THE STATE OF OHIO, APPELLEE, v. POLIZZI, APPELLANT.
No. 2024-0312
Supreme Court of Ohio
Decided July 10, 2026
Slip Opinion No. 2026-Ohio-2588
Criminal law—Sentencing—R.C. 2929.14(C)(4)—Consecutive-sentencing findings—R.C. 2953.08(G)(2)—Appellate review of consecutive sentences—Proportionality review does not require courts to consider the total number of consecutive sentences and the resulting aggregate prison term when imposing or reviewing consecutive sentences—A trial court may consider the offender’s overall conduct and the harm caused by his or her crimes when imposing consecutive sentences—On appeal, appellate court may examine whether trial court’s findings supporting consecutive sentences are clearly and convincingly unsupported by the record and may also examine whether sentence is otherwise contrary to law—Court of appeals’ judgment affirmed.
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2026-OHIO-2588
THE STATE OF OHIO, APPELLEE, v. POLIZZI, APPELLANT.
[Until this opinion appears in the Ohio Official Repоrts advance sheets, it may be cited as State v. Polizzi, Slip Opinion No. 2026-Ohio-2588.]
Criminal law—Sentencing—
(No. 2024-0312—Submitted October 7, 2025—Decided July 10, 2026.)
APPEAL from the Court of Appeals for Lake County,
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SHANAHAN, J., authored the opinion of the court, which KENNEDY, C.J., and DEWINE, DETERS, and HAWKINS, JJ., joined. FISCHER, J., concurred in judgment only, with an opinion. BRUNNER, J., concurred in judgment only, with an opinion.
__________________
SHANAHAN, J.
{¶ 1} A former high-school teacher pleaded guilty to multiple counts of gross sexual imposition and sexual battery. The trial court imposed maximum consecutive sentences resulting in a 33-year aggregate prison term. The Eleventh District Court of Appeals vacated the sentence after determining that the trial court’s consecutive-sentence findings lacked support in the record and remanded the case to the trial court for resentencing. State v. Polizzi, 2019-Ohio-2505, ¶ 47-48 (11th Dist.). The trial court held a resentencing hearing and imposed an aggregate prison term of 358 months (29 years and 10 months), which the appellate court affirmed. State v. Polizzi, 2021-Ohio-244, ¶ 17, 57 (11th Dist.). On appeal to this court, we initially denied jurisdiction, State v. Polizzi, 2022-Ohio-1606, but we later granted Polizzi’s motion for reconsideration, accepted Polizzi’s appeal, reversed the Eleventh District’s judgment, and remanded the case to the Eleventh District for application of State v. Gwynne, 2022-Ohio-4607 (“Gwynne IV”). State v. Polizzi, 2022-Ohio-4728. After we reconsidered Gwynne IV in State v. Gwynne, 2023-Ohio-3851 (“Gwynne V”), the Eleventh District applied Gwynne V and reaffirmed the trial court’s imposition of a 358-month aggregate prison term. 2024-Ohio-142, ¶ 3-4, 11 (11th Dist.). Polizzi has again appealed to this court.
{¶ 2} In this case, we address whether courts must consider the total number of consecutive sentences and the resulting aggregate prison term when imposing or reviewing consecutive sentences. Because we hold that proportionality review does not require courts to consider the total number of consecutive sentences and
I. BACKGROUND
{¶ 3} Appellant, Anthony J. Polizzi Jr., served as a high-school teacher, coach, and advisor. Polizzi became sexually involved with E.L., a 17-year-old student at the school. The sexual activity included touching and digital penetration and continued after E.L. had grаduated. Several years after the sexual activity ceased, Polizzi reached out to E.L. E.L. wanted no contact with him.
{¶ 4} N.M. also was a student at the school. When she was 17 years old, Polizzi became sexually involved with her. The sexual activity included touching, digital penetration, and oral sex. Another student reported Polizzi to the school’s administration after becoming suspicious that Polizzi’s relationship with N.M. was inappropriate. The school terminated Polizzi. More than two years later, Polizzi sent N.M. texts containing sexual and vulgar comments and appeared at her place of employment. N.M. reported Polizzi’s sexual activity against her and his conduct to the police.
