2005 Ohio 5889 | Ohio Ct. App. | 2005
Lead Opinion
{¶ 2} On July 16, 2004, the Hardin County Grand Jury indicted Kalb on the following charges: two counts of sexual battery, violations of R.C.
{¶ 3} At a change of plea hearing held on February 22, 2005, Kalb entered guilty pleas on two counts of sexual battery as 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 sentence 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 shortestprison term.
The sentencing court erred in increasing the penalty against thedefendant due to the defendant's position which facilitated the offense.
The sentencing court erred in making the prison terms consecutive toeach other as the judge failed to support his findings with reasons asrequired by R.C.
{¶ 4} In his first assignment of error, Kalb argues that the trial court failed to make the findings required by R.C.
if the court imposing a sentence upon an offender for a felony electsor is required to impose a prison term on the offender, the court shallimpose the shortest prison term authorized for the offense pursuant todivision (A) of this section, unless one or more of the followingapplies: (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 willdemean the seriousness of the offender's conduct or will not adequatelyprotect the public from future crime by the offender or others.
{¶ 5} A violation of R.C.
because the harm to the victim was so bad and you used your position oftrust as a step-father and took advantage of this victim who confided inyou because of her victimization is the reason that the Court finds thatthis matter was a very serious offense. It is the most harmful to thisparticular young lady, it is something that she probably never willrecover from. . . . The Court does find that this is the worst form ofthe offense in this particular case because of the position of trust, andtherefore in order to punish you, the Court feels that its two yearsentence 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 R.C.
{¶ 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. R.C.
[i]f multiple prison terms are imposed on an offender for convictionsof multiple offenses, the court may require the offender to serve theprison terms consecutively if the court finds that the consecutive serviceis necessary to protect the public from future crime or to punish theoffender and that consecutive sentences are not disproportionate to theseriousness of the offender's conduct and to the danger the offenderposes to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses whilethe offender was awaiting trial or sentencing, was under a sanctionimposed pursuant to section
{¶ 7} The requirements of R.C.
{¶ 8} Our review of the record indicates that the trial court complied with R.C.
[t]he Court [finds] in this particular case it is necessary to punishyou Mr. Kalb. Second finding is that the proposed sentences are notdisproportionate. Both as to the seriousness of the conduct which theCourt has already found is quite serious, and while the Court does notbelieve that you pose a danger immediately to the public, certainly thepublic has to be protected from you because the old adage that you havetasted the poisonous fruit Mr. Kalb. . . . You are a young man, you'llmarry again. We don't know what the future holds for you Mr. Kalb, or foranyone else. Or that the use of consecutive sentences to denote theseriousness or unusual harm caused, and that is what I keep coming backto Mr. Kalb. This isn't an ordinary case of sexual battery where you finda victim who is a victim for the first time and little or no harm isdone. Again, you took a victim who had been victimized, and you made hera victim again. . . . Harm so great that no single prison term canadequately reflect the seriousness of the offender's conduct. I trulybelieve 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 are 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 referenced 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 the 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 defined.
{¶ 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 potential penalty of one, two, three, four, or five years in prison. R.C.
{¶ 13} The trial court judge in this case specifically stated that this was the "worst form of the offense * * *." However, because the 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." R.C.
{¶ 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 probably 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 more 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 correct this malady.
