[Cite as State v. McVay, 2019-Ohio-3699.]


                                      COURT OF APPEALS
                                  COSHOCTON COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee   :       Hon. John W. Wise, J.
                                              :
-vs-                                          :
                                              :       Case No. 2018CA0007
MICHAEL H. MCVAY II                           :
                                              :
                    Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Coshocton County
                                                  Court of Common Pleas, Case No.
                                                  17CR136


JUDGMENT:                                         Affirmed


DATE OF JUDGMENT ENTRY:                           September 12, 2019



APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

JASON W. GIVEN                                    RICHARD E. MAYHALL
Coshocton County Prosecuting Attorney             20 S. Limestone St. Suite 120
318 Chestnut Street                               Springfield, OH 45502
Coshocton, OH 43812
[Cite as State v. McVay, 2019-Ohio-3699.]


Gwin, P.J.

         {¶1}   Defendant-appellant Michael H. McVay, II [“McVay”] appeals the imposition

of consecutive sentences after his guilty plea in the Coshocton County Court of Common

Pleas.

                                        Facts and Procedural History

         {¶2}   McVay pled guilty to two counts of Unlawful Sexual Conduct with a Minor in

violation of R.C. 2907.04(A), felonies of the third degree. Both counts involved the same

victim (“N.K.M.H.”). N.K.M.H. was 14 years old and McVay was 27 years old at the time

of the offenses.

         {¶3}   At the sentencing hearing, McVay called four church witnesses. Mickey

Humphrey was McVay's boss and testified to his excellent work ethics as an employee.

William Buxton testified that he attended the same church as McVay and found him to be

"a very hard worker, very dedicated, and very concerned about the community.” Sheila

Knapp testified that she was McVay's best friend and McVay had told her what he had

done was "horrible.” Finally , Mark Granger testified that he was McVay's pastor and that

he had known the family for twenty years, Granger expressed that McVay had committed

a "great sin' but that he was "repentant."

         {¶4}   The court sentenced McVay to a twenty-four month term of incarceration

for count one and a forty-eight month term of incarceration for count two. The court

ordered the sentences to be served consecutively for an aggregate sentence of 72

months.

                                            Assignments of Error

         {¶5}   McVay raises two assignments of error:
Coshocton County, Case No. 2018CA0007                                                          3


       {¶6}   “I. BECAUSE THE TRIAL COURT FAILED TO MAKE THE REQUIRED

FINDINGS OF FACT AT THE SENTENCING HEARING, THE CONSECUTIVE

SENTENCES IMPOSED ON APPELLANT ARE CONTRARY TO LAW.

       {¶7}   “II. BECAUSE THE RECORD CLEARLY AND CONVINCINGLY DOES

NOT SUPPORT THE TRIAL COURT'S FINDINGS USED TO JUSTIFY THE

IMPOSITION OF CONSECUTIVE SENTENCES, THE SENTENCE SHOULD BE

VACATED.”

                                          Law and Analysis

       STANDARD OF APPELLATE REVIEW.

       {¶8}   We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶22;

State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31.                      R.C.

2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence

and remand for resentencing where we clearly and convincingly find that 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(I), or the sentence is otherwise contrary to law.

See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659, ¶28.

       {¶9}   Accordingly, pursuant to Marcum this Court may vacate or modify a felony

sentence on appeal only if it determines by clear and convincing evidence that: (1) the

record does not support the trial court's findings under relevant statutes, or (2) the

sentence is otherwise contrary to law.

       {¶10} Clear and convincing evidence is that evidence “which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Coshocton County, Case No. 2018CA0007                                                   4

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph three of the

syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the

degree of proof required to sustain an issue must be clear and convincing, a reviewing

court will examine the record to determine whether the trier of facts had sufficient

evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477

120 N.E.2d 118.

        ISSUE FOR APPEAL.

        A. Whether the trial court properly imposed consecutive sentences in McVay’s

case.

        R.C. 2929.14 (C)(4) Consecutive Sentences.

        {¶11} R.C. 2929.14(C)(4) concerns the imposition of consecutive sentences. In

Ohio, there is a statutory presumption in favor of concurrent sentences for most felony

offenses. R.C. 2929.41(A). The trial court may overcome this presumption by making

the statutory, enumerated findings set forth in R.C. 2929.14(C) (4). State v. Bonnell, 140

Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶23. This statute requires the trial court

to undertake a three-part analysis. State v. Alexander, 1st Dist. Hamilton Nos. C–110828

and C–110829, 2012-Ohio-3349, 2012 WL 3055158, ¶ 15.

        {¶12} R.C. 2929.14(C)(4) provides,

              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
Coshocton County, Case No. 2018CA0007                                                        5


       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

       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.

