State v. Smith , 2015 Ohio 4225 ( 2015 )

[Cite as State v. Smith, 2015-Ohio-4225.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-15-17
v.
TRENT W. SMITH, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. 14-CR-0244
Judgment Affirmed
Date of Decision: October 13, 2015
APPEARANCES:
James W. Fruth for Appellant
Stephanie J. Reed for Appellee
Case No. 13-15-17
ROGERS, P.J.
{¶1} Defendant-Appellant, Trent Smith, appeals the decision of the Court
of Common Pleas of Seneca County convicting him of attempted illegal use of a
minor in nudity-oriented material and sentencing him to 36 months in prison. On
appeal, Smith argues that the trial court erred by imposing the maximum sentence.
For the reasons that follow, we affirm the judgment of the trial court.
{¶2} On October 8, 2014, the Seneca County Grand Jury returned a four
count indictment against Smith, charging him with two counts of illegal use of a
minor in a nudity-oriented material or performance in violation of R.C.
2907.323(A)(2), (B), felonies of the second degree; one count of pandering
sexually oriented matter involving a minor in violation of R.C. 2907.322(A)(5),
(C), a felony of the fourth degree; and one count of illegal use of a minor in a
nudity-oriented material or performance in violation of R.C. 2907.323(A)(3), (B),
a felony of the fifth degree. Smith entered pleas of not guilty to all the charges on
November 6, 2014, which was later memorialized in a judgment entry dated
November 7, 2014.
{¶3} On April 9, 2015, the court held a hearing to discuss a potential
change of plea. At the hearing, it was announced that Smith had entered into a
plea agreement with the State. In the agreement, Smith agreed to enter a plea of
guilty to a lesser included offense in count one of attempted illegal use of a minor
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in a nudity-oriented material or performance in violation of R.C. 2923.02(A),
(E)(1) and 2907.323(A)(2), (B), a felony of the third degree. In exchange for this
admission, the State agreed to dismiss the remaining three counts. After engaging
in the required colloquy with Smith, the trial court accepted Smith’s change of
plea and found him guilty of the amended charge. This was memorialized in an
entry dated April 14, 2015. Additionally, the court dismissed the remaining
counts in a separate entry dated April 14, 2015.
{¶4} The matter proceeded immediately to sentencing. The State argued
that the court should impose a prison sentence of 36 months. The State supported
its argument by stating that the victim here was only nine years-old at the time of
the crime. Further, the State cited to a case with somewhat similar facts where the
defendant was sentenced to five years in prison. The State conceded that the
pictures involved in that case were more serious and graphic than the ones at issue
in the case sub judice. However, that person was convicted of a felony of the
second degree, whereas Smith was convicted of a felony of the third degree. In
addition to the State’s arguments, the trial court also read the contents of a victim
impact statement that was filed in the case.
{¶5} Smith’s counsel argued that Smith’s punishment should be mitigated
for several reasons. First, he stated that Smith had no prior criminal record
whatsoever. Further, Smith’s counsel argued that Smith’s family fully supported
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Smith throughout the whole ordeal. Finally, Smith’s counsel stated that Smith had
accepted responsibility for his actions.
{¶6} After considering all the relevant factors and presumptions under R.C.
2923.13(C), the trial court sentenced Smith to 36 months in prison with 20 days
being credited to Smith. In addition, Smith was classified as a Tier II sex
offender. Finally, the court sentenced Smith to a mandatory five year period of
post-release control to begin upon release from prison. The trial court
memorialized Smith’s sentence in an entry dated April 14, 2015.
{¶7} Smith filed this timely appeal, presenting the following assignment of
error for our review.
Assignment of Error
THE TRIAL COURT ERRED WHEN IT SENTENCED
APPELLANT TO THE MAXIMUM PRISON SENTENCE
TERM FOR ONLY ONE FELONY OFFENSE.
{¶8} In his sole assignment of error, Smith argues that the trial court erred
by imposing a maximum prison sentence. Specifically, Smith argues that his
conduct did not constitute the worst form of the offense. We disagree.
{¶9} “Trial courts have full discretion to impose any sentence within the
statutory range.” State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶
9, citing State v. Saldana, 3d Dist. Putnam No. 12–12–09, 2013–Ohio–1122, ¶ 20.
