[Cite as State v. Cochran,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY

STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NO. 2016-CA-11 : v. : T.C. NO. 12CR89 : KERMETH M. COCHRAN, III : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the ___17th ___ day of _____March_____, 2017.

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JANE A. NAPIER, Atty. Reg. No. 0061426, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee

DANIEL F. GETTY, Atty. Reg. No. 0074341, 46 E. Franklin Street, Centerville, Ohio 45459 Attorney for Defendant-Appellant

.............

DONOVAN, J.

{¶ 1} This matter is before the Court on the May 20, 2016 pro se Notice of Appeal

of Kermeth M. Cochran, III. Cochran appeals from his September 22, 20151 Judgment

1 We note that Cochran also filed a pro se “Motion for Leave to File Delayed Appeal” on May 20, 2016. The State opposed the motion, and this Court granted Cochran leave to file on July 30, 2016. -2-

Entry of Conviction on one count of gross sexual imposition, in violation of R.C.

2907.05(A)(4)(C)(2)(b), following a plea of guilty. Cochran received a sentence of 60

months, which he challenges herein. We hereby affirm the judgment of the trial court.

{¶ 2} Cochran was indicted on April 5, 2012 on three counts of gross sexual

imposition, all felonies of the third degree, and one count of public indecency, in violation

of R.C. 2907.09(A)(1)(C)(2), a misdemeanor of the fourth degree. The victim is S.F.

The record reflects multiple attempts of service of summons upon indictment. On June

26, 2015, a “Journal Entry of Initial Arraignment” was filed, which indicates that Cochran

represented that he had not been served with a copy of the indictment, and that he was

indigent. A subsequent arraignment hearing was scheduled for June 24, 2015. On that

date, Cochran pled not guilty.

{¶ 3} On August 25, 2015, Cochran withdrew his plea of not guilty and entered a

plea of guilty to Count III in the indictment. Pursuant to a plea agreement, the remaining

charges were dismissed, along with Champaign County Common Pleas Court Case No.

2012 CR 329.

{¶ 4} The State recited the facts herein at the plea hearing and further asserted

that Cochran was previously convicted of gross sexual imposition in Champaign County

Common Pleas Court Case No. 2001 CR 207. Cochran acknowledged his

understanding that the maximum penalty for his offense is five years, that imprisonment

is mandatory, and that he would be classified as a Tier Two sex offender.

{¶ 5} The following exchange occurred at disposition:

THE COURT: * * * Counsel, do you have anything you would like

to offer on behalf of your client? -3-

MR. SHERTZINGER: As far as mitigation? Is this the time you

want to hear that?

THE COURT: Yes.

MR. SHERTZINGER: Your Honor, I have reviewed the sentencing

memorandum and the PSI report. Have not had the opportunity to discuss

the contents of that with my client. But the contents of what was essentially

provided to us in the discovery packet, really, there was no new information.

There is really nothing there that we’re going to dispute at this time in either

the sentencing memorandum or PSI report.

* * * I suppose the one thing I do want to point out, as far as mitigating

factors, as far as my client as to why he should be given some leniency, is

his mental health condition. And that he has struggled with mental health

issues for quite some time now. He was diagnosed with bipolar, amongst

a variety of mental health issues. To the point that he received 100 percent

Social Security disability.

***

The other thing in the PSI report that I would like to point out is that

while there is still a bit of dispute as far as the actual incidents, he does

appear to be extremely remorseful. And I believe that that was put into the

- - I believe the PSI writer made note of that. And then just in all my

dealings with him I can see that, you know, he recognizes that he does have

a lifelong struggle. And he’s dealing with it. Not always in the best ways

in which he will acknowledge. But he is remorseful. And he realizes he -4-

has a problem, and he should not be putting himself in situations where this

problem could get him into trouble. Which it appears that is exactly what

happened on the date of the incident.

THE COURT: All right. State have anything they would like to

offer?

