[Cite as State v. Steidl, 2011-Ohio-2320.]


STATE OF OHIO                      )                  IN THE COURT OF APPEALS
                                   )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                   )

STATE OF OHIO                                         C.A. No.        10CA0025-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
EARL M. STEIDL                                        COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   08-CR-0361

                                  DECISION AND JOURNAL ENTRY

Dated: May 16, 2011



        DICKINSON, Judge.

                                             INTRODUCTION

        {¶1}     Earl Steidl sexually abused his adopted daughter. He pleaded guilty to one count

of rape, two counts of gross sexual imposition, and one count of tampering with evidence. The

trial court sentenced him to the maximum prison term for each conviction and ordered the terms

for the rape and gross sexual imposition convictions to run consecutively to each other and

concurrently with his tampering with evidence conviction for a total of 20 years imprisonment.

We affirm the judgment of the trial court as it did not err by sentencing Mr. Steidl to the

maximum period of incarceration for each offense, by ordering some of the prison terms to be

served consecutively, or by reading letters sent by Mr. Steidl’s siblings to the court.

                                             BACKGROUND

        {¶2}     Mr. Steidl was indicted on one count of rape of a child under the age of ten, two

counts of gross sexual imposition of a child under the age of thirteen, and one count of tampering
                                                 2


with evidence. At the time Mr. Steidl allegedly committed the acts with which he was charged,

Section 2907.02(B) of the Ohio Revised Code imposed a life sentence for rape of a child under

the age of ten. Plea negotiations led to count one of the indictment being altered to charge one

count of rape of a child under the age of thirteen, which eliminated the requirement for a life

sentence. He then pleaded guilty to all four counts.

       {¶3}    At sentencing, the trial court discussed its view that Mr. Steidl had harmed the

very idea of family. During its discussion of his crimes, it mentioned that it had received letters

from his brother and sister and that, “despite [his] act, and admitted act, [they were] willing to

stand up for [him].” It stated that the letters were examples of the trust and support inherent in

family, which Mr. Steidl had violated. It then sentenced him to the maximum prison term for

each count and ordered the counts of rape and gross sexual imposition be served consecutively to

each other.

       {¶4}    Mr. Steidl appealed, and this Court vacated his sentence due to an error in the

imposition of post-release control. State v. Steidl, 9th Dist. No. 09CA0010-M, 2009-Ohio-5053,

at ¶7, 9. The trial court held a new sentencing hearing and imposed the same sentence.

                                      CORRESPONDENCE

       {¶5}    Mr. Steidl’s first assignment of error is that the trial court incorrectly considered

documents from outside the record when it sentenced him. Specifically, he has pointed to

statements by the trial court during sentencing that indicated that it had received the letters from

Mr. Steidl’s brother and sister. He has argued that “[p]rivate communications, even those

unsolicited from the public, are not permitted and rise to a level of structural error in the

sentencing proceedings.”
                                                   3


        {¶6}    Structural errors “‘defy analysis by “harmless error” standards’ because they

‘affect[ ] the framework within which the trial proceeds, rather than simply [being] an error in

the trial process itself.’” State v. Fisher, 99 Ohio St. 3d 127, 2003-Ohio-2761, at ¶9 (quoting

Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991)). The United States Supreme Court has

determined error to be structural in a “very limited class of cases.” State v. Wamsley, 117 Ohio

St. 3d 388, 2008-Ohio-1195, at ¶16 (quoting State v. Perry, 101 Ohio St. 3d 118, 2004-Ohio-

297, at ¶18).     These cases include complete denial of counsel, a biased judge, racial

discrimination in selection of grand jury, denial of self-representation at trial, denial of public

trial, and a defective reasonable doubt instruction. Id. (quoting Perry, 2004-Ohio-297, at ¶18).

Even if the trial court considered the letters when sentencing Mr. Steidl, letters from a

defendant’s siblings do not rise to the level of structural error.

        {¶7}    Mr. Steidl’s trial lawyer did not object to the trial court considering the letters.

Accordingly, he has forfeited all but plain error regarding them. Plain errors are errors that affect

substantial rights.   Crim.R. 52(B).      Although Rule 52(B) of the Ohio Rules of Criminal

Procedure permits appellate courts to take notice of plain errors, such notice is to be taken “with

the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage

of justice.” State v. Long, 53 Ohio St.2d 91, 97 (1978). To prevail on a claim of plain error, Mr.

