775 N.E.2d 563 | Ohio Ct. App. | 2002
{¶ 2} In August 2000, appellant pled guilty to a bill of information charging him with two counts of sexual battery in violation of R.C.
{¶ 3} The trial court accepted the guilty plea, found appellant to be a sexually oriented offender, and sentenced him to two four-year prison terms to be served consecutively. Although appellant had never before served a prison term, he was sentenced to more than the minimum term for the sexual battery charges. This court vacated appellant's sentence on the grounds that the trial court had failed to make the required findings in sentencing appellant to more than the minimum prison term. State v. Stewart (June 25, 2001), Butler App. No. CA2000-11-220. On remand, following a sentencing hearing, the trial court again sentenced appellant to two consecutive four-year prison terms. Appellant appeals and raises two assignments of error.
Assignment of Error No. 1:
{¶ 4} "The trial court erred in failing to permit appellant with the opportunity to read and rebut sentencing evidence contained in the victim impact statements."
{¶ 5} Prior to the sentencing hearing, appellant subpoenaed the Butler County Probation Department to provide him with copies of the victim impact statements. The state filed a motion to quash the subpoena, and argued at the sentencing hearing that appellant should not be allowed to review the victim impact statements because the victims had indicated a strong fear of appellant, were concerned about appellant's ability to see what they had told the court, and were scared of retaliation if the statements were disclosed. The trial court granted the state's motion to quash as follows:
{¶ 6} "I've reviewed, again, this morning the victim impact statements. The victim's names [sic] are sprinkled and spread throughout these victim impact statements. The most recent victim impact statement * * * indicates to this court, once again, the severe emotional trauma and impact that this case has had on these defendants [sic]. * * * [I]t's been brought to the court's attention by the victims that they are in fear of reprisals by the defendant. And this court is not inclined to risk anymore harm coming to these defendants [sic] or their families by the release of the victim impact statements. Your request is denied[.]" *4
{¶ 7} Under his first assignment of error, appellant presents three issues for our review. Appellant first argues that the trial court's refusal to allow him access to the victim impact statements violated due process.
{¶ 8} R.C.
{¶ 9} In his second issue for review, appellant argues that R.C.
{¶ 10} R.C.
{¶ 11} As previously noted, under R.C.
{¶ 12} R.C.
{¶ 13} R.C.
{¶ 14} Appellant contends that "Ohio's sentencing statutes provide that redacted information from a presentence report must be summarized and disseminated to the defendant, but permit a victim to opt out from including his statement in the presentence report. R.C.
{¶ 15} Appellant's argument assumes that a victim impact statement included in a PSI at the victim's request, and redacted from the report under R.C.
{¶ 16} Upon reviewing R.C.
{¶ 17} Finally, in his third issue for review, appellant argues that the trial court's refusal to allow him access to the victim impact statements was an abuse of discretion. At the sentencing hearing, appellant presented "voluminous evidence germane to his fit character, public service record, amenability to therapeutic treatment, sincere remorse, and overall value to his friends, family *6 and community" in the form of psychiatric reports, letters, "testimony and allocution[.]" Appellant contends that such evidence "could only justify a minimum, concurrent prison term," that by sentencing him to an eight-year prison term, the trial court necessarily completely disregarded his evidence, only to rely upon the secret information contained in the victim impact statements, and that such was an abuse of discretion.
{¶ 18} As previously noted, a trial court is required to consider victim impact statements in determining which sentence to impose upon an offender. R.C.
{¶ 19} Appellant's contention that the trial court completely disregarded his evidence, only to rely upon the secret information contained in the victim impact statements is speculative and not supported by the record. In its judgment entry, the trial court stated it had considered the record, the PSI, oral statements (several witnesses testified on behalf of defendant at the sentencing hearing), and any victim impact statement.
{¶ 20} During the sentencing hearing, the trial court also stated it would consider letters written on behalf of appellant as well as two psychological evaluations of appellant. With regard to the victim impact statements, the trial court noted "for the record that during sentencing the defendant can rest assured that court, A, the victim impact statements do not state anything improper for the record. B, the Court, if they so contained, would not place any weight or consider any improper reference being made in these victim impact statements."
