State v. Parker , 193 Ohio App. 3d 506 ( 2011 )

[Cite as State v. Parker, 193 Ohio App.3d 506, 2011-Ohio-1418.]
IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO
The STATE OF OHIO, :
Appellee, : C.A. CASE NO. 10CA0074
vs. : T.C. CASE NO. 10CR0039
PARKER, : (Criminal Appeal from
Common Pleas Court)
Appellant. :
. . . . . . . . .
O P I N I O N
Rendered on the 25th day of March, 2011.
. . . . . . . . .
Andrew R. Picek, Assistant Prosecuting Attorney, for appellee.
Richard E. Mayhall, for appellant.
. . . . . . . . .
GRADY, Presiding Judge.
{¶ 1} Defendant, Anthony Parker, appeals from his conviction
and sentence for sexual battery under R.C. 2907.03(A)(7), which
provides:
{¶ 2} “No person shall engage in sexual conduct with another,
not the spouse of the offender, when * * * [t]he offender is a
teacher, administrator, coach, or other person in authority
employed by or serving in a school for which the state board of
education prescribes minimum standards pursuant to division (D)
2
of section 3301.07 of the Revised Code, the other person is enrolled
in or attends that school, and the offender is not enrolled in and
does not attend that school.”
{¶ 3} Unless the victim is less than 13 years of age, a
violation of R.C. 2907.03(A) is a felony of the third degree, R.C.
2907.03(B), and it is punishable by a prison term of one, two,
three, four, or five years.
{¶ 4} In November 2009, Parker, who was a teacher at
Northeastern High School in Clark County, began to sexually seduce
one of his students, a 16-year-old female.
{¶ 5} Instant messaging chats between Parker and his victim
recovered from Parker’s computer demonstrate that over a period
of several months Parker emotionally groomed and manipulated the
victim in order to engage in sexual activity with her. Although
the victim was apprehensive about engaging in sexual conduct,
Parker used promises of commitment to overcome her reluctance.
Parker was well aware of the wrongfulness of his conduct, telling
the victim: “By the way, you know I can go to prison if we have
sex. But damn, it would be worth it.”
{¶ 6} On January 1 and 9, 2010, Parker met the victim in the
parking lot of the Upper Valley Mall in Springfield, and from there
Parker drove the victim to a motel in Dayton, where on both
occasions Parker inserted his finger in the victim’s vagina and
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performed cunnilingus on her. The victim firmly believed that she
and Parker were in love and would eventually be together, even if
he went to prison. When police interviewed Parker on January 11,
2010, Parker immediately confessed to engaging in sexual conduct
with the victim on two separate occasions.
{¶ 7} Parker was indicted on four counts of sexual battery in
violation of R.C. 2907.03(A)(7). Parker surrendered his Ohio
teaching license and terminated all contact with the victim.
Parker entered guilty pleas to all four charges and was sentenced
to consecutive prison terms totaling 15 years. The court also
classified Parker a Tier III sex offender.
{¶ 8} Parker appealed to this court. He challenges his
sentence on multiple grounds.
First Assignment of Error
{¶ 9} “The consecutive sentences imposed on appellant are
contrary to law.”
{¶ 10} The requirement in R.C. 2929.14(E)(4) that the trial
court make certain findings before imposing consecutive sentences
was found unconstitutional and severed from that statute in State
v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. Parker argues that
Foster’s holding was effectively overruled by Oregon v. Ice (2009),
555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, and that the
judicial-findings requirement of R.C. 2929.14(E)(4) has therefore
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been revived.
{¶ 11} In State v. Hodge, ___ Ohio St.3d ___, 2010-Ohio-6320,
the Ohio Supreme Court held that Oregon v. Ice does not revive R.C.
2929.14(E)(4). Id. at paragraph two of the syllabus. See also
State v. Ferguson, Montgomery App. No. 23857, 2011-Ohio-752.
{¶ 12} Parker’s first assignment of error is overruled.
Second Assignment of Error
{¶ 13} “The sentence of the trial court is contrary to law
because it fails to reflect any consideration of the purposes and
principles of felony sentencing contained in R.C. 2929.11 or the
seriousness and recidivism factors of R.C. 2929.12.”
Third Assignment of Error
{¶ 14} “The trial court erred and abused its discretion when
it imposed more-than-minimum, maximum and consecutive sentences.”
{¶ 15} In his second assignment of error, Parker argues that
the trial court’s sentence is contrary to law because the court
failed to consider the principles and purposes of felony sentencing
in R.C. 2929.11 and the seriousness and recidivism factors in R.C.
2929.12. In his third assignment of error, Parker argues that,
because he is a first-time offender, the trial court abused its
discretion in imposing more than minimum sentences, instead
imposing maximum sentences and consecutive sentences. In other
words, the trial court abused its discretion in imposing an overly
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harsh 15-year aggregate sentence that is not supported by the
record.
