[Cite as State v. Miller, 2020-Ohio-1159.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-19-1100

        Appellee                                 Trial Court No. CR0201802680

v.

Donald Miller                                    DECISION AND JUDGMENT

        Appellant                                Decided: March 27, 2020

                                             *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

        Sarah Haberland, for appellant.

                                             *****

        MAYLE, J.

        {¶ 1} Defendant-appellant, Donald Miller, appeals the April 15, 2019 judgment of

the Lucas County Court of Common Pleas, convicting him of two counts of gross sexual

imposition and sentencing him to an 18-month prison term on each count, to be served

consecutively. For the reasons that follow, we affirm the trial court judgment.
                                      I. Background

       {¶ 2} Donald Miller was indicted on September 11, 2018, on one count of rape, a

violation of R.C. 2907.02(A)(1)(c) and (B) (Count 1); and one count of obstructing

official business, a violation of R.C. 2921.31(A) and (B) (Count 2). Additional counts

were brought by information on February 19, 2019, charging Miller with two counts of

gross sexual imposition, violations of R.C. 2907.05(A)(5) and (C)(1) (Counts 3 and 4).

Miller waived his right to have Counts 3 and 4 presented to a grand jury.

       {¶ 3} On March 5, 2019, Miller entered a plea of guilty pursuant to North

Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to Counts 3 and 4,

in exchange for the dismissal of Counts 1 and 2. The state summarized the evidence it

would have presented had the matter proceeded to trial. It stated that on May 5, 2018,

Miller and the 15-year-old victim attended a party on Suder Avenue. The victim drank

alcohol to the point of becoming sick, then went into a room and fell asleep. She woke to

find Miller on top of her, having intercourse with her. She “froze and pretended to be

asleep.” Later that morning, she went to the hospital where a SANE nurse performed a

rape kit. Miller’s DNA was identified in vaginal swabs and swabs taken from the neck

and chest of the victim.

       {¶ 4} The trial court accepted Miller’s plea, entered a finding of guilty as to each

charge, and continued the matter for a pretrial sentencing investigation report (“PSI”).

Miller was sentenced on April 9, 2019. The court imposed a prison term of 18 months on

Count 3 and 18 months on Count 4, to be served consecutively to each other and to



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sentences imposed in Lucas County case Nos. CR0201603051 and CR0201603108. The

court also imposed a five-year mandatory period of postrelease control on each count,

and it found Miller to be a Tier II child-victim offender. Miller’s convictions and

sentences were memorialized in a judgment entry journalized on April 15, 2019.

       {¶ 5} Miller appealed and assigns the following errors for our review:

              I. The Trial Court Abused its Discretion at Sentencing, by Failing to

       Access [sic] all of the factors in accordance with R.C. 2929.11 and R.C.

       2929.12

              II. The Trial Court Abused its Discretion in Sentencing, by

       Sentencing in a manner that was Clearly and Convincingly Contrary to

       Ohio Law.

                                   II. Law and Analysis

       {¶ 6} Miller’s two assignments of error challenge the sentence imposed by the trial

court. He claims in his first assignment of error that the court failed to consider all of the

factors set forth in R.C. 2929.11 and 2929.12. He claims in his second assignment of

error that his sentence was contrary to law. We address both assignments of error

together.

       {¶ 7} We review felony sentences under R.C. 2953.08(G)(2). Under R.C.

2953.08(G)(2), an appellate court may increase, reduce, or otherwise modify a sentence

or may vacate the sentence and remand the matter to the sentencing court for

resentencing if it clearly and convincingly finds either of the following:



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              (a) That the record does not support the sentencing court’s findings

       under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of

       section 2929.14, or division (I) of section 2929.20 of the Revised Code,

       whichever, if any, is relevant;

              (b) That the sentence is otherwise contrary to law.

       {¶ 8} Miller does not raise any challenge with respect to R.C. 2953.08(G)(2)(a).

We, therefore, limit our discussion to R.C. 2953.08(G)(2)(b): whether the sentence is

otherwise contrary to law. The Supreme Court of Ohio in State v. Kalish, 120 Ohio St.3d

23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 18, held that a sentence is not clearly and

convincingly contrary to law where the trial court has considered the purposes and

principles of sentencing under R.C. 2929.11 and the seriousness and recidivism factors

under R.C. 2929.12, properly applied postrelease control, and imposed a sentence within

the statutory range.

       {¶ 9} Miller was convicted of R.C. 2907.05(A)(5) and (C)(1), felonies of the

fourth degree. For a felony of the fourth degree, the trial court may impose a prison term

of six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen,

seventeen, or eighteen months. R.C. 2929.14(A)(4). “[T]he trial court ha[s] full

discretion to impose any sentence within the authorized statutory range * * *.” State v.

Connors, 2d Dist. Montgomery No. 26721, 2016-Ohio-3195, ¶ 6. The trial court here

imposed a prison term of 18 months on each count—terms within the permissible

statutory range.



