State v. Smart , 2023 Ohio 955 ( 2023 )

[Cite as State v. Smart, 2023-Ohio-955.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2022 AP 06 0018
TED SMART
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Tuscarawas County Court
of Common Pleas, Case No. 2021 CR 10
0316
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 23, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RYAN STYER DAN GUINN
Tuscarawas County Prosecutor 232 West 3rd Street – Suite #312
Dover, Ohio 44622
KRISTINE W. BEARD
Assistant Prosecuting Attorney
Tuscarawas County Prosecutors Office
125 E. High Avenue
New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2022 AP 06 0018 2
Hoffman, J.
{¶1} Defendant-appellant Ted Smart appeals the judgment entered by the
Tuscarawas County Common Pleas Court convicting him following his pleas of no contest
to two counts of gross sexual imposition (R.C. 2907.05(A)(1)) and sentencing him to
twelve months incarceration on each count, to be served consecutively. Plaintiff-appellee
is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} On October 29, 2021, Appellant was indicted by the Tuscarawas County
Grand Jury on two counts of rape, one count of gross sexual imposition as a felony of the
third degree, and one count of gross sexual imposition as a felony of the fourth degree.
{¶3} The State dismissed the charges of rape and amended the count of gross
sexual imposition as a felony of the third degree to a charge of gross sexual imposition
as a felony of the fourth degree. Appellant entered a plea of no contest to the amended
charge and the original charge of gross sexual imposition as fourth degree felony. The
victim on one count was the son of Appellant’s girlfriend (hereinafter “B.E.”). The victim
on the second count was Appellant’s stepdaughter (hereinafter “C.P.). The trial court
found Appellant guilty upon his pleas.
{¶4} The case proceeded to a sentencing hearing. At the hearing, Appellant
requested a sentence of community control sanctions, while the State took no position on
sentencing. Appellant’s mother spoke on his behalf in mitigation, telling the court she
needed Appellant’s help at home because of her health, and he would not do what he
1A full rendition of the facts is not a part of the record before this Court on appeal, as we have been provided
only with the transcript of the sentencing hearing and the presentence investigation report. No bill of
particulars was filed.
Tuscarawas County, Case No. 2022 AP 06 0018 3
was accused of in this case. A friend of Appellant’s informed the court he was involved
in some of the situations with Appellant’s ex, and she made his life difficult. The friend
maintained the things Appellant was accused of were not true. Appellant stated he was
sorry for the pain he caused the victims. The trial court noted guilt was no longer a
question because Appellant had entered a plea of no contest, upon which he was
convicted.
{¶5} As to B.E., the trial court stated Appellant was not the parent of the child,
who was under the age of ten, but was put in a position where he was left in charge of
the child, as a “mentor.” Tr. 7. The court found Appellant was placed in a position to
protect the victim, not use the victim for sexual gratification. The court noted Appellant
had a history of juvenile delinquency, including at least one offense of abduction.
Appellant was convicted of violating a temporary protection order and disorderly conduct
as an adult. The trial court expressed concerns over the conviction of violating a
temporary protection order because it indicated Appellant could not follow a court order.
The trial court also noted while on bail, Appellant violated the terms of his bail by testing
positive for alcohol and marijuana. While the presentence investigation reflected a low
recidivism score, the trial court concluded indications of recidivism were likely based on
Appellant’s history.
{¶6} The trial court found the presumption in favor of community control had
been rebutted. The trial court sentenced Appellant to twelve months incarceration on
each count. The trial court ordered the sentences to run consecutively, finding pursuant
to R.C. 2929.14(C)(4) Appellant’s history of criminal conduct demonstrates consecutive
sentences are necessary to protect the public from future crime by Appellant, and at least
Tuscarawas County, Case No. 2022 AP 06 0018 4
two of the offenses were committed as part of one or more courses of conduct, and the
harm was so great or unusual that no single prison term for any of the offenses committed
as part of the course of conduct adequately reflects the seriousness of Appellant’s
conduct.
{¶7} It is from the June 8, 2022 judgment of the trial court Appellant prosecutes
his appeal, assigning as error:
I. THE TRIAL COURT ERRED WHEN IT IMPOSED A PRISON
SENTENCE AS OPPOSED TO COMMUNITY CONTROL UPON THE
APPELLANT.
II. THE TRIAL COURT ERRED WHEN IT IMPOSED
CONSECUTIVE SENTENCES AS OPPOSED TO A CONCURRENT
SENTENCE UPON THE APPELLANT.
I.
{¶8} In his first assignment of error, Appellant argues the trial court abused its
discretion in imposing a prison sentence instead of community control. He argues he
does not have an extensive criminal record, was employed at the time of sentencing, had
a low recidivism score, his mother needs him to be home to care for her, and he displayed
genuine remorse at sentencing.
{¶9} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Roberts, 5th Dist. Licking No. 2020 CA 0030, 2020-Ohio-6722, ¶13,
citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. R.C.