MS. WHETHERHOLT: Thank you, Your Honor. Your Honor, for

the following reasons the State of Ohio would recommend the maximum

sentence of 60 months for this Defendant. State would also note it filed the

sentencing memorandum concerning this Defendant. And would like to

incorporate this sentencing memorandum into our comments today.

***

MS. WHETHERHOLT: * * * And after reviewing the Defendant’s

PSI, the State would note a lack of remorse and responsibility taken by the

Defendant for his actions. The Defendant, in his PSI, admitted to having

contact with the victim in the instant case. He states that she must have

been so scared and afraid of what might be next. In the next paragraph

the Defendant states that he never inappropriately touched the victim.

The Defendant also has a previous felony GSI with another separate

young female. The statements and actions by the Defendant indicate to

the State that he has not taken responsibility and shows no remorse for his

actions and he is a threat to do these again. State also notes a lack of

cooperation on the Defendant’s part in the PSI. The PSI writer, * * * , visited

the Defendant on August 29 of this year. The Defendant refused to -5-

cooperate and be interviewed by her. The Defendant also did not have his

paperwork completed at that time. And the State would like to note that

the Defendant has a very lengthy criminal history that was presented in his

PSI. And for those reasons, and those mentioned in the sentencing

memorandum, the State would recommend the maximum sentence of 60

months for this Defendant.

Furthermore, the Defendant was recently hospitalized for illegal drug

use at the Tri-County Regional Jail. The Prosecutor’s office is currently

investigating that matter. There is potential for charges to be pressed in the

future against the Defendant. Thank you, Your Honor.

THE COURT: Mr. Cochran, you have an opportunity to address the

Court. Anything you would like to tell us?

MR. SCHERZINGER: Your Honor, may I address?

THE COURT: Yes. You want to respond to what she said?

MR. SCHERTZINGER: Yes, Your Honor. I think the

characterization of my client as unremorseful is inaccurate. I think the

Court has read the PSI report. Again, like I said, as far as the specific

incidents that led to the basis of the guilty plea in this charge, those are still

somewhat hazy. As far as him making reference to her being scared, that

is an acknowledgement that seems to show empathy. I believe that - - and,

again, he has expressed remorse.

As far as the incident, the State had said about an illegal drug use.

I have not seen a report in reference to that. * * * It’s my understanding -6-

that he had overdosed on Tylenol.

THE WITNESS: Extra [S]trength Tylenol.

MR. SCHERZINGER: So I don’t know if it’s necessarily illegal. I’m

sure it would be an infraction of the jail rules. More than the allotted amount

of Tylenol. But I don’t believe that is an illegal - - or I don’t believe it was

an illegal substance. But, again, there is more information that could be

forthcoming on that. My client would like to make a statement now.

THE COURT: Very good.

THE WITNESS: I would like to tell you I was as honest as I could

possibly. [Sic]

THE COURT: Speak up.

THE WITNESS: I was as honest as I possibly could be in my PSI.

And I wanted you to know the truth before sentencing.

THE COURT: All right.

MR. SCHERZINGER: Your Honor, that does refresh my memory

as far as addressing one of the issues the State raised. The apparent lack

of cooperation. I’ve said it several times as far as his mental health issues.

There has been numerous times where I had gone to meet with my client

where he was in the medical holding unit. His mental health issues have

crossed over into the physical to where there are sometimes where he is

just debilitated. And the day that the PSI writer first went to visit with him

he felt that he was not physically able to meet with her at that time. I don’t

believe it was expressly a lack of cooperation on his point. Just that he -7-

was ill. Thank you, Your Honor.

THE COURT: All right. My understanding from reading the PSI

was that his reason for not seeing the PSI operator at the time was that he

wanted to talk to his Counsel first. Which to me, was a more legitimate

reason than what you are indicating right now. That he would want to talk

to his Counsel before he filled out any forms - -

MR. SCHERZINGER: Okay.

THE COURT: - - that might subject him to some type of

incriminating statement. All right.

Mr. Cochran, anything else you may have, sir?

THE WITNESS: It was that I wanted to speak with my attorney

before I filled it out. But I didn’t get the opportunity. So I proceeded

because I knew she was coming back.