Steidl would have to show that, “but for the error, the outcome of the trial clearly would have

been otherwise.” State v. Murphy, 91 Ohio St. 3d 516, 532 (2001) (quoting State v. Campbell,

69 Ohio St. 3d 38, 41 (1994)).

        {¶8}    Mr. Steidl has not made any attempt to show how the trial court’s consideration of

letters from his siblings would have been prejudicial to him. The letters appear to have been in

support of him, as the trial court mentioned that they demonstrated that his siblings were “willing
                                                  4


to stand up for [him].” Even if they were not in support, given the serious nature of the charges

to which he pleaded guilty and the other information available to the trial court, it is difficult to

imagine how anything in the letters would have been prejudicial to him in any way.

       {¶9}    The trial court’s consideration of letters from Mr. Steidl’s siblings did not

constitute structural error. Further, Mr. Steidl did not object when the trial court referred to the

letters, forfeiting all but plain error, and he has not demonstrated that, but for the content of the

letters, his sentence would have been different. Accordingly, he has failed to demonstrate that

the trial court committed plain error regarding the letters. Mr. Steidl’s first assignment of error is

overruled.

                                          SENTENCING

       {¶10} Mr. Steidl’s second assignment of error is that the trial court incorrectly ordered

his sentences on counts one, two, and three to be served consecutively. His third assignment of

error is that the trial court incorrectly sentenced him to the maximum prison term for each count.

His fourth assignment of error is that the trial court abused its discretion when it sentenced him

to the maximum prison term on all four counts and ordered the sentences for counts one, two,

and three to run consecutively.

       {¶11} When reviewing felony sentencing, an appellate court must examine the

sentencing court’s compliance with all applicable rules and statutes in imposing the sentence to

determine whether the sentence is contrary to law. If the sentence is not contrary to law, it is

then reviewed for abuse-of-discretion. State v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, at

¶4.

       {¶12} According to Mr. Steidl, he was entitled to a presumption of concurrent sentences

under Section 5145.01 of the Ohio Revised Code.            Under that section, “[i]f a prisoner is
                                                5


sentenced for two or more separate felonies, the prisoner’s term of imprisonment shall run as a

concurrent sentence, except if the consecutive sentence provisions of sections 2929.14 and

2929.41 of the Revised Code apply.” After the parties filed their briefs in this case, however, the

Ohio Supreme Court recognized that State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, left “no

specific statute in place to govern the imposition of consecutive sentences beyond the basic

statutes regarding the ‘purposes and principles of sentencing’ . . . [and] that common-law

sentencing presumptions were therefore reinstated, giving trial judges ‘the discretion and

inherent authority to determine whether a prison sentence within the statutory range shall run

consecutively or concurrently.’” State v. Hodge, 128 Ohio St. 3d 1, 2010-Ohio-6320, at ¶12

(quoting State v. Bates, 118 Ohio St. 3d 174, 2008-Ohio-1983, at ¶18-19); see also State v.

Elmore, 122 Ohio St. 3d 472, 2009-Ohio-3478 (holding that a trial court has the discretion to

impose consecutive sentences following Foster and Bates). Accordingly, Section 5145.01 of the

Ohio Revised Code does not hinder the trial court’s ability to impose consecutive sentences.

       {¶13} Mr. Steidl has also argued that the record does not indicate that the trial court

considered the factors listed in Section 2929.12 of the Ohio Revised Code when sentencing him.

“[W]here the trial court does not put on the record its consideration of [Sections] 2929.11 and

2929.12 [of the Ohio Revised Code], it is presumed that the trial court gave proper consideration

to those statutes.” State v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, at ¶18 fn. 4; see also

State v. Estright, 9th Dist. No. 24401, 2009-Ohio-5676 at ¶60 (“A silent record raises the

presumption that the trial court considered the factors contained in [Section] 2929.12.”) (quoting

State v. Rutherford, 2d Dist. No. 08CA11, 2009-Ohio-2071, at ¶34). The trial court sentenced

Mr. Steidl to 10 years imprisonment on count one, a first degree felony, and 5 years each on

counts two, three, and four, which were all third-degree felonies. As Mr. Steidl’s prison terms
                                                 6


are within the statutory ranges, it is assumed the trial court considered the factors listed in

Section 2929.12, and he has made no attempt to rebut this presumption. Accordingly, this Court

concludes that his sentences are not contrary to law.

        {¶14} Mr. Steidl has argued that, even if the trial court considered the factors in Section

2929.12 of the Ohio Revised Code, it abused its discretion in “maxing and stacking” his

sentences. He has argued that he has shown genuine remorse, has lived as a law abiding citizen

for a number of years, has not been convicted or pleaded guilty to any other criminal offense,

and his offenses were committed under circumstances unlikely to reoccur. These are all factors

under Section 2929.12(E) that demonstrate that he is not likely to commit future crimes.

