State v. Worden

[Cite as State v. Worden, 2022-Ohio-4648.]

COURT OF APPEALS

MUSKINGUM COUNTY, OHIO

FIFTH APPELLATE DISTRICT

JUDGES:

STATE OF OHIO : Hon. W. Scott Gwin, P.J.

: Hon. William B. Hoffman, J.

Plaintiff-Appellee : Hon. Patricia A. Delaney, J.

:

-vs- :

: Case No. CT2022-0030

MARC F. WORDEN :

:

Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from Muskingum County

Court of Common Pleas, Case No.

CR2022-0021

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 21, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RONALD L. WELCH CHRIS BRIGDON

Prosecutig Attorney 8138 Somerset Road

BY TAYLOR P. BENNINGTON Thornville, OH 43076

Assistant Prosecutor

27 North Fifth St., Box 189

Zanesville, OH 43701

[Cite as State v. Worden, 2022-Ohio-4648.]

Gwin, P.J.

{¶1} Defendant-appellant Marc F. Worden [“Worden”] appeals from the

imposition of consecutive sentences after a negotiated guilty plea in the Muskingum

County Court of Common Pleas.

Facts and Procedural History

{¶2} On January 26, 2022, Worden was indicted on one count of Illegal Use of

Minor in Nudity-Oriented Material or Performance, a felony of the second degree, and two

counts of Rape, felonies of the first degree.

{¶3} Worden was alleged to have invited two teenage minor boys to his home to

view a gun collection and pornographic magazines. After supplying alcohol to at least

one of the minors, the minor became drunk. It was then alleged that Worden followed

him into a bathroom where he performed oral sex on the minor.

{¶4} Further, relating to Count 3, after executing a search warrant for Worden's

phone, he admitted a photo of another minor's genitalia existed on his phone.

Investigators then tracked down that minor and, after interviewing him, learned that a

similar situation to that described above had taken place on June 11, 2022.

{¶5} On April 4, 2022, Worden entered guilty pleas to the amended counts of

Illegal Use of Minor in Nudity-Oriented Material or Performance, a felony of the fifth

degree, and two counts of Gross Sexual Imposition, felonies of the fourth degree.

{¶6} On May 9, 2022, Worden was sentenced in the Muskingum County Court of

Common Pleas to the maximum allowable 12 months on Count 1, and the maximum

allowable on Counts 2 and 3, 18 months, on each count. Further, all counts were ordered

to run consecutive for an aggregate sentence of 48 months.

Muskingum County, Case No. CT2022-0030 3

Assignment of Error

{¶7} Worden raises one Assignment of Error,

{¶8} “I. DID THE TRIAL COURT VIOLATE WORDEN'S RIGHTS TO DUE

PROCESS, GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO

CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION?”

Law and analyses

Standard of Appellate Review

{¶9} A court reviewing a criminal sentence is required by R.C. 2953.08(F) to

review the entire trial court record, including any oral or written statements and

presentence-investigation reports. R.C. 2953.08(F)(1) through (4).

{¶10} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶22;

State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31. R.C.

2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence

and remand for resentencing where we clearly and convincingly find that either the record

does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.

See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶28.

{¶11} R.C. 2953.08(G)(2)(b) does not provide a basis for an appellate court to

modify or vacate a sentence based on its view that the sentence is not supported by the

record under R.C. 2929.11 and 2929.12. State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-

6729, 169 N.E.3d 649, ¶39. The Ohio Supreme Court further elucidated in State v. Toles,

Muskingum County, Case No. CT2022-0030 4

166 Ohio St.3d 397, 2021-Ohio-3531, 186 N.E.3d 784, ¶10, “R.C. 2953.08, as amended,

precludes second-guessing a sentence imposed by the trial court based on its weighing

of the considerations in R.C. 2929.11 and 2929.12.”

{¶12} In State v. Bryant, the Court recently clarified the holding in State v. Jones,

163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649,

The narrow holding in Jones is that R.C. 2953.08(G)(2) does not

allow an appellate court to modify or vacate a sentence based on its view

that the sentence is not supported by the record under R.C. 2929.11 and

2929.12. See Jones at ¶ 31, 39. Nothing about that holding should be

construed as prohibiting appellate review of a sentence when the claim is

that the sentence was improperly imposed based on impermissible

considerations—i.e., considerations that fall outside those that are

contained in R.C. 2929.11 and 2929.12. Indeed, in Jones, this court made

clear that R.C. 2953.08(G)(2)(b) permits appellate courts to reverse or

modify sentencing decisions that are “‘otherwise contrary to law.’” Jones at

¶ 32, quoting R.C. 2953.08(G)(2)(b). This court also recognized that

“otherwise contrary to law” means “‘in violation of statute or legal regulations

at a given time.’” Id. at ¶34 quoting Black’s Law Dictionary 328 (6th

Ed.1990). Accordingly, when a trial court imposes a sentence based on

factors or considerations that are extraneous to those that are permitted by

R.C. 2929.11 and 2929.12, that sentence is contrary to law. Claims that

raise these types of issues are therefore reviewable.

