[Cite as State v. Summers,

.]

IN THE COURT OF APPEALS FOR DARKE COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 2013 CA 16

v. : T.C. NO. 13CR10

CHRISTOPHER A. SUMMERS : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 6th day of June , 2014.

..........

R. KELLY ORMSBY, III, Atty. Reg. No. 0020615, Prosecuting Attorney, Darke County Prosecutor’s Office, Courthouse, Third Floor, Greenville, Ohio 45331 Attorney for Plaintiff-Appellee

J. ALLEN WILMES, Atty. Reg. No. 0012093, 7821 N. Dixie Drive, Dayton, Ohio 45414 Attorney for Defendant-Appellant

..........

FROELICH, P.J.

{¶ 1} Christopher Summers was found guilty on his guilty plea of one count

of sexual battery, in violation of R.C. 2907.03(A)(7), in the Darke County Court of Common

Pleas; Summers was sentenced to one year of imprisonment. Summers had been convicted

of eight additional counts of sexual battery involving the same victim in Mercer County, and 2

the trial court ordered that his sentence for the Darke County offense be served consecutively

with the sentence imposed in the Mercer County case. Summers appeals from the Darke

County conviction, challenging his sentence.

{¶ 2} The victim of the Darke and Mercer County offenses was an underage

female high school student; Summers was her teacher and coach, age 35. Summers claimed

that he and the victim had a close, romantic relationship and that their sexual activity was

consensual, although he acknowledged that it “crossed the line” and that, as an adult, “any

contact was wrong.” The victim claimed that she felt coerced and manipulated into the

sexual relationship and that she was not a willing participant. The sexual conduct occurred

over the course of more than two years. Summers and the victim lived in Mercer County,

and most of the sexual activity occurred in Mercer County. The Darke County offense was

based on a night they spent in a Greenville hotel. The victim eventually told her mother

about the sexual conduct.

{¶ 3} In November 2012, Summers was charged with more than forty counts of

rape, sexual battery, and gross sexual imposition in Mercer County. In January 2013, he

was indicted on one count of sexual battery in Darke County. He entered guilty pleas in

both cases in August 2013. In Mercer County, Summers pled guilty to eight counts of

sexual battery, in exchange for which the other charges were dismissed. On October 10,

2013, he was sentenced to thirty months on each count, to be served consecutively, for an

aggregate term of twenty years. The next day, he was sentence in Darke County to a term of

one year in prison, to be served consecutively with the Mercer County sentence.

{¶ 4} Summers raises two assignments of error on appeal from his Darke County 3

conviction and sentence. The assignments of error state:

The trial court committed prejudicial error by imposing

consecutive service on Appellant which sentence was an abuse of

discretion and was violative of the statutory purposes and principles of

sentencing.

Imposing a sentence consecutive to the sentence in Mercer County

was not consistent with sentences imposed for similar cases committed by

similar offenders.

{¶ 5} Summers contends that the trial court abused its discretion in imposing a

consecutive sentence. His argument suggests that the trial court was not permitted to

impose a consecutive sentence without making “specific findings which are tied to the

overriding purpose of punishment” and examining whether the sentence is proportionate to

his conduct and the danger he poses to the public. He claims that the trial court

“summarily” imposed a consecutive sentence that was “grossly unsound, unreasonable, and

illegal” and that, because the “teacher/student” relationship “defines the offense” of which

he was convicted (R.C. 2907.03(A)(7)), that fact should not be viewed as a factor making his

offense “more serious” under R.C. 2929.12(B). Finally, he contends that his sentence was

disproportionate to similarly situated offenders.

