State v. Stephens , 2019 Ohio 3150 ( 2019 )

[Cite as State v. Stephens, 2019-Ohio-3150.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2018-P-0090
- vs - :
HEATHER M. STEPHENS, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2018 CR
00373.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Harvey B. Bruner, Harvey B. Bruner Co., LPA, The Hoyt Block Building, Suite 110, 700
West St. Clair Avenue, Cleveland, OH 44113, and Britt Newman, Law Office of Britt
Newman, 1280 West Third Street, First Floor, Cleveland, OH 44113 (For Defendant-
Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Heather M. Stephens, appeals from her five-year
sentence for Attempted Rape and Gross Sexual Imposition in the Portage County Court
of Common Pleas. The issue to be determined in this case is whether a trial court errs
when it sentences a defendant to serve a prison term for Attempted Rape and a maximum
prison term for Gross Sexual Imposition when she has no criminal record, is not a risk for
recidivism, and the court does not state at sentencing that it considered the required
sentencing factors. For the following reasons, we affirm the judgment of the lower court.
{¶2} On April 19, 2018, Stephens was indicted by the Portage County Grand
Jury for five counts of Rape, felonies of the first degree, in violation of R.C.
2907.02(A)(1)(b), and three counts of Gross Sexual Imposition, felonies of the third
degree, in violation of R.C. 2907.05.
{¶3} On August 14, 2018, a plea hearing was held at which Stephens pled guilty
to two amended counts of Attempted Rape, pursuant to R.C. 2923.02 and 2907.02,
felonies of the second degree, and two counts of Gross Sexual Imposition as charged in
the indictment. A Nolle Prosequi was entered by the State on the remaining counts. The
guilty plea was accepted by the trial court and a Written Plea of Guilty was filed on the
same date.
{¶4} A sentencing hearing was held on October 22, 2018. Defense counsel
argued that Stephens had no criminal record, was presently employed as an assistant
manager at a gas station, and had family support as well as letters attesting to her good
character. He argued that a sex offender evaluation was favorable to her and no factors
were present indicating a high risk for recidivism. The State requested a sentence of one
year in prison. The court noted that this was an “egregious case” and that Stephens was
old enough to understand what she had done was wrong. Stephens apologized to her
family and the victim and stated that she accepted responsibility for her actions. The
court observed that the prosecutor would have asked for a more severe penalty if
Stephens were a man. The court stated that “this type of behavior is not going to be
tolerated” and found she was not amenable to community control sanctions. The court
stated: “I took into consideration if - - if you didn’t have a glowing history and the
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psychological report did not come back favorable for you, * * * you could’ve been looking
at at least eight years in prison, at least.” It sentenced her to four years in prison for each
count of Attempted Rape and five years for each count of Gross Sexual Imposition, with
the sentences to run concurrently.
{¶5} The court issued an October 24, 2018 Order and Journal Entry in which it
memorialized its sentence and stated that it had considered the purpose of felony
sentencing and the evidence, statements, and presentence report.
{¶6} Stephens timely appeals and raises the following assignments of error:
{¶7} “[1.] The Trial Court Erred in Sentencing Appellant to a Prison Term.
{¶8} “[2.] The Trial Court Erred in Sentencing Appellant to a Maximum Term of
Imprisonment on Her Convictions for Gross Sexual Imposition.”
{¶9} In her first assignment of error, Stephens argues that the record does not
support the trial court’s decision to order her to serve a prison term rather than community
control.
{¶10} “The court hearing an appeal [of a felony sentence] shall review the record,
including the findings underlying the sentence or modification given by
the sentencing court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce,
or otherwise modify a sentence that is appealed under this section or may vacate the
sentence and remand the matter to the sentencing court for resentencing * * * if it clearly
and convincingly finds either * * * (a) [t]hat the record does not support
the sentencing court’s findings under division (B) or (D) of section 2929.13 * * * [or] (b)
[t]hat the sentence is otherwise contrary to law.” Id. “‘A sentence is contrary to law if (1)
the sentence falls outside the statutory range for the particular degree of offense, or (2)
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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.’” State v. Wilson, 11th Dist.
Lake No. 2017-L-028, 2017-Ohio-7127, ¶ 18, quoting State v. Price, 8th Dist. Cuyahoga
No. 104341, 2017-Ohio-533, ¶ 14. “[A]n appellate court may vacate or modify any
sentence that is not clearly and convincingly contrary to law only if the appellate court
finds by clear and convincing evidence that the record does not support the
sentence.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶
23.
