STATE OF OHIO v. BRIAN WATSON
Appellate Case No. 2019-CA-35
IN THE COURT OF APPEALS OF OHIO, SECOND APPELLATE DISTRICT, CLARK COUNTY
March 27, 2020
2020-Ohio-1146
DONOVAN, J.
Trial Court Case No. 2019-CR-67
Trial Court Case No. 2019-CR-67
(Criminal Appeal from Common Pleas Court)
OPINION
Rendered on the 27th day of March, 2020.
JOHN M. LINTZ, Atty. Rеg. No. 0097715, Assistant Prosecuting Attorney, Clark County Prosecutor‘s Office, Appellate Division, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
NICOLE RUTTER-HIRTH, Atty. Reg. No. 0081004, 2541 Shiloh Springs Road, Dayton, Ohio 45426
Attorney for Defendant-Appellant
DONOVAN, J.
{¶ 2} On January 28, 2019, Watson was indicted for the following six offenses: Counts I - III: rape (less than 13 years old), in violation of
{¶ 3} The incidents which formed the basis for the charges occurred over the course of a year and a half, between March 2017 and September 2018. During that time period, Watson was alleged to have repeatedly sexually abused his 11-year-old daughter, M. The ongoing sexual abuse was revealed when M. informed one of her teachers that Watson had penetrated her digitally and placed his mouth on her vagina. Shortly thereafter, M. was interviewed by employees at the Child Advocacy Center where she confirmed again that she had been repeatedly sexually abused by Watson. We note that M. had cerebral palsy and was on the autism spectrum, causing her to have multiple developmental delays.
{¶ 4} When confronted with his daughter‘s allegations, Watson initially denied everything when interviewed at the Clark County Sheriff‘s office. Sentencing Tr. 7. Watson then changed his story, theorizing that M. had viewed internet porn on his computer, which led her to concoct her allеgations of sexual abuse against him. Id. at 8. Upon further questioning, Watson changed his story again, claiming that he only touched
{¶ 5} On April 1, 2019, Watson pled guilty to two counts of GSI (Counts IV and V in the indictment) in exchange for dismissal off the remaining counts. The trial court accepted Watson‘s pleas, found him guilty on both counts, and ordered a PSI to be prepared by the Adult Probation Department.
{¶ 6} At disposition on April 23, 2019, the trial court sentenced Watson to the maximum term of five years in prison on each GSI count, and ordered the counts to be served consecutively for an aggregate sentence of ten years in prison. Watson was also designated as a Tier II sex offender. We note that the trial court orally made the findings required by
{¶ 7} It is from this judgment that Watson now appeals.
{¶ 8} Watson‘s sole assignment of error is as follows:
MR. WATSON‘S MAXIMUM CONSECUTIVE SENTENCE WAS UNCONSTITUTIONAL AND UNLAWFUL PURSUANT TO
{¶ 9} In his sole assignment, Watson contends that the trial court erred when it imposed maximum consecutive sentences in the instant case.
{¶ 10} Watson did not object to the imposition of consecutive sentences in the trial court. Accordingly, we review the trial court‘s imposition of cоnsecutive sentences for plain error. State v. Brewer, 2017-Ohio-119, 80 N.E.3d 1257 (2d Dist.). In order to constitute plain error, the error must be an obvious defect in the trial proceedings, and the error must have affected substantial rights. State v. Norris, 2d Dist. Montgomery No. 26147, 2015-Ohio-624, ¶ 22;
I. Imposition of Maximum Sentences
{¶ 11} As this Court has previously noted:
“The trial court has full discretion to impose any sentence within the authorized statutory range, and the court is not required to make any findings or give its reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial court must consider the statutory policies that apply to every felony offense, including those set out in
R.C. 2929.11 andR.C. 2929.12 . State v. Leopard, 194 Ohio App.3d 500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.
State v. Armstrong, 2d Dist. Champaign No. 2015-CA-31, 2016-Ohio-5263, ¶ 12.
{¶ 12}
{¶ 13}
{¶ 14}
{¶ 15} In reviewing felony sentences, appellate courts must apply the standard of review set forth in
{¶ 16} The maximum sentence authorized by law, the five-year sentence for each count of GSI imposed by the trial court, was within the permissible statutory range for a conviction for GSI, a felony of the third degree. However, at disposition, the trial court failed to mention the principles and purposes of sentencing pursuant to
The Court has considered the PSI, record, oral statements of counsel, the defendant‘s statement, and the purposes and principles of sentencing under Ohio Revised Code Section 2929.11, and then balanced the seriousness and recidivism factors under Ohio Revised Code Section 2929.12.