168 Ohio St.3d 250, 2022-Ohio-1878, 198 N.E.3d 68, ¶22.

Muskingum County, Case No. CT2022-0030 5

Issue for appellate review: Whether the trial court properly imposed consecutive

sentences in Worden’s case.

R.C. 2929.13(B)

{¶13} R.C. 2929.13(B) applies to one convicted of a fourth- or fifth-degree felony.

Worden pled guilty to two felonies of the fourth degree and one felony of the fifth degree.

In relevant part the statute provides,

(B)(1)(a) Except as provided in division (B)(1)(b) of this section, if an

offender is convicted of or pleads guilty to a felony of the fourth or fifth

degree that is not an offense of violence or that is a qualifying assault

offense, the court shall sentence the offender to a community control

sanction or combination of community control sanctions if all of the following

apply:

(i) The offender previously has not been convicted of or pleaded

guilty to a felony offense.

(ii) The most serious charge against the offender at the time of

sentencing is a felony of the fourth or fifth degree.

(iii) If the court made a request of the department of rehabilitation and

correction pursuant to division (B)(1)(c) of this section, the department,

within the forty-five-day period specified in that division, provided the court

with the names of, contact information for, and program details of one or

more community control sanctions that are available for persons sentenced

by the court.

{¶14} R.C. 2929.13(B)(1)(b) further provides,

Muskingum County, Case No. CT2022-0030 6

(b) The court has discretion to impose a prison term upon an offender

who is convicted of or pleads guilty to a felony of the fourth or fifth degree

that is not an offense of violence or that is a qualifying assault offense if any

of the following apply:

(i) The offender committed the offense while having a firearm on or

about the offender’s person or under the offender’s control.

(ii) If the offense is a qualifying assault offense, the offender caused

serious physical harm to another person while committing the offense, and,

if the offense is not a qualifying assault offense, the offender caused

physical harm to another person while committing the offense.

(iii) The offender violated a term of the conditions of bond as set by

the court.

(iv) The court made a request of the department of rehabilitation and

correction pursuant to division (B)(1)(c) of this section, and the department,

within the forty-five-day period specified in that division, did not provide the

court with the name of, contact information for, and program details of any

community control sanction that is available for persons sentenced by the

court.

(v) The offense is a sex offense that is a fourth- or fifth-degree felony

violation of any provision of Chapter 2907. of the Revised Code.

(vi) In committing the offense, the offender attempted to cause or

made an actual threat of physical harm to a person with a deadly weapon.

Muskingum County, Case No. CT2022-0030 7

(vii) In committing the offense, the offender attempted to cause or

made an actual threat of physical harm to a person, and the offender

previously was convicted of an offense that caused physical harm to a

person.

(viii) The offender held a public office or position of trust, and the

offense related to that office or position; the offender’s position obliged the

offender to prevent the offense or to bring those committing it to justice; or

the offender’s professional reputation or position facilitated the offense or

was likely to influence the future conduct of others.

(ix) The offender committed the offense for hire or as part of an

organized criminal activity.

(x) The offender at the time of the offense was serving, or the

offender previously had served, a prison term.

(xi) The offender committed the offense while under a community

control sanction, while on probation, or while released from custody on a

bond or personal recognizance.

Emphasis added. Worden’s offenses were sex offenses that are a fourth- or fifth-degree

felony violations of provisions of Chapter 2907. of the Revised Code. Accordingly, the

court had discretion to impose a prison term for the fourth- and fifth-degree felonies.

R.C. 2929.14 (C)(4) Consecutive Sentences

{¶15} In order for a trial court to impose consecutive sentences the court must find

that consecutive sentences are necessary to protect the public from future crime or to

punish the offender. The court must also find that consecutive sentences are not

Muskingum County, Case No. CT2022-0030 8

disproportionate to the offender’s conduct and to the danger the offender poses to the

public. Finally, the court must make at least one of three additional findings, which include

that (a) the offender committed one or more of the offenses while awaiting trial or

sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18,

or while 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 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 would adequately

reflect the seriousness of the offender’s conduct; or (c) the offender’s criminal history

demonstrates that consecutive sentences are necessary to protect the public from future

crime by the offender.

{¶16} “In order to impose consecutive terms of imprisonment, a trial court is

required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing

and incorporate its findings into its sentencing entry[.]” State v. Bonnell, 140 Ohio St.3d

209, 2014-Ohio-3177, ¶37. Otherwise, the imposition of consecutive sentences is

contrary to law. See Id. The trial court is not required “to give a talismanic incantation of

the words of the statute, provided that the necessary findings can be found in the record

and are incorporated into the sentencing entry.” Id.

{¶17} In this case, the record does support a conclusion that the trial court made

all of the findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive

sentences.

R.C. 2929.14(C)(4): [T]he court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is necessary to

Muskingum County, Case No. CT2022-0030 9

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.