{¶11} As an initial matter, the State argues that this court lacks jurisdiction to
consider errors in imposing a prison term when there is a presumption of prison since
there is no provision providing for such appeal in R.C. 2953.08(A), which sets forth
grounds for a defendant to appeal a sentence. In support of this proposition it cites State
v. Anderson, 2015-Ohio-888, 30 N.E.3d 176 (5th Dist.), which states: “The Legislature
has expressly provided that the prosecution can appeal a trial court’s decision overcoming
the presumption of imprisonment contained in R.C. 2929.13. No such provision has been
made for a defendant to appeal a sentence on the basis that the trial court refused to
supersede the presumption for a prison term * * *.” Id. at ¶ 67.
{¶12} While it is accurate that there is no specific affirmative right provided to allow
for an appeal of a prison sentence when there is a presumption for such a sentence, R.C.
2953.08(A)(4) generally allows a defendant to appeal any sentence that “is contrary to
law.” Although not addressing this specific issue, many appellate courts, including this
district, have evaluated the merits of a defendant’s appeal when it was argued that he
should have received community control rather than a prison sentence. State v. Fetterolf,
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11th Dist. Trumbull No. 2017-T-0109, 2018-Ohio-2454, ¶ 20-25; State v. Webb, 11th Dist.
Lake No. 2003-L-078, 2004-Ohio-4198, ¶ 14; State v. Kuykendall, 2017-Ohio-7280, 97
N.E.3d 32, ¶ 15 (12th Dist.). We will consider the merits of Stephens’ argument that the
court erred by sentencing her to a prison term rather than community control.
{¶13} As to the argument that the court should not have imposed a prison term on
the Attempted Rape offenses, under the sentencing statutes, a prison term was required.
For Attempted Rape, a felony of the second degree, there is a general presumption in
favor of a prison term. R.C. 2929.13(D)(1). However, a court “shall impose a prison term”
in the case of certain sex offenses, including “an attempt to commit rape if, had the
offender completed the rape that was attempted, the offender would have been guilty of
a violation of division (A)(1)(b) of section 2907.02 of the Revised Code and would be
sentenced under section 2971.03 of the Revised Code.” (Emphasis added.) R.C.
2929.13(F)(2).
{¶14} Pursuant to R.C. 2907.02(A)(1)(b), an offense occurs when a party engages
in sexual conduct with another person who is “less than thirteen years of age.” This
allegation was made in the indictment, with Stephens pleading to the amended offense
of Attempted Rape. Further, had Stephens pled to a completed Rape offense, she would
have been sentenced under R.C. 2971.03. See R.C. 2907.02(B) (“an offender under
division (A)(1)(b) of this section shall be sentenced to a prison term or term of life
imprisonment pursuant to section 2971.03 of the Revised Code”). While there is an
exception to the application of that section to sentencing when the offender was less than
sixteen years old and the victim was ten years or older, R.C. 2907.02(B), it does not apply
here. When Stephens was less than sixteen, the victim was under the age of ten.
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{¶15} The State also argues that the Gross Sexual Imposition offenses required
a prison term, citing R.C. 2929.13(D). That section provides for a presumption of prison
for certain Gross Sexual Imposition offenses, including those committed under R.C.
2907.05(A)(4) as in the present matter, but further provides that certain provisions
allowing a judge to order community control do not apply to this type of offense. The
statute, however, does not state that there is a mandatory prison term for such offenses,
nor does the State cite any law in favor of that proposition. In fact, R.C. 2929.13(F)(3)
provides that prison “shall” be ordered for Gross Sexual Imposition offenses where the
victim is less than 13 years old and the offender was previously convicted of sexual
offenses or where there is evidence other than victim testimony admitted to corroborate
the violation. The existence of these provisions, which do not apply in the present matter,
demonstrate that prison is not mandatory for other Gross Sexual Imposition offenses. As
such, we are not precluded from considering whether the trial court erred in failing to order
community control for these offenses. Under that analysis, we find no error.
{¶16} Initially, Stephens argues that the trial court failed to consider the R.C.
2929.11 and 2929.12 sentencing factors since it did not state that it considered these
factors, rendering the sentence contrary to law.
{¶17} A court imposing a felony sentence is required to consider the statutory
sentencing factors in R.C. 2929.11 and .12, but “there is no requirement to make specific
findings or use specific language during the sentencing hearing.” State v. Crandall, 11th
Dist. Ashtabula No. 2016-A-0030, 2016-Ohio-7920, ¶ 36, citing State v. Jackson, 11th
Dist. Lake No. 2014-L-124, 2015-Ohio-2608, ¶ 21.
