[Cite as State v. Baker,

.]

COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. 2013CA0001 JAMES E. BAKER, JR. : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Coshocton County Court of Common Pleas, Case No. 12-CR- 0031

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 1, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JASON GIVEN JEFFREY MULLEN Coshocton County Prosecuting Attorney Coshocton County Public Defender 318 Chestnut Street 239 N. Fourth Street Coshocton, OH 43812 Coshocton, OH 43812 [Cite as State v. Baker,

.]

Gwin, P.J.

{¶1} On May 21, 2012, James E. Baker, Jr. [“Baker”] was indicted on nineteen

(19) counts. Baker was charged with one count of Rape, R.C. 2907.02(A)(1)(b); eight

counts of Rape, R.C. 2907.02(A)(2); and ten (10) additional counts of Gross Sexual

Imposition.

{¶2} On August 31, 2012 Baker entered pleas of guilty to counts one (1)

through ten (10) of the Indictment, consisting of 9 counts of rape, felonies of the first

degree one count in violation of R.C. 2907.02(A)(1)(b) and eight counts in violation of

R.C. 2907.02(A)(2); and one count of gross sexual imposition a felony of the third

degree in violation of R.C. 2907.05(A)(4). In exchange, the state requested and the

court granted a nolle prosequi of counts eleven (11) through nineteen (19) of the

Indictment. The state also agreed to take no position as it related to Baker’s sentence.

{¶3} Following Baker's pleas of guilty, the court ordered a pre-sentence

investigation (PSI). Additionally, upon Baker’s motion, the court ordered that a

psychological examination of Baker be performed to aid the court in sentencing and as

part of the PSI process. Per said order Dr. Gary Wolfgang, Ph.D., conducted the

examination and filed a report with the court. This report was incorporated into the PSI

and was made part of the record at the time of sentencing.

{¶4} On December 12, 2012, the court conducted a sentencing hearing. The

court imposed a sentence of 10 years to life imprisonment for Count 1, Rape; sentences

of 5 years for each of counts 2 through 9, each a count of Rape felonies of the first

degree; and a sentence of 36 months for Count 10, Gross Sexual Imposition. The

sentencing court ordered that the sentences for counts 2, 3, and 4 were to be Coshocton County, Case No. 2013CA0001 3

consecutive to each other and consecutive to Count 1; and that the remaining counts be

concurrent to each other, and concurrent to counts 1 through 4. Thus, Baker’s

aggregate sentence is life imprisonment with the possibility of parole in twenty-five (25)

years.

Assignment of Error

{¶5} Baker assigns one assignment of error,

{¶6} “I. THE IMPOSITION OF CONSECUTIVE SENTENCES WAS AN ABUSE

OF DISCRETION.”

{¶7} In his sole assignment of error, Baker challenges his consecutive

sentences.

{¶8} In 2003, the Ohio Supreme Court held in State v. Comer,

,

, a court may not impose consecutive sentences unless it “finds”

three statutory factors enumerated in then 2929.14(E)(4). The statutory factors were the

same as those now enumerated in the revised version of R.C. 2929.14(C)(4) following

enactment of 2011 Am.Sub.H.B. No. 86. The revised version of the statute again

requires the trial court to “find” the factors enumerated.

{¶9} The Court in

read R.C. 2929.14(E)(4), as it existed then, in

conjunction with then R.C. 2929.19(B) to reach its conclusion the trial court must also

state its reasons for the sentence imposed. Then R.C. 2929.19(B) stated the trial court

“shall impose a sentence and shall make a finding that gives its reasons for selecting

the sentence imposed in any of the following circumstances...(c) if it imposes

consecutive sentences under R.C. 2929.14.” Coshocton County, Case No. 2013CA0001 4

{¶10} 2011 Am.Sub.H.B. No. 86, which became effective on September 30,

2011, revived the language provided in former R.C. 2929.14(E) and moved it to R.C.

2929.14(C)(4). The revisions to the felony sentencing statutes under 2011 Am.Sub.H.B.

No. 86 now require a trial court to make specific findings when imposing consecutive

sentences. R.C. 2929.14(C)(4) provides, in relevant part:

(4) If multiple prison terms are imposed on an offender for

convictions of multiple offenses the court may require the offender to

serve the prison terms consecutively if the court finds that the consecutive

service is necessary to protect the public from future crime or to punish

the offender and that consecutive sentences are not disproportionate to

the seriousness of the offender's conduct and to the danger the offender

poses to the public, and if the court also finds any of the following:

(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, or 2929.18 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. Coshocton County, Case No. 2013CA0001 5

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future

crime by the offender. (Emphasis added).

{¶11} In Section 11, the legislature explained that in amending former R.C.

2929.14(E)(4), it intended “to simultaneously repeal and revive the amended language

in those divisions that was invalidated and severed by the Ohio Supreme Court's

decision in State v. Foster (2006),

.” The General Assembly further

explained that the amended language in those divisions “is subject to reenactment

under the United States Supreme Court's decision in Oregon v. Ice (2009),

, and the Ohio Supreme Court's decision in State v. Hodge (2010), ––– Ohio St.3d –

–––, Slip Opinion No. 2010–Ohio–6320.” Thus, it is the legislature's intent that courts

interpret the language in R.C. 2929.14(C)(4) in the same manner as the courts did prior

to State v. Foster,

, 2006–Ohio–856,

.

