STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO v. THOMAS WILSON
CASE NO. 14 MA 43
SEVENTH DISTRICT
March 3, 2015
2015-Ohio-838
Hon. Cheryl L. Waite, Hon. Gene Donofrio, Hon. Mary DeGenaro
Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio, Case No. 13 CR 1092. JUDGMENT: Affirmed.
For Plaintiff-Appellee: Atty. Paul J. Gains, Mahoning County Prosecutor; Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Kenneth J. Lewis, Kenneth J. Lewis Co., L.P.A., 1220 West 6th Street, Suite 502, Cleveland, Ohio 44113
Dated: March 3, 2015
WAITE, J.
{¶1} Appellant Thomas Wilson appeals his five-year prison sentence on counts of gross sexual imposition and pandering obscenity involving a minor. Appellant was convicted of four separate charges pursuant to a plea agreement. One charge of gross sexual imposition was dismissed. The prosecutor agreed to recommend a five-year aggregate prison term. Appellant contends that he should not have been sentenced to any prison term and that the sentence amounts to an abuse of discretion. The record fully supports the sentence imposed, particularly in light of the fact that one charge was dismissed, the sentence imposed was consistent with the plea agreement, and because the potential maximum sentence was considerably longer. The judgment of the trial court is affirmed.
{¶2} Appellant was indicted on October 17, 2013, in the Mahoning County Court of Common Pleas on two counts of gross sexual imposition,
{¶3} On January 8, 2014, Appellant entered into a written Crim.R. 11 plea agreement. He agreed to plead guilty to counts 1, 2, 4 and 5 of the indictment. The
{¶4} At sentencing, Appellant‘s counsel stated that Appellant was divorced, had no felony record, suffered abuse as a child, and that he has a sexually-oriented illness described as a foot fetish. A psychological report from the Forensic Psychiatric Center of Northeast Ohio was admitted as evidence. This report recommended that Appellant receive community control sanctions with sex offender treatment. Appellant also spoke at sentencing and expressed his regret for his actions. The court noted the factors mentioned by Appellant and his counsel, but determined that a five-year prison term was appropriate based on the prosecutor‘s recommended sentence and the statutory sentencing factors, including the safety of the community, a need to punish the offender, the risk of recidivism, along with a presumption in favor of a prison term for two of the charges. The court also noted that the injury was worsened by the age of the victims and the psychological harm suffered, and that Appellant was in a position of trust over the victims when the crimes occurred. The court specifically discussed many of the sentencing factors listed in
ASSIGNMENT OF ERROR
The Trial Court Erred and Abused its Discretion in Sentencing the Appellant Too Harshly.
{¶5} Appellant argues that his five-year prison term is too harsh in light of a variety of factors found in
{¶6} When reviewing a felony sentence, an appellate court first examines the sentence to ensure that the sentencing court clearly and convincingly complied with the applicable laws. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶4. An appellate court then reviews the trial court‘s sentencing decision for abuse of discretion. Id. at ¶17, 19-20. An abuse of discretion means more than an error in judgment, but rather, implies that the court‘s attitude is unreasonable, arbitrary or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). We continue to apply the two-part Kalish test despite decisions from other appellate courts that Kalish may no longer be applicable after the sentencing
{¶7}
{¶8} The factors in
{¶9} 1. Factors indicating the crime was more serious than conduct normally constituting the offense: physical or mental injury exacerbated because of the physical or mental condition or age of the victim; the victim of the offense suffered serious physical, psychological, or economic harm; the offender held a public office or position of trust and the offense related to that office or position; the offender should have prevented the offense or brought it to justice due to his or her occupation or office; the offender‘s reputation, occupation, office, or profession was used to facilitate the offense; the offender‘s relationship with the victim facilitated the offense; the offender committed the offense for hire or as a part of an organized criminal activity; and the offender was motivated by prejudice based on race, ethnic background, gender, sexual orientation, or religion.
{¶11} 3. Factors indicating the offender is likely to commit future crimes: the offender was under release from confinement before trial or sentencing, was under a community control sanction, under post-release control, or had absconded from community placement; the offender previously was adjudicated a delinquent child or has a history of criminal convictions; the offender has not been rehabilitated to a satisfactory degree after previously being adjudicated a delinquent child, or has not responded favorably to sanctions previously imposed for criminal convictions; the offender has demonstrated a pattern of drug or alcohol abuse that is related to the offense, and the offender refuses to acknowledge he has demonstrated that pattern, or refuses treatment for the drug or alcohol abuse; the offender shows no genuine remorse for the offense.
{¶12} 4. Factors indicating the offender is not likely to commit future crimes: prior to committing the offense, the offender had not been adjudicated a delinquent child; prior to committing the offense, the offender had not been convicted of or pleaded guilty to a criminal offense; prior to committing the offense, the offender had led a law-abiding life for a significant number of years; the offense was committed
{¶13} It is also true that charges dismissed during the plea bargain process may be considered at sentencing. State v. Cooey, 46 Ohio St.3d 20, 35, 544 N.E.2d 895 (1989). In this case, one count of gross sexual imposition was dismissed.
{¶14} Appellant argues that the court did not consider any mitigating evidence or any of the supplemental information provided to the court at sentencing, such as the psychological report. There is nothing in the record to support this argument. Appellant believes that he should not have been sentenced to prison because he was remorseful for his actions and had no prior felony record. Further, his psychiatrist recommended community control sanctions and treatment, he did not physically harm his victims, and his actions were not motivated by race, gender, sex, or religion. While acknowledging that it was up to the trial court to weigh this evidence, including the credibility of this evidence, in light of all the sentencing factors, Appellant nevertheless concludes that the evidence does not justify a sentence that he contends is nearly the maximum prison sentence.
{¶15} Appellant is mistaken that the maximum prison term was imposed, or even any term close to the maximum. The total possible prison term was twenty and one-half years. His five-year prison term is not remotely close to the maximum possible sentence. Even taking into account only the two second degree felonies, the maximum term for each was eight years. The court imposed five, which, again, is
{¶16}
{¶17} The trial court actually addressed most of the factors that Appellant complains were ignored in this appeal. The court stated that it balanced the seriousness and recidivism factors in
{¶18} There is a presumption that the court followed the statutory guidelines absent an affirmative demonstration to the contrary, as long as there is some mention of the statutory factors. State v. Arnett, 88 Ohio St. 3d 208, 215, 724 N.E.2d 793 (2000); State v. Watson 7th Dist. No. 09 MA 62, 2011-Ohio-1178, ¶12. In this case, the record is replete with references to the sentencing guidelines.
{¶19} It appears that Appellant merely disagrees with the manner in which the trial court viewed and weighed the evidence at sentencing and with the court‘s analysis regarding whether a modest prison term (in comparison to the possible maximum sentence) was appropriate. There is nothing in Appellant‘s argument or the record that would justify a reversal of the sentence based on an abuse of discretion on the part of the trial court. The record supports that the court considered all the relevant factors at sentencing. The court considered Appellant‘s conduct severe enough to warrant a five-year prison term. Appellant‘s argument is not persuasive, and the judgment of the trial court is affirmed.
Donofrio, P.J., concurs.
DeGenaro, J., concurs.