{¶18} The trial court did not specifically state at the sentencing hearing that it had
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considered these statutory factors. However, in its sentencing Order and Journal Entry,
the court stated that it had “considered the purpose of felony sentencing which is to
protect the public from future crimes by Defendant and to punish the Defendant using the
minimum sanctions that the Court determines to accomplish those purposes without
imposing an unnecessary burden on state or local government resources” and the need
to incapacitate and rehabilitate the defendant and deter future crime. This language
mirrors that contained in R.C. 2929.11. This is sufficient to comply with the requirement
to consider the R.C. 2929.11 factors. State v. Kamleh, 8th Dist. Cuyahoga No. 97092,
2012-Ohio-2061, ¶ 61 (“[a]lthough the court did not specifically reference the relevant
statutory guidelines during the sentencing, its journal entry imposing sentence” stating
that it considered R.C. 2929.11 fulfilled the court’s obligation).
{¶19} As to the R.C. 2929.12 factors, which relate to the seriousness of the crime
and the risk of recidivism, although the court did not specify it had considered these
factors, it recognized at the sentencing hearing both Stephens’ lack of a criminal record
and the “horrendous” nature of the offenses and the seriousness with which they should
be treated. These statements demonstrated consideration of the sentencing factors.
State v. Harold, 11th Dist. Portage No. 2014-P-0012, 2015-Ohio-954, ¶ 58 (the court
considered the factors under R.C. 2929.12 when it noted the appellant’s history of criminal
convictions); State v. Jung, 2018-Ohio-1514, 111 N.E.3d 54, ¶ 19 (8th Dist.) (“sufficient
information in the record exists * * * to conclude that the trial court considered the relevant
factors contained in R.C. 2929.12” where the court reviewed the PSI and noted the
defendant’s prior community control violations).
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{¶20} While Stephens argues this is just “boilerplate language,” the law does not
require fact-finding and a statement indicating consideration is sufficient. Crandall, 2016-
Ohio-7920, ¶ 36. Stephens does not demonstrate that the court failed to consider these
factors. “It is the burden of the defendant to show a sentencing court did not balance
the R.C. 2929.12 factors,” or that the imposed sentence “‘is strikingly inconsistent’” with
the factors in R.C. 2929.11 and R.C. 2929.12 as they apply to this case. (Citations
omitted.) State v. Sprott, 11th Dist. Ashtabula No. 2016-A-0066, 2017-Ohio-1508, ¶ 16.
{¶21} When there is a presumption of prison that may allow for a court to order
community control, there is no requirement that the court do so. Fetterolf, 2018-Ohio-
2454, at ¶ 24. The lower court considered the necessary factors for determining the
proper sentence, taking into account Stephens’ lack of a criminal record, noting that it
was the reason it did not give a greater sentence. It weighed this against the serious
nature of the crime, emphasizing the egregious nature of the offenses. Nothing in the
court’s decision shows that it failed to weigh the circumstances to properly determine that
prison was warranted.
{¶22} Stephens argues that there are several factors weighing in favor of ordering
community control.
{¶23} First, she emphasizes the low risk of recidivism, her lack of a criminal
record, and her expression of remorse as R.C. 2929.12(D) and (E) factors weighing in
her favor. The court was fully aware of these factors and emphasized that her lack of a
criminal history was the reason she received a shorter sentence than the court would
otherwise order. While some factors may weigh in favor of Stephens receiving a reduced
sentence “the trial court is not obligated * * * to give any particular weight or consideration
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to any [R.C. 2929.12] sentencing factor.” (Citation omitted.) State v. Pishner, 11th Dist.
Portage No. 2017-P-0004, 2017-Ohio-8689, ¶ 20.
{¶24} Stephens also emphasizes the lack of factors making the crimes more
serious, with the exception that her relationship with the victim, her cousin, facilitated the
offense. As noted above, the court was not required to give specific weight to these
factors when considered in conjunction with the totality of the facts in this matter.
Moreover, given the serious nature of these offenses, the fact that Stephens sexually
abused her cousin should not be deemphasized.