{¶18} The trial court considered this factor. Sent. T. at 17-18.

R.C. 2929.14(C)(4)(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.

{¶19} This provision does not apply to Worden’s case.

R.C. 2929.14(C)(4)(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.

{¶20} The trial court considered this factor. Sent. T. at 16-17.

R.C. 2929.14(C)(4)(c): The offender’s history of criminal conduct

demonstrates that consecutive sentences are necessary to protect the public from

future crime by the offender.

{¶21} The trial court made no finding with respect to this factor.

{¶22} Worden contends that the trial court did not consider the mitigating evidence

presented that he had been a volunteer firefighter for 20 years, had established a

business and has no prior felony convictions. Sent. T. at 9.

Muskingum County, Case No. CT2022-0030 10

{¶23} R.C. 2929.12 sets forth the seriousness and recidivism factors for the

sentencing court to consider in determining the most effective way to comply with the

purposes and principles of sentencing set forth in R.C. 2929.11. R.C. 2929.12 is a

guidance statute that sets forth the seriousness and recidivism criteria that a trial court

“shall consider” in fashioning a felony sentence. Subsections (B) and (C) establish the

factors indicating whether the offender’s conduct is more serious or less serious than

conduct normally constituting the offense. These factors include the physical or mental

injury suffered by the victim due to the age of the victim; the physical, psychological, or

economic harm suffered by the victim; whether the offender’s relationship with the victim

facilitated the offense; the defendant’s prior criminal record; whether the defendant was

under a court sanction at the time of the offense; whether the defendant shows any

remorse; and any other relevant factors. R.C. 2929.12(B). The court must also consider

any factors indicating the offender’s conduct is less serious than conduct normally

constituting the offense, including any mitigating factors. R.C. 2929.12(C). Subsections

(D) and (E) contain the factors bearing on whether the offender is likely or not likely to

commit future crimes.

{¶24} Although a court imposing a felony sentence must consider the purposes of

felony sentencing under R.C. 2929.11 and the sentencing factors under R.C. 2929.12,

“neither R.C. 2929.11 nor 2929.12 requires [the] court to make any specific factual

findings on the record.” State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d

649, ¶ 20, citing State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381,

¶ 31, and State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000).

Muskingum County, Case No. CT2022-0030 11

{¶25} In the case at bar, the mitigating factors were discussed in open court. Upon

review of the record it is obvious that the trial court found the mitigating factors were

substantially outweighed by Worden’s lack of responsibility and remorse for his actions,

the age of his victims, the psychological harm caused said victims, and that his position

facilitated the offenses. Sent. T. at 11-16.

Whether the trial court’s decision to impose consecutive sentences in Worden’s

case is supported by the record.

{¶26} According to the Ohio Supreme Court, “the record must contain a basis upon

which a reviewing court can determine that the trial court made the findings required by

R.C. 2929.14(C)(4) before it imposed consecutive sentences.” Bonnell, ¶28. “[A]s long

as the reviewing court can discern that the trial court engaged in the correct analysis and

can determine that the record contains evidence to support the findings, consecutive

sentences should be upheld.” Id. at ¶29.

{¶27} R.C. 2953.08(G)(2)(b) does not provide a basis for an appellate court to

modify or vacate a sentence based on its view that the sentence is not supported by the

record under R.C. 2929.11 and 2929.12. State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-

6729, 169 N.E.3d 649, ¶39. The Ohio Supreme Court further elucidated in State v. Toles,

166 Ohio St.3d 397, 2021-Ohio-3531, 186 N.E.3d 784, ¶10, “R.C. 2953.08, as amended,

precludes second-guessing a sentence imposed by the trial court based on its weighing

of the considerations in R.C. 2929.11 and 2929.12.”

{¶28} Upon review, we find that the trial court’s sentencing on the charges

complies with applicable rules and sentencing statutes. The sentence was within the

statutory sentencing range. Worden has not shown that the trial court imposed the

Muskingum County, Case No. CT2022-0030 12

sentence based on impermissible considerations—i.e., considerations that fall outside

those that are contained in R.C. 2929.11 and R.C. 2929.12. Further, the record contains

evidence supporting the trial court’s findings under R.C. 2929.14(C)(4). Therefore, we

have no basis for concluding that it is contrary to law.

{¶29} Worden’s sole assignment of error is overruled.

{¶30} The judgment of the Muskingum County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Delaney, J., concur

[Cite as State v. Worden, 2022-Ohio-4648.]

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO :

:

Plaintiff-Appellee :

:

:

-vs- : JUDGMENT ENTRY

:

MARC WORDEN :

:

:

Defendant-Appellant : CASE NO. CT2022-0030

For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Muskingum County Court of Common Pleas is affirmed. Costs to appellant.

_________________________________

HON. W. SCOTT GWIN

_________________________________

HON. WILLIAM B. HOFFMAN

_________________________________

HON. PATRICIA A. DELANEY