        {¶15} Mr. Steidl has argued that, of the “more serious” factors found in Section

2929.12(B) of the Ohio Revised Code, only Section 2929.12(B)(6), his relationship with the

victim facilitated the offense, applies. This argument ignores the presentence investigation

report’s finding that Section 2929.12(B)(2), that the victim suffered serious physical or

psychological harm, also applies. Further, given how young the victim was, the trial court could

have also considered Section 2929.12(B)(1), which provides that “[t]he physical or mental injury

suffered by the victim of the offense due to the conduct of the offender was exacerbated because

of . . . the age of the victim.”

        {¶16} The factors listed in Section 2929.12 of the Ohio Revised Code are viewed

through the prism of the principles of felony sentencing set forth in Section 2929.11(A) of the

Ohio Revised Code. The principles of felony sentencing “are to protect the public from future

crime by the offender and others and to punish the offender.” R.C. 2929.11(A) “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
                                                 7


restitution to the victim of the offense, the public, or both.” Id. Section 2929.11(B) requires that

a sentence “be reasonably calculated to achieve the two overriding purposes of felony sentencing

. . . 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.”

       {¶17} Though his plea negotiations resulted in count one of the indictment being altered

to charge rape of a child under the age of thirteen, which reduced his maximum sentence from a

mandatory life imprisonment to ten years imprisonment, this did not change the fact that the

abuse began when his daughter was less than ten years old. Further, reviewing the record and

the presentence investigation report, it is clear that Mr. Steidl’s actions constituted a systematic

exploitation of his daughter. During sentencing, the trial court focused on Mr. Steidl abusing the

trust and authority that comes with being a father. Even presuming Mr. Steidl met all five

factors in Section 2929.12(E) of the Ohio Revised Code, it was within the trial court’s discretion

to weigh those factors against the applicable ones under Section 2929.12(B).

       {¶18} Mr. Steidl sexually abused his adopted daughter and attempted to cover it up by

destroying evidence.     Nothing in the record supports his argument that his sentence is

unreasonable, arbitrary, or unconscionable under the circumstances. Accordingly, the trial court

did not abuse its discretion by sentencing him to maximum, consecutive prison terms for the

counts of rape and gross sexual imposition.

       {¶19} Mr. Steidl has also challenged his sentence for tampering with evidence. The

record indicates that Mr. Steidl destroyed a memory card for his camera, attempting to prevent

its discovery. The memory card apparently contained images of his daughter and her siblings in

various stages of undress. He has not made any argument to demonstrate how the trial court’s
                                                 8


sentence was unreasonable, arbitrary, or unconscionable. This Court cannot conclude that the

trial court abused its discretion in sentencing him to the maximum prison term for a third-degree

felony. Mr. Steidl’s second, third, and fourth assignments of error are overruled.

                                         CONCLUSION

       {¶20} The trial court reading letters addressed to it by Mr. Steidl’s siblings does not

constitute structural error. Further, it did not abuse its discretion in sentencing him to maximum

consecutive sentences after he pleaded guilty to raping and committing gross sexual imposition

of a minor under thirteen years of age. It also did not abuse its discretion when it sentenced him

to the maximum prison term for tampering with evidence. The judgment of the Medina County

Common Pleas Court is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.
                                                  9



                                                      CLAIR E. DICKINSON
                                                      FOR THE COURT


CARR, J.
CONCURS IN JUDGMENT ONLY, SAYING:

       {¶21} In his first assignment of error, Mr. Steidl solely argues structural error in relation

to the trial court’s consideration of the letters at sentencing. I agree with the majority that

structural error does not lie. I would end the analysis there. I concur with the remainder of the

opinion.




BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY, SAYING:

       {¶22} I concur in the majority’s judgment with respect to the first assignment of error as

I agree that Mr. Steidl has not demonstrated that the trial court’s consideration of letters from Mr.

Steidl’s siblings constituted reversible error. See State v. Kienzle, 9th Dist. No. 07CA009078,

2007-Ohio-4346, at ¶14 (Carr, P.J., concurring); see, also, State v. Douglas, 9th Dist. No. 24069,

2008-Ohio-5568, at ¶22 (Carr, P.J. concurring).



APPEARANCES:

MICHAEL J. CALLOW, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and RUSSELL A. HOPKINS, Assistant Prosecuting
Attorney, for Appellee.