{¶ 16} In State v. Barker, Montgomery App. No. 22779,
2009-Ohio-3511, at ¶36-37, we wrote:
{¶ 17} “ ‘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[,] consecutive, or more than minimum sentences. State v.
Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856, at
paragraph 7 of the syllabus. Nevertheless, in exercising its
discretion the trial court must consider the statutory policies
that apply to every felony offense, including those set out in R.C.
2929.11 and 2929.12. State v. Mathis, 109 Ohio St.3d 54, 846 11
N.E.2d 1, 2006-Ohio-855, at ¶37.
{¶ 18} “ ‘When reviewing felony sentences, an appellate court
must first determine whether the sentencing court complied with
all applicable rules and statutes in imposing the sentence,
including R.C. 2929.11 and 2929.12, in order to find whether the
sentence is contrary to law. State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124. If the sentence is not clearly
and convincingly contrary to law, the trial court's decision in
imposing the term of imprisonment must be reviewed under an abuse
of discretion standard. Id.’ ”
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{¶ 19} Parker contends that the trial court failed to apply the
principles and purposes of felony sentencing in R.C. 2929.11 and
the seriousness and recidivism factors in R.C. 2929.12. In State
v. Miller, Clark App. No. 09CA28, 2010-Ohio-2138, at ¶43, we wrote:
{¶ 20} “Although the trial court did not specifically cite
either statute during the sentencing hearing, its judgment entry
stated that it had ‘considered the record, oral statements, any
victim impact statement and presentence report prepared, as well
as the principles and purposes of sentencing under Ohio Revised
Code Section 2929.11, and [had] balanced the seriousness and
recidivism factors [under] Ohio Revised Code Section 2929.12.’
Because a trial court speaks only through its journal entries,
Miller’s sentence is not contrary to law merely because the trial
court failed to cite either statute during the sentencing hearing.
State v. Cave, Clark App. No. 09-CA-6, 2010-Ohio-1237, ¶10.
{¶ 21} “ ‘Furthermore, even if there is no specific mention of
those statutes in the record, “it is presumed that the trial court
gave proper consideration to those statutes.” ’ Id., quoting
Kalish, supra, at n.4. We note too that Miller’s five-year
sentence is within the statutory range for a third-degree felony.
See R.C. 2929.14(A)(3). Therefore, we have no basis for
concluding that the sentence is contrary to law.”
{¶ 22} In its journalized judgment entry of conviction, the
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trial court indicated that it had considered the record, oral
statements by counsel and defendant, the presentence investigation
report, the principles and purposes of felony sentencing, R.C.
2929.11, and the seriousness and recidivism factors in R.C.
2929.12. The court also informed Parker during sentencing about
postrelease-control requirements. The court complied with the
applicable rules and statutes in imposing its sentence.
Furthermore, the two-, three-, and five-year sentences the trial
court imposed on the various counts of sexual battery, while the
maximum sentence on some counts, are all nevertheless within the
authorized range of available punishments for felonies of the third
degree. R.C. 2907.03(B); 2929.14(A)(3). The court ordered all
of the prison terms served consecutively, for a total sentence of
15 years. We have no basis for concluding that Parker’s sentence
is clearly and convincingly contrary to law. Kalish. The further
issue is whether the sentences the court imposed are an abuse of
discretion. Id. We will consider that issue together with
Parker’s third assignment of error.
{¶ 23} In his third assignment of error, Parker argues that his
15-year sentence is unduly harsh and not supported by the record
and therefore constitutes an abuse of the trial court’s discretion.
Parker points to a number of different facts and circumstances that
demonstrate that his offenses are not aggravated or a more serious
8
form of the offense concerned. Parker asserts that had he not been
a teacher at the same school the victim attended, his conduct with
this 16-year-old victim, while perhaps morally repugnant, would
not constitute a criminal offense. Parker argues that when all
of the facts and circumstances of the case are viewed in their
totality, the record does not justify the 15-year sentence the
trial court imposed, which was unreasonable and an abuse of
discretion.
{¶ 24} “‘Abuse of discretion’ has been defined as an attitude
that is unreasonable, arbitrary or unconscionable. Huffman v. Hair
Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482
N.E.2d 1248, 1252. It is to be expected that most instances of abuse
of discretion will result in decisions that are simply
unreasonable, rather than decisions that are unconscionable or
arbitrary.
{¶ 25} “A decision is unreasonable if there is no sound
reasoning process that would support that decision. It is not
enough that the reviewing court, were it deciding the issue de novo,
would not have found that reasoning process to be persuasive,
perhaps in view of countervailing reasoning processes that would
support a contrary result.” AAAA Ents., Inc. v. River Place
Community Redevelopment (1990), 50 Ohio St.3d 157, 161.
{¶ 26} R.C. 2929.11 provides:
9
{¶ 27} “(A) A court that sentences an offender for a felony
shall be guided by the overriding purposes of felony sentencing.
