[Cite as State v. Goins,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98256

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

ROBERT W. GOINS DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-555952

BEFORE: Boyle, P.J., Celebrezze, J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: January 31, 2013 ATTORNEY FOR APPELLANT

Matthew C. Bangerter 1360 West 9th Street Suite 200 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Mahmoud Awadallah T. Allan Regas Assistant County Prosecutors The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 MARY J. BOYLE, P.J.:

{¶1} Defendant-appellant, Robert Goins, appeals his sentence. He raises two

assignments of error for our review:

[1.] The trial court erred by sentencing the defendant-appellant to a term of imprisonment contrary to statute and where its findings were not supported by the record.

[2.] The trial court erred when it imposed a prison term where its findings under R.C. 2929.12 were not supported by the record and where it failed to give careful and substantial deliberation to the relevant statutory considerations.

{¶2} Finding no merit to his appeal, we affirm.

Procedural History

{¶3} In late 2011, Goins was indicted on several counts of rape with sexually

violent predator specifications and several counts of kidnapping with sexual motivation

and sexually violent predator specifications. The charges arose out of allegations that

Goins had sexual intercourse by force with his daughter when she was 14 years old and

again when she was 17 years old. He pleaded not guilty to all charges.

{¶4} In February 2012, Goins withdrew his former plea and pleaded guilty to two

counts of rape with the sexually violent predator specifications deleted. All other

charges were nolled.

{¶5} The trial court sentenced Goins to six years for the first count of rape and

eight years for the second count of rape, and ordered that they be served consecutive to one another, for an aggregate sentence of 14 years in prison. The trial court further

notified Goins that he was subject to a mandatory term of five years of postrelease control

upon his release from prison and that he was labeled as a Tier III sex offender. It is

from this judgment that Goins appeals.

Standard of Review

{¶6} An appellate court must conduct a meaningful review of the trial court’s

sentencing decision. State v. Johnson, 8th Dist. No. 97579,

, citing

State v. Hites, 3d Dist. No. 6-11-07,

. Specifically, R.C.

2953.08(G)(2) provides that our review of consecutive sentences is not an abuse of

discretion. An appellate court must “review the record, including the findings

underlying the sentence or modification given by the sentencing court.”

If an

appellate court clearly and convincingly finds either that (1) “the record does not support

the sentencing court’s findings under [R.C. 2929.14(C)(4)]” or (2) “the sentence is

otherwise contrary to law,” then “the appellate court may increase, reduce, or otherwise

modify a sentence * * * or may vacate the sentence and remand the matter to the

sentencing court for resentencing.”

Consecutive Sentences

{¶7} In his first assignment of error, Goins maintains that the trial court failed to

consider R.C. 2929.14(C)(4) as enacted by H.B. 86 when sentencing him to consecutive

sentences. {¶8} Goins first contends that the trial court incorrectly and explicitly stated that

H.B. 86 did not apply to Goins even though he was sentenced after the effective date of

the statute. Goins’s argument is misplaced. The trial court was aware that H.B. 86

applied, and correctly noted that because Goins committed the offenses before the statute

went into effect, Goins was entitled to the benefit of the lower sentencing ranges under

the old statute (because H.B. 86 increased the sentencing range for first degree felonies to

a maximum of 11 years). Thus, we must determine if the trial court correctly applied

H.B. 86 when sentencing Goins to consecutive sentences.

{¶9} R.C. 2929.14(C)(4), as revived, now requires that a trial court engage in a

three-step analysis in order to impose consecutive sentences. First, the trial court must

find that “consecutive service is necessary to protect the public from future crime or to

punish the offender.”

Next, the trial court must find that “consecutive sentences

are not disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public.”

Finally, the trial court must find that at least one of

the following applies: (1) the offender committed one or more of the multiple offenses

while awaiting trial or sentencing, while under a sanction, or while under postrelease

control for a prior offense; (2) 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

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; or (3) the offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the

offender.

{¶10} In each step of this analysis, the statutory language directs that the trial court

must “find” the relevant sentencing factors before imposing consecutive sentences. R.C.

2929.14(C)(4). In making these findings, a trial court is not required to use “talismanic

words to comply with the guidelines and factors for sentencing.” State v. Brewer, 1st

Dist. No. C-000148,

, *10 (Nov. 24, 2000). But it must be

clear from the record that the trial court actually made the findings required by statute.

See State v. Pierson, 1st Dist. No. C-970935,

(Aug. 21,

1998). A trial court satisfies this statutory requirement when the record reflects that the

court has engaged in the required analysis and has selected the appropriate statutory

criteria. See State v. Edmonson,

,

(1999).

{¶11} Notably, however, the General Assembly deleted R.C. 2929.19(B)(2)(c) in

H.B. 86. This was the provision in S.B. 2 that had required sentencing courts to state

their reasons for imposing consecutive sentences on the record. Accordingly, a trial

court is not required to articulate and justify its findings at the sentencing hearing. A

trial court is free to do so, of course. But where, as here, there is no statutory

requirement that the trial court articulate its reasons, it does not commit reversible error if

it fails to do so, as long as it has made the required findings.

