[Cite as State v. Johnston, 2019-Ohio-3127.]




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


State of Ohio                                         Court of Appeals No. WD-18-069

          Appellee                                    Trial Court No. 2018CR0088

v.

Eric D. Johnston                                      DECISION AND JUDGMENT

          Appellant                                   Decided: August 2, 2019

                                                  *****

          Paul A. Dobson, Wood County Prosecuting Attorney, and
          David T. Harold, Assistant Prosecuting Attorney, for appellee.

          W. Alex Smith, for appellant.

                                                  *****

          ZMUDA, J.

                                               I. Introduction

          {¶ 1} Appellant, Eric Johnston, appeals the judgment of the Wood County Court

of Common Pleas, sentencing him to 60 months in prison, following his guilty plea to

one count of gross sexual imposition, a felony of the third degree. Finding no error, we

affirm.
                                A. Facts and Procedural Background

       {¶ 2} Appellant, Eric Johnston, was accused of having inappropriate sexual

contact with his 6-year-old step-granddaughter, D.R., between November 1 and

December 31, 2017. On December 28, 2017, D.R. disclosed to her father that she and

“Papa,” the name she used for appellant, had a secret.1 D.R.’s father demanded she

divulge the details of this secret, and D.R. told her father that appellant had been sexually

molesting her for about a month and one-half. Specifically, D.R. indicated that appellant

touched her in the vaginal area and that he had her touch his penis. As a result of D.R.’s

disclosure, appellant was charged with two counts of gross sexual imposition in Counts 1

and 2 of the indictment, both felonies of the third degree, tampering with evidence in

Count 3, a felony of the third degree, rape in Count 4, a felony of the first degree, and

attempted rape in Count 5, with a specification that the victim was under ten years of age,

a felony of the first degree.

       {¶ 3} On March 2, 2018, appellant entered not guilty pleas as to all counts in the

indictment. As a result of plea negotiations, appellant withdrew his previous plea, and

entered a guilty plea to Count 1, gross sexual imposition, a violation of R.C.

2907.05(A)(4) and (C)(2), a felony of the third degree. Appellant also acknowledged that

in pleading guilty, he would be subject to reporting requirements as a Tier II sexual

offender. As part of the plea agreement, the state agreed to dismiss the remaining counts


1
  The record demonstrates that D.R. and her family were living at the appellant’s home during
this period due to financial difficulties.




2.
in the indictment. The trial court accepted appellant’s plea, found him guilty, and

continued the matter for a presentence investigation and sentencing hearing.

       {¶ 4} On July 27, 2018, the sentencing hearing was held. Defense counsel and

appellant spoke in mitigation. Appellant apologized, explaining how his decisions had

hurt his family and “there’s not a day goes by that I don’t kick myself in the head.”

Appellant stated, “I’m going on 50 years old, and I got nothing to show for it because of

my decisions. Any wealth or anything is gone because of my stupidity of decisions.”

Appellant also apologized to his wife “for the destruction that has happened.”

       {¶ 5} D.R.’s father spoke on her behalf, noting her need for therapy, and the

family’s ongoing struggle to deal with the tragic impact of this crime on their lives. “No

child should ever go through that. I take her to counseling. I can’t explain to her why

she can’t see him. No family should have to go through this.”

       {¶ 6} The trial court considered the statements and the record, noting the possible

sentence range, and imposed a term of 60 months in prison, the maximum sentence. It is

from this judgment that appellant now appeals.

                                B. Assignment of Error

       {¶ 7} On appeal, appellant raises the following assignment of error:

              I. The trial court abused its discretion when it imposed a maximum

       sentence contrary to the sentencing factors under R.C. 2929.11 and R.C.

       2929.12.




3.
                                        II. Analysis

       {¶ 8} In his sole assignment of error, appellant challenges his prison sentence,

arguing that even though the prison term imposed by the trial court was within the

prescribed statutory period, the trial court did not properly weigh all relevant factors in

concluding the maximum sentence was appropriate.