{¶12} When it is clear from the record that the trial court engaged in the

appropriate analysis, little can be gained by sending the case back for the trial court to,

in essence, recite the “magic” or “talismanic” words when imposing consecutive

sentences. In other words, because the record supports the trial court’s imposition of

consecutive sentences, the trial court cannot err in imposing consecutive sentences

after remand. Our review on appeal of any subsequent resentencing will be directed at

looking at the entire trial court record to determine if that record supports the trial court’s

findings that the R.C. 2929.14(C) factors were met. See, State v. Alexander, 1st Dist.

Nos. C–110828, C–110829, 2012–Ohio–3349, ¶18; State v. Frasca, 11th Dist. 2011–T–

0108, 2012–Ohio–3746, ¶57. Coshocton County, Case No. 2013CA0001 6

{¶13} The transcript and sentencing entries reveal that the trial court reviewed

Baker’s presentence investigation report and Dr. Wolfgang’s a report.

{¶14} During the sentencing hearing, the trial judge made the following findings,

Mr. Baker, now we need to get down to the numbers. I believe that

your lawyer has done everything he can for you under the circumstances,

but your lawyer's ability to defend your position is somewhat limited

because of the nature of the crimes and the harm caused by you. I

understand that you have some limited mental abilities, but it's also clear

to me that you knew what you were doing was wrong and you continued

to do that. Because of your actions, and the age of the victim, who was

under age 13 with regard to Count 1, the General Assembly of this state

has decided to allow for a specific penalty, and that penalty is the only one

available to you for Count 1 of the indictment.

In consideration of the criteria established in section 2907.02 and

the penalty section for Count 1, and Count 1, again, is rape, in violation of

Revised Code Section 2907.02(A) (1)(b), a felony of the first degree, when

the victim was less than 13 years of age, meaning the penalty section is

2971.03(B) (1)(a), James E. Baker, you are hereby sentenced to serve for

that offense, again, that's rape, in violation of Revised Code Section

2907.02(A)(1)(b), a felony of the first degree as set forth in Count 1 of the

indictment, you are hereby sentenced to serve a minimum term of 10

years and a maximum term of life imprisonment. That is exactly the way Coshocton County, Case No. 2013CA0001 7

the statute is set out. A minimum term of 10 years and a maximum term of

life imprisonment. That's the penalty for Count 1.

***

And your lawyer has argued for concurrent sentences, based on

your cooperation and your lack of a criminal history. I have to balance that

cooperation and I do take that into consideration, Mr. Baker, that you did

not require some young girl to come up here and sit on this witness stand

and talk about what it's like to be raped by you, to have to relive those

horrors and explain that to numerous strangers sitting about the

courtroom, specifically those in the jury box. So I do grant you some credit

for that. But, I have to find that the harm caused by you is so great that a

single term of imprisonment cannot adequately punish you for these

offenses. In consideration of the criteria established in sections 2929.12,

13, 14, and all other matters pertinent, including the content and

recommendation of the pre-sentence investigation and report, it is the

judgment and sentence of this court as follows: For the offense of rape, in

violation of Revised Code Section 2907.02(A)(2), a felony of the fifth

degree, the defendant, James E. Baker Jr., is hereby sentenced to serve

five years’ incarceration in a state penal institution.

For the offense of rape, in violation of Revised Code Section

2907.02(A)(2), a felony of the first degree, as set forth in Count 3 of the

indictment, the defendant, James E. Baker Jr., is hereby sentenced to

serve five years' incarceration in a state penal institution. Coshocton County, Case No. 2013CA0001 8

For the offense of rape, in violation of Revised Code Section

2907.02(A) (2), a felony of the first degree, as set forth in Count 4 of the

indictment, the defendant, James E. Baker Jr., is hereby sentenced to

serve five years’ incarceration in a state penal institution. The sentences

for counts 2, 3, and 4 will be served consecutively with each other. And

consecutively with the sentence imposed in Count 1.

In sentencing the defendant to consecutive prison terms, the court

finds that the consecutive service is necessary to protect the public from

future crime and to punish the offender and that consecutive sentences

are not disproportionate to the seriousness of the offender's conduct and

to the danger the offender poses to the public. And at least two of the

offenses were committed as part -- I should say, those offenses noted in

counts 1 through 4 were committed as part of a course of conduct and the

harm caused by the multiple offenses 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.

Now, that's a lot of legal terminology for you, Mr. Baker. What I

have just said in terms that you might understand is that when you raped a

little girl, you stole from her, you took from her her innocence. You took

from her something that she can never regain, and you placed upon her a

burden that she will carry around for the rest of her life. The harm caused

by you is absolutely immeasurable, I can't even begin to explain it. And Coshocton County, Case No. 2013CA0001 9

therefore, you will serve those sentences that I just pointed out

consecutively so that, in effect, it's a life sentence and you will be in prison

for the rest of your life.

***

Sent. T. at 7-11.

{¶15} Upon review of the sentencing entries and the pertinent transcripts, we

find the trial court properly considered the purposes and principles of felony sentencing,

the factors of seriousness and recidivism and the R.C. 2929.14(C) factors when it re-

sentenced Baker. We further hold the trial court's consecutive sentences in this matter

are not unreasonable, arbitrary or unconscionable, and they are not contrary to law.

{¶16} Baker’s sole assignment of error is overruled and the judgment of the

Coshocton County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Wise, J., and

Baldwin, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. JOHN W. WISE

_________________________________ HON. CRAIG R. BALDWIN WSG:clw 0618 [Cite as State v. Baker,

.]

IN THE COURT OF APPEALS FOR COSHOCTON COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : JAMES E. BAKER, JR. : : : Defendant-Appellant : CASE NO. 2013CA0001

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Coshocton County Court of Common Pleas is affirmed. Costs to

appellant.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. JOHN W. WISE

_________________________________ HON. CRAIG R. BALDWIN