State v. Leopard

[Cite as State v. Leopard, 

194 Ohio App.3d 500

, 

2011-Ohio-3864

.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                       CLARK COUNTY

THE STATE OF OHIO,                                :
                                                  :       Appellate Case No. 2010-CA-87
        Appellee,                                 :
                                                  :       Trial Court Case No. 2010-CR-303
v.                                                :
                                                  :
LEOPARD,                                          :       (Criminal Appeal from
                                                  :       (Common Pleas Court)
                         Appellant.               :


                                              ...........

                                              OPINION

                               Rendered on the 5th day of August, 2011.

                                              ...........

Andrew Wilson, Clark County Prosecuting Attorney, and Andrew Picek, Assistant
Prosecuting Attorney, for appellee

William D. West, for appellant.
                                            ………………


        HALL, Judge.

        {¶ 1} Charles W. Leopard II appeals from his conviction and sentence following a

guilty plea to two counts of unlawful sexual conduct with a minor, felonies of the third degree.

        {¶ 2} The charges against Leopard stemmed from allegations that on multiple

occasions, he had inserted his finger into J.R.’s and B.M.’s vaginas, engaged in vaginal

intercourse with them, and performed cunnilingus on the girls, who were both 15 years old.
                                                                                                   2


       {¶ 3} The record reflects that 42-year-old Leopard met the two minors by permitting

children in the neighborhood to come into his home to “hang out,” drink alcohol, and use

marijuana. His home was a well-known gathering spot for neighborhood teens. Leopard

created an environment that condoned illegal activity and provided alcohol for the teens,

knowing that young girls would be at his home drinking and partying. Once the girls were in

his home, he made it clear that he was interested in them sexually. He used his access to them

to eventually engage in sexual activity with both victims. This activity occurred on multiple

occasions over several months. Both victims had recordings on their cellular devices where

Leopard confessed to engaging in numerous, separate, sexual encounters with them.

       {¶ 4} Based on the foregoing activity, Leopard was indicted on six counts of

unlawful sexual conduct with a minor, in violation of R.C. 2907.04 (A), with specifications

that he was ten or more years older than his victims. At arraignment, Leopard entered a plea

of not guilty. Following a plea bargain, however, he entered a guilty plea to two counts of

unlawful sexual conduct with a minor, each with the ten-or-more-years-older specification.

The guilty plea involved one count for each of his two victims.

       {¶ 5} The trial court ordered a presentence investigation (“PSI”) report and revoked

Leopard’s bail. At sentencing, the trial court imposed consecutive four-year prison sentences for

a total of eight years. It also imposed five years of mandatory postrelease control and classified

Leopard as a Tier II sexual offender. This appeal followed.

       {¶ 6} Leopard advances three assignments of error on appeal. First, he contends that his

sentence is contrary to law because the trial court failed to make certain necessary findings before

imposing consecutive sentences. Second, he claims that his sentence is contrary to law because
                                                                                                   3


the trial court failed to properly consider the statutory principles and purposes of sentencing and

the seriousness and recidivism factors. Third, he asserts that the trial court abused its discretion

by imposing more than minimum and consecutive sentences.

       {¶ 7} 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

. If the sentence is not clearly and

convincingly contrary to law, the trial court's decision when imposing the term of imprisonment

must be reviewed under an abuse-of-discretion standard. 

Id.

       {¶ 8} In his first assignment of error, Leopard asserts that Oregon v. Ice (2009), 

555 U.S. 160

, 

129 S.Ct. 711

, 

172 L.Ed.2d 517

, effectively overruled State v. Foster, 

109 Ohio St.3d 1

, 

2006-Ohio-856

, thus reviving the requirement in R.C. 2929.14(E)(4) that a court make certain

findings before imposing consecutive sentences. Because the trial court did not make those

findings, Leopard contends his sentence is contrary to law. We disagree.