{¶ 5} Polizzi was indicted on 81 counts of sexual offenses relating to E.L and N.M. Polizzi pleaded guilty to six counts of sexual battery and two counts of gross sexual imposition. Polizzi was sentenced to the maximum term on each count, all to run consecutive to each other for an aggregate prison term of 33 years, and he was classified as a Tier III sex offender.
{¶ 6} Polizzi appealed his sentence. The Eleventh District vacated the sentence, Polizzi, 2019-Ohio-2505, at ¶ 48 (11th Dist.), concluding that the record did not support finding (1) Polizzi posed a great risk to the public based on the likelihood that he will commit future crime and (2) the harm caused to the victims was permanent “or even as severe as the worst form of each of the charged crimes,” id. at ¶ 47. The court of appeals remanded the case to the trial court for resentencing. Id. at ¶ 48.
{¶ 8} Polizzi appealed the sentence imposed at his resentencing. In a two-to-one decision, the court of appeals rejected his assignments of error and affirmed the trial court’s judgment. Polizzi, 2021-Ohio-244, at ¶ 1, 57 (11th Dist.).
{¶ 9} Polizzi appealed the court of appeals’ judgment to this court, but we declined jurisdiction. Polizzi, 2022-Ohio-1606. Polizzi filed a motion for reconsideration, which we granted. Polizzi, 2022-Ohio-4728. We accepted Polizzi’s appeal, reversed the Eleventh District’s judgment, and remanded the case to that court for application of Gwynne IV, 2022-Ohio-4607. Polizzi, 2022-Ohio-4728. In Gwynne IV, this court held that in making consecutive-sentencing findings, a trial court must consider the number of consecutive sentеnces imposed and the resulting aggregate prison term and that under
{¶ 10} Polizzi filed a discretionary appeal to this court, raising six propositions of law. This court accepted the first two propositions of law for review but held the matter for the decision in 2023-0654, State v. Glover. 2024-Ohio-1832. After this court decided Glover, 2024-Ohio-5195, the stay in this case was lifted
{¶ 11} Polizzi’s appeal proceeded on the following proposition of law:
Trial courts and appellate courts must consider the overall number of consecutive sentences and the aggregate sentence when imposing or reviewing consecutive sentences.
See 2024-Ohio-1832.
II. ANALYSIS
{¶ 12} There are two distinct but related considerations in consecutive sentencing. First, there is the trial court’s role. While not expressly required by
A. Consecutive-Sentencing Statutory Framework
{¶ 13} The primary goals of felony sentencing are to protect the public from future crime, punish the offender, and promote rehabilitation.
{¶ 14} Under
{¶ 15}
{¶ 16} Proportionality is to be distinguished from consistency, the latter relating to sentences given to others while the former relates to the sentences given to the offender, i.e., whether the punishment fits the crime, not how it compares with the punishment of others. See State v. Hoffman, 2023-Ohio-2645, ¶ 8 (11th Dist.).
{¶ 17} Appellate courts generally defer to trial courts on sentencing decisions. As the United States Supreme Court has stated, “it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence.” Solem v. Helm, 463 U.S. 277, 290, fn. 16 (1983). Ohio law reflects this deference in
{¶ 18} “‘[C]lear and convincing evidence’” is proof that creates a “‘firm belief or conviction as to the facts sought to be established.’” Gwynne V, 2023-Ohio-3851, at ¶ 14 (lead opinion), quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. It is a firm belief that the record does not support the trial court’s findings—more than a preponderance but less than beyond a reasonable doubt. Id.
B. Significant Recent Case Law
{¶ 19} This court recently addressed consecutive sentencing and its appellate review in Gwynne V and Glover, 2024-Ohio-5195. Neither case produced a majority opinion.
{¶ 20} In Gwynne IV, this court held that consecutive prison sentences “must be made in consideration of the aggregate term to be imposed.” 2022-Ohio-4607 at ¶ 1. It concluded that appellate review should be de novo, i.e., that appellate courts need not defer to the trial court’s findings. Id. Rather, appellate courts were to review the record and “decide whether the record clearly and convincingly [did] not support the consecutive-sentence findings.” Id.