{¶12} Goins’s counsel spoke to the court on his behalf, informing the court that

Goins had no prior felony or misdemeanor record. Goins’s counsel further explained to the court that Goins had expressed remorse, stating in his presentence investigation report

(“PSI”) that he felt “bad” and “hurt” and “like he let his daughter down.” Goins’s

counsel also referred to the court’s psychiatric clinic report, where it explained that Goins

was “sexually molested by his uncle repeatedly at the age of six.” The court psychiatric

clinic report further indicated that Goins had a psychotic disorder, was an alcoholic, and

suffered from post-traumatic stress disorder. The report further indicated that at the time

of the incident, Goins said that he had taken “a couple Percocets and drank some beer.”

Also according to the report, when the incident occurred, Goins believed that his daughter

was his wife. Goins’s counsel further informed the court that the STATIC-99 test

showed “a low risk of reoffending,” despite the fact that there was more than one

incident, and also indicated that Goins was not a pedophile.

{¶13} Goins spoke to the court after his counsel. He apologized to his daughter.

Goins’s sister spoke on his behalf, as well as Goins’s daughter, the victim. Goins’s

daughter explained that she was pregnant with her father’s child, but said that she had

forgiven her father and she did not want him to go to jail.

{¶14} The prosecutor informed the court that although Goins had a lot of support

from his family, there were “two rapes.” The prosecutor stated that when the victim was

14 years old, Goins “brutally raped her over a pool table.” The victim wrote what

happened in a letter. Her mother found the letter and did not believe her. When Goins

found out about the letter, he “chase[d] her around the * * * basement with a hammer,”

threatening her. The second incident occurred when Goins took the victim to his brother’s house and told her that she had two choices, be whipped or be “raped.” After

Goins found out that his daughter was pregnant, he told his wife and the police that he

had saved his sperm in a cup in his garage and his daughter must have “inseminated

herself with [his] sperm.” The prosecutor further explained that Goins and his daughter

have sickle cell anemia, and thus, the baby has a much higher chance of having it as well.

{¶15} At the sentencing hearing, the trial court indicated that it considered the PSI,

the court psychiatric clinic report, and letters from Goins’s family. The court further

indicated that it considered the purposes and principles of sentencing under R.C. 2929.11

and also the seriousness and recidivism factors under R.C. 2929.12.

{¶16} The trial court stated that although Goins did not have a prior criminal

record, it found “the seriousness” of the crime relevant, as well as “the events giving rise

to the crime itself.” The trial court stated that it found sexual abuse of a family member

to be the “highest level” of abuse. The trial court indicated that although Goins’s family

had forgiven him, they do not “control [the] disposition of sentencing.” The trial court

stated that it also had to consider “the interest of society,” and protect the public as well

as the victim. Although the court said that it considered Goins’s mental health factors, it

stated that it had to also consider the fact that Goins threatened his daughter as well.

The trial court found that “a prison sentence is necessary in order to protect the public and

not demean the seriousness of the offense.” {¶17} The court further found that the first incident was “not the most serious form

of the offense, but certainly [was] high up there.” On that count, the court sentenced

Goins to six years in prison. On the later incident, the court sentenced Goins to eight

years in prison. The court stated, “because these are two separate rapes, bridged by a

gap in time, the court is going to impose those sentences consecutively, for a period of 14

years total incarceration.”

{¶18} After reviewing the transcript in its entirety, we conclude that the trial court

held a lengthy hearing, after which it made thoughtful and extensive findings. It

discussed the seriousness of Goins’s crimes and the need to protect the public and punish

Goins. The trial court further considered the emotional and physical harm to the victim,

Goins’s young daughter, as well as the emotional harm and high risk of sickle cell anemia

to the unborn child. The trial court also found sexual abuse by a family member to be

one of the highest forms of abuse and considered the brutality of Goins’s actions during

both incidents as well. Finally, the trial court further found that Goins’s actions

consisted of two separate rapes, bridged by a gap in time. Thus, we find that the trial

court fully met the statutory requirements of R.C. 2929.14(C)(4) to impose consecutive

sentences.

{¶19} Goins’s first assignment of error is overruled.

R.C. 2929.12

{¶20} In his second assignment of error, Goins maintains that the trial court failed

to give substantial consideration to the factors under R.C. 2929.12, especially mitigating factors in his case, such as the fact that his daughter forgave him, he suffered from mental

health and alcohol dependency issues, he was a past victim of sexual abuse, his mental

state at the time of the incident was affected by Percocet and alcohol, his close bonds with

his family that would aid in his rehabilitation, and the fact that he was rated at a low risk

to reoffend. We disagree.

{¶21} R.C. 2929.12 provides a nonexhaustive list of factors a trial court must

consider when determining the seriousness of the offense and the likelihood that the

offender will commit future offenses. While the trial court is required to consider the

R.C. 2929.12 factors, “the court is not required to ‘use specific language or make specific

findings on the record in order to evince the requisite consideration of the applicable

seriousness and recidivism factors (of R.C. 2929.12).’” State v. Webb, 11th Dist. No.

2003-L-078,

, ¶ 10, quoting State v. Arnett,

,

(2000).

{¶22} After a thorough review of the sentencing hearing, which we recounted the

majority of in the previous assignment of error, it is clear that the trial court properly

considered each of the factors that Goins claims the trial court failed to consider.

{¶23} Goins’s second assignment of error is overruled.

{¶24} Judgment affirmed.

It is ordered that appellee recover of 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 conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

MARY J. BOYLE, PRESIDING JUDGE

SEAN C. GALLAGHER, J., CONCURS; FRANK D. CELEBREZZE, JR., J., CONCURS IN JUDGMENT ONLY