[Cite as State v. Vanderpool, 2020-Ohio-1327.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


 STATE OF OHIO,                                  :      OPINION

                  Plaintiff-Appellee,            :
                                                        CASE NO. 2019-P-0076
         - vs -                                  :

 RICHARD W. VANDERPOOL,                          :

                  Defendant-Appellant.           :


 Criminal Appeal from the Portage County Court of Common Pleas.
 Case No. 2019 CR 00013.

 Judgment: Affirmed.


 Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
 Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

 Seneca Konturas, P.O. Box 662, Aurora, OH 44202 (For Defendant-Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}      Appellant, Richard W. Vanderpool (“Vanderpool”), appeals from the

sentencing entry entered in the Portage County Court of Common Pleas in Case No.

2015-CR-0013, sentencing him on two counts of sexual battery—with each prison term

ordered to run consecutively—for a total prison term of five years. Vanderpool’s argument

is that a judgment entry filed in Case No. 2015-CR-0622, which has not been appealed,

is defective. The judgment entry in Case No. 2015-CR-0622, as well as the record in that

case, are not properly before this court. Therefore, Vanderpool has failed to make any
argument with regard to the court’s judgment entry in Case No. 2019-CR-0013, and we

affirm that judgment.

       {¶2}   On January 4, 2019, Vanderpool was indicted in Case No. 2019-CR-0013.

The indictment in that matter alleged several instances of inappropriate sexual conduct

between Vanderpool and his minor stepdaughter, including two charges of sexual battery

and one charge of rape. The rape charge was ultimately nolled as part of the plea

agreement between the parties. On April 9, 2019, Vanderpool pled guilty in Case No.

2019-CR-0013 to counts one and two, each for sexual battery, in accordance with that

plea agreement.

       {¶3}   The sentencing hearing for that matter was held on June 3, 2019. During

the hearing, the trial court also heard testimony and ruled on a motion to revoke and

modify sanctions on a separate matter in Case No. 2015-CR-0622. Case No. 2015-CR-

0622 was not appealed, and that matter is not before this court. At the time of the hearing,

Vanderpool was already serving a term in prison for a separate conviction on an unrelated

matter. With regard to the present appeal, Vanderpool was sentenced to a term of 36

months on count one and 24 months on count two, to be served consecutively to each

other. The trial court specifically found that Vanderpool either lacked remorse for his

actions or had blamed the victim in his pre-sentence investigation (“PSI”) interview for the

sexual conduct alleged. Further, the trial court stated the following on the record at the

hearing:

              All right. I have reviewed the PSI. I’ve certainly listened to the
              recommendations of counsel and the victim impact information * * *
              For you, I am definitely finding that a prison sentence is consistent
              with the purposes and principles of sentencing. Probation is not
              something that I would consider given the gravity of the violation of
              this little girl, and especially given the fact that you might think you



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       have accepted responsibility by pleading. But, quite frankly, what
       you said in the PSI seems much more consistent with your attitude.

       I am going to specifically find these are F3s. There is no presumption
       either way, but I am going to find that a prison sentence is consistent
       with the purposes and principles of sentencing, that in sentencing the
       Court must first consider protecting the public from future crimes,
       which absolutely I have considered. I don’t know that having you out
       in the community is a benefit to anybody right now. I have to punish
       you using the minimum sanctions I determine and accomplish those
       purposes without imposing an unnecessary burden on the state. * *
       *

       After having considered all the relevant seriousness and recidivism
       factors and weighing those factors, a prison term is absolutely
       consistent with the purposes and principles of sentencing and you
       are not amenable to community control sanctions. I am going to
       sentence you to * * * three years on Count One in the Ohio
       Department of Corrections. I am going to sentence to you [sic] two
       years on Count Two. I am going to order that those sentences run
       consecutively with each other, not concurrently[,] for a total of five
       years. I am specifically finding that they are run – they are to be run
       consecutively to protect the public from future crimes and to punish
       the Defendant. And consecutive sentences are not disproportionate
       to the seriousness of the Defendant’s conduct and the danger he
       poses to the public.

       I am sentencing you to consecutive sentences because your
       offenses are part of a course of conduct, and the harm caused is so
       great or unusual that a single prison term does not adequately reflect
       the seriousness of that conduct. * * * I am ordering that that sentence
       run consecutively with the motion to revoke in [Case No. 2015-CR-
       0622], which was a total of two years. * * *

{¶4}   Further, the sentencing entry states, in pertinent part:

       The Court considered the purpose of felony sentencing which is to
       protect the public from future crimes by the 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.

       The Court also considered the need for incapacitating the Defendant,
       deterring the defendant and others from future crime, rehabilitating
       the Defendant, making restitution to the victim of the offense, the
       public or both.



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              The Court also considered the evidence presented by counsel, oral
              statements, any victim impact statements, the Pre-Sentence Report
              and the defendant’s statement.

