STATE OF OHIO, Plaintiff-Appellee -vs- DANA A. WEBB, Defendant-Appellant
Case No. CT2018-0069
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
October 7, 2019
2019-Ohio-4195
Hon. Patricia A. Delaney, P.J., Hon. Craig R. Baldwin, J., Hon. Earle E. Wise, Jr., J.
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2018-0270; JUDGMENT: AFFIRMED
For Plaintiff-Appellee:
D. MICHAEL HADDOX MUSKINGUM CO. PROSECUTOR TAYLOR P. BENNINGTON 27 North Fifth Street, P.O. Box 189 Zanesville, OH 43702-0189
For Defendant-Appellant:
JAMES ANZELMO 446 Howland Dr. Gahanna, OH 43230
{¶1} Appellant Dana A. Webb appeals from the September 27, 2018 Entry of conviction and sentence of the Muskingum County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose on June 18, 2016, when a pair of witnesses were camping at Blue Rock State Park in Muskingum County, Ohio. They observed a man, woman, and two little girls camping at the site next to theirs. The witnesses observed the man repeatedly pull one of the little girls onto his lap as he sat in a chair. The little girl kept getting down but the man pulled her back onto his lap. The final time this occurred, the witnesses observed the man place the child‘s hand over his shorts in the area of his penis and rub himself with her hand in a sexual manner.
{¶3} Upon investigation, the victim was determined to be nine years old, and the man was identified as appellant.1
{¶4} Appellant was charged by indictment with one count of gross sexual imposition, a felony of the third degree pursuant to
{¶5} On August 10, 2018, appellant withdrew his previously-entered plea of not guilty and entered pleas of guilty to gross sexual imposition [Count I] and an amended count of abduction pursuant to
{¶7} At sentencing, appellant apologized “for putting us in this situation” and the trial court asked what he meant, because the P.S.I. indicated appellant denied touching the child. Appellant agreed, claiming that he “take[s] full responsibility” and yet denies touching the child.
{¶8} The trial court further noted appellant has a record of prior felony convictions including nonsupport of dependents, probation violations, aggravated robbery, and receiving stolen property. He also has a lengthy record of misdemeanor convictions, and at sentencing, appellant had active warrants for failure to report to jail and failure to appear upon certain misdemeanors. The trial court stated in pertinent part:
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Mr. Webb, I think it‘s pretty clear that you don‘t understand what‘s right and what‘s wrong even though you would argue that, and based on that your lack of remorse in this case, on Count 1 you will be sentenced to 60 months in prison. That is mandatory prison time. You will do the whole 6—or 5 years. You are ordered to pay court costs in this matter and you are given credit for 118 days of time served.
* * * *.
{¶9} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶10} “THE TRIAL COURT UNLAWFULLY ORDER DANA WEBB TO SERVE THE MAXIMUM SENTENCE FOR HIS CONVICTION, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS, GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.”
ANALYSIS
{¶11} In his sole assignment of error, appellant argues the trial court erred in sentencing him to a maximum prison term of 60 months. We disagree.
{¶12} We first note that pursuant to
{¶13} We now review felony sentences using the standard of review set forth in
{¶14} Clear and convincing evidence is that evidence “which will provide in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. “Where the degree of proof required to sustain an issue must be clear and convincing, a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477.
{¶15} Accordingly, pursuant to Marcum this Court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that: (1) the record does not support the trial court‘s findings under relevant statutes, or (2) the sentence is otherwise contrary to law.
{¶16}
{¶17} A trial court‘s imposition of a maximum prison term is not contrary to law as long as the court sentences the offender within the statutory range for the offense, and in so doing, considers the purposes and principles of felony sentencing set forth in
{¶18} In the instant case, a sentence of 60 months is within the statutory framework set forth in
{¶19} Based on the foregoing, we find the trial court considered the purposes and principles of sentencing [
{¶20} While appellant may disagree with the weight given to these factors by the trial judge, appellant‘s sentence was within the applicable statutory range for a felony of
{¶21} Appellant‘s sole assignment of error is overruled.
CONCLUSION
{¶22} Appellant‘s sole assignment of error is overruled and the judgment of the Muskingum County Court of Common Pleas is affirmed.
By: Delaney, P.J.,
Baldwin, J. and
Wise, Earle, J., concur.