The overriding purposes of felony sentencing are to protect the
public from future crime by the offender and others and to punish
the offender. To achieve those purposes, the sentencing court shall
consider the need for incapacitating the offender, deterring the
offender and others from future crime, rehabilitating the
offender, and making restitution to the victim of the offense, the
public, or both.
{¶ 28} “(B) A sentence imposed for a felony shall be reasonably
calculated to achieve the two overriding purposes of felony
sentencing set forth in division (A) of this section, commensurate
with and not demeaning to the seriousness of the offender’s conduct
and its impact upon the victim, and consistent with sentences
imposed for similar crimes committed by similar offenders.”
{¶ 29} During the sentencing hearing the prosecutor told the
trial court that his conversations with the victim reveal that she
is in love with Parker and believes that, regardless of the sentence
imposed, they will wait for each other, so that after Parker serves
his sentence they can be together. The prosecutor argued that in
order to protect the victim from any further emotional harm at the
hands of Parker, give her closure, and allow her to recover from
this and move on with her life, the court’s sentence has to “crush
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that victim’s hope.” Specifically, the prosecutor stated:
{¶ 30} “You could give a short prison sentence in this case,
and you could fuel her fantasy that they are going to be together.
{¶ 31} “A prison sentence of two to three years gives her some
hope that, ‘Hey, look I’ll be eighteen, nineteen. I can be with
him. We can be together. He loves me. He’s going to be with me.
He’s told me all those things. He’s going to wait for me.’
{¶ 32} “And she won’t get the closure, the emotional closure
to get on with her life. You can see a short prison sentence having
negative effects on her future, healthy relationships.
{¶ 33} “You can see a situation where she would be like, she
wouldn’t date other boys her age, not go to prom, not engage in
normal teenage dating patterns because she is Parker’s girl,
because she’s waiting for Parker and that they’re going to be
together.
{¶ 34} “You can also see where a short prison sentence would
cause her to make significant life-changing decisions based on her
belief or her fantasy that they are going to be together.
{¶ 35} “An example would be like, ‘I’m not going to go to an
out-of-state college cause I need to be close to the prison or close
to Ohio so I can be with him. Hey, I’m not going to do this or
that in my life because I’m going to be with Parker.’
{¶ 36} “This may sound harsh but part of protecting the victim,
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and part of protecting the community at large, is that your sentence
has to crush that victim’s hope. Your sentence has to crush that
fantasy that they are going to be together so she can have some
closure in her life and she can move on.”
{¶ 37} At Parker’s sentencing the trial court addressed the
victim, who had written a letter to the court on behalf of Parker,
reaffirming that she is in love with Parker, that she was a willing
participant in this sexual activity, and that Parker did not compel
her to do anything she didn’t want to do. The court told the
victim:
{¶ 38} “Everything that you wrote, I truly believe that it came
from your heart and that you feel the way you feel about the
defendant and about the situation; but what I would hope that you
understand through this, this kind of ties into what the prosecutor
was saying about the emotional and psychological manipulation and
harm done here is that when you’re sixteen and seventeen years old
– And again, I think you’re very mature.
{¶ 39} “I’m not saying that you are not mature and not thinking
for yourself, but when you’re young and you’re in high school and
you see somebody that’s an adult that’s showing interest in you
and you’re looking at this adult and they are in a place where you
are eventually striving to be, in other words, you’re striving to
become an adult.
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{¶ 40} “You want to have a job to be able to make money and have
a car and have freedoms to do certain things, and you see this person
taking an interest in you, it’s only natural that you’re going to
be sort of taken in by that.
{¶ 41} “But I think as time goes by, in the next three, five,
ten years, fifteen years, you’re going to look back and say, you
know – and this is no disrespect to the defendant; I don’t mean
it that way – But you’re going to look back and say, ‘This guy was
really nothing special or nothing unique he just happened to be
in a situation.
{¶ 42} “ ‘He was an adult and he was showing me attention, and
I was young and I was infatuated by that.’ I think as time goes
by you’re going to see that there was nothing really unique or
special about him to you.
{¶ 43} “* * *
{¶ 44} “As tough as this is for you to hear, it seems to me that
he was just saying all the things to you that you wanted to hear
so that he could get what he wanted, but he didn’t mean those things
and that he used you and manipulated you.
{¶ 45} “So with that kind of backdrop and as a perspective, the
Ohio General Assembly has made these offense felonies of the third
degree, which are very serious offenses.
{¶ 46} “There is no language in the statute or nothing
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mitigating in the statute that says, well, if the student is in
love with the teacher, or if the student feels like the teacher
didn’t make her do anything she didn’t want to do, then it should
be less serious.
{¶ 47} “No. The whole reason for the crime is that the adult
is in a position to know that he cannot manipulate a child into
engaging in this kind of behavior. That’s why it’s a crime.
Because he’s an adult and he knows.
{¶ 48} “* * *
{¶ 49} “And that’s exactly why the legislature has had to enact
a criminal statute to protect these young people because they don’t
have the perspective to protect themselves.”