       {¶ 9} 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 Foster. Leopard’s argument that Foster's holding was effectively overruled by Ice is

unpersuasive. In State v. Hodge, 

128 Ohio St.3d 1

, 

2010-Ohio-6320

, syllabus, the Ohio Supreme

Court held that Ice does not revive R.C. 2929.14(E)(4). See also State v. Ferguson, Montgomery

App. No. 23857, 

2011-Ohio-752

, ¶ 12. Therefore, pursuant to Foster, a trial court is not

required to make findings or give reasons for the sentences that it imposes; the court is vested

with the full discretion to impose whatever prison term it chooses within the statutory range.
                                                                                                 4


State v. Mathis, 

109 Ohio St.3d 54

, 

2006-Ohio-855

, ¶ 37. The first assignment of error is

overruled.

       {¶ 10} In his second assignment of error, Leopard claims that the trial court failed to

properly consider the statutory principles and purposes of sentencing and the seriousness and

recidivism factors.

       {¶ 11} When exercising its sentencing discretion, a 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.

Mathis, 

109 Ohio St.3d 54

, 

2006-Ohio-855

, at ¶ 38. In that regard, R.C. 2929.11 provides:

       {¶ 12} “(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.

       {¶ 13} “(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.”

       {¶ 14} In turn, R.C. 2929.12 states:

       {¶ 15} “(B) The sentencing court shall consider all of the following that apply regarding

the offender, the offense, or the victim, and any other relevant factors, as indicating that the
                                                                                                        5


offender's conduct is more serious than conduct normally constituting the offense:

          {¶ 16} “(1) The physical or mental injury suffered by the victim of the offense due to the

conduct of the offender was exacerbated because of the physical or mental condition or age of the

victim.

          {¶ 17} “(2) The victim of the offense suffered serious physical, psychological, or

economic harm as a result of the offense.

          {¶ 18} “(3) The offender held a public office or position of trust in the community, and

the offense related to that office or position.

          {¶ 19} “(4) The offender's occupation, elected office, or profession obliged the offender

to prevent the offense or bring others committing it to justice.

          {¶ 20} “(5) The offender's professional reputation or occupation, elected office, or

profession was used to facilitate the offense or is likely to influence the future conduct of others.

          {¶ 21} “(6) The offender's relationship with the victim facilitated the offense.

          {¶ 22} “(7) The offender committed the offense for hire or as a part of an organized

criminal activity.

          {¶ 23} “(8) In committing the offense, the offender was motivated by prejudice based on

race, ethnic background, gender, sexual orientation, or religion.

          {¶ 24} “(9) If the offense is a violation of section 2919.25 or a violation of section

2903.11, 2903.12, or 2903.13 of the Revised Code involving a person who was a family or

household member at the time of the violation, the offender committed the offense in the vicinity

of one or more children who are not victims of the offense, and the offender or the victim of the

offense is a parent, guardian, custodian, or person in loco parentis of one or more of those
                                                                                                 6


children.

       {¶ 25} “(C) The sentencing court shall consider all of the following that apply regarding

the offender, the offense, or the victim, and any other relevant factors, as indicating that the

offender's conduct is less serious than conduct normally constituting the offense:

       {¶ 26} “(1) The victim induced or facilitated the offense.

       {¶ 27} “(2) In committing the offense, the offender acted under strong provocation.

       {¶ 28} “(3) In committing the offense, the offender did not cause or expect to cause

physical harm to any person or property.

       {¶ 29} “(4) There are substantial grounds to mitigate the offender's conduct, although the

grounds are not enough to constitute a defense.

       {¶ 30} “(D) The sentencing court shall consider all of the following that apply regarding

the offender, and any other relevant factors, as factors indicating that the offender is likely to

commit future crimes:

       {¶ 31} “(1) At the time of committing the offense, the offender was under release from

confinement before trial or sentencing, under a sanction imposed pursuant to section 2929.16,

2929.17, or 2929.18 of the Revised Code, or under post-release control pursuant to section

2967.28 or any other provision of the Revised Code for an earlier offense or had been

unfavorably terminated from post-release control for a prior offense pursuant to division (B) of

section 2967.16 or section 2929.141 of the Revised Code.

