STATE OF OHIO, PLAINTIFF-APPELLEE, v. WILLIAM MICHAEL SILKNITTER, DEFENDANT-APPELLANT.
CASE NO. 14-16-07
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
January 30, 2017
[Cite as State v. Silknitter, 2017-Ohio-327.]
Appeal from Union County Common Pleas Court Trial Court No. 14-CR-0163
Judgment Affirmed
Date of Decision: January 30, 2017
APPEARANCES:
Mark J. Miller for Appellant
Terry L. Hord for Appellee
{1} Defendant-appellant, William Michael Silknitter (“Silknitter“), appeals the March 3, 2016 judgment entry of sentence of the Union County Court of Common Pleas. For the reasons that follow, we affirm.
{2} This case stems from allegations that Silknitter sexually abused his stepdaughter, D.D., between 2002 and 2014, when D.D. was between the ages of 7 and 19 years old. (See Doc. No. 114). After initially indicting Silknitter on September 2, 2014, the Union County Grand Jury on July 10, 2015 indicted him on 64 counts. (Doc. Nos. 1, 87). Those 64 counts consisted of the following: 6 counts of rape in violation of
{4} The trial court held a sentencing hearing and a sex-offender-registration hearing on March 3, 2016. (Mar. 3, 2016 Tr. at 4). The trial court sentenced Silknitter to 48 months in prison on each of the six counts of sexual battery, to be served consecutively for a total term of imprisonment of 288 months. (Id. at 88); (Doc. No. 172). The trial court also classified Silknitter as a Tier III sex offender. (Mar. 3, 2016 Tr. at 92); (Doc. No. 173). The trial court filed its judgment entries of sentence and sex-offender classification on March 3, 2016. (Doc. Nos. 172, 173).
{5} On March 30, 2016, Silknitter filed a notice of appeal. (Doc. No. 178). He raises seven assignments of error for our review. We will address together Silknitter‘s first, second, third, and fourth assignments of error, followed by his fifth, sixth, and seventh assignments of error individually.
The trial court failed to consider factors enumerated in R.C. 2929.12(E) which, if applied to Appellant, would show that he is not likely to commit future crimes; therefore, the trial court‘s sentence was unreasonable, contrary to law and inconsistent with the purposes of felony sentencing.
Assignment of Error No. II
The trial court‘s order imposing consecutive sentences on Appellant is not supported by the facts in this case and is therefore contrary to law.
Assignment of Error No. III
The trial court‘s sentence in this case is contrary to law because it is neither proportional or [sic] consistent with sentences imposed on similar offenders who committed similar crimes.
Assignment of Error No. IV
The trial court committed reversible error at sentencing by presuming that Appellant was guilty of committing sex crimes which were dismissed as part of Appellant‘s plea agreement and for considering other dismissed conduct.
{6} In his first, second, third, and fourth assignments of error, Silknitter challenges his sentence on various grounds. We will first address Silknitter‘s argument under his first assignment of error that the trial court failed to consider the
{7} Under
{8} We begin our analysis by addressing Silknitter‘s first assignment of error, in which he argues that the trial court failed to consider the
{9} A review of the record indicates that the trial court considered the
The Court has considered the record, the oral statements, the victim impact statement, the presentence report that we‘ve corrected here today, the letters submitted in support of the defendant, the defendant‘s sentencing memorandum filed with the Court on March 2, 2016, the purposes and principles of sentencing under Revised Code Section 2929.11, the seriousness and recidivism factors relevant to the offense and the offender pursuant to Revised Code Section
2929.12, and the need for deterrence, incapacitation, rehabilitation, and restitution.
(Emphasis added.) (Mar. 3, 2016 Tr. at 85). See Magallanes at ¶ 22. In its judgment entry of sentence, the trial court made a substantially similar statement. (Doc. No. 172). In it, the trial court stated that it “considered * * * the seriousness and recidivism factors relevant to the offense and offender pursuant to
{10} In his fourth assignment of error, Silknitter argues that the trial court erred because it “incorrectly and impermissibly found that sexual conduct between [Silknitter] and his stepdaughter occurred more than what [Silknitter] plead guilty to.” (Appellant‘s Brief at 11). To the extent Silknitter argues that the trial court
{11} Silknitter also argues under his fourth assignment of error that the trial court “espoused its own personal belief and demonstrated bias against” him, based on the trial court‘s statements at the sentencing hearing. (Appellant‘s Brief at 11). Specifically, Silknitter takes issues with the following statement by the trial court concerning the number of incidents of sexual conduct between Silknitter and D.D.: “If we only consider the defendant‘s statements in this case, and not the statements of — that we‘ve heard here today, the sexual conduct between the two occurred many more times than the six offenses that the defendant has admitted by his plea of guilty.” (Mar. 3, 2016 Tr. at 85). Silknitter also disputes the following statement by the trial court: “How many times this happened is unknown with certainty. But it is certainly, by the defendant‘s own admission, many, many times.” (Id. at 87).
