State v. MooreState v. Moore
Steven H. Eckstein, Washington Court House, Ohio, for Appellant.
Nicole Tipton Coil, Washington County Prosecuting Attorney, and David K.H. Silwani, Assistant Washington County Prosecuting Attorney, Marietta, Ohio, for Appellee.
Smith, P.J.
{¶1} This is an appeal from a Washington County Common Pleas Court judgment entry convicting Appellant, David M. Moore, of one count of unlawful sexual conduct with a minor, a fourth-degree felony in violation of
FACTS
{¶2} On November 21, 2019, David Moore was indicted on one count of unlawful sexual conduct with a minor, a third-degree felony in violation of
{¶3} Thereafter, Moore entered into a plea agreement with the State whereby he agreed to enter a plea of guilty to an amended count of unlawful sexual conduct with a minor, a fourth-degree felony in violation of
ASSIGNMENT OF ERROR
I. THE TRIAL COURT ERRED IN SENTENCING DEFENDANT- APPELLANT TO THE MAXIMUM SENTENCE ALLOWED BY LAW.
{¶4} In his sole assignment of error, Moore contends that the trial court erred in sentencing him to a maximum prison term of 18 months for a fourth-degree felony sex offense. He argues that the maximum prison sentence that was imposed was not supported by the record in this case and that it was contrary to law in light of the fact that 1) he had a minimal criminal history; 2) he pleaded guilty instead of putting the victim and her family through a long, protracted trial; 3) he was honest with law enforcement during the presentence investigation; and 4) he had an ORAS score of 18. The State contends, however, that the maximum sentence was supported by the record and was not contrary to law.
{¶5} More specifically, the State argues that while the 18-month prison term was the maximum sentence, it was within the permissible sentencing range and
Standard of Review
{¶6} A reviewing court may modify or vacate a felony sentence only “if the court clearly and convincingly finds either that ‘the record does not support the sentencing court‘s findings’ under the specified statutory provisions or ‘the sentence is otherwise contrary to law.’ ” State v. Taylor, 4th Dist. Lawrence No. 15CA12, 2016-Ohio-2781, ¶ 40, quoting State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. ” ‘Clear and convincing evidence is that measure or degree of proof * * * which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.’ ” Marcum, at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the syllabus (1954). ” ‘This is a very deferential standard of review, as the question is not whether the trial court had clear and convincing
{¶7} Unlike other felony sentencing statutes, such as
R.C. 2929.11 and 2929.12
{¶8} ”
{¶9} ”
Legal Analysis
{¶10} Here, a review of the sentencing transcript reveals that the trial court expressly stated on the record that it had considered the overriding purposes of felony sentencing, that it had weighed the seriousness and recidivism factors, and that after having considered such, it found the sentence imposed to be reasonably calculated to achieve those purposes. The court further found that the sentence was commensurate with and did not demean the seriousness of the defendant‘s conduct or the impact on the victim, and that it was consistent with sentences imposed for similar crimes committed by similar defendants. Further, although it was not required to state its reasons for imposing a maximum sentence, the trial court expressly stated on the record as follows regarding the seriousness factors:
I‘ve given him the maximum possible sentence, and part of the reason for that is, I‘m cognizant that the facts of the case actually support an F-3. It‘s a higher level F-3, where you could have been looking at five years, but due to the plea bargain, the max I can give is eighteen months. So I‘m stuck with eighteen months.
{¶11} Elsewhere in the transcript the trial court also noted that the victim in the case had suffered serious psychological injuries as a result of the offense, that those injuries were a result of Moore‘s conduct, and that the injuries were exacerbated because of the age of the victim and her mental condition at the time.
{¶12} The trial court also expressly discussed its analysis of the recidivism factors during the sentencing hearing. The trial noted that the defendant had a prior criminal history, although it was “somewhat slight.” The trial court also referenced the fact that Moore had “breached bond” during the course of the case, which the court believed made him more likely to recidivate. The trial court further noted that Moore had committed criminal damaging while housed in the jail during the course of the case. The trial court also found that Moore showed no genuine remorse for the offense and that he had an ORAS score of 18, “which indicates a moderate risk of reoffending.”
{¶13} Thus, the record reflects that the trial court considered the
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington 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 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 the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. and Wilkin, J., Concur in Judgment and Opinion.
For the Court,
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.