State v. Ward, 07ca9 (5-7-2008)State v. Ward, 07ca9 (5-7-2008)
{¶ 1} Rаymond Ward appeals his 54-year prison sentence imposed by the Meigs County Common Pleas Court. A jury found Ward guilty of six counts of rape, and the court imposed six separate 9-year sentences to run consecutive to each other. On appeal, Ward contends that the trial court violated R.C.
I.
{¶ 2} A Meigs County Grand Jury indicted Ward for, inter alia, six counts of rape (involving a victim under the age of 13) in violation of R.C.
{¶ 3} The 12-year-old victim testified that Ward is her uncle, and that Ward raped her on separate days when she stayed at her aunt‘s and uncle‘s home overnight. The 29-year-old Ward, over a period of months, progressed from touching her to penеtrating her vagina with his penis. Over this period of time, he placed his hand between her legs; rubbed his hand up her leg; undressed her; kissed her breasts; used his finger and tongue to penetrate her vagina; tried to insert his erected penis in her vagina but she crossed her legs to stop him; inserted his erected penis in her vagina without her trying to stop him; and with his wife‘s permission, had sex with her in his bedroom over a two hour period by inserting his penis into her vagina.
{¶ 4} Ward told her that they were going to get married and raise kids in the mountains. Ward also told her that he preferred having sex with her because she was “tighter” than his wife. Ward told someone else that he liked “younger, tighter girls.”
{¶ 5} The jury found Ward guilty of each of the six rapes. The court sentenced Ward accordingly. Ward appealed his six convictions and sentences. We affirmed his convictions but remanded the matter for re-sentencing based оn the Supreme Court of Ohio‘s decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. See State v. Ward, Meigs App. No. 05CA13, 2007-Ohio-2531.
{¶ 6} At the re-sentencing hearing, the court heard from the State, Ward, Ward‘s counsel, the victim (through her statement), and the victim‘s mother (through her
{¶ 7} Ward, through his counsel, provided the trial court with three cites to cases involving other defendants convicted of similar offenses. He argued that he should receive a similar sentence. The court did not give the three cases any weight because it stated that, unlike Ward‘s case, thоse cases involved plea agreements.
{¶ 8} The court re-sentenced Ward to the same sentence as it had imposed earlier. That is, the court imposed six separate 9-year prison sentences to run consecutive to each other for a total of 54 yеars.
{¶ 9} Ward appeals his 54-year prison sentence and asserts the following assignment of error: “The Gross Disproportionality of the Defendant‘s Sentence Violates the Terms of Ohio Revised Code Section 2929.11.”
II.
{¶ 10} Ward contends in his sole assignment of error that the trial court erred when it sentenced him.
A. Our Standard of Review
{¶ 11} The trial court re-sentenced Ward after the Supreme Court of Ohio decided Foster, supra. The Foster court held that the portions of Ohio‘s statutory sentencing scheme that required sentencing courts to make factual findings or give its reasons for imposing maximum, consecutive, or more than minimum, sentences are unconstitutional. Id. at paragraphs 1-6 of the syllabus. The Court severed those portions of the sentencing statutes but retained the portions of the sentencing statutes that do not violate the constitution. Id. at ¶ 96. “Trial courts have full discretion to
{¶ 12} While the Foster court declared that a sentencing court possesses full discretion in sentencing an offender, the court abrogated R.C.
{¶ 13} Under this statutory standard, we neither substitute our judgment for that of the trial court nor simply defer to its discretion. State v. Mustard, Pike App. No. 04CA724, 2004-Ohio-4917, ¶ 19, citing State v. Keerps, Washington App. No. 02CA2, 2002-Ohio-4806; State v. Dunwoody (Aug. 5, 1998), Meigs App. No. 97CA11. Rather, we look to the record to determine whether the sentencing court considered and properly applied the statutory guidelines and whether the sentence is otherwise contrary to law. See State v. Parrish, Montgomery App. No. 21206, 2006-Ohio-4161, ¶ 62.
B. Meaning of “Consistent” Sentence Under R.C. 2929.11(B)
{¶ 14} Ward contends that the trial court violated R.C.
{¶ 15} R.C.
