[Cite as State v. May, 2012-Ohio-2766.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                                JOURNAL ENTRY AND OPINION
                                         No. 97354



                                      STATE OF OHIO
                                              PLAINTIFF-APPELLEE

                                               vs.

                                          DENNIS F. MAY
                                              DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-547913

        BEFORE:          Sweeney, J., Blackmon, A.J., and Jones, J.

        RELEASED AND JOURNALIZED:                    June 21, 2012
ATTORNEY FOR APPELLANT

Elena N. Lougovskaia, Esq.
Lougovskaia Boop, L.L.C.
815 Superior Avenue, Suite 1412
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Brian M. McDonough, Esq.
Assistant County Prosecutor
Eighth Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:

      {¶1} Defendant-appellant Dennis May (“defendant”) appeals various aspects of

the sentences that the trial court imposed on him following his guilty plea and convictions

for five counts of sexual battery in violation of R.C. 2907.02(A)(1)(b). He contends the

court erred (1) by imposing consecutive sentences without making statutory findings, (2)

by imposing a term of community control sanctions to commence upon the completion of

his prison term; and (3) by requiring him to submit to polygraph examinations as part of

his community control sanctions. For the reasons that follow, we affirm.

      {¶2} The state charged defendant with 34 offenses, including rape, gross sexual

imposition, and kidnapping with sexual motivation and sexually violent predator

specifications. The alleged victim is a child under the age of thirteen.1 Defendant pled

guilty to five amended counts of sexual battery, felonies of the third degree, and all

remaining counts and specifications were nolled.

       {¶3} Prior to sentencing, defense counsel requested the court to order a

mitigation and presentence investigation report and an eligibility interview for the Wood

County Community-Based Correctional Facility. The trial court did so. Subsequently,

however, defendant refused to participate in the eligibility screen for the

community-based correctional facility.


      1
       To the extent possible, this opinion will not detail any specifics that would
jeopardize       the       privacy        interests        of      this        child.
       {¶4} Defendant’s sentencing hearing took place on August 31, 2011. Defendant

appeared with new counsel.

       {¶5} The state addressed the court and specifically invoked the principles and

purposes of felony sentencing contained in R.C. 2929.11. The state proceeded to detail its

position that several of the “more serious” factors applied in this case, specifically the

injury, was exacerbated by the victim’s age (being under 13 years old), the victim

suffered serious psychological harm, and the relationship between the victim and the

defendant.

       {¶6} The state cited the following factors it considered indicative of recidivism

being more likely: defendant’s prior criminal convictions, defendant’s lack of genuine

remorse, and defendant’s admitted addiction to pornography.

       {¶7} The state conceded that defendant accepted some responsibility by entering

a guilty plea.

       {¶8} The record reflects that “as part and parcel of the plea agreement, the

defendant agreed that the five counts of sexual battery would not be allied offenses.”

       {¶9} Defendant faced a maximum prison sentence of 25 years.

       {¶10} According to the record, defendant began committing these type of crimes

when the victim was only five years old, which were on-going until the victim was under

the age of 13. The state described the defendant’s criminal conduct as “escalating” and

“shocking.”

       {¶11}     Defense counsel suggested mitigating factors including the victim’s age

of 47, acceptance of responsibility by entering a guilty plea, and no adult felony record.
The defense conceded that defendant was in a position of authority over the victim. The

defense indicated defendant is remorseful and that he wanted another opportunity to be

assessed for community based correction.

       {¶12} Defendant addressed the court and expressed his desire to apologize. The

trial court noted that defendant denied his guilt in the PSI and refused to participate in the

eligibility interview.

       {¶13}        The court made numerous findings concerning defendant’s conduct and

the nature and severity of these offenses. The court articulated at length its dismay that no

sentence could rectify the harm done to the victim in this case. The court explicitly

considered defendant’s guilty plea and expressions of remorse as mitigating factors. The

court also considered that defendant had lived a law abiding life for a number of years.