{¶ 50} In imposing sentence on the four counts of sexual
battery, the trial court imposed maximum five-year prison terms
on two counts, a three-year term on one count, and a two-year term
on the other count, and ran all of the prison terms consecutively
for a total sentence of 15 years. The trial court stated its
reasons as follows:
{¶ 51} “The legislature has directed the Court to consider
punishment of the offender and protection of the community and when
there is a minor involved – Not that I don’t take protection of
the community serious in all cases – but when there is a minor
involved my responsibility in that area, I believe, is heightened.
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{¶ 52} “The prosecutor is exactly right; I don’t want there to
be any glimmer of hope after today that somebody is going to wait
for somebody. I want there to be finality today. I want it to
be over with. I want the harm to stop.
{¶ 53} “I don’t want Mr. Parker to harm any other children, and
I don’t want any other teachers in this community to think that
they can engage in this behavior and walk away with a light
sentence.
{¶ 54} “I agree with the prosecutor; I think the emotional and
psychological conduct here is even greater than the physical acts.
While the physical acts are horrific, I do think the psychological
and emotional aspect of the crime is even greater.”
{¶ 55} We begin our analysis by emphasizing that we in no way
condone or wish to minimize the seriousness of Parker’s conduct
in this case. To be sure, Parker’s conduct constitutes a serious
criminal offense. As a teacher, Parker held a position of trust
and authority over his students, and he misused that position of
trust and authority to gain access to a vulnerable adolescent
victim. The vulnerability that adolescents and children have when
taken advantage of by adults who are in a position of trust and
authority over them is plainly the reason why the General Assembly
saw fit to make this particular offense a serious one, a felony
of the third degree.
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{¶ 56} Furthermore, an examination of the instant-messaging
chats between Parker and the victim, which authorities obtained
when they examined Parker’s computer, reveals that over a period
of months Parker emotionally groomed and manipulated this victim,
seducing her so she would fall in love with him and believe that
someday they would be together, in order to get the victim to submit
to his emotional control and prepare her for what Parker wanted
to do, engage in sexual activity with her. Additionally, we note
that Parker was well aware of the wrongfulness of his conduct with
this victim, telling her at one point: “By the way, you know I can
go to prison if we have sex. But damn, it would be worth it.”
{¶ 57} Parker’s conduct reasonably supports imposition of a
sentence within the upper ranges of R.C. 2929.14(A)(3), which
authorizes sentences of one, two, three, four, or five years for
third-degree felony offenses. However, and with that said, the
principles and purposes of felony sentencing in R.C. 2929.11
nevertheless require the trial court in imposing its sentence to
also consider, among other things, rehabilitating the offender.
Furthermore, a sentence imposed for a felony shall be consistent
with sentences imposed for similar crimes committed by similar
offenders. Id.{¶ 58} In his fourth assignment of error, Parker argues that
his 15-year sentence is contrary to law because it is inconsistent
16
with sentences imposed for similar crimes committed by similar
offenders. In support of that claim, Parker has included in his
appellate brief statistics that demonstrate that in the only case
similar to this one in Clark County in recent times, State v.
Mattern, Clark C.P. No. 00CR554, the defendant teacher received
a three-year sentence after pleading guilty to three counts of
sexual battery. Parker further argues that his internet research
discloses that in 30 cases similar to this one across Ohio since
2007, the average sentence length is 2.7 years, with only two cases
involving sentences that exceed five years. One, an eight-year
sentence, involved 16 counts of sexual battery. The other one,
a nine-year sentence, involved three separate victims. Parker’s
point, of course, is that his 15-year sentence is grossly
disproportionate to sentences imposed upon similar offenders for
similar crimes.
{¶ 59} In deciding this appeal, we cannot consider Parker’s
statistics because they were not presented to the trial court and
are not a part of the record in this appeal. State v. Ishmail
(1978), 54 Ohio St.2d 402. Nevertheless, we are mindful that the
Ohio Supreme Court has recognized that the General Assembly’s
intent in enacting the sentencing laws in Senate Bill 2 was to
introduce consistency and proportionality into felony sentencing.
Foster at ¶34. Furthermore, both the Ohio Supreme Court and this
17
court have stated that consecutive sentences should be reserved
for the worst offenses and offenders. State v. Comer, 99 Ohio
St.3d 463, 2003-Ohio-4165, at ¶21; State v. Myers, 159 Ohio App.3d
584, 2005-Ohio-447. This case simply does not involve the worst
form of the offense or the worst offender.
{¶ 60} Parker is a 36-year-old first-time offender with no
prior criminal record of any kind. This case involves two separate
incidents of consensual sexual activity with but one victim, who
was of the age of consent at the time these offenses took place.
There was no force, violence, physical harm, use of drugs or alcohol
to impair judgment, and no exploitation of any mental or physical
impairment. Although the victim’s stepmother claimed in her
victim-impact statement that the victim suffers from emotional and
psychological problems as a result of Parker’s conduct, there was
no evidence in that regard.