“A trial court’s sentence will not be disturbed on appeal absent a defendant's
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showing by clear and convincing evidence that the sentence is unsupported by the
record or otherwise contrary to law.” State v. Barrera, 3d Dist. Putnam No. 12–
12–01, 2012–Ohio–3196, ¶ 20. Clear and convincing evidence is that “which will
produce in the mind of the trier of facts a firm belief or conviction as to the facts
sought to be established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph
three of the syllabus. “An appellate court should not, however, substitute its
judgment for that of the trial court because the trial court is in a better position to
judge the defendant's chances of recidivism and determine the effects of the crime
on the victim.” Noble at ¶ 9, citing State v. Watkins, 3d Dist. Auglaize No. 2-04-
08, 2004–Ohio–4809, ¶ 16.
{¶10} R.C. Chapter 2929 governs sentencing. R.C. 2929.11 provides, in
pertinent part, that the “overriding purposes of felony sentencing are to protect the
public from future crime and to punish the offender.” R.C. 2929.11(A). In
advancing these purposes, sentencing courts are instructed to “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.” Id. Meanwhile, R.C. 2929.11(B) states that felony
sentences must be “commensurate with and not demeaning to the seriousness of
the offender’s conduct and its impact upon the victim” and also be consistent with
sentences imposed in similar cases. In accordance with these principles, the trial
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court must consider the factors set forth in R.C. 2929.12(B)-(E) relating to the
seriousness of the offender’s conduct and the likelihood of the offender’s
recidivism. R.C. 2929.12(A). However, the trial court is not required to make
specific findings of its consideration of the factors. State v. Kincade, 3d Dist.
Wyandot No. 16–09–20, 2010–Ohio–1497, ¶ 8.
{¶11} Since Smith was convicted of a felony of the third degree, the
relevant prison range is between 9 and 36 months. R.C. 2929.14(A)(3)(b). The
trial court sentenced Smith to 36 months in prison, which is within the statutory
guidelines. Upon review of the record, we cannot find that the trial court erred in
imposing this sentence.
{¶12} The record indicates that Smith’s conduct was more serious than
conduct normally constituting attempted illegal use of a minor in a nudity-oriented
material or performance. First, C.M., the victim in the case, was only eight or nine
years old when Smith videotaped her undressing and bathing in the bathroom.
R.C. 2929.12(B)(1). Further, C.M. was Smith’s stepdaughter, someone that Smith
was entrusted with protecting. R.C. 2929.12(B)(6).
{¶13} Also, the support of Smith’s family is troubling. Smith claims that
his family’s support is a mitigating factor in the case. We find the opposite to be
true. The victim here is a child that was living with Smith at the time the crime
was committed. Further, the fact that the family supported Smith leads one to
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believe that the family did not support the victim. This conclusion is more evident
after reading the victim impact statement filed by the grandmother of the victim.
The statement states that the victim’s mother blames the victim for Smith’s
actions. Further, the statement states that Smith is very controlling and has been
verbally cruel to both the victim and her mother in the past. This lack of
protection for the victim leads us to conclude that the family’s support is an
aggravating factor in this particular case.
{¶14} In support for the conclusion that Smith was not likely to commit
future crimes, Smith argued that he had no prior criminal record before
committing this offense and that he was remorseful. R.C. 2929.12(E)(2), (5). He
also argued that his offense was not the worst form of the offense because he was
only categorized as a Tier II sex offender. Regardless of what tier Smith was
categorized, this fact is not relevant to the issue of whether his offense is of the
worst kind. Pursuant to R.C. 2950.01(F)(1)(c), all people convicted of violating
R.C. 2907.323(A)(2) must be labeled Tier II sex offenders. The statute does not
leave the classification to the judge’s discretion. Thus, the fact that Smith was
labeled a Tier II sex offender is irrelevant.
{¶15} Although Smith presented two relevant mitigating factors, the record
also supports the conclusion that several aggravating factors were present. “A
sentencing court has broad discretion to determine the relative weight to assign the
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sentencing factors in R.C. 2929.12.” State v. Brimacombe, 195 Ohio App. 3d 524,
2011-Ohio-5032, ¶ 18 (6th Dist.), citing State v. Arnett, 88 Ohio St. 3d 208, 215
(2000). In the case sub judice, the trial court must have afforded more weight to
the aggravating factors presented than the mitigating factors. Therefore, we
cannot say that the trial court’s decision to impose the maximum sentence is
unsupported by the record. While Smith has argued that the trial court erred in
finding his to be the worst form of the offense, that finding is no longer a
necessary predicate to the court’s imposition of a maximum sentence, and
therefore immaterial to our decision.
{¶16} Accordingly, we overrule Smith’s sole assignment of error.
{¶17} Having found no error prejudicial to Smith, in the particulars
assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and PRESTON, J.J., concur.
/jlr
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