{¶ 21} This court vacated Gwynne IV in Gwynne V, with the lead opinion highlighting that “[t]he plain language of
{¶ 22} This court applied its lead opinion in Gwynne V in deciding Glover, 2024-Ohio-5195. In Glover, the First District Court of Appeals had reduced Glover’s aggregate prison term from 60 years to 25 years. This court reversed the
C. Application to Polizzi
1. The trial court
{¶ 23} Ohio’s felony-sentencing scheme focuses the trial court’s attention on one offense at a time. This court has explained that “‘[o]nly after the judge has imposed a separate prison term for each offense may the judge then consider in his discretion whether the offender should serve those terms concurrently or consecutively.’” State v. Hairston, 2008-Ohio-2338, ¶ 16, quoting State v. Saxon, 2006-Ohio-1245, ¶ 9.
{¶ 24} The trial court sentenced Polizzi on each offense within the statutory guidelines and made the findings required by
2. Appellate review of consecutive sentencing
{¶ 25} The appellate-review statute,
{¶ 26} The opinion concurring in the judgment and concurring in part in Glover suggested that because
{¶ 27} In its entirety,
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 any 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.
{¶ 28} The statute does not mention “aggregate prison term” or “aggregate sentence.” When statutory language is plain and unambiguous, courts must apply it as written. Jones v. Action Coupling & Equip., Inc., 2003-Ohio-1099, ¶ 12; Summerville v. Forest Park, 2010-Ohio-6280, ¶ 18. “Textualism, in its purest form, begins and ends with what the text says and fairly implies.” Scalia & Garner, Reading Law: The Interpretation of Legal Texts, 16 (2012). Neither “consecutive service” nor “consecutive terms” equate to “aggregate prison term” or “aggregate sentence.”
{¶ 29} Although some may view Polizzi’s aggregate prison term as lengthy, it reflects the number and severity of the offenses committed by Polizzi. Both the trial court and the appellate court adhered to the General Assembly’s directives in imposing a and reviewing Polizzi’s aggregate prison term totaling 358 months.
III. CONCLUSION
{¶ 30} After establishing that consecutive sentencing is appropriate for multiple offenses, the trial court has discretion to impose such sentences. In exercising this discretion, the trial court may consider the offender’s overall conduct and the harm caused by the crimes. On appeal, review is deferentiаl and limited by the appellate-review statute: the appellate court may examine whether the trial court’s findings supporting consecutive sentences are clearly and convincingly unsupported by the record,
{¶ 31} The judgment of the Eleventh District Court of Appeals is affirmed.
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THE STATE OF OHIO, APPELLEE, v. POLIZZI, APPELLANT.
FISCHER, J., concurring in judgment only.
FISCHER, J., concurring in judgment only.
{¶ 32} This is the most recent case in the saga of whether courts must consider the total number of consecutive sentences and the resulting aggregate prison term when imposing consecutive sentences under
{¶ 33} Today, the majority opinion adopts the imperfect legal reasoning of the lead opinion in Glover, rejecting the proposition that the trial court must consider the aggregate prison term in a proportionality analysis under
{¶ 34} As I expressed in my separate opinion in Glover, the statutory scheme for imposing consecutive sentences requires a trial court to consider and determine the aggregate prison term in analyzing whether the consecutive sentences are not disproportionate to the sеriousness of the offender’s conduct and to the danger the offender poses to the public. Glover at ¶ 67-69 (Fischer, J., concurring in judgment and concurring in part); see also id. at ¶ 73 (Stewart, J., dissenting) (agreeing that trial courts must consider and determine the aggregate sentence in the proportionality analysis). This conclusion is supported by the proportionality requirement in
I. STATUTORY SENTENCING SCHEME
A. Sentences for Individual Offenses
{¶ 36} While this case specifically deals with consecutive sentences imposed under
{¶ 37} After an offender has been found guilty of an offense, the trial court imposes a sentence, which is the sanction or combinаtion of sanctions imposed for an offense. State v. Saxon, 2006-Ohio-1245, ¶ 12-13, 15-16;
{¶ 38} As discussed by the majority opinion, when the trial court sentences an offender for an offense, its goal is to order a sentence that will protect the public from future crime by the offender and others, punish the offender, and promote the effective rehabilitation of the offender using the minimum sanctions necessary to avoid burdening state and local government resources. Majority opinion, ¶ 13,
