[Cite as State v. Jones,

.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY

STATE OF OHIO, CASE NO. 2022-A-0022

Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas

ALLAN JAY JONES, Trial Court No. 2021 CR 00324 Defendant-Appellant.

OPINION

Decided: March 18, 2024 Judgment: Affirmed

Colleen M. O’Toole, Ashtabula County Prosecutor, and Christopher R. Fortunato, Assistant Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff- Appellee).

Michael A. Partlow, P.O. Box 1562, Stow, OH 44224 (For Defendant-Appellant).

EUGENE A. LUCCI, P.J.

{¶1} Appellant, Allan Jay Jones, appeals from his convictions for two counts of

Gross Sexual Imposition in the Ashtabula County Court of Common Pleas. For the

following reasons, we affirm the individual prison terms as well as the consecutive terms

ordered by the trial court.

{¶2} On July 22, 2021, appellant was indicted by the Ashtabula County Grand

Jury for the following: two counts of Rape, felonies of the first degree, in violation of R.C.

2907.02(A)(1)(b) and (2); and seven counts of Gross Sexual Imposition, felonies of the

third and fourth degree, in violation of R.C. 2907.05(A)(1) and (4). {¶3} On January 11, 2022, a Written Plea of Guilty and Plea Agreement was

filed. The state agreed to dismiss seven of the nine counts in exchange for guilty pleas to

two counts of third-degree felony Gross Sexual Imposition in violation of R.C.

2907.05(A)(4). The court advised appellant of the rights waived by entry of the plea and

the potential sentences. The state indicated that the charges related to appellant’s sexual

contact with his girlfriend’s younger sisters, E.R., who was seven or eight years of age at

the time of the abuse, and J.R., who was 12 years of age. The two counts to which

appellant pleaded related to the conduct against J.R. The court entered a Judgment Entry

of Guilty, accepting appellant’s plea.

{¶4} A sentencing hearing was held in March 2022, at which defense counsel

noted appellant’s limited criminal history. The presentence investigation report (“PSI”)

indicates appellant has no criminal history apart from traffic convictions. Appellant gave

a statement indicating he was “not clear of head” at the time of the offenses but has gone

through positive changes since the offenses. According to the PSI, J.R. indicated in a

forensic interview that appellant engaged in sexual contact with her on three occasions

in 2014 and 2015. No victim impact statement was provided. Appellant’s girlfriend, J.R.’s

sister, stated that she and appellant have three children and the acts for which he was

convicted did not resemble his conduct with her and their children. She talks to J.R. “every

once in awhile” and indicated that she did not believe her sister was receiving counseling.

{¶5} The state indicated that the victim’s father requested a maximum sentence

of five years for each count to run consecutively. The prosecutor also stated: “I’m not

aware of there being any victim impact statement in this case, so I don’t know from the

victim’s own words the effect that this has had on her specifically * * * nor what she wants

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Case No. 2022-A-0022 as far as punishment from her own mouth.” The state indicated it was “deferring to the

Court on what the proper amount of prison, if any, is to happen here.”

{¶6} The court found, as to the recidivism factors, that this was “an ongoing

event” making recidivism more likely. It also found “there was long-term psychological

injury to the victim.” It ordered appellant to serve consecutive prison terms of five years

on each count. The court found that the consecutive terms were necessary to protect the

public and punish the offender, were not disproportionate to his conduct and the danger

posed, the offenses were part of a course of conduct, and the harm caused was so great

or unusual that no single prison term adequately reflects the seriousness of appellant’s

conduct. The court, therefore, ordered an aggregate term of ten years imprisonment.

{¶7} On appeal, defense counsel filed a brief pursuant to Anders v. California,

,

,

(1967). Counsel represented that he found

no meritorious arguments to be raised on appeal and moved to withdraw. Pursuant to

Anders, the appellate court must review the proceedings to determine whether the appeal

is “wholly frivolous.”

. If the court, in that review, “finds any of the legal points

arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the

indigent the assistance of counsel to argue the appeal.”

{¶8} After a full examination of the proceedings below, this court issued a

judgment entry finding at least one potentially meritorious issue with respect to the trial

court’s imposition of sentence: “Whether the record clearly and convincingly supports the

trial court’s consecutive sentencing findings under R.C. 2929.14(C)(4), in particular those

relating to the danger posed by Jones to the public and whether the harm caused was so

great or unusual that no single prison term adequately reflects the seriousness of his

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Case No. 2022-A-0022 conduct.” We ordered that new appellate counsel be appointed “to brief and argue this

and any other issues in support of [appellant’s] direct appeal.”

