STATE OF OHIO v. BRYAN K. WILSON
No. 99331
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 12, 2013
[Cite as State v. Wilson, 2013-Ohio-3915.]
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-558514
BEFORE: E.T. Gallagher, J., Stewart, A.J., and Rocco, J.
RELEASED AND JOURNALIZED: September 12, 2013
Richard Agopian
The Hilliard Building
1415 West 9th St., 2nd Floor
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Andrew J. Santoli
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant Bryan Wilson (“Wilson“) appeals his consecutive sentences. We find no merit to the appeal and affirm the trial court‘s judgment.
{¶2} On July 31, 2011, Wilson and his brother, Spencer Jordan (“Jordan“), went on a double date with T.K. and her sister H.K. The two couples decided to stay the night in a hotel because Wilson and Jordan lived some distance away from the two women. Everyone except H.K., who was pregnant, consumed alcohol. During the night, Wilson fondled T.K. while she was asleep and had sexual conduct with H.K. against her will. Consequently, Wilson was charged with rape, kidnapping, and sexual battery.
{¶3} Pursuant to a plea bargain, Wilson pleaded guilty to sexual battery against T.K. and attempted rape of H.K. The court sentenced Wilson to a one-year prison term for the sexual battery conviction and a four-year prison term for the attempted rape conviction, to be served consecutively for an aggregate five-year prison term. This appeal followed.
{¶4} In his sole assignment of error, Wilson argues the trial court erred when it sentenced him to consecutive prison terms. He contends the imposition of consecutive sentences was contrary to law because the trial court failed to comply with the sentencing provisions set forth in
{¶5}
{¶6}
(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 the 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 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.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶7} There is no provision in
The trial court did not make an express finding under
R.C. 2929.14(C) . It did discuss Dwayne‘s criminal history, which could equate to making two of the findings, namely (1) that consecutive sentences are necessary to protect the public from future crime or to punish the offender, and (2) that the offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. Id. at ¶ 86.1
{¶8} Although the appellate court may detect findings in the trial court‘s statements on the record, it may not infer findings from elsewhere in the record. For example, in State v. Redd, 8th Dist. Cuyahoga No. 98064, 2012-Ohio-5417, the state argued that an appellate court should infer from the record that the trial court made two mandatory findings under
{¶9} Therefore, this court has consistently held that the court‘s discussion of relevant facts at the sentencing hearing may be construed as findings. The statutory language in
{¶11} The record reflects that the court also found that consecutive sentences were necessary to protect the public. In this regard, the court stated that although Wilson showed genuine remorse, he had a criminal history and “ha[s] not responded favorable [sic] to sanctions previously imposed in the adult or juvenile court.” In sum, the court stated:
I am able to impose consecutive sentences, if necessary, to protect the public or punish the offender and not disproportionate — and I need to make the following findings: * * * I find that the harm was so great or unusual that a single term does not adequately reflect [sic] seriousness of the conduct.
Again, my stated reasoning for that is that there were two victims. The incidents did not happen at the same time. There were separate incidents
{¶12} It is clear the trial court made the requisite findings that “consecutive service is necessary to protect the public from future crime or to punish the offender” and that Wilson‘s “history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.”
{¶13} However, Wilson argues the trial court failed to make a finding with respect to proportionality. He asserts that the court‘s mention of the word “disproportionate” was not sufficient to make the necessary finding that “consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct.”
{¶14} As previously stated, the court found the offenses more serious than other similarly situated offenders based on the victims’ statements and the fact that there were two separate offenses committed against two victims. The court also noted there was a period of time between the commission of the two offenses during which Wilson had the opportunity to consider his conduct and nevertheless chose to sexually assault the second victim, who was pregnant.
{¶16} Wilson has also failed to provide this court with any explanation or evidence as to why or how his sentence is disproportionate. A defendant alleging disproportionality in felony sentencing has the burden of producing evidence to “indicate that his sentence is directly disproportionate to sentences given to other offenders with similar records who have committed these offenses.” State v. Breeden, 8th Dist. Cuyahoga No. 84663, 2005-Ohio-510, ¶ 81.
{¶17} The trial court made all the findings required by
{¶18} Therefore, the sole assignment of error is overruled.
{¶19} Judgment affirmed.
It is ordered that appellee recover from appellant 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 common pleas court to carry this judgment into execution. The defendant‘s convictions having been affirmed, any bail pending appeal is terminated. Case remanded to the common pleas court for execution of sentence.
EILEEN T. GALLAGHER, JUDGE
MELODY J. STEWART, A.J., and
KENNETH A. ROCCO, J., CONCURS
WITH SEPARATE OPINION
KENNETH A. ROCCO, J., CONCURRING
{¶20} At sentencing, the trial court emphasized the fact that Wilson molested two victims in this case in two separate incidents. In my opinion, it is evident that the trial court found that, on these facts, consecutive sentences were not disproportionate to the seriousness of Wilson‘s conduct and were not disproportionate to the danger that Wilson posed to the public. Wilson is not entitled to a “volume discount” at sentencing just because these two separate assaults against two different victims were part of the same indictment. While the trial court could have been clearer in connecting this finding to the language in
{¶21} But I wish to highlight my concern about an ongoing and troublesome issue with respect to how the state is dealing with consecutive sentences. In my view, if the state believes that a consecutive sentence is appropriate in a given case, the best practice would be to provide the trial court with a sentencing memorandum that includes the required statutory findings under
{¶22} Then, on appeal, the state regularly defends a consecutive sentence by leaning heavily on the idea that the trial court is not required to use “talismanic words to comply with the guidelines and factors for sentencing.”3 State v. Goins, 8th Dist. Cuyahoga No. 98256, 2013-Ohio-263, ¶ 10, quoting State v. Brewer, 1st Dist. Hamilton No. C-000148, 2000 Ohio App. LEXIS 5455 (Nov. 24, 2000). I find it unacceptable for the state to prop up its position on appeal by parroting the “talismanic words” language when it has failed to provide the trial court with a sentencing memorandum in the first place.
{¶23} All too often, we are forced to reverse consecutive sentences because the trial court has not adequately set forth that consecutive sentences were not disproportionate to the seriousness of the offender‘s conduct and were not disproportionate to the danger the offender posed to the public. See, e.g., State v. Graves,