{¶ 21} Upon reviewing the record, including the PSI, the psychological evaluations, and the victim impact statements, we find that while the trial court considered the victim impact statements, the facts ultimately relied upon by the trial court in sentencing appellant were otherwise reflected in the psychological evaluations and the PSI. In light of all of the foregoing, we find that the trial court did not abuse its discretion in denying appellant access to the victim impact statements. Appellant's first assignment of error is overruled.
Assignment of Error No. 2:
{¶ 22} "The trial court erred by imposing consecutive prison terms." *7
{¶ 23} An appellate court may not disturb a sentence imposed under felony sentencing law unless it finds by clear and convincing evidence that the sentence is not supported by the record or is contrary to law. R.C.
{¶ 24} Appellant first argues that the record does not support the trial court's decision to sentence him to more than the minimum prison term and to consecutive prison terms. Appellant concedes that the trial court made the required findings when sentencing him but contends that the "findings are unsupported in the record."
{¶ 25} A trial court may impose a sentence greater than the minimum term for an offender who, like appellant, has not previously served a prison term, if the court finds on the record that a minimum sentence would demean the seriousness of the offender's conduct, or would not adequately protect the public from future crime by the offender or others. R.C.
{¶ 26} Appellant was convicted of two counts of sexual battery in violation of R.C.
{¶ 27} We now turn to the trial court's decision to impose consecutive prison terms. Under R.C.
{¶ 28} In its sentencing entry, the trial court found that "[p]ursuant to [R.C.]
{¶ 29} At the sentencing hearing, the trial court stated that "the reason that consecutive sentences are necessary is because for a repeated number of years this defendant engaged in serious — sexual contact, gratification with these children, it was not mere touching, and it was to the point — of sexual gratification. Of repeated contacts with these children over a repeated number of years, using his position as an Eagle Scout, * * * to have access to these children. Place these children in his house, in his car, in his tent, again, so that he could perpetrate these crimes on these * * * innocent kids and their families."
{¶ 30} In considering the seriousness factors as required under R.C.
{¶ 31} "* * * And so while I understand that all these people know what the good things you've done, and I told you the last time, this is not about the *9 good things you have done in life. Yes, that's that's something this court can consider. This is about what you did, in this case, to these children, over, and over, and over again. And the impact that you have on these children and their families, and the scarring that you have done to their development[.] * * * [T]he victims in this case suffered serious physical, psychological, and economic harm as a result of these offenses, and continue to this day and continue as they hear the minimization1 of the defendant's acts upon these children. And as they're minimized today, by the defendant." The trial court also noted that appellant did not have a prior record, had led a prior law-abiding life, and showed significant remorse.
{¶ 32} Upon reviewing the trial court's sentencing entry and the sentencing hearing, we find that the trial court complied with R.C.
{¶ 33} In his second assignment of error, appellant also argues that the trial court erred by "failing to assess whether the imposition of consecutive prison sentences was proportionate to similarly situated offenders."
{¶ 34} In addition to the victim impact statements, appellant also subpoenaed the Butler County Probation Department to bring to the sentencing hearing the "PSI for the last five sexual battery cases done by your office." The state successfully moved to quash the subpoena. Appellant did not appeal the trial court's decision to quash the subpoena. Appellant now contends that absent the record he sought to subpoena, there is no way to determine whether his eight-year prison term was proportionate to other similarly situated offenders.
{¶ 35} Appellant's argument confuses and commingles two different statutory provisions, to wit, R.C.
{¶ 36} As previously noted, the trial court did find that appellant's consecutive prison terms were not disproportionate to the seriousness of his conduct. With regard to the consistency of appellant's sentence, we find that appellant was not prevented from making a record that his sentence was not consistent with sentences imposed for similar crimes committed by similar offenders. While he could not obtain the PSI for the Butler County Probation Department's last five sexual battery cases, appellant could have presented evidence of similar cases by searching available legal databases as was done in State v. Williams (Nov. 30, 2000), Lucas App. Nos. L-00-1027 and L-00-1028, a case cited by appellant. Appellant failed to do so. Appellant's second assignment of error is overruled.
Judgment affirmed.
WALSH, P.J., and WILLIAM W. YOUNG, J., concur.