{¶9} Appellate counsel raises the following assignment of error:

{¶10} “The trial court erred by sentencing appellant to two terms of 60 months

incarceration to be served consecutively to one another, and the record does not support

such a sentence.”

{¶11} “The court hearing an appeal [of a felony sentence] shall review the record,

including the findings underlying the sentence or modification given by the sentencing

court.” R.C. 2953.08(G)(2).

“The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing * * * if it clearly and convincingly finds * * * [t]hat the record does not support the sentencing court’s findings under division * * * (C)(4) of section 2929.14 [or] * * * [t]hat the sentence is otherwise contrary to law.”

R.C. 2953.08(G)(2)

{¶12} “A sentence is contrary to law when it is ‘in violation of statute or legal

regulations,’” such as where it falls outside of the statutory range for the offense or where

the trial court fails to consider the purposes and principles of sentencing under R.C.

2929.11 and the factors in R.C. 2929.12. State v. Meeks, 11th Dist. Ashtabula No. 2022-

A-0060,

, quoting State v. Jones,

, 2020-Ohio-

6729,

. The Ohio Supreme Court has further held that a sentence is

contrary to law if “it is imposed ‘based on factors or considerations that are extraneous to

those [factors] that are permitted by R.C. 2929.11 and 2929.12.’” Meeks at ¶ 11, quoting

State v. Bryant,

,

,

. “Nothing[,

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Case No. 2022-A-0022 however,] in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the

evidence in the record and substitute its judgment for that of the trial court concerning the

sentence that best reflects compliance with R.C. 2929.11 and 2929.12[,]” and an

appellate court cannot vacate a sentence “based on its view that the sentence is not

supported by the record[.]” Jones at ¶ 39 and 42; State v. Reed, 11th Dist. Ashtabula No.

2022-A-0082,

(we “cannot review alleged error under R.C. 2929.11

and R.C. 2929.12 to evaluate whether the sentencing court’s findings for those sentences

are unsupported by the record”).

{¶13} Appellant argues that the record indicated that community control should

have been imposed as he was a first time offender and there was a lack of evidence of

an impact on the victim. The state contends that there were sufficient facts to justify a

maximum sentence, including the age of the child and her father’s request to impose the

maximum sentence.

{¶14} Appellant’s argument relates to whether the court’s sentence was

supported by the record. The trial court stated that it considered the purposes and

principles of sentencing as well as the seriousness and recidivism factors, which indicates

it satisfied its duty to consider the necessary factors under R.C. 2929.11 and .12. As set

forth in Jones,

, we cannot review whether its findings are supported by

the record. Further, appellant’s sentences are within the statutory range for Gross Sexual

Imposition. R.C. 2929.14(A)(3)(a) (“[f]or a felony of the third degree that is a violation of

section 2907.05 * * *, the prison term shall be a definite term of twelve, eighteen, twenty-

four, thirty, thirty-six, forty-two, forty-eight, fifty-four, or sixty months”). While community

control may be a preferable sentence, ordering a prison term was not contrary to law,

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Case No. 2022-A-0022 particularly when considering that Gross Sexual Imposition committed in violation of R.C.

2907.05(A)(4) carries “a presumption that a prison term shall be imposed.” R.C.

2907.05(C)(2).

{¶15} Appellant argues that “application of the Supreme Court’s holding in Jones

is far from universal,” citing State v. Likens, 12th Dist. Madison Nos. CA2020-10-018,

CA2020-11-019,

. The Likens court, however, like this court, indicates

that appellate courts do “not have the statutory authority under R.C. 2953.08(G)(2)(b) to

review whether the record supports the trial court’s findings under R.C. 2929.12 and

2929.11,” but it can review whether the sentence is contrary to law for reasons such as

those outlined above: failure to consider the statutory factors and sentencing outside of

the permissible statutory range. Likens at ¶ 7. We have reviewed these issues and find

no grounds for a conclusion that appellant’s sentence is contrary to law under R.C.

2953.08(G)(2)(b).

