State v. StamperState v. Stamper
M. POWELL, J.
{¶ 1} Defendant-appellant, Leonard Stamper, appeals his sentence in the Butler County Court of Common Pleas for rape.
{¶ 2} Appellant was indicted in February 2012 on three counts of rape and one count of gross sexual imposition. The state alleged that from November 1, 2007, through September 30, 2010, appellant engaged in sexual conduct with the pre-teenage daughter of
{¶ 3} On July 9, 2012, appellant pled guilty to three counts of rape in violation of
{¶ 4} On August 24, 2012, following a sentencing hearing, the trial court sentenced appellant to ten years in prison on each count of rape, and ordered that two of the sentences be served consecutively, for an aggregate prison term of 20 years.
{¶ 5} Appellant appeals, raising two assignments of error.
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING MAXIMUM SENTENCES.
{¶ 8} Appellant argues the trial court abused its discretion in sentencing him to the maximum prison term for each of the three counts of rape. Appellant asserts the trial court failed to properly consider the factors under
{¶ 9} At the outset, we note that we no longer review felony sentences under an abuse of discretion standard. State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶ 6-7. Rather, we review felony sentences to determine whether the imposition of those sentences is clearly and convincingly contrary to law. Id. A sentence is not clearly and convincingly contrary to law where the record supports the trial court‘s findings under
{¶ 10} Appellant does not dispute that the trial court sentenced him within the statutory range, nor does he dispute that the trial court рroperly applied postrelease control in this case. The judgment entry of conviction specifically states that the trial court considered “the principles and purposes of sentencing under Ohio Revised Code Section 2929.11, and has balanced the seriousness and rеcidivism factors of Ohio Revised Code Section 2929.12.”
{¶ 11} We find that the trial court did not err in sentencing appellant to the maximum prison term for each rape count. When sentencing a defendant, a trial court is not required to consider each sentencing factor, “but rather to exerсise its discretion in determining whether the sentence satisfies the overriding purpose of Ohio‘s sentencing structure.” State v. Oldiges, 12th Dist. Clermont No. CA2011-10-073, 2012-Ohio-3535, ¶ 17. Factors set forth in
{¶ 12} During the sentencing hearing, the trial court allowed appellant to present mitigating evidence. In a statement to the court, appellant took responsibility for his actions, apologized for his criminal conduct, and stated he was “prepared to take the consequences of whatever sentence” the trial court deemed аppropriate. The victim subsequently took the stand and described how appellant “stalked [her] life day and night for years,” and how she was:
the innocent little girl whose life you screwed up, the courage and fight that you took out of her, the light and happiness that left her eyes. * * * The girl that grew uр before her time, who lost her innocence and youth. The girl who was silently screaming, begging for someone, anyone to notice.
The victim also explained she had recently been hospitalized in a mental institution because she “couldn‘t handle being at home with the triggers and the memories.” The victim closed her statement with, “Whoever knew the word dad could mean molester.”
{¶ 13} In sentencing appellant to the maximum prison term for each rape count, the trial court found that:
It seems clear to me that the harm that was visited on [the victim] in this case was a result of predаtory behavior. * * * you groomed this family, you groomed this little girl, and when the time was right, you took advantage of it, and you took advantage of it for a period of time. The harm here was great. I‘ve seen that little girl stand up there and talk about what happened to her, a terrible thing. You made hеr grow up too soon. She shouldn‘t have to be talking about those things to this Court or to anybody else. And I understand why her parents were concerned about her well-being.
{¶ 14} In light of the foregoing, we find that the trial court did not err in sentencing appellant to the maximum prison term for each of the three counts of rape. Appellant‘s maximum sentences are not clearly and convincingly contrary to law. State v. Humes, 12th Dist. Clermont No. CA2009-10-057, 2010-Ohio-2173, ¶ 18.
{¶ 16} In support of his disproportionality argument, appellant cites 15 cases from other Ohio appellate courts, including the name of the casе, the date of the case, whether it was a jury or bench trial, the statutory offense or offenses each defendant was convicted of and the number of counts, and the sentence each offender received. As listed, those cases do not tell any facts about the individual cаses, do not tell anything about the offenders’ characteristics, and provide no information beyond the convictions and terms of the sentences. Id. at ¶ 60-61. Thus, those cases do not tell whether the offenders in those cases were similar to appellant. Id.