{¶ 6} R.C. 2929.41(A) requires that, except as provided in other sections of the

Revised Code, including R.C. 2929.14(C), “a prison term, jail term, or sentence of

imprisonment shall be served concurrently with any other prison term, jail term, or sentence

of imprisonment imposed by a court of this state, another state, or the United States.” R.C. 4

2929.14(C)(4) provides that a sentencing court must make certain findings when imposing

consecutive sentences. Specifically, R.C. 2929.14(C)(4) allows for the imposition of

consecutive sentences if the trial court finds that: (1) a “consecutive service is necessary to

protect the public from future crime or to punish the offender”; (2) “consecutive sentences

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

offender poses to the public”; and (3) one or more of the following three findings are

satisfied:

(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.(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. 2929.14(C)(4)(a)-(c). An explanation of the rationale for a sentence (both

case-specific and statutory) can only increase the public understanding of a particular

sanction and thus the perceived legitimacy of the criminal justice system. See, e.g., O’Hear,

Explaining Sentences, 36 Fla.St.U.L.Rev. 459 (Spring 2009); Lamparello, Social 5

Psychology, Legitimacy, and the Ethical Foundations of Judgment: Importing the

Procedural Justice Model to Federal Sentencing Jurisprudence, 38 Colum.Hum.Rts.L.Rev.

115 (2006).

{¶ 7} However, the text of R.C. 2929.14(C)(4) does not state that a sentencing

court is required to express its consecutive-sentence findings in a sentencing entry, nor is

there such a requirement in R.C. 2929.19(B)(2)(b), which lists what information the trial

court must include in a sentencing entry. See State v. Slaughter, 2d Dist. Montgomery No.

25215,

.

{¶ 8} Moreover, we have recently held that Ohio law does not currently require a

sentencing court to explicitly include consecutive-sentence findings in sentencing entries.

Although the court must consider the record and other pertinent information before imposing

a sentence, “R.C. 2929.19(B)(2) provides that sentencing entries must simply indicate

whether multiple sentences are to be served consecutively.” Id. at ¶ 30.

{¶ 9} At the sentencing hearing, the trial court noted that Summers was convicted

the previous day of eight counts of sexual battery in Mercer County and was sentenced to 20

years of imprisonment on those offenses. It also noted that the “Ohio Risk Assessment

screening tool” indicated that Summers was at low risk to reoffend. The court

acknowledged factors indicating that Summers was unlikely to reoffend except for “periods

of bad judgment” (such as the one in which Summers claimed that the relationship with the

victim in this case began), but the court recognized that periods of bad judgment could recur.

{¶ 10} The judge made inconsistent statements about Summers’s risk of 6

recidivism, noting his lack of criminal history and other risk factors, and the judgment entry

reiterated that recidivism was unlikely, but concluding that he may reoffend if he again

found himself in difficult circumstances. These conflicting statements do not appear to be

the basis for the prison sentence. The court also noted Summers’s position of authority in

relationship to the victim in discussing the seriousness of the offense. Summers’s position

of authority was an element of the offenses of which he was convicted;1 thus, although

Summers’s conduct was serious, his position of authority was not entitled to significant

weight, if any, in rendering the offense “more serious than conduct normally constituting the

offense,” under R.C. 2929.12(B). See State v. Nichols,

,

,

(2d Dist.)

{¶ 11} Summers also points out that the court made several comments at the

sentencing hearing about “why there is sin in the world.” Certain statements may create the

appearance that a court is improperly basing its sentence on the judge’s religious beliefs.

See State v. Arnett,

,

(2000) (holding that a judge’s

personal experiences and beliefs cannot be divorced from his or her exercise of personal

discretion in sentencing, but recognizing that “a sentencing judge’s religious comments may

violate an offender’s due process rights when they reveal an ‘explicit intrusion of personal

religious principles as the basis of a sentencing decision.’” (Id., distinguishing United States

1 R.C. 2907.03(A)(7) states that “No person shall engage in sexual conduct with another, not the spouse of the offender, when * * * [t]he offender is a teacher, administrator, coach, or other person in authority employed by or serving in a school for which the state board of education prescribes minimum standards pursuant to division (D) of section 3301.07 of the Revised Code, the other person is enrolled in or attends that school, and the offender is not enrolled in and does not attend that school.” 7

v. Bakker,

(C.A.4, 1991)). However, the court clearly described these

reflections as “anecdotal” and having “nothing to do with the sentence,” and we conclude

that these comments did not influence the sentence.

{¶ 12} The court stated that the victim’s age, Summers’s relationship to the victim,

including his position of authority, and the “ongoing series of conduct” made the offense a

“more serious” one. The court further stated that it was “considering this to be a course of

conduct case,” because it “wouldn’t make sense” not to consider the events that occurred in

Mercer County. The court asserted that the sentence had “a component of punishing and

protecting the public.” Further, the sentencing entry stated that this was the worst form of

the offense, that the court sought to deter others in positions of authority from engaging in

such behavior, that a non-consecutive sentence would demean the severity of the conduct,

and that the sentence did not place an unnecessary burden on governmental resources.