{¶16} While appellant assigns as error that he should not have received

consecutive sentences, he does not raise specific arguments as to how the court erred in

this regard. After conducting an Anders review, this court instructed appointed counsel to

address “[w]hether the record clearly and convincingly supports the trial court’s

consecutive sentencing findings under R.C. 2929.14(C)(4), in particular those relating to

the danger posed by Jones to the public and whether the harm caused was so great or

unusual that no single prison term adequately reflects the seriousness of his conduct.”

Although this issue is not specifically briefed, in the interests of justice, we will review it

sua sponte. See State v. Hastings, 2d Dist. Montgomery Nos. 27212 and 27213, 2018-

Ohio-422, ¶ 27 (where appellate counsel did not discuss the issue identified by the

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Case No. 2022-A-0022 appellate court for review in Anders proceedings, the court addressed the error sua

sponte).

{¶17} Pursuant to R.C. 2929.14(C)(4), separate prison terms for multiple offenses

may be ordered to be served consecutively if the court finds it 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 finds any of the R.C. 2929.14(C)(4)(a)-(c) factors are

present. The pertinent R.C. 2929.14(C)(4)(a)-(c) factor here is (b): “[a]t 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 * * * adequately reflects the seriousness of the

offender’s conduct.”

{¶18} On December 23, 2022, the Supreme Court of Ohio issued its opinion

in State v. Gwynne, --- Ohio St.3d ----,

, --- N.E.3d ---- (“December 2022

decision”). In that opinion, the Court determined that a trial court’s findings on consecutive

sentences must be supported by the record and this court shall apply “a de novo standard

of review * * * to whether the evidence in the record supports the findings that were

made.” Id. at ¶ 29. Shortly after the release of the December 2022 decision, the state of

Ohio moved the Supreme Court for reconsideration, which was granted. On October 25,

2023, in State v. Gwynne, --- Ohio St.3d ----,

, --- N.E.3d ---- (“October

2023 decision”), the court vacated the December 2022 decision.

{¶19} In its October 2023 decision, the Supreme Court, by way of a plurality

decision, determined: (1) the conclusion of the December 2022 decision, requiring an

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Case No. 2022-A-0022 appellate court to review the record in consecutive-sentencing cases de novo, is contrary

to the plain language of the statute; (2) R.C. 2929.14(C)(4) does not require express

consideration of the aggregate prison term that eventuates from the imposition of

consecutive sentences; and (3) the record did not clearly and convincingly fail to support

the trial court’s consecutive-sentence findings. October 2023 decision at ¶ 16, 18-24.

Accordingly, the October 2023 decision vacated the December 2022 decision and

affirmed the appellate court’s judgment in Gwynne.

{¶20} In light of the foregoing, this court has concluded “the October 2023 decision

essentially reinstated consecutive-sentencing appellate review which existed prior to the

December 2022 decision.” State v. Polizzi, 11th Dist. Lake Nos. 2020-L-016, 2020-L-

017,

.

{¶21} There is no question that the trial court made each of the requisite findings

to impose consecutive sentences and included them in its sentencing entry. Although

R.C. 2929.14(C)(4) does not explicitly require consideration of aggregate prison terms, in

this case the trial court did so. The trial court found that consecutive service is necessary

to protect the public from future crime or to punish the offender and that consecutive

sentences on the two counts are not disproportionate to the seriousness of the offender’s

conduct and to the danger the offender poses to the public, and that the harm was so

great or unusual that no single prison term for either of the offenses as part of the course

of conduct adequately reflects the seriousness of appellant’s conduct.

{¶22} Appellant committed crimes of violence on multiple occasions. Although

the prosecutor did not know what the victim would recommend for punishment, her father

requested maximum, consecutive sentences. Moreover, at the change-of-plea hearing,

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Case No. 2022-A-0022 the state noted that appellant is the boyfriend of the two victims’ older sister. And one of

the victims, whose name was withheld, is autistic. It can be reasonably inferred, therefore,

appellant occupied and betrayed a relationship of confidence and trust with the victims

addressed in the indictment.

{¶23} The younger victim, with whom appellant allegedly engaged in both sexual

contact and sexual conduct repeatedly since she was approximately seven or eight years

old, was not the subject of the plea. In this respect, the sentencing findings do not relate

to these acts. Still, the juvenile whose assaults were the subject of the plea, was 12 years

old at the time. And the record reflects appellant “touched her [on] four separate

occasions on bare skin or on her vagina and breasts.”