{¶ 39} To evaluate the seriousness of the offender’s conduct in a sentencing determination for a single offense, the trial court uses the nonexhaustive list of factors in
{¶ 40} After considering the relevant factors under
B. Concurrent or Cоnsecutive Service of Sentences with Prison Terms
{¶ 41} When an offender has been convicted of multiple offenses and the trial court has sentenced the offender to a prison term on more than one of those offenses, the general presumption is that the prison terms will be served
{¶ 42} But there are situations in which an offender may be required to serve prison terms consecutively, that is, one after another. See
{¶ 43} When a trial court sentences an offender to consecutive prison terms, including under
C. Consecutive Sentences under R.C. 2929.14(C)(4)
{¶ 44} Under
1. Consecutive service is necessary to protect the public from future crime or to punish the offender
{¶ 45} The first finding the trial court must make is that consecutive service
{¶ 46} Here, the trial court sentenced appellant, Anthony J. Polizzi, to the second highest term of imprisonment on each count: a 17-month prison term for each fourth-degree-felony gross-sexual-imposition count and a 54-month prison term for each third-degree-felony sexual-battery count. See
2. Consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public
{¶ 48} For the trial court to sentence the offender to serve consecutive prison terms, the trial court must make a second finding that “consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public.” (Emphasis added.)
a. R.C. 2929.14(C)(4) requires a trial court to find consecutive sentences to be proportional to the seriousness of the offender’s conduct and to the danger the offender poses to the public
{¶ 49} The majority opinion essentially concludes that no proportionality analysis is required under
{¶ 50} Under
{¶ 51} The words proportionate and disproportionate are mutually exclusive and the only possible options when assessing proportionality. When something is disproportionate to something else, that means that those two things are “out of proportion.” Merriam-Webster Online, https://www.merriam-webster.com/dictionary/disproportionate (accessed Apr. 22, 2026) [https://perma.cc/33NR-TLYZ]; see also Black’s Law Dictionary (12th Ed. 2024) (defining “disproportionate” as “[h]aving too much or too little in relation to something else; not suitable in comparison with something else in size, amount, importance, etc.”). When something is proportionate to something else, those two things correspond in size, degree, or intensity or have the same or a constant ratio. See Merriam-Webster Online, https://www.merriam-webster.com/dictionary/proportional (accessed, Apr. 22, 2026) [https://perma.cc/9VLQ-LBWP]. “Disproportionate” specifically means to not be proportionate. Thus, “not disproportionate” means proportionate.
{¶ 52} Applying these definitions further illustrates this point. If something
{¶ 53} Two things that are proportionate to one another, i.e., of the same degree, ratio, or intensity, are also not disproportionate to one another. While there can be degrees of disproportion, as illustrated by our precedent analyzing the Eighth Amendment to the United States Constitution’s prohibition against cruel and unusual punishment, see State v. Hairston, 2008-Ohio-2338, ¶ 20 (“Where none of the individual sentences imposed on an offender are grossly disproportionate to their respective offenses, an aggregate prison term resulting from consecutive imposition of those sentenсes does not constitute cruel and unusual punishment.”), any degree of disproportion between two things still makes those two things disproportionate to one another. Even when two things are close to being proportionate, they are still disproportionate to one another. All in all, either two things are proportionate to one another or they are not and are thus disproportionate to one another. Under
{¶ 54} We must apply what the General Assembly has said, not what it meant to say. See Z.J. v. R.M., 2025-Ohio-5662, ¶ 18; Slingluff v. Weaver, 66 Ohio St. 621 (1902), paragraph two of the syllabus. When we read the term “not disproportionate” in a logical way that is consistent with its definition,
{¶ 55} To begin its proportionality analysis, the trial court must know the seriousness of the offender’s conduct and the danger the offender poses to the public. As noted here by the Eleventh District,
{¶ 56} And while this analysis would necessarily require consideration of previously determined factors under
{¶ 57} Once the trial court has determined the seriousness of the offender‘s conduct and the danger the offender poses to the public for the multiple offenses, the court determines whether “consecutive sentences” are not disproportionate, i.e., whether they are proportional. Using the range of available aggregate prison terms that result from running individual sentences consecutively, the trial court chooses the combination of individual sentences that, if run consecutively, would result in an aggregate prison term that is proportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public. See