              The Court finds that the Defendant has entered a Written plea of
              Guilty pursuant to Crim. R. 11 (F) Plea Negotiations to Counts One
              and Two of the Indictment, charging the Defendant with the offense
              of “Sexual Battery” felonies of the third degree, and in violation of
              R.C. 2907.03 A5B.

              The Court finds that the consecutive sentence is necessary to protect
              the public from future crime or to punish the Defendant; that
              consecutive sentences are not disproportionate to the seriousness
              of the Defendant’s conduct and to the danger the defendant poses
              to the public. Also, [a]t 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 committed was so
              great or unusual that no single prison term for any of the offenses
              committed as a part of any of the courses of conduct adequately
              reflects the seriousness of the Defendant’s conduct.

              IT IS THEREFORE ORDERED that the Defendant is sentenced to
              the Ohio Department of Rehabilitation and Correction to a term of
              imprisonment of Thirty-six (36) months to be served for the offense
              in Count One and Twenty-four (24) months, to be served for the
              offense in Count Two, of which shall run consecutive to one another,
              and concurrent to the sentence Defendant is presently serving, or
              until such time as he is otherwise legally released.

       {¶5}   Vanderpool filed a timely notice of appeal and raises one assignment of

error for review.

       {¶6}   Vanderpool’s sole assignment of error states:

              THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO
              MAXIMUM, CONSECUTIVE TERMS ON FIFTH DEGREE
              FELONIES AS CHARGED IN CASE NO. 2015CR0622 AND
              FURTHER RUNNING THIS SENTENCE CONSECUTIVE TO THE
              SENTENCE SIMULTANEOUSLY IMPOSED BY THE TRIAL
              COURT IN CASE NO. 2019CR0013 WITHOUT NOTING THE
              REQUISITE FINDINGS ON THE RECORD OR JUDGMENT
              ENTRY.

       {¶7}   Our standard of review is set forth in R.C. 2953.08(G)(2):



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               The court hearing an appeal under division (A), (B), or (C) of this
               section shall review the record, including the findings underlying the
               sentence or modification given by the sentencing court.

               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. The appellate court’s standard of review is not whether
               the sentencing court abused its discretion. The appellate court may
               take any action authorized by this division if it clearly and
               convincingly finds either of the following:

                       (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}    “‘A sentence is contrary to law if (1) the sentence falls outside the statutory

range for the particular degree of offense, or (2) 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

(citations omitted).

       {¶9}    R.C. 2929.14(A)(3)(a) states: “For a felony of the third degree that is a

violation of section * * * 2907.03 * * * of the Revised Code, * * * the prison term shall be a

definite term of twelve, eighteen, twenty-four, thirty, thirty-six, forty-two, forty-eight, fifty-

four, or sixty months.” Vanderpool’s prison terms of 24 months and 36 months contained

in the sole sentencing entry being appealed are within the permissible range for sexual

assault offenses under R.C. 2907.03(A)(5)(b). The trial court also stated on the record at

the hearing and within the sentencing entry that the purposes and principles of felony

sentencing were considered. Therefore, the individual sentences are not contrary to law.



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For that reason, we must consider whether the trial court’s findings for imposing

consecutive sentencing are clearly and convincingly not supported by the record. See

Wilson, supra, at ¶20.

       {¶10} R.C. 2929.41, which governs multiple sentences, provides, in pertinent part:

“(A) Except as provided in * * * division (C) of section 2929.14, * * * a prison term, jail

term, or sentence of imprisonment shall be served concurrently with any other prison

term, jail term, or sentence of imprisonment imposed by a court of this state[.]” Therefore,

a presumption exists in favor of concurrent sentencing absent the applicable statutory

exception.

       {¶11} Pursuant to R.C. 2929.14(C)(4), a trial court may order separate prison

terms for multiple offenses be served consecutively only if the court finds it “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[.]” The trial court must also find that one of

the following statutory factors applies:

              (a)    The offender committed one or more of the multiples 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.



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       {¶12} In the matter sub judice, the sentencing entry being appealed contains all

the mandatory language required to impose consecutive sentences in this matter. The

appropriate considerations were also contained in the transcript of the sentencing

hearing. The trial court properly considered the PSI, testimony, and victim statements

before determining that consecutive sentences were appropriate under the sentencing

statute.

       {¶13} Vanderpool’s assignment of error fails to acknowledge the entry which is

subject of the appeal. Instead, Vanderpool argues that a judgment entry filed in Case No.

2015-CR-0622 is defective. That judgment entry has not been appealed. Therefore, the

judgment entry Vanderpool challenges in Case No. 2015-CR-0622, as well as the record

in that case, are not properly before this court. Because of this, Vanderpool has failed to

make any argument to show the court’s findings in Case No. 2019-CR-0013 are clearly

and convincingly not supported by the record.

       {¶14} Vanderpool’s sole assignment of error is without merit.

       {¶15} The judgment of the Portage County Court of Common Pleas is affirmed.



THOMAS R. WRIGHT, J.,

MARY JANE TRAPP, J.,

concur.




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