       {¶ 9} A felony sentence is reviewed under R.C. 2953.08(G)(2). State v. Torres,

6th Dist. Ottawa No. OT-18-008, 2019-Ohio-434, ¶ 6; State v. Marcum, 146 Ohio St.3d

516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. Under R.C. 2953.08(G)(2), this court will

not modify or vacate a sentence unless we find, by clear and convincing evidence:

              (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, [or]

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

       {¶ 10} “Clear and convincing evidence is that measure or degree of proof which

will produce in the mind of the trier of facts a firm belief or conviction as to the

allegations sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 477, 120

N.E.2d 118 (1954). “A sentence is contrary to law if the sentence falls outside the

statutory range for the particular degree of offense or 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. Gaines, 8th Dist. Cuyahoga No. 103476,




4.
2016-Ohio-4863, ¶ 8, citing State v. Hinton, 8th Dist. Cuyahoga No. 102710, 2015-Ohio-

4907, ¶ 10; State v. Parks, 6th Dist. Lucas No. L-18-1138, 2019-Ohio-2366, ¶ 16.

       {¶ 11} In his brief to this court, appellant concedes that his 60-month sentence

falls within the statutory range prescribed for a felony of the third degree under R.C.

2907.05(A)(4) and 2907.05(C)(2). Nonetheless, appellant argues that the trial court

failed to make the proper determination that “show[ing] some level of remorse”

constitutes a legitimate reason for not imposing a maximum sentence. This argument

lacks merit.

       {¶ 12} Pursuant to R.C. 2929.12(D)(5) and 2929.12(E)(5), the trial court shall

consider whether the offender shows genuine remorse, or a lack thereof, as an indication

of the likelihood to commit future crimes, as one factor among many considered under

R.C. 2929.11 and 2929.12. Appellant argues he demonstrated sufficient remorse to merit

a lighter sentence. At sentencing, however, appellant appeared more concerned with his

own well-being, and the pain he caused himself and his wife, with little remorse

expressed for the injury experienced by D.R., herself.

       {¶ 13} Appellant also argues that courts should reserve the maximum sentence for

the worst offenders, committing the worst form of the crime, a factor no longer applicable

under the current version of R.C. 2929.14. In State v. Foster, 109 Ohio St.3d 1, 2006-

Ohio-856, 845 N.E.2d 470, the Ohio Supreme Court found former R.C. 2929.14(B) and

(C) unconstitutional as judicial fact-finding. “Before Foster, a judge could impose,

pursuant to R.C. 2929.14(C), the maximum sentence only upon offenders who committed




5.
the ‘worst forms of the offense and upon offenders who pose the greatest likelihood of

committing future crimes.’” State v. Brown, 6th Dist. Sandusky No. S-06-009, 2006-

Ohio-3985, ¶ 19. The current version of the law does not include this provision, and

appellant’s argument, therefore, is without merit.

       {¶ 14} Finally, despite appellant’s 2016 conviction for importuning, a violation of

R.C. 2907.07 (B)(1)2, appellant argues the trial court did not have a sufficient basis to

impose the maximum, 60-month sentence, and did not sufficiently articulate the basis for

that sentence. However, it is well-settled law that “[a] sentencing court is not required to

use specific language or make specific findings to demonstrate that it considered the

applicable sentencing criteria under R.C. 2929.11 and 2929.12.” State v. Green, 6th Dist.

Lucas No. L-18-1065, 2019-Ohio-1816, ¶ 10. Moreover, “a court that imposes a

sentence * * * upon an offender for a felony has discretion to determine the most

effective way to comply with the purposes and principles of sentencing[.]” R.C.

2929.12(A).

       {¶ 15} Indeed, notwithstanding this standard, in sentencing this defendant, the trial

court articulated—with great clarity—the rationale for the sentence imposed. Specifically,

the trial court noted the following:




2
  “No person shall solicit another, not the spouse of the offender, to engage in sexual conduct
with the offender, when the offender is eighteen years of age or older and four or more years
older than the other person, and the other person is thirteen years of age or older but less than
sixteen years of age, whether or not the offender knows the age of the other person.”




6.
            As it relates to sentencing, the Court has a requirement under

     2929.11 that the overriding purpose is to punish the offender and protect

     the public from future crime by the offender using the minimum sanctions

     the Court determines accomplishes those purposes without imposing an

     unnecessary burden on state or local government resources. In doing so, the

     Court is always to consider the need for incapacitation, deterrence,

     rehabilitation, and restitution. A sentence should be commensurate with

     and not demeaning to the seriousness of the offender’s conduct and its

     impact on the victim and consistent with sentences for similar crimes for

     similar offenders.

            In this particular case, as I already stated, there is potential of a

     minimum of twelve to sixteen months in prison. Because of the type of

     offense and the victim being six years old, there’s no question that a prison

     sentence should be imposed in this particular matter. Defendant has

     indicated remorse but maybe has not accepted all of the facts that happened.

