STATE OF OHIO v. DAVID H. THOMAS
C.A. No. 14CA0042-M
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
Dated: June 8, 2015
State v. Thomas, 2015-Ohio-2195
WHITMORE, Judge.
STATE OF OHIO Appellee v. DAVID H. THOMAS Appellant APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 14 CR 0059
WHITMORE, Judge.
{¶1} Appellant, David B. Thomas, appeals from the order of the Medina County Court of Common Pleas sentencing him to 16 years in prison. We affirm.
I
{¶2} A grand jury indicted Mr. Thomas on sixteen counts of pandering obscenity
involving a minor in violation of
{¶4} According to the presentence investigation (“PSI”) report, Mr. Thomas informed police that he began to photograph his grandchildren in a state of nudity while babysitting them for his stepdaughter, the children’s mother, after his wife died. Mr. Thomas admitted to being naked in the presence of his grandchildren on multiple occasions, having his granddaughter sit on his lap while both were naked, and touching his granddaughter’s genitals. He also admitted that the grandchildren touched his genitals. Among other actions, Mr. Thomas photographed the granddaughter’s vaginal and anal area, photographed his granddaughter and grandson nude from the waist down with their genitals showing, created videos of the granddaughter undressing under his instruction, and traded the photographs or files with like-minded, unknown people on the internet. The granddaughter stated that she “h[e]ld grandpa’s wee-wee when he tinkles.” She stated that, “when grandpa touches her ‘doopie’ it tickles,” that he said it was pretty, and feels good, and that she should not tell anybody. When asked by the probation department in preparation for the PSI report why he committed these offenses, Mr. Thomas replied, “I honestly can’t tell you. I don’t know, I guess it was gratification.”
{¶5} After ordering the preparation of the PSI report, the trial court held a sentencing hearing. At the sentencing hearing, the court asked Mr. Thomas if he would like to speak in order to lessen or mitigate punishment. Mr. Thomas stated:
I’d like to tell you that I am very sorry for what I did and I’m ashamed of myself. I understand the gravity of what I did. I know that my
{¶6} The trial court found Mr. Thomas guilty on all twenty-six counts. The court
sentenced Mr. Thomas to a prison term of eight years on each of the sixteen counts under
{¶7} Mr. Thomas now raises one assignment of error for our review.
II
Assignment of Error Number One
THE TRIAL COURT ERRED WHEN SENTENCING APPELLANT TO A SIXTEEN YEAR PRISON TERM WHICH IS DISPROPORTIONATE TO THE CONVICTED OFFENSE.
- he has not served a prior prison sentence;
- he expressed remorse for his actions at sentencing, and, even though he did not admit guilt, his no contest plea spared the victims the trauma of a trial;
- sentencing Mr. Thomas to the maximum eight years in prison on each of the twenty-six counts, and imposing consecutive eight-year sentences on two of the counts, exceeds the bounds of reason under the circumstances; and
- a recent sentencing decision by the same judge (with little or no factual similarities to this case) imposed only a 15-year sentence, where the defendant stole a car and drove while intoxicated, which resulted in the death or serious injury of two people and corresponded with three criminal charges (to which the defendant pled guilty).
We disagree.
{¶9} In reviewing a felony sentence, this Court follows the two-step approach set forth in State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, e.g., State v. Shank, 9th Dist. Medina No. 12CA0104–M, 2013–Ohio–5368. First, we “examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 26. If the sentence is not contrary to law, then we review the trial court‘s sentence under an abuse-of-discretion standard. Id. An abuse of discretion indicates that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶10} Under the first prong of Kalish, Mr. Thomas argues that his sentences were
clearly in violation of
If the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender and if the offender previously has not served a prison term, the court shall impose the shortest prison term authorized for the offense pursuant to division (A) of this section, unless the court finds on the record
that the shortest prison term will demean the seriousness of the offender‘s conduct or will not adequately protect the public from future crime by the offender or others.
However, this portion of R.C. 2929.14(B) was found to be unconstitutional in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, because it required the trial court to make findings in order to impose a sentence greater than the minimum in violation of Blakely v. Washington, 542 U.S. 296 (2004). State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, ¶ 56-61, 83 (finding R.C. 2929.14(B) unconstitutional because it required judicial fact-finding before the imposition of a more-than-minimum sentence); see State v. Trifari, 9th Dist. Medina No. 08CA0043-M, 2009-Ohio-667, ¶ 10. Consequently, the Ohio Supreme Court severed it from the statute. Foster, at ¶ 97. The legislature formally removed this portion of the statute pursuant to amended House Bill 86, effective September 30, 2011.4
2011 Am. Sub. H.B. No. 86. Thus, Mr. Thomas cannot show that his sentences for the charged offenses, which he does not contest were within the statutory range, were clearly and convincingly contrary to law.5
in the general guidance statutes
{¶12} R.C. 2929.12 lists general factors which must be considered by the trial court in determining the sentence to be imposed for a felony, and gives detailed criteria which do not control the court’s discretion, but which must be considered for or against severity or leniency in a particular case. The trial court retains discretion to determine the most effective way to comply with the purpose and principles of sentencing as set forth in R.C. 2929.11. R.C. 2929.12(A).
{¶13} Under R.C. 2929.11(A), the overriding purposes of felony sentencing are to protect the public from future crime by the offender and others, and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. To achieve these purposes, the sentencing court is required to consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both. R.C. 2929.11(A).
here), even if the trial court does not mention R.C. 2929.12. State v. Estright, 9th Dist. Summit No. 24401, 2009-Ohio-5676, ¶ 60.
{¶15} In view of the relevant R.C. 2929.12 factors, the trial court did not abuse its discretion in imposing the maximum eight-year sentence for each of Mr. Thomas’ twenty-six convictions, with two of the eight-year terms to run consecutively. The court specifically noted the vulnerable age of the victims, who were four and six at the time of sentencing. The court also had before it a statement from the children’s mother, who explained that the children exhibited a fearful disposition, and that Mr. Thomas’ granddaughter had a continuing need for medical care due to a fear of using the bathroom and accidents. In addition, it was particularly important to the court that Mr. Thomas took advantage of his relationship with the victims to perpetrate the abuse. The court stated:
You count on your kin watching out for you. You don’t have anything else in the world if you’re four and six. No matter who you are, no matter how old you are, no matter what you’ve done, you’ve got your kin, you’ve got those folks who love you. If you don’t have those folks, what do you have? You have nothing.
The court also noted that Mr. Thomas had no prior offenses.
the public from future crime by Mr. Thomas and to punish him in accordance with R.C. 2929.11(A).
{¶17} Mr. Thomas’ claim that his sentence is disproportionate when compared to other sentences of the court is equally ineffective. He cites to the case of State v. Ralios, Medina C.P. No. 2013CR0348, (Jan. 21, 2014), in which the defendant received 15 years in prison. Ralios is entirely inapposite here, because it does not bear any factual resemblance to this case.
Accordingly, Mr. Thomas has failed to offer the Court any basis to hold that his sentence is directly disproportionate to sentences given to other offenders.
{¶19} Under the circumstances present here, a trial court does not abuse its discretion by sentencing an offender to eight-year maximum prison terms for each of twenty-six convictions, and by ordering two of the prison sentences to run consecutively. Mr. Thomas’ assignment of error is overruled.
{¶20} Mr. Thomas’ sole assignment of error is overruled. The judgment of the Medina County Court of Common Please is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
HENSAL, P. J.
CARR, J.
CONCUR.
CONRAD G. OLSON, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting Attorney, for Appellee.