State v. Aburas , 2018 Ohio 1984 ( 2018 )


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  • [Cite as State v. Aburas, 
    2018-Ohio-1984
    .]
    IN THE COURT OF APPEALS
    TWELFTH APPELLATE DISTRICT OF OHIO
    CLERMONT COUNTY
    STATE OF OHIO,                                      :
    Plaintiff-Appellee,                         :     CASE NO. CA2017-10-054
    :          OPINION
    - vs -                                                      5/21/2018
    :
    WILSON MUSA ABURAS,                                 :
    Defendant-Appellant.                        :
    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
    Case No. 2016-CR-00456
    D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
    Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee
    W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East Main
    Street, Batavia, Ohio 45103, for defendant-appellant
    PIPER, J.
    {¶ 1} Defendant-appellant, Wilson Aburas, appeals his 60-month sentence from the
    Clermont County Court of Common Pleas after pleading guilty to sexual battery.
    {¶ 2} Aburas was charged with one count of first-degree felony rape after he forced
    his close friend to have sexual intercourse with him against her will. Aburas later agreed to
    plead guilty to a third-degree felony charge of sexual battery. The trial court then sentenced
    Clermont CA2017-10-054
    Aburas to 60 months in prison after considering information from a presentence investigation
    report ("PSI"), which included information about Aburas' military history. Aburas now appeals
    his sentence, raising the following assignments of error. We will address the assignments of
    error together, as they are interrelated.
    {¶ 3} Assignment of Error No. 1:
    {¶ 4} THE TRIAL COURT'S 60-MONTH PRISON SENTENCE IS NOT SUPPORTED
    BY THE RECORD.
    {¶ 5} Assignment of Error No. 2:
    {¶ 6} THE TRIAL COURT FAILED TO CONSIDER WHETHER MR. ABURAS HAD
    AN EMOTIONAL, MENTAL, OR PHYSICAL CONDITION THAT IS TRACEABLE TO HIS
    SERVICE IN THE ARMED FORCES.
    {¶ 7} Aburas argues in his assignments of error that the trial court erred in imposing
    the 60-month sentence.
    {¶ 8} An appellate court reviews the imposed sentence according to R.C.
    2953.08(G)(2), which governs all felony sentences. State v. Marcum, 
    146 Ohio St.3d 516
    ,
    
    2016-Ohio-1002
    , ¶ 1. Pursuant to that statute, an appellate court does not review the
    sentencing court's decision for an abuse of discretion.           Id. at ¶ 10.    Rather, R.C.
    2953.08(G)(2) provides that an appellate court can modify or vacate a sentence only if the
    appellate court finds 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.
    {¶ 9} A sentence is not clearly and convincingly contrary to law where the trial court
    "considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C.
    2929.12, properly imposes postrelease control, and sentences the defendant within the
    permissible statutory range." State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-
    Ohio-2890, ¶ 8. Thus, this court may increase, reduce, or otherwise modify a sentence only
    -2-
    Clermont CA2017-10-054
    when it clearly and convincingly finds that the sentence is either contrary to law or
    unsupported by the record. Marcum at ¶ 7.
    {¶ 10} After reviewing the record, we find that Aburas' sentence was not contrary to
    law.   Aburas was convicted of a third-degree felony, which according to R.C.
    2929.14(A)(3)(a), is subject to a sentencing range of 12 to 60 months. The trial court's 60-
    month sentence was therefore within the statutory range. Moreover, the trial court addressed
    the purposes and principles of sentencing according to R.C. 2929.11 and R.C. 2929.12 at
    both the sentencing hearing and within the trial court's sentencing entry. The trial court also
    informed Aburas of the pertinent postrelease control sanctions. As such, Aburas' sentence
    was not contrary to law.
    {¶ 11} The record also supports the 60-month sentence. The trial court considered
    the information contained in the PSI, statements from the state advocating for a prison
    sentence, and statements from the defense in mitigation. These considerations included that
    Aburas sexually battered his best friend, even after knowing her history of sexual abuse and
    that previous instances of sexual abuse had left her scarred. Aburas did not contest the
    state's presentation of facts during the plea hearing, including that Aburas went into the
    victim's bedroom while she was asleep, moved her from lying on her stomach to her back,
    removed her pants and panties, pinned her down, and engaged in sexual intercourse with
    her while the victim repeatedly told Aburas to stop and tried to push Aburas off her.
    {¶ 12} The court considered that Aburas took advantage of his relationship with the
    victim, and engaged in an act of sexual violence against her. The court also questioned
    whether Aburas was remorseful, as Aburas' statement within the PSI contended that the
    sexual act was consensual and that the victim accused him of rape and was only angry with
    him because he fell asleep during intercourse.
    {¶ 13} Despite Aburas' argument that the trial court did not give proper consideration
    -3-
    Clermont CA2017-10-054
    to his experiences in the military, the record indicates otherwise.            According to R.C.
    2929.12(F), "the sentencing court shall consider the offender's military service record and
    whether the offender has an emotional, mental, or physical condition that is traceable to the
    offender's service in the armed forces of the United States and that was a contributing factor
    in the offender's commission of the offense or offenses." However, the statute does not
    require a particular outcome or that the trial court do anything other than consider the
    defendant's military service record and any contributing factors to the offense that can be
    traced back to such service. State v. Mitchell, 4th Dist. Meigs No. 13CA13, 
    2015-Ohio-1132
    ;
    see also State v. Napier, 12th Dist. Clermont No. CA2016-04-022, 
    2017-Ohio-246
    , ¶ 46
    (finding the trial court properly considered R.C. 2929.12[F] where "the record clearly
    demonstrate[d] the trial court considered [appellant's] prior military service by thanking him
    for his service, while also stating that such service did not excuse the offense of violence that
    occurred").
    {¶ 14} The PSI clearly indicates that Aburas suffered from PTSD, anxiety, and
    depression after one of his friends in the military was killed during combat. Aburas' defense
    counsel offered this information during mitigation, and the trial court was provided all
    applicable information in the PSI regarding Aburas' experiences in the military that may have
    contributed to his criminal conviction. However, the record also indicates that Aburas was
    discharged from the military after he was charged with larceny.
    {¶ 15} The trial court made specific mention of Aburas' military experiences during
    sentencing, even thanking Aburas for his service. "I appreciate the fact that you were willing
    to serve in the military. That's a very honorable thing to do * * * your service, in that regard, is
    appreciated." Despite Aburas' argument to the contrary, the record clearly shows that the
    trial court considered Aburas' military history and all pertinent information regarding his
    medical conditions once he was discharged.
    -4-
    Clermont CA2017-10-054
    {¶ 16} After reviewing the record, we find that the trial court's sentence was not
    contrary to law and was otherwise supported by the record.       As such, Aburas' two
    assignments of error are overruled.
    {¶ 17} Judgment affirmed.
    RINGLAND, P.J., and M. POWELL, J., concur.
    -5-
    

Document Info

Docket Number: CA2017-10-054

Citation Numbers: 2018 Ohio 1984

Judges: Piper

Filed Date: 5/21/2018

Precedential Status: Precedential

Modified Date: 5/21/2018