{¶24} In light of the facts, the record establishes a firm inferential belief or

conviction that (1) consecutive sentences are necessary to protect the public from future

criminal conduct by appellant or to punish appellant; (2) the imposition of consecutive

sentences is not disproportionate to the seriousness of appellant’s conduct and to the

danger he poses to the public; and (3) the harm experienced was so great or unusual to

support the underlying sentence. Phrased in the negative, the record does not clearly

and convincingly fail to support the trial court’s statutory findings.

{¶25} Appellant’s assignment of error is without merit.

{¶26} For the foregoing reasons, we conclude the judgment of the Ashtabula

County Court of Common Pleas is affirmed.

MARY JANE TRAPP, J., concurs,

MATT LYNCH, J., concurs in part and dissents in part, with a Dissenting Opinion. 9

Case No. 2022-A-0022 _________________________________

MATT LYNCH, J., concurs in part and dissents in part, with a Dissenting Opinion.

{¶27} I concur with the majority’s reasoning that the individual sentences in this

matter were not contrary to law. I dissent, however, from the majority’s decision that the

record does not clearly and convincingly fail to support the trial court’s consecutive

sentencing findings. Since it is evident that the record was devoid of evidence to

demonstrate great or unusual harm, the court’s order that the sentences be served

consecutively should be reversed.

{¶28} To order a consecutive sentence based on R.C. 2929.14(C)(4)(b), the

record must demonstrate that the harm caused by 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.” (Emphasis

added.)

Here, the record did not contain any evidence to demonstrate the harm

caused to the victims, let alone evidence of great or unusual harm. There is nothing in

the record to demonstrate the extent of the harm suffered by the victim. The State did

not specify what harm was caused to the victim and no victim impact statement was

presented. The PSI includes the facts of the offenses but does not address harm to the

victim. In fact, the prosecutor observed at the sentencing hearing: “I don’t know from the

victim’s own words the effect that this has had on her specifically.” This led the prosecutor

to decline to recommend any particular sentence to the court, apart from noting the wishes

of the victim’s father. The victim’s sister stated that she did not believe her sister was

undergoing counseling or therapy. The trial judgment made a finding that “there was 10

Case No. 2022-A-0022 long-term psychological injury to the victim” but there is nothing in the record to

corroborate this. It has been held that “[t]here must be actual evidence of, not the

potential for, ‘great or unusual’ harm in evidence to support the finding.” State v. Williams,

6th Dist. Lucas Nos. L-15-1259 and L-15-1260,

.

{¶29} Similarly, a court’s consecutive sentences have been found to be issued in

error where the State offered no evidence to support a finding of great harm except its

own unsupported characterizations, due to the “complete dearth of evidence in the record

indicating the existence of physical or psychological harm.” State v. Snyder, 3d Dist.

Seneca No. 13-12-38,

. See also State v. Carter, 2d Dist.

Champaign No. 2005-CA-24,

(“Whenever a trial court is required to

make a finding, there obviously must be a factual basis in the record for the finding;

otherwise the requirement would meaninglessly exalt form over substance. The making

of a required finding adverse to the defendant when there is nothing to support that finding

is analogous to a jury’s returning a guilty verdict when there is no evidence in the record

to support an essential element of the offense.”).

{¶30} While the majority describes the details relating to the offenses, the facts

giving rise to the crime do not constitute evidence of great or unusual harm. All charges

brought against a defendant are precipitated by evidence that the offense was committed;

the evidence needed for consecutive sentences is evidence that great or unusual harm

occurred, not just that a crime was committed. Without evidence in the record to

demonstrate a basis for this conclusion, such a finding is clearly and convincingly

unsupported by the record. Compare State v. O.E.P.-T., 10th Dist. Franklin No. 21AP-

500,

(consecutive sentences were supported by the record where

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Case No. 2022-A-0022 the victim indicated she suffers from anxiety and suicidal thoughts); State v. Hupp, 11th

Dist. Lake No. 2022-L-109,

, ¶ 27 (evidence supported a finding of harm

given the victim’s statements that she suffered depression as a result of the offense).

{¶31} While this writer agrees that any sexually oriented crime is abhorrent and

repulsive, that fact underscores the need for some evidence of the great or unusual harm.

Given the dearth of evidence in the record to support such finding, and the statutory

requirement that this court modify or reverse a sentence if it clearly and convincingly finds

that the record does not support the lower court’s consecutive sentencing findings, the

order that the sentences be served consecutively should be reversed.

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Case No. 2022-A-0022