THE COURT: Anything else?

THE WITNESS: No, sir.

THE COURT: All right. Mr. Cochran, I do have to say this in going

through the PSI, I made a concerted effort to try to find things that were

favorable to you in there. There isn’t much in there that is very favorable.

Your record is terrible. You know, if you don’t understand that at your age,

you know, you are to the point where there isn’t much that anyone can do.

You may have some mental health issues. And maybe the best place to

deal with those is in the institution. But you are going to have to deal with

whatever the issues are because when somebody who doesn’t know you -8-

reads a report like I read, and I keep looking for something, what can I find

that is favorable, and I get finished and I can’t find anything. Other than

the fact that I will say you did express some remorse, at least, to the PSI

writer.

Nevertheless, the Court has considered the record and has

considered the report of the Adult Court Services Department and

considered the purposes and principles of sentencing under Revised Code

Section 2929.11. And has balanced the seriousness and recidivism

factors set forth in Section 2929.12. Has considered the victim impact

statement. As well as considered the statements of Counsel and the

statement of the Defendant.

Pursuant to Section 2929.13 the Court finds that there was physical

harm to a person, that this is a sex offense, that there was a previous prison

term served, and that the offender was already under a community control

or non-prison sanction. Court further finds that this was the worst form of

the offense. That the offender poses the greater likelihood of committing

future crimes. As a result, the Court further finds that the Defendant should

be sentenced to the Ohio Department of Rehabilitation and Corrections

Correctional Reception Center accordingly for a definite period of 60 months

for a violation of Revised Code Section 2907.05(A)(4)(C)(2)(b) of the

Revised Code, gross sexual imposition, of which 60 months is a mandatory

term.

{¶ 6} In its judgment entry of conviction, the court noted as follows regarding -9-

Cochran’s pre-sentence conduct:

• The Defendant at the time of the offense was serving, or the Defendant

previously had served, a prison term. R.C. 2929.13(B)(1)(b)(x).

• to wit: Defendant served a prison term in Champaign County Case

No. 1995 CR 056 for Felonious Assault

• to wit: Defendant served a prison term in Clark County Case No.

1997 CR 556 for Possession of Crack Cocaine

• to wit: Defendant served a prison term in Champaign County Case

No. 2001 CR 207 for Gross Sexual Imposition

• to wit: Defendant served a prison term in Champaign County Case

No. 2008 CR 340 for Arson

• ORAS Score: 20 – Moderate

{¶ 7} The court stated that in imposing sentence it considered the factors set forth

in R.C. 2929.11, R.C. 2929.12, and R.C. 2929.13. The Judgment Entry of Conviction

provides:

Upon consideration of all sentencing factors in Chapter 2929 of the

Ohio Revised Code and all other matters in the case pertinent to

sentencing, the Court sentences the Defendant as follows:

The Court finds that a term of imprisonment is mandated pursuant to

R.C. 2907.05(A)(4)(C)(2)(b)

Count Three - Imprisonment of sixty (60) months to the Ohio

Department of Rehabilitation and Correction

The Court imposes the maximum sentence on Count Three, noting that the -10-

offense was the worst form of the offense and that the Defendant poses the

greatest likelihood of committing future crimes. R.C. 2929.14(C)

{¶ 8} Cochran asserts one assignment of error herein as follows:

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY

SENTENCING APPELLANT TO THE MAXIMUM MANDATORY

SENTENCE IN VIOLATION OF APPELLANT’S CONSITUTIONAL AND

STATUTORY RIGHTS TO BE FREE FROM CRUEL AND UNUSUAL

PUNISHMENT.

{¶ 9} Cochran asserts that “[d]uring sentencing the Court was informed of Mr.

Cochran’s untreated mental health issues. * * * However, the Court’s main focus seemed

to be on the PSI report regarding Mr. Cochran’s [misdemeanor] background, and not on

the mental health conditions, which obviously resulted in the crime at issue.”