b. The “consecutive sentences” in the proportionality analysis form the aggregate prison term imposed under R.C. 2929.14(C)(4)
{¶ 58} With the reality that there must be a number associated with the consecutive sentences to determine proportionality, the majority opinion maintains that the trial court may consider the aggregate prison term imposed under
{¶ 59} When interpreting a statute, words and phrases are not read in isolation but rather are considered in the context of the statute as a whole. Z.J., 2025-Ohio-5662, at ¶ 25. Thus, we must interpret the term “consecutive sentences” in
{¶ 60} The term “consecutive sentences” is not defined in either
{¶ 61} And in
{¶ 62} Accordingly, when the trial court chooses “consecutive sentences” from the range of available individual sentences that can be run consecutively, because the total number of years of incarceration resulting from running those individual sentences consecutively is proportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, that total is the aggregate prison term imposed under
{¶ 63} To further support this point, there is no number other than the total number of years of incarceration achieved by running individual sentences consecutively that the trial court could use in its proportionality analysis. The trial court cannot consider in its proportionality analysis the concurrent service of all prison terms, because
{¶ 64} And that leaves only the trial court‘s choosing the combination of
c. Case comparisons are not required to determine proportionality under R.C. 2929.14(C)(4)
{¶ 65} Polizzi argues that proportionality review under
{¶ 66} Contrary to the majority‘s view, case comparisоns, which establish consistency between sentences in different cases, are commonly used in proportionality determinations. Courts use case comparisons in proportionality sentencing analyses for individual sentences to determine whether the crime fits the punishment. See, e.g.,
{¶ 67} But while case comparisons are used in other proportionality analyses, that does not mean that they are required here. The Generаl Assembly mandated the use of case comparisons in proportionality review of capital cases,
D. Appeals of Consecutive Sentences
{¶ 68} ”
{¶ 69} A defendant may appeal a trial court‘s consecutive-sentence findings under
{¶ 70} ”
{¶ 71} The General Assembly has made it clear that when reviewing the trial court‘s consecutive-sentencing findings made under
{¶ 72} Clear and convincing evidence is an evidentiary standard establishing a burden of proof. See In re Z.C., 2023-Ohio-4703, ¶ 7-8; Glover, 2024-Ohio-5195, at ¶ 46 (lead opinion). As noted by the majority opinion here, for an appellate court to determine whether there is clear and convincing evidence, the evidence must create a “’ “firm belief or conviction as to the facts sought to be established.” ’ ” Majority opinion at ¶ 18, quoting Gwynne, 2023-Ohio-3851, at ¶ 14 (lead opinion), quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. Thus, if the appellate court reviews the trial court‘s three consecutive-sentencing findings under
{¶ 73} While this standard of review is certainly deferential to the trial court‘s sentencing determinatiоns, there can be no doubt that the appellate court independently determines whether the trial court‘s sentencing findings are not supported by the record. Appellate courts cannot give deference to a trial court‘s
{¶ 74} As for the appellate court‘s consideration of the evidence and facts in the record that underly the trial court‘s consecutive-sentencing findings, the General Assembly mandated that the appellate court “review the record, including the findings underlying the sentence or modification given by the sentencing court,”
{¶ 75} Unfortunately, the General Assembly did not set forth a standard of review for the appellate court when reviewing the trial court‘s factual findings. Nowhere in
{¶ 76} But while
{¶ 77} And our case law is clear that an appellate court accepts any of the trial court‘s factual findings as true if those findings are supported by some competent, crediblе evidence. See State v. O‘Malley, 2022-Ohio-3207, ¶ 33; State v. Burnside, 2003-Ohio-5372, ¶ 8; State v. Schiebel, 55 Ohio St.3d 71, 74 (1990). So even if conflicting evidence in the record would sway an appellate court to find by clear and convincing evidence that a trial court‘s consecutive-sentencing findings are not supported by the record but the trial court, as the factfinder, made determinations regarding that conflicting evidence, the appellate court must still take those findings as true so long as they are supported by some competent, credible evidence.