{¶25} Stephens also contends that the court took into account “unreasonable”
factors, such as noting that the crime was “horrible,” which is true of all sexual abuse
crimes. The court, however, made it clear that it found the nature of these crimes, which
included the familial relationship of the victim and Stephens and the age of the victim, to
be a serious concern. This is again relevant to weigh during sentencing. While Stephens
cites State v. Johnson, 8th Dist. Cuyahoga No. 102449, 2016-Ohio-1536, in support of
the proposition that finding an offense is “terrible” is not sufficient to justify a sentence,
Johnson is not relevant here. In Johnson, the appellate court found that the lower court’s
statement regarding the offenses being “terrible” was not sufficient to constitute a finding
that the offenses were so “great or unusual” as to warrant consecutive terms, pursuant
to R.C. 2929.14(C)(4), which requires the court to make specific findings to issue
consecutive sentences, a matter not at issue here. Id. at ¶ 20-21.
{¶26} Finally, Stephens takes issue with the court’s statements that the State may
have requested a harsher sentence if she were a man, emphasizing that a court “shall
not base the sentence upon the * * * gender * * * of the offender.” R.C. 2929.11(C). While
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the court’s comments on this issue may have been unnecessary, they do not demonstrate
that the court based its sentence on gender. Rather, they appeared to be an expression
of dissatisfaction with the State’s sentencing recommendation. The court did not indicate
it gave Stephens a greater sentence because she was a female and the court is entitled
to give a greater sentence than the one recommended by the State if it does not believe
the sentence is commensurate with the defendant’s conduct in committing the offense.
{¶27} Based on the foregoing, we find no error in ordering Stephens to serve a
prison sentence rather than community control.
{¶28} The first assignment of error is without merit.
{¶29} In her second assignment of error, Stephens argues that a maximum
sentence for the Gross Sexual Imposition offenses was unwarranted given her age and
that the sentence was higher than for the more serious offenses of Attempted Rape.
{¶30} Initially, the State argues that this court lacks jurisdiction to consider this
issue because a maximum sentence can be appealed only when the sentence was
imposed for one offense or for multiple offenses arising out of a single incident. R.C.
2953.08(A)(1). Nonetheless, since there may be concerns that the sentence is contrary
to law and given this court’s prior consideration of similar matters, we will address the
merits. See State v. Langlois, 11th Dist. Ashtabula No. 2003-A-0080, 2005-Ohio-
2795, rev’d on other grounds, In re Ohio Criminal Sentencing Statutes Cases, 109 Ohio
St.3d 313, 2006-Ohio-2109, 847 N.E.2d 1174 (considering appellant’s arguments
regarding maximum sentences received for offenses arising from multiple incidents).
{¶31} Stephens argues that since she was a juvenile during a portion of the period
during which the offenses occurred, she should not receive the harshest penalty
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available. While she generally cites to law regarding juveniles being “less deserving” of
severe punishments, she does not provide any authority for the proposition that the trial
court was prohibited from giving her a maximum sentence. In fact, courts in Ohio have
not applied the reasoning in cases such as Miller v. Alabama, 567 U.S. 460, 132 S.Ct.
2455, 183 L.Ed.2d 407 (2012), cited by Stephens for the proposition that juveniles should
be sentenced differently than adults, to cases involving a prison term that is a term of
years or where a defendant is eligible for parole. State v. Terrell, 8th Dist. Cuyahoga No.
103428, 2016-Ohio-4563, ¶ 17-18. Further, the Ohio Supreme Court has upheld a
maximum sentence of life in prison imposed upon a defendant who was 15 at the time he
committed the Rape but was prosecuted after he was 21. See generally State v. Warren,
118 Ohio St.3d 200, 2008-Ohio-2011, 887 N.E.2d 1145. Here, the conduct was
committed when Stephens was between the ages of 15 and 20 and we find no error in
determining that a five-year sentence was warranted for such conduct.
{¶32} Stephens also argues generally that the sentence was too harsh for an
offense of Gross Sexual Imposition, noting that the sentence for these offenses was
greater than for the Attempted Rape offenses. She cites no case law for the position that
she should receive a lesser sentence for a lower level of offense. As explained above,
the court did not err in considering the necessary factors in issuing its sentence. The trial
court has “full discretion to impose a prison sentence within the statutory range” and is
not required to make findings stating its reasoning for imposing a maximum
sentence. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, paragraph
three of the syllabus.
{¶33} The second assignment of error is without merit.
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{¶34} For the foregoing reasons, the judgment of the Portage County Court of
Common Pleas, sentencing Stephens to serve a five-year prison term, is affirmed. Costs
to be taxed against appellant.
CYNTHIA WESTCOTT RICE, J.,
MARY JANE TRAPP, J.,
concur.
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