       {¶ 32} “(2) The offender previously was adjudicated a delinquent child pursuant to

Chapter 2151. of the Revised Code prior to January 1, 2002, or pursuant to Chapter 2152. of the

Revised Code, or the offender has a history of criminal convictions.
                                                                                                     7


       {¶ 33} “(3) The offender has not been rehabilitated to a satisfactory degree after

previously being adjudicated a delinquent child pursuant to Chapter 2151. of the Revised Code

prior to January 1, 2002, or pursuant to Chapter 2152. of the Revised Code, or the offender has

not responded favorably to sanctions previously imposed for criminal convictions.

       {¶ 34} “(4) The offender has demonstrated a pattern of drug or alcohol abuse that is

related to the offense, and the offender refuses to acknowledge that the offender has demonstrated

that pattern, or the offender refuses treatment for the drug or alcohol abuse.

       {¶ 35} “(5) The offender shows no genuine remorse for the offense.

       {¶ 36} “(E) The sentencing court shall consider all of the following that apply regarding

the offender, and any other relevant factors, as factors indicating that the offender is not likely to

commit future crimes:

       {¶ 37} “(1) Prior to committing the offense, the offender had not been adjudicated a

delinquent child.

       {¶ 38} “(2) Prior to committing the offense, the offender had not been convicted of or

pleaded guilty to a criminal offense.

       {¶ 39} “(3) Prior to committing the offense, the offender had led a law-abiding life for a

significant number of years.

       {¶ 40} “(4) The offense was committed under circumstances not likely to recur.

       {¶ 41} “(5) The offender shows genuine remorse for the offense.”

       {¶ 42} On appeal, Leopard contends the trial court did not consider “the principles and

purposes of sentencing” under R.C. 2929.11 and balance the seriousness and recidivism factors

under R.C. 2929.12, although the sentencing entry says that the court did consider those statutes
                                                                                                     8


in rendering its decision.     Instead, Leopard asserts that the court imposed two, four-year

consecutive sentences because he “got a tremendous break or was shown tremendous leniency

from the State of Ohio when the State dismissed four of the counts because * * * it was [not] an

issue of being able to prove that.”

       {¶ 43} Contrary to Leopard's claim, the record illustrates that the trial court did fully

consider both the principles and purposes of sentencing set forth in R.C. 2929.11 and the

seriousness and recidivism factors provided by R.C. 2929.12. The trial court explained some of

its reasoning for its decision on the record.

       {¶ 44} 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 of

counsel, the defendant’s statement, the pre-sentence investigation report, 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.” A trial court

speaks through its journal entries, and Leopard'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. “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.’ ” State v. Miller, Clark App. No. 09CA28, 

2010-Ohio-2138

, ¶ 43, quoting Kalish, 

120 Ohio St.3d 23

, 

2008-Ohio-4912

, fn. 4.

       {¶ 45} During the sentencing hearing, the prosecutor stated that although the victims

were at the older end of the spectrum as far as juvenile victims, there were many aggravating

factors. According to the prosecutor, the most significant was the fact that Leopard had sexually
                                                                                                    9


assaulted two victims. The prosecutor argued: “That points to a couple of issues. First of all,

the need to punish him for each victim; and second of all, whether or not he’s subject to

rehabilitation or looking at recidivism issues. Obviously, those are always concerns when you

have more than one victim.”

       {¶ 46} The prosecutor added, “ I’ll ask that whatever sentence you pass today must

punish him for engaging in sex with two teenage girls and must protect the community to make

sure he’s not in a position to commit anymore acts like this. * * * A sentence that is not

consecutive basically allows him a free pass for one of the victims.”