{12} In the trial court‘s statements above at the sentencing hearing, the trial court refers to statements Silknitter made during a recorded interview with detectives on August 13, 2014. (Id. at 80). (See also Doc. No. 172 at 10). The parties jointly submitted and stipulated to the admissibility of that recorded interview at a February 11, 2015 hearing on Silknitter‘s motion to suppress statements he made. (Mar. 3, 2016 Tr. at 80). (See also Doc. No. 172 at 10). We conclude that the trial court was allowed to consider that recording in sentencing Silknitter.
{13} The trial court cited Silknitter‘s interview statements extensively in support of the trial court‘s finding that Silknitter engaged in sexual conduct with D.D. in excess of the six offenses to which he pled guilty. (See Mar. 3, 2016 Tr. at 80-84); (Doc. No. 172 at 10-16). Indeed, Silknitter ignores the interview recording and its contents in his appellate brief and does not address whether the trial court properly tallied the number of incidents to which Silknitter admitted in his interview. In fact, Silknitter failed to provide this court with a transcript of the February 11, 2015 hearing on Silknitter‘s motion to suppress. “App.R. 9 requires an appellant to provide the appellate court with transcripts of the proceedings that are necessary to review the merits of his appeal.” State v. Brown, 3d Dist. Marion No. 9-10-12, 2010-Ohio-4546, ¶ 8, citing App.R. 9(B). Absent a transcript of the suppression hearing, including the exhibit containing Silknitter‘s interview recording, we presume validity of the trial court‘s findings based on Silknitter‘s admissions in the interview recording. See State v. Getzinger, 3d Dist. Henry No. 7-12-06, 2013-Ohio-2146, ¶ 25. We accordingly reject Silknitter‘s argument that the trial court “espoused its own personal belief,” “demonstrated bias against” him, and “did not corroborate” its findings at sentencing. (Appellant‘s Brief at 11).
{15}
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:
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, or 2929.18 of the Revised Code, or was under post-release control for a prior offense. - 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.
- The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
The trial court must state the required findings at the sentencing hearing prior to imposing consecutive sentences and incorporate those findings into its sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-4140, ¶ 50, citing Bonnell at ¶ 29. A trial court “has no obligation to state reasons to support its findings” and is not “required to give a talismanic incantation of the words of the
{16} In this case, Silknitter does not dispute that the trial court made the necessary findings under
{17} Silknitter also appears to argue under his second assignment of error that the trial court should not have relied on Stiers‘s testimony that Silknitter first engaged in sexual conduct with D.D. when she was seven years old. The trial court noted that Stiers testified to his determination that, based on his investigation, the abuse began when D.D. was seven years old. (See Doc. No. 172 at 8). Silknitter
{18} Finally, we address Silknitter‘s third assignment of error, in which he argues that his sentence is contrary to law because it is not proportional or consistent with sentences imposed on similar offenders who committed similar crimes.
{19} “[A] consistent sentence is not achieved from a case-by-case comparison, but by the trial court‘s proper application of the statutory sentencing guidelines.” State v. Hites, 3d Dist. Hardin No. 6-11-07, 2012-Ohio-1892, ¶ 16, citing State v. Hall, 179 Ohio App.3d 727, 2008-Ohio-6228, ¶ 10 (10th Dist.). “Thus, a sentencing court is not required to make a comparison of the current case to previous cases, but is required to appropriately apply the statutory sentencing guidelines in order to maintain consistency.” Id., citing State v. Saur, 10th Dist. Franklin No. 10AP-1195, 2011-Ohio-6662, ¶ 37. “Therefore, an offender cannot simply present other cases in which an individual convicted of the same offense received a lesser sentence to demonstrate that his sentence is disproportionate.” Id., citing State v. Hayes, 10th Dist. Franklin No. 08AP-233, 2009-Ohio-1100, ¶ 10. Rather, “‘[a] defendant claiming inconsistent sentencing must show the trial court failed to properly consider the statutory sentencing factors and guidelines in
{21} Silknitter‘s first, second, third, and fourth assignments of error are overruled.
