highlighted that the abuse at issue took place over several years, involved an abuse of a familial relationship, and emphasized the high recidivism rates among sex abusers. See State v. Williams, 88 Ohio St.3d 513, 518, citing
{¶25} Second, regarding consecutive sentences, we find a similar case instructive. In State v. Wilson, 2013-Ohio-5195
{¶26} We recognize that other courts have affirmed consecutive sentences for first-time offenders. See State v. Hawkins, 2014-Ohio-4960 (2d Dist.)(consecutive sentences supported when, although Hawkins had no prior criminal record
{¶27} In the present case, counsel argued at sentencing that less serious factors included that appellant (1) had no criminal record, (2) suffered abuse as a child and suffered from post-traumatic stress disorder as an adult, (3) did not cause or
{¶28} We additionally recognize that the time period specified in the 4 counts of unlawful sexual misconduct with a minor (January 1, 2023, through May 1, 2024) to which appellant pleaded guilty involved multiple incidents during the time the victim was 13-14 years of age. However, other counts in the same indictment charged appellant with sexual abuse of the victim as early as age 10. And, at the sentencing hearing, the trial court observed that the victim reported that the sexual abuse began “when she was approximately 7 years old, and it continued.” The court further noted that appellant encouraged the victim to download and use pornographic sites on her phone and stated, “[I]n terms of danger to others, I will say this, well, first of all, the record indicates that there are statements that this was not the first victim in your family that you abused. You weren‘t charged with that, but it is the Court‘s concern about the danger you pose to others.” The court also concluded that the damage to the victim “is significant,
{¶29} The PSI recommendation stated:
Upon review of his criminal history, it is noted he has no prior felony convictions. He was assessed using the Ohio Risk Assessment System and scored 5. In reference to his primary criminogenic needs, he has nothing but low needs in each category. This assessment indicates he is a low risk to reoffend if his needs are not addressed. The defendant has pled guilty to a heinous crime that has life-long implications for the victim. She advised that she was seven (7) years old when the abuse started. Therefore, it is respectfully recommended that he be sentenced to a term of incarceration.
{¶30} The PSI further indicated that appellant “is obsessed with porn. . . it is on his computer and every video game he has. . . he has a modification on them for porn.” In addition, the PSI indicated that appellant “had done something to [another family member] as well.” That family member described how appellant “had raped and sexually assaulted him when [the victim] was in fifth grade.” Text messages discussed in the PSI
{¶31} In the PSI interview with the appellant, he stated:
“My crimes are a few instances of sexual interactions with the victim who was under the age of consent and for letting an inappropriate relationship develop.” Appellant described the “relationship” as being initiated by the victim and that he “was shocked at first but let it happen. . . for a few moments.” Appellant firmly blamed the victim in his PSI interview, with the interviewer writing in the margin, “minimizes” with respect to his long-term sexual abuse of his sister.
{¶32} Appellant‘s aggregate sentence of ten years constituted half of the statutory maximum the trial court could have imposed for these four convictions. The plea agreement resulted in dismissal of one gross sexual imposition charge, as well as three more severe first-degree-felony rape charges, but Ohio law permitted the trial court to consider the dismissed charges and unindicted acts. See State v. Cook, 2007-Ohio-625, ¶ 69 (8th Dist.)(” ‘Unindicted acts * * * can be considered in sentencing without resulting in error when they are not the sole basis for the sentence’ “); State v. Clemons, 2014-Ohio-4248, ¶
{¶33} Specifically, at the sentencing hearing regarding consecutive sentences, the trial court stated:
The Court is ordering that those sentences be served consecutively to one another for a total of 120 months. In reviewing this, the Court feels that consecutive sentences are necessary to protect the public from future crime, because, as I have indicated in my statements, there is not just one victim here, it‘s occurred over a long period of time. I think you‘ve been trying to minimize the seriousness of this by trying to apply, in fact, I saw one reference in one of your statements to I think it was one family members that at some point she had made advances to you later on in the relationship which suggest that perhaps she was also - - and again, even though it may have been consensual under the law of the offense you committed the law says that children this age can‘t legally consent because
they don‘t have the maturity or the capability of knowing what is right and wrong and what is appropriate and inappropriate for them.
The Court feels that it‘s also necessary to punish you for this offense for these offenses because, again, I feel you have minimized the seriousness of our conduct and you emphasized how you have acted since you were arrested, and I won‘t deny that has been as far as the Court is concerned you have done everything that you‘ve been required to do. And I‘m sure that you listened to your counsel in that. But again, that just doesn‘t overcome what the offense is. And the Court feels that therefore the sentence is necessarily not only to protect the public and other children from future victimization of the crime, but also to punish you.
The Court finds that these sentences are not disproportionate to the seriousness of your offenses and the danger that you pose to the public. And again, this victim is in a residential treatment, juvenile treatment due to the impact that your victimization has had upon her, and that is a serious impact on not deterring the public because that has to be paid for by the county.
The Court will find that these offenses were committed as part of a long term course of conduct and repeated victimization. If it had been a one time thing that is different, but in this case God knows how many times it happened. It happened over a long period of time. Now the offenses occurred here I think in a two year period but there were multiple offenses. And so, just one sentence for those multiple acts would not be sufficient because of the harm. And again, because it has been so great and again referencing the fact that it‘s a residential treatment this victim is having to undergo because of her victimization. And therefore, one single prison term is not sufficient to reflect the seriousness of your conduct because this is an unusually serious impact on a victim.
{¶34} Further, in the case sub judice, the sentencing entry states:
The Court further finds that pursuant to Section
2929.12(B)(1) ORC, the following factors indicating that
the offender‘s conduct is more serious than conduct normally constituting the offense are present:
The victim suffered serious physical, psychological or economic harm (the court encircled “psychological“).
. . .
The offender‘s relationship with the victim facilitated the offense.
{¶35} We highlight that the trial court did not list any factors pursuant to
If consecutive sentences are imposed, the Court hereby finds as follows:
Pursuant to Section
2929.14(C)(4) that the consecutive sentences are 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 the court also finds any of the following:. . .
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 the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
{¶36} Consequently, after our review in the case sub judice we conclude that the record does not clearly and convincingly fail to support the trial court‘s imposition of consecutive
{¶37} Therefore, for all the foregoing reasons, we overrule appellant‘s assignment of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
It is ordered that the judgment be affirmed and appellant shall pay the 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 Highland County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted by the trial court or this court, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 22, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.