Tuscarawas County, Case No. 2022 AP 06 0018 5
2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence
and remand for sentencing where we clearly and convincingly find 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(l), or the sentence is otherwise contrary to law. Id.,citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659.
{¶10} Pursuant to this statute, we may increase, reduce, modify, or vacate a
sentence where we clearly and convincingly find the record does not support the trial
court’s findings pursuant to R.C. 2929.13(B)(1), which provides in pertinent part:
(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:
(iii) The offender violated a term of the conditions of bond as set by
the court.
(iv) 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.
{¶11} Appellant has not demonstrated the trial court’s finding he violated a term
of the condition of his bond and the trial court’s finding the instant offenses were fourth
degree felony sex offenses in violation of a provision of Chapter 2907 of the Revised
Code are contrary to law. We do not find the record does not clearly and convincingly
Tuscarawas County, Case No. 2022 AP 06 0018 6
support the trial court’s findings concerning the exercise of its discretion to sentence
Appellant to a prison term in this case.
{¶12} When sentencing a defendant, the trial court must consider the purposes
and principles of felony sentencing set forth in R.C. 2929.11 and the seriousness and
recidivism factors in R.C. 2929.12. State v. Hodges, 8th Dist. Cuyahoga No. 99511, 2013-
Ohio-5025, ¶ 7.
{¶13} “The overriding purposes of felony sentencing are to protect the public from
future crime by the offender and others, to punish the offender, and to promote the
effective rehabilitation of the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden on state
or local government resources.” R.C. 2929.11(A). To achieve these 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. Id. Further, the sentence imposed shall be
“commensurate with and not demeaning to the seriousness of the offender's conduct and
its impact on the victim, and consistent with sentences imposed for similar crimes by
similar offenders.” R.C. 2929.11(B).
{¶14} R.C. 2929.12 lists general factors which must be considered by the trial
court in determining the sentence to be imposed for a felony, and gives detailed criteria
which do not control the court's discretion, but which must be considered for or against
severity or leniency in a particular case. The trial court retains discretion to determine the
most effective way to comply with the purpose and principles of sentencing as set forth in
R.C. 2929.11. R.C. 2929.12.
Tuscarawas County, Case No. 2022 AP 06 0018 7
{¶15} Nothing in R.C. 2953.08(G)(2) permits this Court to independently weigh
the evidence in the record and substitute our own judgment for that of the trial court to
determine a sentence which best reflects compliance with R.C. 2929.11 and R.C.
2929.12. State v. Jones, 1163 Ohio St.3d 242, 69 N.E.3d 649, 2020-Ohio-6729, ¶ 42.
Instead, we may only determine if the sentence is contrary to law.
{¶16} 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 post release control, and sentences the defendant
within the permissible statutory range.” State v. Pettorini, 5th Dist. Licking No. 2020 CA
00057, 2021-Ohio-1512, 2021 WL 1714216, ¶¶ 14-16 quoting State v. Dinka, 12th Dist.
Warren Nos. CA2019-03-022 & CA2019-03-026, 2019-Ohio-4209, ¶ 36.
{¶17} We do not find the sentence is contrary to law in the instant case. The trial
court considered the principles and purposes of R.C. 2929.11, as well as the factors listed
in R.C. 2929.12. The trial court specifically noted in the sentencing entry Appellant’s
conduct was more serious than conduct normally constituting the offenses because the
injuries caused were exacerbated by the victim’s age, and Appellant’s relationship with
the victims facilitated the offenses. The trial court further states its belief Appellant was
more likely to commit future crimes because he has not responded favorably to sanctions
previously imposed in adult or juvenile court, he has a history of criminal convictions and
juvenile delinquency adjudications, and he did not show genuine remorse. The sentence
imposed on Appellant of twelve months for each count is within the sentencing range of
six to eighteen months set forth in R.C. 2929.14(A)(4). We find the sentence in the instant
case is not contrary to law.
Tuscarawas County, Case No. 2022 AP 06 0018 8
{¶18} The first assignment of error is overruled.
II.
{¶19} In his second assignment of error, Appellant argues the trial court erred in
imposing consecutive sentences. He does not argue the trial court failed to make the
requisite findings pursuant to R.C. 2929.14, but rather argues generally a twelve-month
prison sentence is sufficient to adequately protect the public and punish Appellant.
{¶20} R.C. 2929.14(C)(4) provides:
(4) If multiple prison terms are imposed on an offender for convictions
of multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to 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,
and if the court also finds any of the following:
(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.
(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
Tuscarawas County, Case No. 2022 AP 06 0018 9
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.
(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 must make the R.C. 2929.14(C)(4) findings at the sentencing
hearing and incorporate its findings into its sentencing entry, but it has no obligation to
state reasons to support its findings, nor must it recite certain talismanic words or phrases
in order to be considered to have complied. State v. Bonnell, 140 Ohio St.3d 209, 2014-
Ohio-3177, syllabus.