{¶ 16} Regardless, this court has held that “[a]n offender cannot demonstrate inconsistency merely by suрplying a list of cases where other defendants in other cases received prison sentences that differed from his.” Wilson at ¶ 42. Instead, “[e]ach case is necessarily, by its nature, different from every other case — just as every person is, by nature, not the same.” Id., citing State v. Lathan, Lucas App. No. L-03-1188, 2004-Ohio-7074, ¶ 25. “The goal of the sentencing guidelines is consistency, not uniformity.” State v. Coburn, Adams App. No. 03CA774, 2004-Ohio-2997, ¶ 17.
{¶ 17} Imposing consistent sentences “requires a trial court to weigh the same factors for each defendant, which will ultimately result in an outcome that is rational and predictable.” Wilson at ¶ 42. “Under this meaning of ‘consistency,’ two defendants convicted of the sаme offense with a similar or identical history of recidivism could
{¶ 18} Therefore, in order for Ward to succeed on this issue, he must “show that the trial court failed to properly consider the factors and guidelines contained in the statutes, or that substantially similar offenders, committing substantially similar offenses, and having substantially similar records, behavior, and circumstances, received grossly disproportionate sentences.” Coburn at ¶ 17.
1. R.C. 2929.11 R.C. 2929.12
{¶ 19} In sentencing a felony offender, the sentencing court must consider the general guidance factors contained in R.C.
{¶ 20} Here, our review of the record indicates that the trial court considered the statutory guidelines as required by R.C.
{¶ 21} Ward agrees that the court considered the proper statutes, but he maintains that the court reached the wrong conclusions under R.C.
{¶ 22} As we stated earlier, the court is not required to state its findings on the record. Here, the record shows that the court considered the proper statutes. In addition, contrary to Ward‘s assertion, the State did show that Ward cаused “physical or mental injury” to his victim. The record shows that the victim suffered extreme psychological harm. She attempted suicide on more than one occasion. She went through months of counseling. She has horrible nightmares. She will sit and cry. She worries about what she will tell a potеntial husband. And some family members still blame her, not Ward.
{¶ 23} Therefore, we find that the trial court properly considered the factors and guidelines contained in R.C.
2. Consecutive Sentences
{¶ 24} Ward asserts that “[i]n addition to the [three cited] cases submitted to the trial court, other post-Foster cases point vividly to the trial court‘s abandonment of the
{¶ 25} As we stated earlier, a defendant cannot show inconsistency in sentencing “merely by supplying a list of cases where other defendants in other cases received prison sentences that differed from his” because every case is different. Consistency, nоt uniformity, is the goal of the sentencing guidelines. Coburn, supra, at ¶ 17. As such, while Ward may have shown a lack of uniformity in his sentence, as compared to the cited cases, he has not shown inconsistency.
{¶ 26} “[A]fter the sentencing court imposes a separate prison term for each conviction, it may exercise its discretion to determine whether consecutive sentences are appropriate based upon the particular facts and circumstances of the case. See State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 9; State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the syllabus, ¶ 100 (Trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences‘).” State v. Johnson, 116 Ohio St.3d 541, 2008-Ohio-69, ¶ 18.
{¶ 27} As we found earlier, the trial court considered “the particular facts and circumstances of the case” as they relate to the factors contained in R.C.
{¶ 28} Here, we find that Ward‘s consecutive sentences are not contrary to law. First, under R.C.
{¶ 29} Second, the record shows that Ward‘s consecutive sentences are “necessary to protect the public from future crime or to punish the offender[.]” See severed RC
{¶ 30} The record further shows that Ward‘s “consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to thе danger the offender poses to the public[.]”
{¶ 31} Finally, the record shows that “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 conduсt adequately reflects the seriousness of the offender‘s conduct.”
{¶ 32} Therefore, we find that the record supports а conclusion that “the particular facts and circumstances of the case” support consecutive sentences.
3. Conclusion
{¶ 33} Therefore, based on these facts, we find that Ward failed to “show that the trial court failed to properly consider the factors and guidelines contained in the statutes, or that substantially similar offenders, committing substantially similar offenses, and having substantially similar records, behavior, and circumstances, received grossly disproportionate sentences.” Coburn at ¶ 17. Consequently, we cannot clearly and convincingly find that the trial court failеd to consider the statutory guidelines or that Ward‘s 54-year prison sentence is otherwise contrary to law.
{¶ 34} Accordingly, we overrule Ward‘s sole assignment of error and affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
It is ordered that this JUDGMENT BE AFFIRMED and that Appellant shall pay the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Meigs County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 for the Rules of Appellate Procedure. Exceptions.
Abele, P.J. and Harsha, J.: Concur in Judgment and Opinion.