       {¶ 47} When imposing its sentence, the trial court “agree[d] with the prosecutor that the

sentence imposed should run consecutively.” The court complied with the applicable rules and

statutes in making this determination. Furthermore, we note that the two four-year sentences that

the trial court imposed are not statutory maximum sentences and are within the authorized range

of available punishments for felonies of the third degree. R.C. 2929.14(A)(3). We have no basis

for concluding that Leopard's sentence is clearly and convincingly contrary to law. His second

assignment of error is overruled.

       {¶ 48} In his third assignment of error, Leopard contends because he is a first-time

offender, the trial court abused its discretion in imposing near maximum and consecutive

sentences.

       {¶ 49} Leopard argues that his aggregate eight-year sentence is unduly harsh and not

supported by the record. Therefore, he claims that it constitutes an abuse of the trial court's

discretion. In support, he points to a number of facts and circumstances. They include his lack of

a prior criminal record, the consensual nature of the sexual acts, the absence of force, violence, or
                                                                                                   10


physical harm, the lack of exploitation of any mental or physical impairment, and the fact that he

was a law-abiding citizen prior to this incident. In light of these facts, Leopard contends that his

sentence is unduly harsh and thus constitutes an abuse of the trial court’s discretion. Even though

the sentence may admittedly appear harsh and would not be the sentence imposed if sentencing

were our duty, we cannot say that it is an abuse of discretion.

       {¶ 50} The phrase “abuse of discretion” has been defined as an attitude that is

unreasonable, arbitrary or unconscionable, or a “view or action that no conscientious judge could

honestly have taken.” State v. Brady, 

119 Ohio St.3d 375

, 

2008-Ohio-4493

 at ¶ 23; Huffman v.

Hair Surgeon, Inc. (1985), 

19 Ohio St.3d 83, 87

. 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. “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 Corp. (1990), 

50 Ohio St.3d 157, 161

.

       {¶ 51} Here Leopard's conduct reasonably supports imposition of a sentence within the

ranges of R.C. 2929.14(A)(3), which authorizes sentences of one, two, three, four, or five years

for third-degree felonies. The trial court stated on the record its reasons for giving Leopard the

sentence it did: there were multiple victims, a pattern of behavior over a period of time, multiple

instances of offense conduct, planning of the offenses ahead of time, and luring of the victims

with alcohol and possibly marijuana.
                                                                                                    11


       {¶ 52} We conclude that the trial court did not abuse its discretion in imposing

consecutive four-year sentences. In the absence of any statute to the contrary, “it is a matter solely

within the discretion of the sentencing court whether sentences shall run consecutively or

concurrently.” State v. Nunez, Montgomery App. No. 22208, 2008–Ohio–3376, ¶ 8, citing

Stewart v. Maxwell (1963), 

174 Ohio St. 180

, 181; see also State v. Hodge, 

128 Ohio St.3d 1

,

2010-Ohio-6320

. The third assignment of error is overruled.

       {¶ 53} Having overruled Leopard’s three assignments of error, we affirm the judgment of

the Clark County Common Pleas Court.



                                                                                 Judgment affirmed.

                                              .............


       DONOFRIO, J., concurs.

       GRADY, P.J., dissents.

       Donofrio, J., of the Seventh District Court of Appeals, sitting by assignment.


       GRADY, P.J., dissenting:

       {¶ 54} The presentence investigation report prepared for the trial court in this case reveals

that the two victims were 15 years of age. Had they been 16, defendant’s conduct would not

have been criminal. Defendant used alcohol to entice the victims, but there is no evidence that

he used force. His conduct was planned, not merely opportunistic. The report fails to reflect

that the victims suffered physical or psychological injuries as a result of defendant’s conduct.

Defendant expressed remorse.
                                                                                                 12


       {¶ 55} Leopard was charged with six counts of unlawful sexual conduct with a minor,

R.C. 2907.04. As charged, the offenses are third-degree felonies because Leopard was ten years

older than the victim. R.C. 2907.04(B)(3). Third degree felonies are punishable by prison

terms of one, two, three, four, or five years. R.C. 2929.14(A)(3).