(Emphasis added.)
{¶ 17} This Court has held that a defendant‘s sentenсe is not contrary to law when the trial court expressly states in its sentencing entry that it has considered
{¶ 18} Additiоnally, we are not persuaded that the trial court‘s imposition of
II. Imposition of Consecutive Sentences
{¶ 19} Watson also argues that the trial court erred when it imposed consecutive sentences for the following reasons: 1) “it appears that the court imposed consecutive sentences not because of the offenses for which he was convicted but because four rape counts were dismissed“;1 2) although Watson scored low for recidivism, his PSI reflected that he was high risk because he failed to properly admit to his offenses; 3) his sentence constitutes an unnecessary burden on government resources; and 4) his sentence is cоmparatively longer than that of similarly-situated offenders.
{¶ 20} In general, it is presumed that prison terms will be served concurrently.
(a) The offender committed 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 thе 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 caused by two or more of the multiple offenses so committеd 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 consеcutive sentences are necessary to protect the public from future crime by the offender.
{¶ 21} At disposition, the trial court stated the following in regard to the imposition of consecutive sentences:
I do find that consecutive sentences are necessary tо protect the public from future crimes, to punish the Defendant, that they‘re not disproportionate to the seriousness of his conduct and the danger he poses to the public, and that these multiple offenses were committed as part of a course of conduсt and the harm caused was so great or unusual that no single prison term
adequately reflects the seriousness of his conduct. I understand this was a guilty plea and in some respects an acknowledgment of responsibility. I also understand that in exchange for that guilty plea[,] multiple rape offenses were dismissed.
{¶ 22} We have said that “a trial сourt may rely on ‘a broad range of information’ at sentencing.” State v. Bodkins, 2d Dist. Clark No. 10-CA-38, 2011-Ohio-1274, ¶ 43, quoting State v. Bowser, 186 Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714, ¶ 13 (2d Dist.). “The evidence the court may consider is not confined to the evidence that strictly relates to the conviction offense because the court is no longer concerned * * * with the narrоw issue of guilt.” (Citation omitted.) Bowser at ¶ 14. “Among other things, a court may consider hearsay evidence, prior arrests, facts supporting a charge that resulted in an acquittal, and facts related to a charge that was dismissed under a plea agreement.” (Citation omitted.) Bodkins at ¶ 43. Even ” [u]nindicted acts * * * can be considered in sentencing without resulting in error when they are not the sole basis for the sentence.’ ” State v. Cook, 8th Dist. Cuyahoga No. 87265, 2007-Ohio-625, ¶ 69, quoting State v. Bundy, 7th Dist. Mahoning No. 02 CA 211, 2005-Ohio-3310, ¶ 86. Therefore, the trial court was entitled to consider the dismissed rape counts when it imposed consecutive sentences upon Watson.
{¶ 23} Furthermore, pursuant to State v. Wilson, 2d Dist. Montgomery No. 24978, 2012-Ohio-4756, we have held thаt “a sentencing court is not required to elevate resource conservation above seriousness and recidivism factors.” See also State v. Henry, 12th Dist. Butler No. CA2013-03-050, 2014-Ohio-1318, citing Wilson. Having reviewed the record, we cannot conclude, pursuant to
{¶ 24} As previously stated, Watson pled guilty to two counts of GSI, wherein he was accused of sexually abusing his own daughter who has cerebral palsy and autism, as well as developmental delays. Additionally, while Watson admitted that he did sexually abuse M., he attempted to minimize his criminal conduct, stating that he only touched M.‘s vagina in order to show her how to masturbate properly and how to “finish faster.” PSI at 1. Accordingly, we conclude that the trial court‘s findings were supported by the record.
{¶ 25} As previously stated, in ordering that the maximum sentences for Watson‘s two offenses be served consecutively, the trial court strictly adhered to the language of
{¶ 26} Watson‘s sole assignment of error is overruled.
{¶ 27} Watson‘s assignment of error having been overruled, the judgment of the trial court is affirmed.
TUCKER, P.J. and HALL, J., concur.
Copies sent to:
John M. Lintz
Nicole Rutter-Hirth
Hon. Douglas M. Rastatter