[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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