{¶ 61} We additionally note that prior to engaging in this
conduct Parker had always led a law-abiding life, earning awards
as an outstanding teacher. Parker is married and has two
special-needs children. When questioned by police about his
conduct with this victim, Parker immediately confessed to engaging
in sexual activity, digital penetration and cunnilingus, with this
victim on two separate occasions, and took full responsibility for
his actions. Parker surrendered his teaching license and ceased
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further contact with this victim, making recidivism unlikely, and
expressed genuine remorse for his conduct at sentencing.
{¶ 62} The trial court’s own statement as to its reasons for
the sentence it imposed discloses that the court imposed a 15-year
sentence to eliminate any hope this victim had that she might wait
for Parker while he served his sentence and after his release have
a future with him. That is not a proper consideration or
legitimate basis for the court’s lengthy sentence in view of the
fact that the victim was already of the legal age of consent at
the time of this offense, and Parker had surrendered his Ohio
teaching license after being charged. Because Parker was no
longer a teacher, any future relationship he might have with this
victim would not be illegal.
{¶ 63} By sentencing this 36-year-old first-time offender to
15 years in prison, the trial court failed to reasonably consider
the concept of rehabilitation. State v. Culp (May 25, 2001),
Champaign App. No. 2000CA17. Compared to this 15-year sentence,
we note that many types of homicide offenses carry a lesser maximum
penalty and that a murder conviction would result in an indefinite
sentence of only 15 years to life. Simply put, there is no
justification in this record for consecutive sentences on all of
the counts, resulting in a 15-year sentence that is unreasonable
and an abuse of the trial court’s discretion. Parker’s second and
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third assignments of error are sustained.
Fourth Assignment of Error
{¶ 64} “Because the sentence imposed by the trial court is
disproportionate and inconsistent, it is contrary to law and
constitutes plain error.”
{¶ 65} Parker argues that because his 15-year sentence is
grossly disproportionate to and inconsistent with the sentences
imposed on similar offenders for similar crimes, it violates R.C.
2929.11(B) and is contrary to law.
{¶ 66} With respect to Parker's contention that the trial court
violated R.C. 2929.11(B) by failing to impose a sentence that was
consistent with sentences imposed for similar crimes committed by
similar offenders, we addressed that argument in State v. Miller,
Clark App. No. 09CA28, 2010-Ohio-2138.
{¶ 67} We have addressed the issue of sentencing consistency
before, recognizing that trial courts are limited in their ability
to address the consistency mandate, and appellate courts are
hampered in their review of this issue, by the lack of a reliable
body of data upon which they can rely. State v. York, Champaign
App. No.2009-CA-03, 2009-Ohio-6263, ¶13. Although a defendant
cannot be expected to produce his or her own database to demonstrate
the alleged inconsistency, the issue must at least be raised in
the trial court and some evidence, however minimal, must be
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presented to the trial court to provide a starting point for
analysis and to preserve the issue for appeal.
{¶ 68} When the consistency issue is not raised in the trial
court, a defendant cannot argue on appeal that the sentence imposed
by the trial court was inconsistent with those imposed on similar
offenders. Id. In the Miller case, the defendant failed to raise
the consistency issue at sentencing and did not present any
evidence below about similar offenders and their sentences. As a
result, he forfeited his ability to raise the issue on appeal. Id.;
see also State v. Cantrell, Champaign App. No. 2006 CA 35,
2007-Ohio-6585, ¶10-14; Rollins, supra, 2009-Ohio-899, at ¶16.”
{¶ 69} A review of the sentencing hearing in this case reveals
that Parker did not raise the consistency issue and did not present
any evidence about similar offenders and their sentences. As a
result, Parker has forfeited his ability to raise the consistency
issue on direct appeal. Miller.
{¶ 70} Parker’s fourth assignment of error is overruled.
Fifth Assignment of Error
{¶ 71} “Because the trial court’s sentence imposes an
unnecessary burden on government resources it is contrary to law.”
{¶ 72} Parker relies on R.C. 2929.13(A), which provides that,
except for certain offenses not involved here, and absent a
mandated sentence, “a court that imposes a sentence upon an
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offender for a felony may impose any sanction or combination of
sanctions on the offender that are provided in sections 2929.14
to 2929.18 of the Revised Code. The sentence shall not impose an
unnecessary burden on state or local government resources.”
(Emphasis added.)
{¶ 73} Parker argues that the aggregate 15-year sentence the
court imposed on him imposes an unnecessary burden on governmental
resources. We are not required to resolve that issue, however.
Having sustained Parker’s second and third assignments of error,
we will modify the trial court’s sentence to impose concurrent
instead of consecutive terms. That resolution renders this
assignment of error moot, and we exercise our discretion to decline
to decide the error assigned. App.R. 12(A)(1)(c).
{¶ 74} Parker’s fifth assignment of error is overruled.
Sixth Assignment of Error
{¶ 75} “Because the trial court improperly employed the
‘sentencing package’ doctrine, the appellant’s sentence is
contrary to law.”