{¶ 10} Cochran asserts as follows:

Obvious from the record is that the Court in the present case failed

to comply with the actual purposes of felony sentencing and thereby abused

its discretion. It seems clear the court did not actually consider the

purposes and principles of sentencing as it mentioned, but failed [to

actually] consider Mr. Cochran’s underlying mental health condition, which

resulted in this crime. Instead, the Court simply sentenced Mr. Cochran to

the maximum mandatory sentence of 60 months, offering no resolution or

hope for rehabilitation as it failed to address Mr. Cochran’s mental health

conditions. Other minimum means were and remain available, such as

confinement to an appropriate mental health facility or a reduced mandatory -11-

sentence so that mental health could be implemented as a component of

sentencing through judicial release. Here, the court simply made the

“boiler plate” findings before sentencing Mr. Cochran to a * * * mandatory

60 months, despite Mr. Cochran’s ongoing and untreated mental health

conditions. By such, the Court abused its discretion in sentencing Mr.

Cochran and, therefore, the sentence should be vacated and the case

remanded for further proceedings.

{¶ 11} The State responds that Cochran “has failed to show that the trial court’s

imposition of a maximum sentence is clearly and convincingly contrary to law.” The

State asserts as follows:

The trial court acknowledged the possibility that Appellant may have

mental health issues and may have expressed remorse to the PSI writer,

but the trial court also correctly noted that the PSI report had very little that

was favorable to Appellant. * * * Further, Cochran now alleges that his

mental health issues resulted in the crime at issue but did not present any

testimony other than statements from Appellant’s trial counsel that his

mental health should be a mitigating factor in sentencing. * * * Although

the trial court considered his possible mental health, the circumstances of

the subject offense and Appellant’s significant criminal history, as

enumerated in the stated sentencing factors, certainly outweigh any such

mitigating factor in imposing a maximum sentence here.

{¶ 12} The State concludes that “Appellant has failed to show by clear and

convincing evidence that the sentence was contrary to law and has failed to show that -12-

the record does not support the trial court’s findings.”

{¶ 13} As this Court has previously noted:

“The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any

findings or give its reasons for imposing maximum or more than minimum

sentences.” State v. King, 2013–Ohio–2021,

, ¶ 45 (2d

Dist.). However, in exercising its discretion, a trial court must consider the

statutory policies that apply to every felony offense, including those set out

in R.C. 2929.11 and R.C. 2929.12. State v. Leopard,

,

2011–Ohio–3864,

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

, 2006–Ohio–855,

.

State v. Armstrong, 2d Dist. Champaign No. 2015-CA-31,

.

{¶ 14} Finally, as this Court noted in Armstrong:

In reviewing felony sentences, appellate courts must apply the

standard of review set forth in R.C. 2953.08(G)(2), rather than an abuse of

discretion standard. See State v. Marcum, [

,] 2016–

Ohio–1002, [

,] ¶ 9. Under R.C. 2953.08(G)(2), an appellate

court may increase, reduce, or modify a sentence, or it may vacate the

sentence and remand for resentencing, only if it “clearly and convincingly”

finds either (1) that the record does not support certain specified findings or

(2) that the sentence imposed is contrary to law.

Armstrong, ¶ 17.

{¶ 15} As noted above, the court had full discretion to impose any sentence within -13-

the statutory range, and it was not required to give its reasons for doing so. Pursuant to

R.C. 2929.14(A)(3), for a felony of the third degree that is a violation of R.C. 2907.05, “the

prison term shall be twelve, eighteen, twenty-four, thirty, thirty-six, forty-two, forty-eight,

fifty-four, or sixty months.” As the trial court noted, R.C. 2907.05(A)(4)(C)(2)(b) provides

that the “court shall impose on an offender convicted of gross sexual imposition in

violation of division (A)(4) * * * of this section a mandatory prison term equal to one of the

prison terms prescribed in section 2929.14 of the Revised Code for a felony of the third

degree if * * * the offender previously was convicted of or pleaded guilty to a violation of

this section * * * and the victim of the previous offense was less than thirteen years old.”

