State v. KalbState v. Kalb
Lead Opinion
OPINION
{¶ 1} The defendant-appellant, Christopher Kalb (“Kalb“), appeals from the judgment of the Hardin County Common Pleas Court sentencing him to two consecutive two year terms in prison; an aggregate sentence of four years.
{¶ 2} On July 16, 2004, the Hardin County Grand Jury indicted Kalb on the following charges: two counts of sexual battery, violations of
{¶ 3} At a change of plea hearing held on February 22, 2005, Kalb entered guilty pleas on two counts of sexual battery аs charged in the indictment, and the State of Ohio (“State“) dismissed the remaining charges. A sentencing hearing was held on April 11, 2005, and the trial court sentenced Kalb to a two year sentence on each charge for an aggregate sentencе of four years in prison. Kalb appeals the trial court‘s sentence and asserts the following assignments of error:
The court erred in sentencing Mr. Kalb [to] more than the shortest prison term. The sentencing court erred in increasing the penalty against the defendant due to the defendant‘s position which facilitated the offense. The sentencing court erred in making the prison terms consecutive to each other as the judge failed to support his findings with reasons as required by
{¶ 4} In his first assignment of error, Kalb argues that the trial court failed to make the findings required by
if the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender, the court shall impose the shortest prison term authorized for the offense pursuant to division (A) of this section, unless one or more of the following applies: (1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term. (2) The court finds on the record that the shortest prison term will demean the seriousness of the offender‘s conduct or will not adequately protect the public from future crimе by the offender or others.
{¶ 5} A violation of
because the harm to the victim was so bad and you used your position of trust as a step-father and took advantage of this victim who confided in you because of her victimization is the reason that the Court finds that this matter was a very serious offense. It is the most harmful to this particular young lady, it is something that she probably never will recover from. . . . The Court does find that this is the worst form of the offеnse in this particular case because of the position of trust, and therefore in order to punish you, the Court feels that its two year sentence is justified in this particular case.
Hearing Tr., Jun. 7, 2005, 16-17. The trial court‘s finding that Kalb committed the worst form of the offense is required only upon sentencing an offender to the maximum sentence. See
{¶ 6} In his third assignment of error, Kalb contends that the trial court made its findings on the record, but failed to support its findings with reasons.
[i]f 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 thе 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 аnd 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
{¶ 7} The requirements of
{¶ 8} Our review of the record indicates that the trial court complied with
[t]he Court [finds] in this particular case it is necessary to punish you Mr. Kalb. Second finding is that the proposed sentences are not disproportionate. Both as to the seriousness of the conduct whiсh the Court has already found is quite serious, and while the Court does not believe that you pose a danger immediately to the public, certainly the public has to be protected from you because the old adage that you have tasted the poisonous fruit Mr. Kalb. . . . You are a young man, you‘ll marry again. We don‘t know what the future holds for you Mr. Kalb, or for anyone else. Or that the use of consecutive sentences to denote the seriousness or unusual harm caused, and that is what I keeр coming back to Mr. Kalb. This isn‘t an ordinary case of sexual battery where you find a victim who is a victim for the first time and little or no harm is done. Again, you took a victim who had been victimized, and you made her a victim again. . . . Harm so great that no single prison tеrm can adequately reflect the seriousness of the offender‘s conduct. I truly believe that, Mr. Kalb, in your case.
{¶ 9} Hearing Tr., 17-18. The trial court specifically found that consecutive sentences are necessary to punish the offender, they аre necessary to protect the public because he committed the crimes once and may do so again, and that no single prison term could adequately reflect the seriousness of the conduct. The trial court referenсed Kalb‘s position of trust, the injury he caused B.M., and Kalb‘s knowledge of the other sexual assaults on B.M. We find that the trial court properly supported its findings as to consecutive sentences. The third assignment of error is overruled.
{¶ 10} The sentence of thе Hardin County Common Pleas Court is reversed in part and affirmed in part. This cause is remanded for further proceedings.
Judgment affirmed in part and reversed in part and cause remanded.
CUP, P.J., concurs.
ROGERS, J., concurs separetely.
Concurrence Opinion
{¶ 11} Rogers, J., concurring separately. I concur with the majority opinion‘s judgment; however, I write separately to express my frustration with the role that appellate courts in Ohio have been forced to play in sentencing following Senate Bill 2 (effective 7/1/1996). Essentially, the appellate courts’ function has become to examine, with microscopic care, the language used by trial courts in sentencing to determine whether it passes statutory muster. While the ideals of the sentencing statutes enjoined upon the courts of Ohio by S.B. 2 and its progeny may have been well intentioned, the vague terms utilized have caused an explosion of appeals challenging trial court findings of “worst form of the offense,” “demean the seriousness of the offense” and other terms, the exact meanings of which were not and cannot be dеfined.
{¶ 12} This case is a prime example of the above problem. As noted by the majority opinion, the defendant was sentenced on two counts of sexual battery, felonies of the third degree. A felony of the third degree carries a pоtential penalty of one, two, three, four, or five years in prison.
{¶ 13} The trial court judge in this case specifically stated that this was the “worst form of the offense * * *.” However, because thе trial court imposed more than the minimum prison term, but less than the longest prison term, it was required to find that the minimum term would “demean the seriousness of the offense.”
{¶ 14} On remand, the trial court is likely to reimpose the same sentence. However, the second time around the trial court will surely choose its words more carefully and will probаbly use the “magic words” of the statute.
{¶ 15} While the goal should always be technical correctness in our compliance with the mandates of the legislature, small departures in semantics should not demand such drastic consequences. The cost to the criminal justice system is too great to allow this to continue. Because most criminal defendants are indigent, the citizens of Ohio bear the financial cost of these appeals and resentencing hearings. Furthermore, the cost is mоre than just monetary. There is also a cost of the credibility of the criminal justice system when a defendant is told that he/she won his/her appeal on the issue of sentencing, only to be returned to the trial court to be resentenced to exactly the same penalties with the trial court simply using different words. What a farce this must seem to those defendants and their families. What a waste of time and money it must appear to the trial courts, appellate courts, prosecutors, and especially to the county commissioners who must budget for these nonsensical proceedings.
{¶ 16} It is time to ask our legislature to correc