       {¶13} Thus, in order for a trial court to impose consecutive sentences the court

must find that consecutive sentences are necessary to protect the public from future crime

or to punish the offender. The court must also find that consecutive sentences are not

disproportionate to the offender’s conduct and to the danger the offender poses to the

public. Finally, the court must make at least one of three additional findings, which include

that (a) the offender committed one or more of the offenses while awaiting trial or

sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18, or

while 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
Coshocton County, Case No. 2018CA0007                                                   6


or more of the offenses was so great or unusual that no single prison term for any of the

offenses committed as part of any of the courses of conduct would adequately reflect the

seriousness of the offender’s conduct; or (c) the offender’s criminal history demonstrates

that consecutive sentences are necessary to protect the public from future crime by the

offender. See, State v. White, 5th Dist. Perry No. 12-CA-00018, 2013-Ohio-2058, ¶36.

      {¶14} In this case, the record does support a conclusion that the trial court made

all of the findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive

sentences.

      R.C. 2929.14(C)(4): [T]he 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.

      {¶15} In the case at bar, the trial court made this finding on the record and in its

sentencing entry. Sent. T. at 32-33; Judgment Entry on Sentencing, filed May 4, 2018.

      R.C. 2929.14(C)(4)(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.

      {¶16} This provision does not apply to McVay’s case.

      R.C. 2929.14(C)(4)(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 prison
Coshocton County, Case No. 2018CA0007                                                  7


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.

      {¶17} In the case at bar, the parents of N.K.M.H. provided the court with victim

impact through a previously prepared written statement. They chose to remain silent at

the sentencing hearing.       The trial court further considered the Pre-Sentence

Investigation Report, the witnesses presented by McVay and the arguments of

counsel.

      {¶18} The trial court made this finding on the record and in its sentencing entry.

Sent. T. at 32; Judgment Entry on Sentencing, filed May 4, 2018.

      {¶19} The trial court, in part, noted,

             The Court further finds that the harm caused by the defendant is so

      great or unusual that a consecutive sentence is appropriate. In finding that

      the harm caused is so great or unusual, the Court notes in the presentence

      investigation and report, particularly the victim impact statement. And the

      victim impact statement says, in part, “We’ve lost our friends and our church

      family and we feel alone. Our daughter [N.K.M.H.] has had interviews and

      STD testing and physical examinations."

             On that point, I note that 14-year-old girls should not have to undergo

      intrusive physical examinations that are required after they are victims of

      sex offenses. [N.K.M.H.], who is the victim of the offense, has developed a

      distrust of people and she will have to go through life knowing that what is

      supposed to be a special moment with her husband was taken from her by

      someone that cares and only thinks of himself.
Coshocton County, Case No. 2018CA0007                                                    8


             I do note that the commentary at that point is appropriate, that the

      defendant's actions to plan and prepare and go to the effort to engage in

      sexual conduct with a 14-year-old girl are truly based on selfish actions.

      The Court further notes that the harm caused by sex offences of this kind

      do not require any further support on behalf of the victim. This is, in fact, a

      sex offense and the Court is assuming that there is a significant harm

      caused.

Sent. T. at 32-34.

      R.C.    2929.14(C)(4)(c):   The    offender’s     history   of   criminal    conduct

demonstrates that consecutive sentences are necessary to protect the public from

future crime by the offender.

      {¶20} The Court made no findings concerning this factor in McVay’s case.

      R.C. 2929.11 and R.C. 2929.12.

      {¶21} The Marcum court further noted,

             We note that some sentences do not require the findings that R.C.

      2953.08(G) specifically addresses. Nevertheless, it is fully consistent for

      appellate courts to review those sentences that are imposed solely after

      consideration of the factors in R.C. 2929.11 and 2929.12 under a standard

      that is equally deferential to the sentencing court. That is, an 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.

146 Ohio St.3d at ¶23, 2016–Ohio–1002, 59 N.E.3d 1231 (emphasis added).
Coshocton County, Case No. 2018CA0007                                                        9


       {¶22} R.C. 2929.11(A) governs the purposes and principles of felony sentencing

and provides that a sentence imposed for a felony shall be reasonably calculated to

achieve the two overriding purposes of felony sentencing, which are (1) to protect the

public from future crime by the offender and others, and (2) to punish the offender using

the minimum sanctions that the court determines will accomplish those purposes.

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).

       {¶23} R.C. 2929.12 is a guidance statute that sets forth the seriousness and

recidivism criteria that a trial court “shall consider” in fashioning a felony sentence.

Subsections (B) and (C) establish the factors indicating whether the offender's conduct is

more serious or less serious than conduct normally constituting the offense. These

factors include the physical or mental injury suffered by the victim due to the age of the

victim; the physical, psychological, or economic harm suffered by the victim; whether the

offender’s relationship with the victim facilitated the offense; the defendant’s prior criminal

record; whether the defendant was under a court sanction at the time of the offense;

whether the defendant shows any remorse; and any other relevant factors.                  R.C.

2929.12(B). The court must also consider any factors indicating the offender’s conduct

is less serious than conduct normally constituting the offense, including any mitigating

factors. R.C. 2929.12(C). Subsections (D) and (E) contain the factors bearing on whether

the offender is likely or not likely to commit future crimes.

