State v. McLaughlin, 07 Ma 39 (6-30-2008)State v. McLaughlin, 07 Ma 39 (6-30-2008)
{¶ 1} Defendant-appellant Kenyon McLaughlin appeals from the sentence entered in the Mahoning County Common Pleas Court for multiple counts of rape. At sentencing, the trial court found McLaughlin to be remorseful, however, based upon its philosophy that multiple crimes deserve multiple punishments, the trial judge issued consecutive sentences. We must decide whether that decision was in error. We find that it was. For the reasons stated below, the judgment of the trial court is affirmed.
STATEMENT OF CASE
{¶ 2} On January 13, 2005, McLaughlin was indicted on seven counts of rape. The first three counts were for violations of
{¶ 3} McLaughlin appealed that sentence. State v. McLaughlin, 7th Dist. No. 05MA224, 2006-Ohio-7084. The issue raised in that appeal was whether Ohio‘s felony sentencing statute, specifically
{¶ 4} Resentencing was held on January 30, 2007. The trial court considered the purposes of sentencing, the seriousness of the conduct and recidivism factors. 01/30/07 Tr. 15-17. The trial court then imposed the same sentence that it had
ASSIGNMENT OF ERROR
{¶ 5} “THE CONSECUTIVE SENTENCES IMPOSED BY THE TRIAL JUDGE WERE CONTRARY TO LAW.”
{¶ 6} At the outset we note that both parties contend that post-Foster we cannot reverse a sentence unless we determine that the sentence is clearly and convincingly contrary to law. This standard is found in
{¶ 7} We agree that
{¶ 8} Furthermore, Foster‘s companion case State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, also indicated that the clear and convincing contrary to law standard is applicable:
{¶ 9} “As part of the General Assembly‘s promulgation of Am. Sub. S.B. No. 2, 146 Ohio Laws, Part IV, 7136, 7562 (`S.B. 2‘) effective July 1, 1996, courts of appeals obtained expanded authority to review felony sentences pursuant to
{¶ 10} Likewise, the Court once again in State v. Saxon specified that
{¶ 11} Foster, Mathis and Saxon seem to make it clear that
{¶ 12} The first approach is that
{¶ 13} That second approach is that
{¶ 14} The third approach invokes both standards of review; the clear and convincing contrary to law standard and the abuse of discretion standard. State v. Payne, 11th Dist. No. 2006-L-272, 2007-Ohio-6740, ¶ 17-19; State v. McLaughlin, 3d Dist. No. 3-06-19, 2007-Ohio-4114, ¶ 12. See, also, State v. Lewis, 2d Dist. No. 2006CA0119, 2007-Ohio-6607, ¶ 12 (indicating both standards are applicable by stating, “there does not exist clear and convincing evidence in this record that the trial court acted in an arbitrary, unreasonable, or unconscionable manner in imposing a six
{¶ 15} As stated above, this court subscribes to the theory that
{¶ 16} We now to turn to the issue of whether the sentence is clearly and convincingly contrary to law. The trial court sentenced McLaughlin to nonmaximum consecutive sentences. In doing so, it considered both
{¶ 17} “The Court also has to consider the seriousness factors, the injury is exacerbated by the victim‘s physical and mental age; she suffered serious psychological harm; the offenses were occasioned by your relationship with the victim; that relation facilitated the offenses. There‘s nothing to indicate this crime is less serious — these crimes are less serious, so obviously they‘re as serious as it gets.
{¶ 18} “Recidivism is more likely, those statutory factors appear not to apply. Recidivism is less likely. You have no prior juvenile record, no prior adult record, and I believe you do show genuine remorse, so that‘s what we are talking about before.
{¶ 19} “Each of these things represents just one factor, one element. I don‘t think you‘re going to do this again, but that‘s not all there is to it. I still have to punish you, I still have to say to you and everybody else who ever imagine doing something like this that there‘s going to be hell to pay, and that‘s an appropriate consideration for sentencing.” (Tr. 16-18).
{¶ 20} In addition to the above, the trial court also stated that it believed multiple crimes deserve multiple punishments. (Tr. 13-15). It explained that it does not give concurrent sentences for multiple commissions of the same crime because if it did, it would be sending the message that committing the crime multiple times is no worse than committing it once:
{¶ 21} “That‘s not the only issue. That you‘re sorry, I believe that. I was convinced of that at the time of your original sentencing, and even at the time of your plea. That you never would do this again, that‘s an important part of it too, but I also have to address the appropriate punishment for this type of an offense, and as your lawyer has argued, and admirably so, he talked about running these sentences concurrently. I mean, I think that doing that in a situation like this is a reward for committing the offenses on multiple occasions. The more times you commit it, the cheaper it is because the sentences are going to be run concurrently.
{¶ 22} “What the heck kind of message is that to anybody? The message that should be sent, and I‘m required to send a message when I sentence someone, is that if you commit multiple crimes, you‘re going to receive multiple punishments. You‘re going to pay for every crime you commit, so you‘re better off to stop than you are to continue.” (Tr. 13-14).
{¶ 23} The above reasoning, as a whole, does not render the sentence clearly and convincingly contrary to law. The trial court complied with the felony sentencing statutes when it considered and applied both
{¶ 24} Admittedly, the trial court‘s exposition that multiple crimes always deserve multiple punishments is troubling. The sentencing statutes do not conclusively support that type of rationalization, nor is there a clear mandate from the
{¶ 25} For the foregoing reasons, the judgment of the trial court is hereby affirmed.
DeGenaro, P.J., concurs.
Waite, J., concurs.