State v. Harrington, Unpublished Decision (8-20-2004)
State v. Harrington, Unpublished Decision (8-20-2004)
Opinion of the Court
{¶ 2} On October 28, 2002, appellant entered a plea of guilty to twenty counts of sexual battery, of the third degree. Thirteen of the counts were charged as violations of R.C.
{¶ 3} A pre-sentence investigation report was ordered and appellant appeared for sentencing on November 7, 2002. Prior to sentencing, the court conducted a sexual predator hearing wherein appellant was labeled a sexual predator. During the sexual predator hearing, the court was formally notified, inter alia, that appellant had been previously convicted of sexual imposition in 1983.
{¶ 4} During the sentencing hearing, appellant's brother and sister petitioned the court for leniency underscoring the fact that the siblings were abused as children and, although children's services was notified of the abuse, the agency did nothing. Alternatively, appellant's son, one of the victims in the case, and appellant's wife made statements as to why appellant's sentence should be harsher.
{¶ 5} The state recommended an aggregate sentence of twenty years incarceration while appellant's counsel requested sentencing with an aggregate term of five, six, seven, or eight years. The court accepted the state's recommendation and sentenced appellant to twenty consecutive one-year prison terms. Appellant now appeals.
{¶ 6} In his sole assignment of error, appellant contends the lower court erred when it sentenced him to twenty consecutive one-year terms without following the requisite statutory factors set forth in R.C.
{¶ 7} When reviewing a felony sentence, an appellate court engages in a de novo review in order to determine whether the trial court fully complied with the relevant statutes. State v.South (June 23, 2000), 11th Dist. No. 98-P-0050, 2000 Ohio App. LEXIS 2768, at 5. This court will not disturb a sentence unless we find, by clear and convincing evidence that the record does not support the sentencing court's findings or the sentence is otherwise contrary to law. State v. Caldwell, 11th Dist. No. 2002-L-142, 2003-Ohio-6964, at ¶ 9. Clear and convincing evidence is that quantum of proof which will produce in the mind of the trier of fact a firm belief regarding the facts sought to be established. State v. Bradford (June 1, 2001), 11th Dist. No. 2000-L-103, 2001 WL 589271, at 1.
{¶ 8} A court may not impose consecutive sentences for multiple offenses unless its findings include three statutory factors: First, the court must find that consecutive sentences are necessary to protect the public from future crime or punish the offender. R.C.
{¶ 9} "(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
{¶ 10} "(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.
{¶ 11} "(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender." R.C.
{¶ 12} Furthermore, if a court imposes consecutive sentence for multiple offenses under the statute detailed supra, it must also "make a finding that gives * * * its reasons for imposing the consecutive sentences." R.C.
{¶ 13} In the current matter, appellant asserts that the trial court merely recited the statutory language of R.C.
{¶ 14} During its November 7, 2002 proceedings, the lower court conducted appellant's joint sexual predator and sentencing hearing. After determining that appellant was a sexual predator, the prosecutor recommended a twenty year term of incarceration. Prior to sentencing appellant, the court stated:
{¶ 15} "The court sees this type of case all the time, and it's inexplicable to most people as to why these things happen. * * * The emotional scars that something of this nature leaves on the entire family is just probably, as the wife says here, irreversible. This is just so condemned by our entire culture both secular and religious."
{¶ 16} The court subsequently accepted the prosecutor's recommendation by sentencing appellant to twenty consecutive one-year sentences. The court then added:
{¶ 17} "The court cannot overlook the seriousness of this and from the report as well as what the family has said here as to the monumental effect this has had on everyone, and the Court feels that that sentence is appropriate for the facts in this particular case.
{¶ 18} "* * *
{¶ 19} "I have had counsel give me the section here I was trying to stumble through. The Court finds that the consecutive sentences are necessary to protect the public from future crime and to punish the offender and the consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public. The court further finds the offender committed one or more multiple offenses as the facts indicated as given by Mr. Wrenn. There's a prior history of similar conduct. To give anything less, I think, would demean the seriousness of the offense involved here. That is the sentence of the Court. Thank you."
{¶ 20} As the preceding paragraph demonstrates, the court effectively mimics R.C.
{¶ 21} Under the circumstances, the trial court failed to offer reasons to support its statutory findings as required by R.C.
{¶ 22} Finally, the court made ostensible findings under R.C.
{¶ 23} Moreover, if the court intended to make a finding under R.C.
{¶ 24} For instance, incestuous sexual battery is the base charge for thirteen of the twenty counts charged. We do not disagree with the trial court's conclusions that incest has horrific effects and is subject to widespread social disapprobation. However, such assessments are descriptive of the nature of incest which, under the circumstances, is an element of the crime itself. As such, focusing on the facts that incest causes long-term problems and violates cultural mores simply reiterates that incest, itself, is an unacceptable practice subject to widespread disapproval. Therefore, the fact that the sexual battery involved incest, which is culturally decried and, by its very commission, affects psychological damage, does not, without more, demonstrate that the offenses were so great or unusual, as compared to other crimes of incest, to merit consecutive sentences. See, e.g., State v. Brown, 11th Dist. No. 2003-G-2504,
{¶ 25} Furthermore, pursuant to R.C.
{¶ 26} In sum, appellant's sole assignment of error has merit. On remand the court should comport with Comer which dictates that the trial court, when imposing consecutive sentences, shall make the statutorily enumerated findings and give its reasons supporting those findings at the sentencing hearing. Id. at 468.
{¶ 27} For the foregoing reasons, appellant's sole assignment of error is sustained and the sentence of the Trumbull County Court of Common Pleas is hereby reversed and this matter is remanded for proceedings consistent with this opinion.
Ford, P.J., Christley, J., concur.
Reference
- Full Case Name
- State of Ohio v. David Harrington
- Cited By
- 3 cases
- Status
- Unpublished