{¶22} In deciding whether to impose consecutive sentencing, the trial court is to
consider the aggregate term of incarceration which will result from consecutive
sentencing. State v. Gwynne, 2022-Ohio-4607, 2022 WL 17870605, ¶¶14-15. In
Gwynne, the Ohio Supreme Court recently clarified the standard of review this Court is to
use on review of consecutive sentences:
It is important to understand that the standards referenced above
have very specific meanings and fall into one of two categories—either a
standard of review or an evidentiary standard of proof. “Abuse of discretion,”
“clearly erroneous,” and “substantial evidence” are traditional forms of
appellate-court deference that are applied to a trial court's decisions. They
are standards of review that are applied by a reviewing court to certain
Tuscarawas County, Case No. 2022 AP 06 0018 10
decisions that are made by a fact-finder. They are, in essence, screens
through which reviewing courts must view the original fact-finder's decision.
In contrast, “preponderance,” “clear and convincing,” and “beyond a
reasonable doubt” are evidentiary standards of proof. These standards
apply to a fact-finder's consideration of the evidence. R.C. 2953.08(G)(2)’s
requirement that appellate courts apply the clear-and-convincing standard
on review indicates that the legislature did not intend for appellate courts to
defer to a trial court's findings but to act as a second fact-finder in reviewing
the trial court's order of consecutive sentences.
In this role as a finder of fact, the appellate court essentially functions
in the same way as the trial court when imposing consecutive sentences in
the first instance. There are three key differences, however. The first
difference, which is discerned from the language of R.C. 2953.08(G)(2), is
that the appellate court is constrained to considering only the findings in
R.C. 2929.14(C)(4) that the trial court has actually made. In other words, a
reviewing court cannot determine for itself which of the three permissible
findings within R.C. 2929.14(C)(4)(a)-(c) might apply to satisfy the third
required finding for imposing consecutive sentences, as the trial court is
permitted to do. The second difference involves the standard of proof.
Whereas the trial court's standard of proof under R.C. 2929.14(C)(4) is a
preponderance of the evidence—i.e., that when considered as a whole, the
evidence demonstrates that the proposition of fact represented by the
finding is more likely true, or more probable, than not—an appellate court
Tuscarawas County, Case No. 2022 AP 06 0018 11
applies a clear and convincing evidence standard of proof. And the third
difference is the inversion of the ultimate question before the court.
Whereas the trial court is tasked with determining whether the proposition
of fact represented by each finding is more likely—or more probably—true
than not, an appellate court's task is to determine whether it has a firm belief
or conviction that the proposition of fact represented by each finding is not
true on consideration of the evidence in the record.
Thus, when viewed in its proper context, the deference that a trial
court's consecutive-sentence findings receive comes from the language of
R.C. 2953.08(G)(2), which imposes a higher evidentiary standard to reverse
or modify consecutive sentences. It does not stem from any statutory
requirement that the appellate court defer to the trial court's findings when
considering whether reversal or modification is appropriate under R.C.
2953.08(G)(2).
{¶23} Id. at ¶¶20-22.
{¶24} The trial court found Appellant’s history of criminal conduct demonstrates
consecutive sentences are necessary to protect the public from future crime by Appellant,
and at least two of the 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
adequately reflects the seriousness of his conduct. Appellant does not specifically
Tuscarawas County, Case No. 2022 AP 06 0018 12
challenge any of the court’s findings, but rather argues generally he did not deserve a
twenty-four-month sentence.
{¶25} Upon review of the sentencing transcript and the presentence investigation
filed under seal in this case, we are not “left with a firm belief or conviction that the findings
are not supported by the evidence.” See, Id. at ¶27. With respect to B.E., Appellant
violated a position of trust in his relationship with the young child entrusted to his care in
the instant case. The presentence investigation reflected different types of conduct –
both Appellant touching the victim, and Appellant having the victim touch him. The victim
was under ten years of age. The presentence investigation reveals the conduct
underlying the conviction of gross sexual imposition involving C.P. involved touching the
victim’s breast and genital area on top of her clothing. Although the facts are not as well-
developed in the record concerning this charge, as the victim’s stepfather, Appellant
would similarly have been in a position of trust with respect to C.P. as he was to B.E. at
the time of the offense.
{¶26} Although Appellant does not have an extensive criminal record, he does
have both juvenile adjudications of delinquency and adult convictions. His prior conviction
for violating a temporary protection order, coupled with his violation of the terms of his
bond in the instant case, demonstrate an inability to comply with court orders. Although
Appellant apologized for hurting the victims, the trial court found he did not demonstrate
genuine remorse. We find the trial court was in a better position than this Court to
determine the sincerity of the apology.
{¶27} The aggregate term of incarceration in the instant case was twenty-four
months, just six months more than the court could have imposed for a single offense. We
Tuscarawas County, Case No. 2022 AP 06 0018 13
do not find clearly and convincingly the record does not support the trial court’s findings
in the instant case.
{¶28} The second assignment of error is overruled.
{¶29} The judgment of the Tuscarawas County Common Pleas Court is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Baldwin, J. concur