{¶ 76} Parker argues that in sentencing him the trial court
improperly employed the “sentencing package” doctrine to achieve
a particular overall lengthy sentence which, in effect, considers
the multiple offense as one group in order to impose an omnibus
sentence for the group of offenses to satisfy the purposes and
22
principles of felony sentencing in R.C. 2929.11. The Ohio Supreme
Court, however, rejected the doctrine in State v. Saxon, 109 Ohio
St.3d 176, 2006-Ohio-1245. The state responds that Parker’s
sentencing-package argument is misplaced because that doctrine is
a rule that applies only to appellate review of sentences imposed
for multiple offenses and not to the trial court’s actual
imposition of those sentences. A review of the Ohio Supreme
Court’s decision in State v. Saxon, paragraph two of the syllabus,
readily reveals that there is no merit in the state’s contention.
{¶ 77} In State v. Bradley, Champaign App. No. 06CA31,
2008-Ohio-720, at ¶19-32, we discussed the sentencing-package
doctrine as follows:
{¶ 78} “Bradley argues that, in addition, the trial court's
rationale for imposing harsher sentences, to achieve a particular
aggregate sentence, violates the prohibition against
sentence-packaging announced in State v. Saxon, 109 Ohio St.3d 176,
2006-Ohio-1245. We approved the trial court's rationale in our
decision of December 7, 2007. However, on reconsideration, we agree
with Bradley.
{¶ 79} “The defendant in Saxon was convicted on his negotiated
pleas of guilty of two counts of gross sexual imposition, R.C.
2907.05, one a fourth degree felony and the other a felony of the
third degree because of the age of the victim. The trial court
23
imposed a sentence of four years on each count, to be served
concurrently. On appeal, the defendant challenged the sentence for
the fourth degree felony. The appellate court held that the trial
court erred, because the maximum sentence for a fourth degree
felony is eighteen months. R.C. 2929.14(A)(4). The court of appeals
then vacated the sentences imposed for both the third and fourth
degree felonies and remanded the case for resentencing.
{¶ 80} “The state appealed, arguing that the court of appeals
erred when it also vacated the four-year sentence for the third
degree felony, which the trial court is authorized by R.C.
2929.14(A)(3) to impose. The Supreme Court agreed, and held:
{¶ 81} “‘1. A sentence is the sanction or combination of
sanctions imposed for each separate, individual offense.
{¶ 82} “‘2. The sentencing-package doctrine has no
applicability to Ohio sentencing laws: the sentencing court may
not employ the doctrine when sentencing a defendant and appellate
courts may not utilize the doctrine when reviewing a sentence or
sentences.
{¶ 83} “‘3. An appellate court may modify, remand, or vacate
only a sentence for an offense that is appealed by the defendant
and may not modify, remand, or vacate the entire multiple-offense
sentence based upon an appealed error in the sentence for a single
offense.’ Id., Syllabus by the Court.
24
{¶ 84} “Writing for the court in Saxon, Justice O'Connor
explained that the ‘sentencing package’ doctrine is employed in
federal courts and is a product of the Federal Sentencing
Guidelines, which require federal courts to consider the sanctions
imposed on multiple offenses as the components of a single,
comprehensive sentencing plan. Therefore, ‘an error within the
sentencing package as a whole, even if only on one of multiple
offenses, may require modification or vacation of the entire
sentencing package due to the interdependency of the sentences for
each offense.’ Id., at ¶ 6. For that purpose, a federal appellate
court has the authority to vacate all sentences, even if only one
is reversed on appeal. Id., citing § 2106, Title 28, U.S. Code.
{¶ 85} “In contrast, and with respect to the particular error
the court of appeals in Saxon committed, R.C. 2953.08(G)(2)
authorizes Ohio's courts of appeals to ‘increase, reduce, or
otherwise modify a [felony] sentence that is appealed under this
section,’ or to ‘vacate the sentence and remand the matter to the
sentencing court for resentencing’ if the sentence is contrary to
law. Limiting the court's authority in that respect to the
particular sentence tainted by error corresponds to R.C.
2929.14(A)(1)-(5), which sets out the range of available terms
‘(f)or a felony’ of each degree concerned. ‘The statute makes no
provision for grouping offenses together and imposing a single,
25
“lump” sentence for multiple felonies.’ Saxon, ¶8. (Emphasis
supplied). The Saxon court further stated:
{¶ 86} “‘Although imposition of concurrent sentences in Ohio
may appear to involve a “lump” sentence approach, the opposite is
actually true. Instead of considering multiple offenses as a whole
and imposing one, overarching sentence to encompass the entirety
of the offenses as in the federal sentencing regime, a judge
sentencing a defendant pursuant to Ohio law must consider each
offense individually and impose a separate sentence for each
offense. See R.C. 2929.11 through 2929.19. Only after the judge
has imposed a separate prison term for each offense may the judge
then consider in his discretion whether the offender should serve
those terms concurrently or consecutively. See State v. Foster,
109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven
of the syllabus, ¶100, 102, 105; R.C. 2929.12(A); State v. Mathis,
109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, paragraph three
of the syllabus. Under the Ohio sentencing statutes, the judge
lacks the authority to consider the offenses as a group and to
impose only an omnibus sentence for the group of offenses.