{¶ 16} Since we have no basis to conclude that the record does not support the

court’s findings, or that the sentence imposed is contrary to law, we hereby overrule

Cochran’s sole assignment of error. The judgment of the trial court is affirmed.

.............

FROELICH, J., concurs.

HALL, P.J., concurring:

{¶ 17} I agree that “we have no basis to conclude that the record does not support

the court findings, or that the sentence imposed is contrary to law.” (Supra, ¶16).

However, in this case, the court was not required to make any “findings” before imposing

a sentence within the statutory range as long as the court considered the statutory factors

in R.C. 2929.12 and R.C. 2929.13, which it did.

{¶ 18} In addition, I write separately to reiterate my comments on the standard of

review applicable to sentencing and on what I believe is an inaccurate statement of law

in paragraph 17 of State v.

which is quoted in paragraph 14 of the -14-

majority opinion as follows: “* * * an appellate court may increase, reduce, or modify a

sentence, or it may vacate the sentence and remand for resentencing, only if it ‘clearly

and convincingly’ finds either (1) that the record does not support certain specified

findings or (2) that the sentence imposed is contrary to law.” In my view, clearly and

convincingly finding that the record does not support specified findings is an indirect

shifting of the burden to produce evidentiary support into the record for appellate review.

{¶ 19} My interpretation is based on the terminology of State v. Marcum,

,

,

. In my view, the holding in Marcum allows a

sentence to be vacated or modified “only if the appellate court finds by clear and

convincing evidence that the record does not support the sentence.” Id. at ¶ 23.

(Emphasis added.)2 The difference is that the Armstrong quote is in the affirmative,

requiring the State or the court to have introduced information into the record to justify the

sentence. I believe the Marcum quote is in the negative. If the record does not contain

evidence from which we can determine that the sentence is clearly wrong, then it stands,

and we are without authority to adjust it. The majority’s quote puts the burden on the

State or the court, incorrectly in my view, to insure there is information in the record to

justify the sentence. This distinction is particularly important with regard to sentencing

following a plea where the record often is sparse, perhaps even where the defense, or

the court, dispenses with a PSI report.

2 I acknowledge that the Supreme Court, in several subsequent references to Marcum, has stated “[i]n State v. Marcum,

,

,

, we held that R.C. 2953.08(G)(2) allows an appellate court to increase, reduce, or otherwise modify a sentence only when it clearly and convincingly finds that the sentence is (1) contrary to law and/or (2) unsupported by the record. Id. at ¶ 7.” See, e.g., State v. McGowan,

,

,

. But the Supreme Court has not explicitly ruled on the issue I raise here. -15-

{¶ 20} I previously have written that “even a record that is largely silent is not

clearly and convincingly contrary to a trial court’s consecutive-sentencing determination

unless there is substantial affirmative factual information in support of the defendant to

conclude that the trial court is clearly wrong.” State v. Kay, 2d Dist. Montgomery No.

26344,

(Hall, J., dissenting). I recognize our jurisprudence on this

issue has been mixed, but in State v. Withrow,

,

(2d Dist.),

a majority, not including this writer, adopted the sparse-record notion and further stated:

“Therefore, the question is not whether the trial court had clear and convincing evidence

to support its findings, but rather, whether we clearly and convincingly find that the record

fails to support the trial court’s findings.” Id. at ¶ 38, citing State v. Rodeffer, 2013-Ohio-

5759,

, ¶ 31 (2d Dist.), citing State v. Venes,

,

, ¶ 21 (8th Dist.). The Withrow majority also commented that “[t]he dissenting opinion

in Kay, 2d Dist. Montgomery No. 26344,

, is correct in that the

consecutive nature of the trial court’s sentencing should stand unless the record

overwhelmingly supports a contrary result. Id. at ¶ 26 (Hall, J., dissenting).” Withrow, ¶

39.

{¶ 21} Regardless of my expressed concerns, in this case the record affirmatively

supports the sentence imposed. Accordingly, I concur.

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Copies mailed to:

Jane A. Napier Daniel F. Getty Hon. J. Timothy Campbell by assignment -16-