{¶ 78} For these reasons, I disagree with the majority opinion‘s characterization of appellate review of a trial court‘s
II. ANALYSIS: APPLICATION TO POLIZZI‘S CASE
{¶ 79} The trial court sentenced Polizzi to the second highest possible term of imprisonment on each count, 17 months on each fourth-degree-felony gross-sexual-imposition count and 54 months on each third-degree-felony sexual-battery count. See
{¶ 80} On appeal, Polizzi challenged the trial court‘s imposition of consecutive sentences under
{¶ 81} Under
{¶ 82} In the proportionality analysis, the trial court determines the seriousness of the offender‘s conduct and the danger the offender poses to the public first so that it may choose the individual sentences to run consecutively that will be proportional to that determination. On appeal, the appellate court works backwards. It looks at the combination of individual sentences that the trial court ran consecutively to reach the aggregate prison term and determines whether there is clear and convincing evidence that the trial court‘s finding that the aggregate prison term is proportionate to the seriousness of the offender‘s conduct and to the
{¶ 83} Because Polizzi was sentenced to two 17-month prison terms and six 54-month prison terms, the range of possible consecutive sentences is between 71 months in prison and 358 months in prison, with 17 different consecutive-sentencing combinations to result in an aggregate prison term. If Polizzi‘s conduct was deemed more serious and the danger he posed to the public was deemed higher, proportionality required the trial court to run consecutively a combination of sentences that total an aggregate amount that fell within the higher range. If Polizzi‘s conduct was deemed less serious and the danger he posed to the public was deemed lower, proportionality required the trial court to run consecutively a combination of sentences that total an aggregate amount that fell within the lower range. Here, working backwards as the appellate court must on review, because the trial court imposed a combination of consecutive sentences that resulted in the highest possible aggregate prison term, there must be clear and convincing evidence that the reсord does not support the trial court‘s finding that Polizzi‘s conduct was more serious and that he posed more danger to the public in order to reverse the aggregate prison term imposed. Thus, the Eleventh District should have reviewed the record to determine whether there was clear and convincing evidence that does not support the trial court‘s findings that Polizzi‘s conduct was more serious and that he was more dangerous to the public.
{¶ 84} The Eleventh District determined that the record supported the trial court‘s findings concerning the seriousness of Polizzi‘s conduct. 2021-Ohio-244 at ¶ 46 (11th Dist.), rev‘d, 2022-Ohio-4728; see 2024-Ohio-142 at ¶ 11 (11th Dist.) (readopting the “reasoning and holding” from 2021-Ohio-244 (11th Dist.)). And I agree. Polizzi pursued and groomed two 17-year-old victims while he was their high-school teacher to obtain their consent to engage in sexual activity. He was in a position of power as their educator, and he violated their trust in a place where they, as children, should feel safe. And Polizzi‘s abuse of these victims was not a one-off offense: Polizzi committed offenses against the first victim beginning in 2008 and continued his abuse of her over a nine-month period, and he then committed offenses against a second victim in 2010 and continued his abuse of her over a two-month period. Because of Polizzi‘s actions, the victims suffered enduring emotional and psychological harm. Thus, there is not clear and convincing evidence that the trial сourt‘s seriousness determination was not supported by the record.
{¶ 85} And the Eleventh District did not find that the record did not clearly and convincingly support the trial court‘s finding that Polizzi was a danger to the public. I also agree with that determination.