{¶ 13} The trial court considered and addressed the issues pertinent to determining

an appropriate sentence, as set forth in R.C. 2929.11, R.C. 2929.12, and R.C. 2929.14.

When imposing the consecutive sentence, the trial court made the findings required by R.C.

2929.14(C)(4), including that the offense was committed as part of a course of conduct and

that the court was “protecting the public.” We do not clearly and convincingly find either

that the record does not support the trial court’s findings under R.C. 2929.14(C)(4) or that

the sentence is otherwise contrary to law. R.C. 2953.08(G)(2). See State v. Rodeffer, 2d

Dist. Montgomery Nos. 25574, 25575, 25576,

. Further, considering the

abuse of discretion standard, which Summers references in his appellate brief, we cannot

conclude that the consecutive sentence was unreasonable. See id. at ¶ 48-50 (Froelich, J., 8

concurring in judgment).

{¶ 14} Summers takes issue with the court’s finding that a “course of conduct”

was involved, where only one charge occurred in Darke County. The term “course of

conduct” is not defined in R.C. 2929.14, but other sources provide some guidance. The

supreme court has held that, for purposes of a death specification in a case involving

multiple murders, a course of conduct may be established by factual links, including time,

location, weapon, cause of death, or similar motivation. State v. Short,

,

,

. Ohio Jury Instructions has included this

definition in at least one of its instructions. See 2 Ohio Jury Instructions 513.49(E)(6).

Similarly, “some connection, common scheme, or some pattern or psychological thread that

ties” offenses together can establish a single course of conduct. State v. Sapp,

,

,

, syllabus. The trial court reasonably

considered the motivation, connection, and scope of Summers’s offenses against the victim

in weighing the seriousness of the Darke County offense and other sentencing factors.

{¶ 15} Moreover, it is well established that the court may consider information

beyond that strictly related to the offense(s) of which a defendant is convicted, even

including criminal charges and supporting facts that are dismissed under a plea agreement

and charges of which the offender is ultimately acquitted. See State v. Bowser,

,

,

(2d Dist.), citing State v. Blake, 2d Dist.

Montgomery No. 17355,

(June 11, 1999) and State v. Wiles,

,

(1991).

{¶ 16} Summers also argues that his sentence was inconsistent with sentences 9

imposed in other Ohio cases for similar crimes committed by similar offenders. The

consistency of sentences is one of the mandates of R.C. 2929.11(B). Summers cites several

cases in which a shorter sentence was imposed than he received, including State v. Schuler,

Warren C.P. No. 11 CR 27196 (where a female teacher committed sexual battery on several

male students after “cultivating” them with alcohol); State v. Valentine, Lake C.P. No. 09

CR 0311 (involving 16 counts of sexual battery); and State v. Ralston, Clermont C.P. No.

2008 CR 1054 (sexual battery involving three juvenile victims). He has also attached to

his reply brief a chart of cases involving sexual battery and the sentences imposed.

Summers acknowledges that “full details of said offenses are not available,” but he asserts

that they establish that the sentence in this case was unduly harsh.

{¶ 17} The sentence imposed in the Darke County case involved only one count, for

which Summers received a one-year sentence to be served consecutively with the sentences

imposed in Mercer County. Summers’s consistency argument appears to be focused on the

twenty year sentence he received in Mercer County, as the cases to which he compares his

own sentence imposed sentences substantially greater than one year, but less than twenty

years. We recognize the difficulty in establishing such a claim, especially if a record is not

made at the trial court level, but the facts of the other cases on which Summers relies and the

individuals involved in those cases are not before us. Similarly, Summers’s Mercer County

sentence is not before us, and we have no authority to review it.

{¶ 18} The assignments of error are overruled.

{¶ 19} The judgment of the trial court will be affirmed.

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HALL, J. and WELBAUM, J., concur.

Copies mailed to:

R. Kelly Ormsby, III J. Allen Wilmes Hon. Jonathan P. Hein