       {¶24} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the

court discussed the effect of State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
Coshocton County, Case No. 2018CA0007                                                    10

N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court

severed the judicial-fact-finding portions of R.C. 2929.14, holding that “trial courts have

full discretion to impose a prison sentence within the statutory range and are no longer

required to make findings or give their reasons for imposing maximum, consecutive, or

more than the minimum sentences.” Kalish at ¶ 1 and ¶11, citing Foster at ¶100, See

also, State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306; State v.

Firouzmandi, 5th Dist. Licking No. 2006-CA-41, 2006-Ohio-5823.

       {¶25} “Thus, a record after Foster may be silent as to the judicial findings that

appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶ 12.

However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C.

2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶13,

see also State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1; State v.

Firouzmandi supra at ¶ 29.

       {¶26} Thus, post-Foster, “there is no mandate for judicial fact-finding in the

general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster

at ¶ 42. State v. Rutter, 5th Dist. No. 2006-CA-0025, 2006-Ohio-4061; State v. Delong,

4th Dist. No. 05CA815, 2006-Ohio-2753 at ¶ 7-8. Therefore, post-Foster, trial courts are

still required to consider the general guidance factors in their sentencing decisions.

       {¶27} There is no requirement in R.C. 2929.12 that the trial court states on the

record that it has considered the statutory criteria concerning seriousness and recidivism

or even discussed them. State v. Polick, 101 Ohio App.3d 428, 431(4th Dist. 1995); State

v. Gant, 7th Dist. No. 04 MA 252, 2006-Ohio-1469, at ¶60 (nothing in R.C. 2929.12 or the

decisions of the Ohio Supreme Court imposes any duty on the trial court to set forth its
Coshocton County, Case No. 2018CA0007                                                        11

findings), citing State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d 94(1992); State v.

Hughes, 6th Dist. No. WD-05-024, 2005-Ohio-6405, ¶10 (trial court was not required to

address each R.C. 2929.12 factor individually and make a finding as to whether it was

applicable in this case), State v. Woods, 5th Dist. No. 05 CA 46, 2006-Ohio-1342, ¶19

(“... R.C. 2929.12 does not require specific language or specific findings on the record in

order to show that the trial court considered the applicable seriousness and recidivism

factors”). (Citations omitted).

       {¶28} In the case at bar, the trial court heard from the parents of the victim by

way of a written victim impact statement, heard from the witnesses presented by McVay,

heard arguments from the state and defense counsel and reviewed the presentence

investigation report before imposing a sentence.

       {¶29} In the case at bar, the record supports that the harm caused to the victim

was “more serious” because of the age of the victims [2929.12(B)(1)]. The offense was

also more serious because McVay used his relationship with the victim to facilitate the

offenses. [2929.12(B)(6)]. None of the factors set forth in 2929.12(C) are applicable to

render the offenses “less serious.”

       {¶30} Given that the trial court is not obligated to refer to every factor listed in R.C.

2929.12 as part of its sentencing analysis, “the defendant has the burden to affirmatively

show that the court did not consider the applicable sentencing criteria or that the sentence

imposed is ‘strikingly inconsistent’ with the applicable sentencing factors.” State v. Hull,

11th Dist. Lake No. 2016-L-035, 2017-Ohio- 157, ¶8. McVay has failed in this burden.

       {¶31} Accordingly, the trial court considered the purposes and principles of

sentencing [R.C. 2929.11] as well as the factors that the court must consider when
Coshocton County, Case No. 2018CA0007                                                     12


determining an appropriate sentence. [R.C. 2929.12]. The trial court has no obligation

to state reasons to support its findings. Nor is it required to give a talismanic incantation

of the words of the statute, provided that the necessary findings can be found in the record

and are incorporated into the sentencing entry.

       {¶32} Upon review, we find that the trial court's sentencing on the charges

complies with applicable rules and sentencing statutes. The sentence was within the

statutory sentencing range. We also find that the record in the case at bar supports the

trial court’s findings under R.C. 2929.14(C)(4). Furthermore, the record reflects that the

trial court considered the purposes and principles of sentencing and the seriousness and

recidivism factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised Code

and advised McVay regarding post-release control. While McVay may disagree with the

weight given to these factors by the trial judge, McVay’s sentence was within the

applicable statutory range for a felony of the third degree and therefore, we have no basis

for concluding that it is contrary to law.

       {¶33} McVay has failed to clearly and convincingly show that the trial court failed

to consider the principles of felony sentencing, or that the aggregate nine-year sentence

is otherwise contrary to law.
Coshocton County, Case No. 2018CA0007                                       13


      Conclusion.

      {¶34} McVay’s First and Second Assignments of Error are overruled.   The

decision of the Coshocton County Court of Common Pleas is affirmed.



By Gwin, P.J.

Hoffman, J., and

Wise, J., concur