{¶ 87} “‘ This court has never adopted the sentencing-package
doctrine, and we decline to do so now. The sentencing-package
doctrine has no applicability to Ohio sentencing laws: the
sentencing court may not employ the doctrine when sentencing a
26
defendant, and appellate courts may not utilize the doctrine when
reviewing a sentence or sentences. (Emphasis supplied.)’ * * *
{¶ 88} “‘Because the sentencing judge must consider each
individual offense, the logical conclusion is that a “sentence”
is the sanction or combination of sanctions imposed for each
offense. Adopting the sentencing-package doctrine ignores the
critical differences between the Ohio and federal sentencing
schemes and implies that sentencing judges must disregard the law
and focus on the entire array of offenses when imposing sentence.
Ohio law has no mechanism for such an approach. Because Ohio does
not “bundle” sentences, nothing is “unbundled” when one of several
sentences is reversed on appeal.’
{¶ 89} “Justice O'Connor further pointed out that R.C.
2929.01(F)(F) defines a sentence as ‘the sanction or combination
of sanctions imposed by the sentencing court on an offender who
is convicted of or pleads guilty to an offense,’ and that the
‘combination’ to which that section refers are those sanctions
imposed on a single offense, such as a fine and incarceration.
Justice Pfeifer filed a dissenting opinion, and viewed R.C.
2929.01(F)(F) as defining a sentence to mean the entire combination
of sanctions imposed on an offender.”
{¶ 90} Parker argues that the trial court’s own statements at
sentencing demonstrate that it employed the sentencing-package
27
doctrine, that is, the court considered Parker’s multiple offenses
as a single group in order to impose a particular overall and more
lengthy sentence for the group of offenses in order to achieve a
particular purpose. We agree.
{¶ 91} At the sentencing hearing, the prosecutor told the trial
court that he had talked to the victim and that she had said that
she is in love with Parker and believes that, regardless of the
sentence imposed, they will each wait for each other so that when
the sentence is completed they can be together. The prosecutor
argued that in order to protect this victim from further emotional
harm, give her closure, and allow her to recover and move on with
her life, the court’s sentence “has to crush that fantasy that they
are going to be together.” The prosecutor also stated:
{¶ 92} “I’d ask you to look at his actions as a whole, the
emotional damage that he’s done, and I’d ask you to pass a sentence
that protects the victim, that protects his family, protects the
community and punishes him for it.”
{¶ 93} In imposing its sentence in this case, the trial court
stated:
{¶ 94} “The prosecutor is exactly right; I don’t want there to
be any glimmer of hope after today that somebody is going to wait
for somebody. I want there to be finality today. I want it to
be over with. I want the harm to stop.
28
{¶ 95} “I don’t want Mr. Parker to harm any other children, and
I don’t want any other teachers in this community to think that
they can engage in this behavior and walk away with a light
sentence.”
{¶ 96} We agree that the trial court’s own statements at
sentencing demonstrate that it was motivated by a desire to achieve
a particular purpose and ensure that this victim would not wait
for Parker to complete his sentence so they could have a future
together, and to that end the court sought to impose a particular
overall and more lengthy sentence to cover the group of offenses
to satisfy the purposes and principles of sentencing. In so doing,
the trial court applied the sentencing-package doctrine and
therefore erred. Any doubt in that regard is resolved by the fact
that the court imposed three different terms for the same offenses,
involving much the same conduct. The reason for doing that was
to achieve the result that Saxon forbids.
{¶ 97} Parker’s sixth assignment of error is sustained.
Seventh Assignment of Error
{¶ 98} “Because all four counts of sexual battery are allied
offenses of similar import, the trial court erred in imposing
sentences, let alone consecutive sentences, on all four counts of
the indictment.”
{¶ 99} Parker argues that the trial court erred by failing to
29
merge all four counts of sexual battery for purposes of sentencing
because they are allied offenses of similar import.
{¶ 100} R.C. 2941.25 states:
{¶ 101} “(A) Where the same conduct by defendant can be
construed to constitute two or more allied offenses of similar
import, the indictment or information may contain counts for all
such offenses, but the defendant may be convicted of only one.
{¶ 102} “(B) Where the defendant’s conduct constitutes two
or more offenses of dissimilar import, or where his conduct results
in two or more offenses of the same or similar kind committed
separately or with a separate animus as to each, the indictment
or information may contain counts for all such offenses, and the
defendant may be convicted of all of them.”
{¶ 103} In its most recent pronouncement on allied
offenses, the Ohio Supreme Court in State v. Johnson, ___ Ohio St.3d
___, 2010-Ohio-6314, held that when determining whether two
offenses are allied offenses of similar import subject to merger
under R.C. 2941.25, the conduct of the accused must be considered.