{¶ 17} Appellant also cites two opinions from this court, Mathes, 2013-Ohio-1732, and Alkire, 2009-Ohio-2813. In Mathes, the defendant was convicted by а jury of rape, kidnapping, and unlawful restraint for raping a 14-year-old girl. The offenses were merged as allied offenses of similar import, and the defendant was sentenced to five years in prison for his rape conviction. The defendant did not appeal his sentence.
{¶ 18} In Alkire, the defendant was convicted by a jury of two counts of rape (under two statutory theories) for raping a 17-year-old girl. The rape convictions were merged as allied offenses and the defendant was sentenced to nine years in prison. The defendant did
{¶ 19} We find that Mathes and Alkire are factually distinguishable from the casе at bar and are therefore not comparable. Unlike the case at bar, the victims in Mathes and Alkire were not pre-teenagers. Further, the sexual conduct was a single, isolated incident and did not span several years. In addition, while the victim knew the defendant in Mathes, and while the victim was friends with the defendant‘s niece in Alkire, these offenders did not live with their victims and were not a parental figure to them. In the case at bar, appellant took advantage of his close relationship to the victim. Finally, the offenders in Mathes and Alkire were sentenced after their offenses were merged.
{¶ 20} As stated earlier, the trial court properly considered the statutory sеntencing factors and guidelines found in
{¶ 21} While we find that the trial court did not err in imposing mаximum prison terms, we sua sponte find it improperly imposed consecutive sentences.1 State v. Warren, 12th Dist. Clermont No. CA2012-12-087, 2013-Ohio-3483, ¶ 14. After reviewing the record, we clearly and convincingly find that the consecutive nature of the sentences was improperly imposed because the trial court did not make thе required statutory findings on the record at sentencing.
{¶ 22} Pursuant to
(a) The offender cоmmitted 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 causеd 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.
{¶ 23} The trial court is not required to give reasons explaining these findings, nor is the court required to recite any “magic” or “talismanic” words when imposing consecutive sentences. Crawford, 2013-Ohio-3315 at ¶ 14. However, it must be clear from the record that the trial court actually made the required statutory findings. Id. “A consecutive sentence is contrary to law where the trial court fails to make the consecutive sentencing findings as required by
{¶ 24} Although the trial court sеt forth the required statutory findings under
Having looked at the situation, I find that the harm here is so great that a single term does not adequately reflect the seriousness of your conduct. I can‘t look at the harm that was visited on this child, particularly at the tender age of between ten to twelve years, and not feel that the harm was that great, so I‘m going to order thаt counts one and two be run consecutive to each other. I will run count three concurrently for a total of twenty years.
{¶ 25} “[A]lthough trial courts are not required to use ‘talismanic words’ to comply with the statute, the findings required by
{¶ 26} Having found that appellant‘s maximum sentences were proper, but that the trial court failed to make the required statutory findings under
{¶ 27} Assignment of Error No. 2:
{¶ 28} THE DE FACTO LIFE SENTENCE IMPOSED IN THIS CASE CONSTITUTES
{¶ 29} Appellant challenges his 20-year prison term on the ground that given his age (he was 74 years old at the time of sentencing), his sentence amounts to a de facto life sentence and constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. However, given our decision to remand this case for resentencing, we find that аppellant‘s second assignment of error is moot and we decline to address it. See State v. Bonner, 12th Dist. Butler No. CA2012-09-195, 2013-Ohio-3670.
{¶ 30} We hereby vacate that portion of the trial court‘s judgment imposing consecutive sentences and remand this matter to the trial court for resentencing. On remand, the trial court shall consider whether consecutive sentences are appropriate under
{¶ 31} Judgment affirmed in part, reversed in part, and cause remanded to the trial сourt for resentencing consistent with this opinion.
HENDRICKSON, P.J., and RINGLAND, J., concur.