{¶ 86} There is some evidence in the record that tends to refute the trial court‘s finding that Polizzi was a significant danger to the public. The presentence investigation report (“PSI“) identified that Polizzi was of low or moderate risk to reoffend; a sex-offender evaluation had a score of “0,” which falls in the low-risk category and has a five-year sexual-recidivism rate of 2.8 percent; Polizzi had not committed any other crimes in the eight to ten years since he had committed the crimes against the second victim; and he had a strong family support system to keep his likelihood of recidivism low.
{¶ 87} But the record shows that the factors from the PSI used to determine whether Polizzi would reoffend are in conflict with the facts of this case. Polizzi committed his offenses against two separate victims over separate periods within a two-year time frame, and he did not stop committing the abuse until he was fired from his job as a teacher. After he was fired, he continued to harass the second
{¶ 88} And Polizzi‘s lack of committing additional criminal conduct during the eight to ten years in between his committing and being charged with the offenses does not make up for the two years he sexually abused high-school students and his continuous harassment of the second victim years later. Had the police investigated and charged Polizzi immediately after the second victim brought this abuse to light in 2012 rather than failing to do so until 2017, the fact that Polizzi committed no crimes in those eight to ten years would not have been a factor to support a lack of recidivism and would have offered no weight in considering whether he was a danger to the public.
{¶ 89} Furthermore, Polizzi committed all these offenses while married. This fact explicitly refutes the evidence that his family support, which was available and unchanged when he committed the offenses, would keep him from reoffending.
{¶ 90} And Polizzi‘s lack of remorse and attitude toward the victims cannot be understated. While Polizzi pleaded guilty to eight offenses, which shows that he took some responsibility for his actions, and the State dismissed 72 offenses, the record indicates that he lacked genuine remorse and exhibited anger toward his victims once his conduct was revealed. Furthermore, Polizzi silenced his victims during the abuse by suggesting that they would be expelled from school if they told anyone. Not only did Polizzi abuse his victims physically, but he threatened to take away their education and future if they told anyone about the abuse, i.e., that they would be punished for his actions. That type of behavior is predatory and dangerous, especially when coming from a teacher.
{¶ 91} For those reasons, the Eleventh District could not find that the record clearly and convincingly does not support the trial court‘s determination that Polizzi‘s conduct was incredibly serious and that he posed a significant danger to the public. And thus, because these findings necessarily required that the trial court impose consecutive sentences with an aggregate prison term in the higher range of available aggregate prison terms, the Eleventh District could not find that the record clearly and convincingly does not support the trial court‘s imposition of the 358-month aggregate prison term as proportionate to the seriousness of Polizzi‘s conduct and to the danger he posed to the public.
{¶ 92} For those reasons, I agree with the majority opinion that Polizzi‘s сonsecutive sentences should be affirmed.
III. CONCLUSION
{¶ 93} The statutory scheme for imposing consecutive sentences requires a trial court to consider and determine the aggregate prison term in analyzing whether the consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public. This conclusion is supported by the proportionality requirement in
{¶ 94} And as a result, the appellate court may, under
{¶ 95} Because the majority opinion uses an incorrect analysis but still reaches the right result, I respectfully concur in judgment only.
BRUNNER, J., concurring in judgment only.
{¶ 96} I agree with the analysis set forth in the first opinion concurring in judgment only, with one exception. In my view, proportionality review under
Charles E. Coulson, Lake County Prosecuting Attorney, and Teri R. Daniel, Assistant Prosecuting Attorney, for appellee.
Berkman, Gordon, Murray & DeVan, Mark R. DeVan, and William C. Livingston, for appellant.
Steven L. Taylor, urging affirmance for amicus curiae Ohio Prosecuting Attorneys Association.
Russell S. Bensing, urging reversal for amicus curiae Ohio Association of Criminal Defense Lawyers.
Cullen Sweeney, Cuyahoga County Chief Public Defender, and Erika B. Cunliffe and Robert B. McCaleb, Assistant Public Defenders; Elizabeth Miller, Ohio Public Defender, and Patrick Clark, Assistant Public Defender; Raymond T. Faller, Hamilton County Public Defender, and David H. Hoffman, Assistant Public Defender; Theresa G. Haire, Montgomery County Public Defender; and Joseph Shell, urging reversal for amici curiae Cuyahoga County Public Defender, Ohio