Id. at syllabus. The Supreme Court further stated:
{¶ 104} “In determining whether offenses are allied
offenses of similar import under R.C. 2941.25(A), the question is
whether it is possible to commit one offense and commit the other
with the same conduct, not whether it is possible to commit one
30
without committing the other. Blankenship, 38 Ohio St.3d at 119,
526 N.E.2d 816 (Whiteside, J., concurring) (‘It is not necessary
that both crimes are always committed by the same conduct but,
rather, it is sufficient if both offenses can be committed by the
same conduct. It is a matter of possibility, rather than certainty,
that the same conduct will constitute commission of both offenses.’
[Emphasis sic]). If the offenses correspond to such a degree that
the conduct of the defendant constituting commission of one offense
constitutes commission of the other, then the offenses are of
similar import.
{¶ 105} “If the multiple offenses can be committed by the
same conduct, then the court must determine whether the offenses
were committed by the same conduct, i.e., ‘a single act, committed
with a single state of mind.’ Brown, 119 Ohio St.3d 447,
2008-Ohio-4569, 895 N.E.2d 149, at ¶50 (Lanzinger, J.,
dissenting).
{¶ 106} “If the answer to both questions is yes, then the
offenses are allied offenses of similar import and will be merged.
{¶ 107} “Conversely, if the court determines that the
commission of one offense will never result in the commission of
the other, or if the offenses are committed separately, or if the
defendant has separate animus for each offense, then, according
to R.C. 2941.25(B), the offenses will not merge.” (Johnson at
31
¶48-51).
{¶ 108} The four counts of sexual battery in this case stem
from two separate incidents. On January 1, 2010, Parker digitally
penetrated the victim’s vagina (count one) and performed
cunnilingus on her (count two). On January 9, 2010, Parker once
again digitally penetrated the victim’s vagina (count three) and
performed cunnilingus on her (count four).
{¶ 109} Because the same statutory offense, committed
multiple times, can be committed with the same conduct, the
multiple offenses that result are allied offenses of similar import
for purposes of R.C. 2941.25(A). Their merger is required unless,
per R.C. 2941.25(B), the offenses were committed separately or with
a separate animus.
{¶ 110} As it is used in R.C. 2941.25(B), “animus” means
animus malus, or evil intent. Parker’s intent when he engaged in
sexual activity with the victim was his own, and perhaps the
victim’s, sexual gratification. Conduct to obtain either result,
when prohibited by R.C. 2903.07(A), is evil or wrong. Parker’s
offenses were not committed with a separate animus as to each.
{¶ 111} Counts one and two do not merge with counts three
and four because the sexual conduct involved occurred on separate
dates, January 1, 2010, and January 9, 2010, and accordingly those
offenses were “committed separately.” R.C. 2941.25(B); Johnson,
32
___ Ohio St.3d ___, 2010-Ohio-6314, at ¶51. The further issue that
remains is whether count one should merge with count two and count
three should merge with count four. We have previously held that
allied offenses involving distinct, different kinds of sexual
activity each constitute a separate crime and do not require
merger, even when they are committed in the course of the same
encounter. State v. Garrison, Greene App. No. 2003CA67,
2004-Ohio-3567, at ¶6, citing State v. Grant, Montgomery App. No.
19824, 2003-Ohio-7240, at ¶59, citing State v. Nicholas (1993),
66 Ohio St.3d 431.
{¶ 112} R.C. 2907.01(A) defines sexual conduct as follows:
{¶ 113} “(A) ‘Sexual conduct’ means vaginal intercourse
between a male and female; anal intercourse, fellatio, and
cunnilingus between persons regardless of sex; and, without
privilege to do so, the insertion, however slight, of any part of
the body or any instrument, apparatus, or other object into the
vaginal or anal opening of another. Penetration, however slight,
is sufficient to complete vaginal or anal intercourse.”
{¶ 114} On each of two separate occasions, January 1 and
9, 2010, Parker engaged in two different, distinct types of sexual
conduct with this victim, digital penetration of her vagina and
cunnilingus. Digital penetration of the victim’s vagina does not
result in cunnilingus, and vice versa. Because these offenses
33
involve different, distinct types of sexual activity, they each
constitute a separate crime and their merger is not required by
R.C. 2941.25. Garrison; Grant; Nicholas.
{¶ 115} Parker’s seventh assignment of error is overruled.
Conclusion
{¶ 116} Having sustained Parker’s second assignment of
error, in part, and his third and sixth assignments of error, we
will exercise the discretion conferred on us by R.C. 2953.08(G)(2)
to modify the trial court’s judgment. The four sentences imposed
for each offense will remain unchanged, but the four sentences
will be served concurrently instead of consecutively. The
aggregate sentence Parker must serve will then be five years
instead of fifteen. As thus modified, the judgment of the trial
court will be affirmed.
Judgment affirmed
as modified.
FAIN and DONOVAN, JJ., concur.