The trial court committed reversible error by failing to make a definitive finding in regard to appellant‘s objections to factual statements made in the presentence investigation report.
{22} In his fifth assignment of error, Silknitter argues that the trial court failed to properly address three objections Silknitter made to the contents of the presentence investigation (“PSI“) report.
{23}
(2) Prior to sentencing, the court shall permit the defendant and the defendant‘s counsel to comment on the presentence investigation report and, in its discretion, may permit the defendant and the defendant‘s counsel to introduce testimony or other information that relates to any alleged factual inaccuracy contained in the report.
* * *
(5) If the comments of the defendant or the defendant‘s counsel, the testimony they introduce, or any of the other information they introduce alleges any factual inaccuracy in the presentence investigation report or the summary of the report, the court shall do either of the following with respect to each alleged factual inaccuracy:
(a) Make a finding as to the allegation;
(b) Make a determination that no finding is necessary with respect to the allegation, because the factual matter will not be taken into account in the sentencing of the defendant.
{24} In this case, Silknitter made three objections to the factual accuracy of the PSI report. (See Doc. No. 170); (Mar. 3, 2016 Tr. at 5). At the outset of the sentencing hearing, the trial court addressed Silknitter‘s three objections, ordering the PSI report corrected or supplemented in response to each objection. (See Mar. 3, 2016 Tr. at 5-16). Silknitter‘s trial counsel indicated that the trial court adequately addressed Silknitter‘s objections to the PSI report:
| [Trial Court]: | Okay. [Defense Counsel], are you satisfied that I‘ve adequately addressed the objections? |
| [Defense Counsel]: | Yes, I am, your Honor. |
(Id. at 16). Based on Silknitter‘s agreement, through counsel, that the trial court adequately addressed Silknitter‘s objections to the PSI report, Silknitter waived any arguments related to alleged inaccuracies in the PSI report and to the trial court‘s treatment of those inaccuracies. See State v. Richardson, 2d Dist. Montgomery No. 23879, 2013-Ohio-1374, ¶ 17.
{25} Silknitter‘s fifth assignment of error is overruled.
The Ohio incest statute violates appellant‘s constitutional rights.
{26} In his sixth assignment of error, Silknitter argues that
{27} There is a question whether Silknitter waived these arguments by entering his pleas of guilty in this case. Compare State v. Yodice, 11th Dist. Lake No. 2001-L-155, 2002-Ohio-7344, ¶ 27 with State v. Wilson, 58 Ohio St.2d 52 (1979), paragraph one of the syllabus. Nevertheless, assuming without deciding that Silknitter did not waive these arguments by entering his pleas of guilty, we can easily dispose of this assignment of error.
{28}
{29} Silknitter‘s sixth assignment of error is overruled.
Assignment of Error No. VII
The Tier III sex-offender requirements imposed on appellant are unconstitutional because they constitute cruel and unusual punishment and because Senate Bill 10 violates the separation of powers doctrine.
{30} In his seventh assignment of error, Silknitter argues that the requirements imposed on him as part of his classification as a Tier III sex offender violate the prohibition of cruel and unusual punishment contained in the Eighth
{31} We summarily reject Silknitter‘s argument that the requirements accompanying his Tier III sex offender classification violate the Eighth Amendment. This court recently held—in a case that began in juvenile court but was transferred to criminal court—that Tier III registration requirements do not constitute cruel and unusual punishment. See State v. Curtis, 3d Dist. Allen No. 1-15-55, 2016-Ohio-6978, ¶ 72. See also State v. Moore, 2d Dist. Darke No. 2014-CA-13, 2015-Ohio-551, ¶ 16 (“We have held that Ohio‘s sex offender classification law does not violate the Cruel and Unusual Punishment Clause.“), citing State v. Blankenship, 2d Dist. Clark No. 2012-CA-74, 2014-Ohio-232, ¶ 10-11.
{32} We also summarily reject Silknitter‘s argument that S.B. 10 violates the separation-of-powers doctrine. In a case involving the sexual-battery statute, albeit a different subsection, this court concluded that S.B. 10, “as applied to those convicted of sexual battery in violation of
{33} Silknitter‘s seventh assignment of error is overruled.
{34} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and SHAW, J.J., concur.
/jlr