State v. Brown

[Cite as State v. Brown, 2020-Ohio-4642.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :

CASE NO. 2020-L-052

- vs - :

MICHAEL C. BROWN, :

Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2019 CR

000021.

Judgment: Affirmed.

Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,

Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH

44077 (For Plaintiff-Appellee).

Vanessa R. Clapp, Lake County Public Defender, and Melissa A. Blake, Assistant Public

Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Michael C. Brown, appeals the March 13, 2020 judgment of the

Lake County Court of Common Pleas sentencing him to eight years imprisonment

following his plea of guilty, by way of North Carolina v. Alford, 400 U.S. 25 (1970), to one

count of Sexual Battery. At issue is whether appellant’s sentence is unsupported by the

record. For the reasons stated herein, the judgment is affirmed.

{¶2} In December 2019, following an allegation that appellant engaged in sexual

conduct with his minor stepdaughter, appellant was charged with one count of Sexual

Battery, a felony of the second degree, in violation of R.C. 2907.03(A)(5). Remaining

adamant the conduct did not occur, appellant pleaded guilty by way of Alford. The court

accepted his guilty plea and sentenced appellant to eight years imprisonment, five years

mandatory post-release control, and ordered him to pay the costs of prosecution. The

court also noted that appellant was a Tier III Sex Offender and informed him of his

registration requirements. Appellant appeals the sentence, assigning one error for our

review, which states:

{¶3} The trial court erred by sentencing the defendant-appellant to the

maximum prison term of eight years, as the trial court’s findings with

respect to R.C. 2929.11 and R.C. 2929.12 were unsupported by the

record and thus, contrary to law.

{¶4} Pursuant to R.C. 2953.08(G)(2), “an appellate court may vacate or modify

a felony sentence on appeal only if it determines by clear and convincing evidence that

the record does not support the trial court’s findings under relevant statutes or that the

sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, ¶1. A sentence is contrary to law if “‘(1) the sentence falls outside the statutory

range for the particular degree of offense, or (2) the trial court failed to consider the

purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing

factors in R.C. 2929.12.’” (Citations omitted.) State v. Wilson, 11th Dist. Lake No. 2017-

L-028, 2017-Ohio-7127, ¶18. This is a highly deferential standard; “appellate courts are

prohibited from substituting their judgment for that of the trial judge.” State v. Venes, 8th

Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶21-22. Accord State v. Mullins, 11th Dist.

Portage No. 2012-P-0144, 2013-Ohio-4301.

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{¶5} Under his sole assignment of error, appellant first argues that his sentence

is contrary to law in that the trial court failed to be guided by the third overriding purpose

of felony sentencing set forth in R.C. 2929.11(A), to wit: “to promote the effective

rehabilitation of the offender.” We do not agree.

{¶6} The trial court’s sentencing entry states, “[t]he Court has also considered *

* * the principles and purposes of sentencing under R.C. 2929.11, and has balanced the

seriousness and recidivism factors under R.C. 2929.12. In considering the foregoing,

and for the reasons stated in the record, this Court finds that a prison sentence is

consistent with the purposes and principles of sentencing set forth in R.C. 2929.11 * * *.”

{¶7} At the sentencing hearing, the court stated, in pertinent part:

{¶8} This Court has considered the record, the oral statements made, the

victim impact, the pre-sentence report, my conference in chambers

with counsel and probation, and the statements of the Defendant and

the Defendant’s counsel. The Court has also considered the

overriding purposes of felony sentencing pursuant to Revised Code

2929.11 which are to protect the public from future crime by this

offender and others similarly minded, and to punish this offender

using the minimum sanctions that the Court determines accomplish

the purposes without imposing an unnecessary burden on the state

or local governmental resources. I have considered the need for

incapacitation, deterrence, rehabilitation, and restitution. * * * I have

reasonably calculated this sentence to achieve the two overriding

purposes of felony sentencing and to be commensurate with and not

demeaning to the seriousness of this offender’s conduct and its

impact on society and the victim, and to be consistent with sentences

imposed for similar crimes committed by similar offenders.

{¶9} Though appellant acknowledges that the sentencing entry indicates the trial

court considered all three purposes of felony sentencing, he nevertheless argues that “it

is clear from the trial court’s own words during the sentencing hearing that it was guided

by only two of the three purposes of felony sentencing; specifically omitting the purpose

pertaining to promotion of effective rehabilitation of the offender.” We do not agree.

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{¶10} “A sentencing court is not required to use specific language and render

precise findings to satisfactorily ‘consider’ the relevant seriousness and recidivism factors.