       {¶ 56} The state dismissed counts one, two, four, and five in exchange for defendant’s

pleas of guilty to counts three and six. His plea exposed Leopard to a maximum punishment of

ten years, should maximum five-year sentences be imposed consecutively.

       {¶ 57} R.C. 2929.14(B) states that the sentencing court “shall impose the shortest prison

term authorized for the offense” unless (1) the offender was previously convicted of a felony

offense or (2) the shortest term “will demean the seriousness of the offender’s conduct or will not

adequately protect the public from future crime by the offender or others.”

       {¶ 58} Leopard was a first offender. Instead of the shortest one-year prison term for

each of his two offenses, the trial court imposed a four-year sentence for each, one year less than

the maximum, to be served consecutively, for an aggregate term of eight years.

       {¶ 59} The court stated that it considered the purposes and principles of felony sentencing

in R.C. 2929.11 and the seriousness and recidivism factors in R.C. 2929.12. There is little if any

basis to find a higher risk of recidivism, and the court mentioned none. The court was instead

concerned with the seriousness of the two offenses, citing defendant’s use of alcohol and that he

had engaged in a pattern of criminal conduct involving the victims “over a couple of months,

maybe even three months.”

       {¶ 60} The matters to which the court referred are sufficiently serious to elevate

defendant’s sentences above the one-year minimum term that R.C. 2929.14(B) prescribes.
                                                                                                13


However, they are not sufficiently serious to quadruple that minimum in each case, and then to

double the quadruple by running the sentences consecutively.

       {¶ 61} R.C. 2929.14(E)(4) sets out the criteria for imposing consecutive sentences.

Consecutive service must be necessary to protect the public from future crime or to punish the

offender and not disproportionate to the seriousness of the crime or the danger that the offender

poses to the public. Also, when the offenses were committed as part of the same course of

conduct, “the harm caused by two or more of the multiple offenses (must have been) so great or

unusual that no single 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.”

       {¶ 62} The state recommended consecutive sentences, saying that if consecutive

sentences are not imposed, Leopard would get a “free pass” for one of his two offenses. That

consideration appears nowhere in R.C. 2929.14(E)(4).

       {¶ 63} For the court, the most compelling reason to impose consecutive four-year

sentences is in its statement: “I think the defendant got a tremendous break or was shown

tremendous leniency from the State of Ohio when the State dismissed four of the counts because

I don’t think it was an issue of not being able to prove that.”

       {¶ 64} R.C. 2929.11 and 2929.12 are in accord with the basic philosophy of considering

not only the offender’s particular conduct but also his character when imposing a sentence.

Other matters relevant to one or both may also be considered, and that approach has withstood

due-process and double-jeopardy challenges. However, the cases offer no support for imposing

a greater sentence merely because the offender escaped punishment for other crimes on account

of a plea bargain. The court may consider the conduct those other crimes involved, but not the
                                                                                             14


fact that the offender was not punished for them as a basis to impose a greater sentence.

Notably, that particular consideration appears nowhere in R.C. 2929.11 or 2929.12.

       {¶ 65} The Supreme Court did unfortunate damage to the sentencing policies the General

Assembly adopted in S.B. 2 when, in State v. Foster, 

109 Ohio St.3d 1

, 

2006-Ohio-856

, the court

said that judges are “free” to impose any sentence within the available range and, in State v.

Hodge, 

128 Ohio St.3d 1

, 

2010-Ohio-6320

, that the power to impose consecutive sentences is

“inherent” in the court. Judges have read those holdings as authorization to put aside the

statutory policies on sentencing and instead to enforce their own subjective views.

       {¶ 66} Even when a sentence is within the available range, courts may not abuse their

discretion in choosing the sentence to impose. State v. Kalish, 

120 Ohio St.3d 23

,

2008-Ohio-4912

. I find an abuse of discretion in this case. I would modify the sentences to

four years concurrent and affirm as modified.

                                                  .............