STATE OF OHIO, Plaintiff-Appellee, - vs - JEFFERY A. TODD, Defendant-Appellant.
CASE NO. CA2014-05-035
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
2/23/2015
[Cite as State v. Todd, 2015-Ohio-649.]
M. POWELL, J.
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2013CR00660
R. Daniel Hannon, Clermont Cоunty Public Defender, Robert F. Benintendi, 302 East Main Street, Batavia, Ohio 45103, for defendant-appellant
O P I N I O N
M. POWELL, J.
{¶ 1} Defendant-appellant, Jeffery Todd, appeals his sentence in the Clermont County Court of Common Pleas for grоss sexual imposition and sexual battery.
{¶ 2} Appellant was indicted in October 2013 on three counts of rape, four counts of gross sexual imposition, and one count of sexual battery. The charges arose out of appellant‘s inappropriate sexual conduct with his daughter and his two nieces between 2006
{¶ 3} On April 15, 2014, the trial court sentenced appellant to five years in prison on each count of gross sexual imposition and on the sexual battery count, and ordered that the five sentences be served consecutively, for an aggregate prison term of 25 years.
{¶ 4} Appellant appeals, raising two assignments of error.
{¶ 5} Assignment of Error No. 1:
{¶ 6} THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING APPELLANT TO FIVE-YEAR TERMS OF IMPRISONMENT.
{¶ 7} Appellant argues the trial court abused its discretion in sentencing him to the maximum prison term on the sexual battery count and on each of the four counts of gross sexual imposition. Appellant asserts that because (1) he is a first-time offender with no prior criminal history, either as a juvenile or as an adult, (2) the seriousness and recidivism factors under
{¶ 8} 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
{¶ 9} Appellant does not dispute that the trial court sentеnced him within the statutory range, nor does he dispute that the trial court properly applied postrelease control in this case. The judgment entry of conviction specifically states that the trial сourt considered “the principles and purposes of sentencing under Ohio Revised Code Section 2929.11, and has balanced the seriousness and recidivism factors under Ohio Revised Code Section 2929.12.”
{¶ 10} We find that the triаl court did not err in sentencing appellant to the maximum prison term for each gross sexual imposition count and for the sexual battery count. When sentencing a defendant, a trial court is not required to cоnsider each sentencing factor, “but rather to exercise 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
{¶ 11} During the sentencing hearing, appellant did not address the trial court but
{¶ 12} In sentencing appellant to the maximum prison term for each gross sexual imposition count and the sexual battery count, the trial court found that (1) appellant committed multiple offenses against close family members, his pre-teenage daughter and nieces, over an extended time frame, (2) appellant took advantage of his close relationship with the victims and abused their trust, and (3) as a result, the victims suffered great psychological harm which they will “carry with them for a long time.” The trial court noted that “the harm is going to be much greater when [the victim] is a daughter [or] niece,” and “when you‘re dealing with a family member, somebody who trusted a child‘s innocence, entrusting their father or uncle, there‘s going to be great harm.”
{¶ 13} The trial court also found that although appellant had no prior criminal record, recidivism was more likely because appellant had engaged in a pattern of conduct by repeatedly committing offenses against multiple victims at different times. The trial cоurt noted that “if you do it repeatedly it is a pattern, and if * * * there‘s a pattern it‘s more likely that it‘s going to recur.” The trial court also emphasized the fact that although appellant‘s score on the Static-99 placed him in the low range of recidivism,1
Again, in this case you have five separate instances. You have a pattern of conduct. To me that outweighs these recidivism tools which are at best statisticаl tools. * * * [Y]ou can use that tool and then you can look at Mr. Todd and say he did this five different times under the circumstances where, you know, that there has to be something innate that says that this is terribly wrong. He was able to do that, and to me again that makes recidivism more likely.
{¶ 15} In light of the foregoing, we find that the trial court did not err in sentencing appellant to the mаximum prison term for each of the four counts of gross sexual imposition and for the sexual battery count. Appellant‘s actions did not involve a single, isolated incident against one victim, but rather involved multiple offenses that took place over two years, 2006 and 2011, against close family members, his pre-teenage daughter and nieces. Appellant was in position of power and trust and took advantage of his сlose relationship with the victims. Appellant‘s maximum sentences are not clearly and convincingly contrary to law.
{¶ 16} Appellant‘s first assignment of error is overruled.
{¶ 17} Assignment of Error No. 2:
{¶ 18} THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO CONSECUTIVE PRISON TERMS.
{¶ 19} Appellant argues that the trial court‘s imposition of consecutive sentences wаs “disproportionate and excessive when examined in conjunction with [his] conduct,” and was thus an abuse of discretion.
{¶ 20} Pursuant to
- The offender committed one оr 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. - At least two of the multiple offenses were committed as part of one or mоre 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 necеssary to protect the public from future crime by the offender.
{¶ 21} A trial court is not required to provide “a word-for-word recitation of the language of the statute” or articulate reasons explaining its findings when imрosing consecutive sentences. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 27, 29; State v. Childers, 12th Dist. Warren No. CA2014-02-034, 2014-Ohio-4895, ¶ 31. However, it must be clear from the record that the trial court actually made the required statutory findings. Id. When imposing consecutive sentences, the trial court “is required to mаke the findings mandated by
{¶ 22} Appellant concedes, and the record shows, that the trial court made the required statutory findings under
{¶ 23} Once again, we reiterate that this court no longer reviews felony sentences under an abuse of discretion standard, and therefore Watkins is not applicable here. We further find that given the fact appellant committed multiple offenses against three pre-teenage family members over the course of several years, abused his position of power and trust to commit the offenses, and claimed he had no recollection of committing the offenses because he suffers from multiple sclerosis, the trial court did not err in sentencing appellant to consecutive prison terms. Appellant‘s consecutive sentences are not clearly and convincingly contrary to law.
{¶ 24} Appellant‘s second assignment of error is overruled.
{¶ 25} Judgment affirmed.
PIPER, P.J., and HENDRICKSON, J., concur.