Instead, the defendant has the burden to affirmatively show that the court did not consider

the applicable sentencing criteria or that the sentence imposed is ‘strikingly inconsistent’

with applicable sentencing factors.” State v. Pence, 11th Dist. Trumbull No. 2019-T-0088,

2020-Ohio-4112, ¶6, citing State v. Long, 11th Dist. Lake No. 2013-L-102, 2014-Ohio-

4416, ¶79. “The trial court’s obligation to consider the purposes and principles of felony

sentencing is satisfied merely by stating that it did so.” State v. Banas, 11th Dist. Lake

No. 2019-L-049, 2019-Ohio-5053, ¶14 citing State v. Brown, 11th Dist. Lake No. 2014-L-

075, 2015-Ohio-2897, ¶34.

{¶11} Here, the trial court expressly stated it considered the purposes and

principles of R.C. 2929.11; further, the trial court specifically stated it “considered the need

for * * * rehabilitation * * *.” Accordingly, appellant has not established that the trial court

failed to consider all three purposes of felony sentencing.

{¶12} Additionally, appellant argues his sentence is contrary to law because the

trial court improperly considered factors elevating the seriousness of the crime and

ignored or discounted factors that made his behavior less serious and recidivism less

likely. Specifically, he argues that the court may not consider an element of the offense

to elevate the seriousness of the conduct.

{¶13} An element of R.C. 2907.03(A)(5), to which appellant pleaded guilty,

required appellant to be a parent, step-parent, adoptive parent, or in loco parentis of the

victim. During the sentencing hearing, the court noted the following factors that tended

to make the offense more serious: the age of the victim; the physical and psychological

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harm to the victim, including the strain on her familial relationships; that appellant held a

position of trust as her stepfather; the relationship facilitated the offense. The court

expressly stated it found no factors making the offense less serious. Appellant argues

the court erred in considering the relationship with the victim to enhancing the seriousness

of the offense under R.C. 2929.12(B)(3) and (6).

{¶14} In support of his argument, appellant cites Banas, supra, State v. Polizzi,

11th Dist. Lake Nos. 2018-L-062 and 2018-L-064, 2019-Ohio-2505, and State v.

Schlecht, 2d Dist. Champaign No. 2003-CA3, 2003-Ohio-5336. This court, however, has

recently considered these three cases and rejected an almost identical argument made

by the appellant in State v. Russell, 11th Dist. Lake No. 2019-L-138, 2020-Ohio-3243.

{¶15} In Russell, this court noted “a review of the ‘element of the offense’ cases

indicates they were based on prior versions of the sentencing statutes which the Supreme

Court of Ohio found unconstitutional in [State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,

¶36].” Id. at ¶77. Further, this court recognized, “the holding in Polizzi was that the trial

court’s consecutive sentence findings under R.C. 2929.14(C)(4) were clearly and

convincingly not supported by the record.” Id. at ¶75, citing Banas, supra, at ¶25. As we

declined to apply Polizzi to a trial court’s seriousness determinations under R.C. 2929.12

in Russell, we also decline to do so here. Id. Additionally, Banas is clearly distinguishable

from the case at bar; in Banas, this court found that being the natural parent of the victim

was not an element of the offense of which that appellant was convicted, and thus the

court did not err in considering that as a factor that made the offense more serious. See

Russell, supra.

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{¶16} Moreover, as this court has recently held, “[t]he statutory text of R.C.

2929.12(B) does not support a conclusion that a trial court may not recognize an element

of an offense in its consideration of the seriousness of an offender’s conduct. R.C.

2929.12(B) states that the trial court “shall consider all” of the factors “that apply regarding

the offender, the offense, or the victim.” Thus, the trial court is required to consider them.”

(Emphasis original.) Russell, supra, at ¶ 81, citing Katz, Martin, & Macke, Baldwin's Ohio

Practice Criminal Law, Section 116:6 (3d Ed.2019). Accordingly, appellant’s argument to

the contrary is without merit.

{¶17} Finally, appellant argues that the court failed to consider various mitigating

factors, to wit: that he pleaded guilty in order to save the victim and her family the stress

of a trial, and that he had minimal criminal history and no history of similar offenses.

However, during the sentencing hearing, the court expressly considered appellant’s

criminal history, noting that although it was not a lengthy history, there were a “couple of

significant ones” on his record. Furthermore, the trial court acknowledged during the

sentencing hearing that appellant pleaded guilty by way of Alford. While appellant argues

that he pleaded guilty in order to save others the stress of trial, this decision also benefited

him, saving him from the stress of trial and the potential for additional or more serious

indictments. The trial court “is not required to give any particular weight or consideration

to any sentencing factor”; it must merely consider them. Russell, supra, at ¶85, citing

State v. Holin, 174 Ohio App.3d 1, 2007-Ohio-6255, ¶34 (11th Dist.).

{¶18} It is clear from the record the court considered all the relevant factors.

Accordingly, we do not find that the court failed to consider mitigating factors.

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{¶19} Appellant’s sentence is not clearly and convincingly unsupported by the

record or contrary to law. Accordingly, appellant’s sole assignment of error is without

merit.

{¶20} The judgment of the Lake County Court of Common Pleas is affirmed.

MATT LYNCH, J., concurs,

THOMAS R. WRIGHT, J., concurs in judgment only.

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