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       {¶ 10} Because Miller was convicted of felony sex offenses, the trial court was

required to impose a five-year term of postrelease control. R.C. 2967.29(B)(1). The

court imposed a five-year period of postrelease control on each count. Postrelease

control was, therefore, properly applied.

       {¶ 11} This brings us to the crux of Miller’s argument: that the trial court failed to

consider all of the R.C. 2929.11 and 2929.12 factors when it sentenced Miller to “the full

reserve sentences for each probation violation.” Importantly, Miller appealed the trial

court judgment in case No. CR0201802680, convicting him of gross sexual imposition;

he did not appeal the judgments relating to his community control violations in case Nos.

CR0201603051 and CR0201603108, so the sentences imposed for those violations are

not before this court.

       {¶ 12} R.C. 2929.11 explains that “[t]he overriding purposes of felony sentencing

are to protect the public from future crime by the offender and others and to punish the

offender using the minimum sanctions that the court determines accomplish those

purposes without imposing an unnecessary burden on state or local government

resources.” It instructs that “[t]o 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} R.C. 2929.12 provides discretion to the trial court “to determine the most

effective way to comply with the purposes and principles of sentencing * * *.” It



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requires that “[i]n exercising that discretion, the court shall consider the factors set forth

in divisions (B) and (C) * * * relating to the seriousness of the conduct, the factors

provided in divisions (D) and (E) * * * relating to the likelihood of the offender’s

recidivism, and the factors set forth in division (F) * * * pertaining to the offender’s

service in the armed forces of the United States,” in addition to any other factors relevant

to achieving the purposes and principles of sentencing. R.C. 2929.12(A).

       {¶ 14} The trial court’s April 15, 2019 judgment expressly states that it considered

“the record, oral statements, any victim impact statement and presentence report

prepared, as well as the principles and purposes of sentencing under R.C. 2929.11, and

has balanced the seriousness, recidivism and other relevant factors under R.C. 2929.12.”

(Emphasis added.) Moreover, at the sentencing hearing, the trial court explained the

rationale for its sentence:

              Ordinarily, I must admit that sentencing people is pretty difficult.

       But in all sincerity you’ve been given every single chance to reform your

       conduct and the result is that you’re back before the Court for like conduct.

       Another victim is now suffering based upon what you have done. This

       occurred while you were not on community control for one offense, but

       two. This occurred when you were on community control for a sexually

       oriented offense. This offense is a sex offense. And the violation of your

       community control is a new felony offense. To sum it up, that’s the worst

       form of violation. Conduct here is remarkable. You’re a predator. You’re



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       dangerous. The law’s wrong. You deserve more than what I can give.

       Every moment you’re free every woman is at risk, especially children. If I

       had my way, you’d never be released from the penitentiary. They’d build

       one on top of you. But the law doesn’t permit me to do that * * *.”

       {¶ 15} It is clear from this explanation that the court found that it was necessary to

incapacitate Miller and to deter him from future crime. It is also clear that the court

found Miller’s conduct to be very serious and was alarmed that Miller committed these

crimes while on community control for another sex offense, thereby demonstrating the

likelihood that he would reoffend.

       {¶ 16} “[I]t is up to the discretion of the individual decision-maker ‘to determine

the weight to assign a particular statutory factor.’” State v. Yeager, 6th Dist. Sandusky

No. S-15-025, 2016-Ohio-4759, ¶ 13, quoting State v. Arnett, 88 Ohio St.3d 208, 215,

724 N.E.2d 793 (2000). Here, the court may have weighed certain factors more heavily

than others, but we cannot say that it did not consider the principles and purposes of

sentencing or the seriousness and recidivism factors as it was required to do under R.C.

2929.11 and 2929.12. Given that the court considered these factors, properly applied

postrelease control, and imposed a sentence within the statutory range, we cannot say that

the sentence was contrary to law. Moreover, we have reviewed the PSI and the

transcripts of the sentencing and plea hearings and find no clear and convincing evidence

that Miller’s sentence was not supported by the record.

       {¶ 17} Accordingly, we find Miller’s two assignments of error not well-taken.



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                                     III. Conclusion

       {¶ 18} The trial court properly considered the purposes and principles of

sentencing under R.C. 2929.11 and the seriousness and recidivism factors under R.C.

2929.12. We, therefore, find Miller’s first assignment of error not well-taken.

       {¶ 19} The court also properly applied postrelease control and imposed a sentence

within the statutory range, and Miller presented no clear and convincing evidence that his

sentence was not supported by the record. We, therefore, conclude that his sentence was

not contrary to law, and we find his second assignment of error not well-taken.

       {¶ 20} We affirm the April 15, 2019 judgment of the Lucas County Court of

Common Pleas. Miller is ordered to pay the costs of this appeal under App.R. 24.

                                                                       Judgment affirmed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Thomas J. Osowik, J.                           _______________________________
                                                           JUDGE
Christine E. Mayle, J.
                                               _______________________________
Gene A. Zmuda, P.J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.



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