            So we look at the past record of the defendant to see the possibility

     of rehabilitation. You’ve indicated your age. So I go back. In 2000, when

     you were 30, you were convicted of aggravated robbery. You indicated

     that you had been drinking and went up to a person and told the person to

     give you all their money. Once again drinking was a part of it. While you




7.
       were on post release control you had your parole revoked and you returned

       to prison.

              When you were 35, you had unauthorized use of property. Also at

       35 an OVI. Again, another OVI at 35. Then a domestic violence in ‘07

       when you were 37 years old, once again involving alcohol. Then another

       OVI in ‘08 when you were 38, also a possession of drugs, another theft in

       ‘08, then a forgery.

              Then in 2010 at age 39 you have another OVI. Then another

       domestic violence in 2013 when you were 43. Then in 2016 we have the

       importuning when you were age 45, once again on probation. All of these

       incidents involved alcohol. Then indicating in here, once again, alcohol is

       somewhat involved at least.

              You don’t seem to have addressed it as the whole point. I want to

       believe that you want to address it. And I want to believe that you will take

       advantage of the opportunities to address it in the prison system. But based

       upon the seriousness factors, first of all, your relationship with this person

       facilitated this offense and the injury suffered is exacerbated because of her

       age, six years old.

       {¶ 16} The trial court incorporated this rationale in its July 31, 2018 judgment

entry, which states the following:




8.
            In determining a sentence, the record, all oral statements, the

     presentence investigation report, the victim impact statement if one was

     received, the purposes and principles of sentencing set forth in Ohio

     Revised Code Section 2929.11 and the factors in Ohio Revised Code

     Section 2929.12 as well as the seriousness, recidivism factors and all

     considerations in Ohio Revised Code Sections 2929.13 and 2929.14, were

     taken into consideration prior to imposing sentence. The trial court found

     that a prison term was consistent with the purposes and principles under

     Ohio Revised Code Section 2929.11, and permissible pursuant to 2929.13

     based upon all the considerations provided in those statutes and following

     specific reasons:

            - The offender’s relationship with the victim facilitated the offense.

            - The mental injury suffered by the victim of the offense due to the

     conduct of the offender was exacerbated because the age of the victim. The

     victim was six (6) years of age at the time of the offense.

            - This offense involved the use of alcohol and the offender has a

     long history of alcohol related criminal and traffic offenses.

            - At the time of committing the offense, the offender was under

     release from confinement before trial or sentencing, under a sanction

     imposed pursuant to section 2929.16, 2929.17 or 2929.18 of the Revised

     Code, or under post-release control pursuant to section 2967.28 or any




9.
       other provision of the Revised Code for an earlier offense or had been

       unfavorably terminated from post-release control for a prior offense

       pursuant to division (B) of section 2967.16 or section 2929.141 (2929.14.1)

       of the Revised Code.

              - The offender previously was adjudicated a delinquent child

       pursuant to Chapter 2151 of the Revised Code prior to January 1, 2002, or

       pursuant to Chapter 2152 of the Revised Code, or the offender has a history

       of criminal convictions.

              - The offender has not been rehabilitated to a satisfactory degree

       after [ having] previously been adjudicated a delinquent child pursuant to

       Chapter 2151 of the Revised Code prior to Code prior to January 1, 2002,

       or pursuant to Chapter 2152 of the Revised Code, or the offender has a

       history of criminal convictions.

       {¶ 17} The sentence, in this case, falls within the statutory range, and the trial

court clearly considered the statutory factors in determining that sentence. While the trial

court could have imposed a sentence shorter than the maximum according to the felony

guidelines, as suggested by appellant, it also had “full discretion to impose any sentence

within the authorized statutory range * * *.” State v. Connors, 2d Dist. Montgomery No.

26721, 2016-Ohio-3195, ¶ 6; see also State v. Pearce, 6th Dist. Ottawa




10.
No. OT-04-040, 2008-Ohio-2728, ¶ 14 (sentence not contrary to law where it is “within

the statutory range of sentences for the offense.”)

         {¶ 18} Having established the sentence was clearly in conformity with the

applicable law and supported by statutory findings, the imposition of the maximum

definite period was not contrary to law. Appellant’s sole assignment of error is not well-

taken.

                                       III. Conclusion

         {¶ 19} In light of the foregoing, the judgment of the Wood County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to 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.



Mark L. Pietrykowski, J.                         _______________________________
                                                             JUDGE
Arlene Singer, J.
                                                 _______________________________
Gene A. Zmuda, 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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