The court’s findings tracked the statutory guideposts of Ohio’s felony sentencing law. It

found three recidivism factors present. The court found defendant’s crimes very serious

in nature. The court indicated the following sentence was required “to achieve the

purposes and principles of felony sentencing”:

       {¶14} A one year prison term on count 13, consecutive to a two year prison term

on count 14, consecutive to a three year prison term on count 15, for an aggregate term of

six years. The trial court imposed a five-year term of community control sanctions on

counts 16 and 17 to commence upon his release from the six year prison term imposed for

the other counts.

       {¶15} Upon defendant’s completion of his prison sentence, the court directed the

probation department to determine whether he is eligible for participation in the
community-based correction program. If not, defendant would be placed in the sex

offender unit to “receive sex offender treatment, regular polygraph examinations, sex

offender supervision and maintain full-time employment, these recommendations as set

forth by the probation department.”

       {¶16} Defendant’s appeal presents three assignments of error for our review.

       {¶17} “Assignment of Error No.1: The trial court committed reversible error by

imposing non-mandatory consecutive prison terms without making the findings required

in R.C. 2929.14(C)(4), which revives R.C. 2929.14(E)(4) and applies retroactively.”

       {¶18} Defendant was sentenced on August 31, 2011. At that time, the trial judges

were not mandated to make statutory findings as a prerequisite to imposing consecutive

sentences. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 99

(excising portions of Ohio’s sentencing law as unconstitutional and holding that “judicial

fact-finding is not required before imposition of consecutive prison terms.”) Despite the

pronouncement in Foster, the Ohio legislature never repealed, and subsequently

re-enacted, the statutory provisions that were excised by Foster.

       {¶19} In State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768,

paragraph three of the syllabus, the Ohio Supreme Court held that “[t]rial court judges are

not obligated to engage in judicial fact-finding prior to imposing consecutive sentences

unless the General Assembly enacts new legislation requiring that findings be made.”

       {¶20} When it decided Hodge, the Ohio Supreme Court must have considered the

fact that the legislature had never changed or deleted the judicial fact-finding provisions

in any of the post-Foster amendments. Id., 2010-Ohio-6320, ¶ 6 (noting the General
Assembly is “no longer constrained by Foster’s holdings * * * and may, if it chooses to

do so, respond with enactment of a statutory provision in light of Ice’s holding.”) The

General Assembly did just that with amendments contained in Am.Sub.H.B.No. 86.

These provisions took effect on September 30, 2011, and included judicial fact-finding

requirements for imposing consecutive sentences. R.C. 2929.14(C)(4) provides:

       (4) 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 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.

       {¶21} Although the trial court commented at length on the rationale it used to

craft defendant’s sentence, we need not decide whether the findings satisfy the

requirements of the above-quoted provision. This court has found that the amendments

are not applicable to individuals who were sentenced prior to the September 30, 2011

effective date. State v. Calliens, 8th Dist. No. 97034, 2012-Ohio-703, ¶ 28.
       {¶22} This assignment of error is overruled.

       {¶23} “Assignment of Error II: The trial court committed a reversible error by

imposing a sentence of five years of community control sanctions to commence upon the

completion of Appellant’s six years of incarceration.”

       {¶24} This error concerns the trial court’s decision to impose a five-year term of

community control sanctions on counts 16 and 17 consecutive to the six-year aggregate

prison term he received on the remaining counts.

       {¶25} Notably, the trial court imposed a five-year prison term on each counts 16

and 17 to be served consecutively to each other, totaling a ten-year prison sentence in the

event community control sanctions is violated.

       {¶26} Defendant complains about his receipt of the community control sanction

term to the extent it will run consecutive to his prison term. Defendant’s position is that

it must commence immediately upon sentencing and cannot be “tolled” under these

circumstances. If defendant’s interpretation is correct, the trial court’s imposition of

community control sanctions would be pointless because it would expire prior to his

release from prison. In practicality, this would bind trial courts in many cases to imposing

prison sentences on all counts in multiple conviction cases where some period of

incarceration is deemed necessary in order to accomplish the purposes of sentences. It

would hamper the trial court’s ability to fashion less restrictive sentencing alternatives.

For example, we can ascertain from this record that the trial court determined that the

facts supported a 16-year prison term but the court opted to suspend ten years of it by

releasing defendant from prison after six years to serve a term of community control
sanctions. The trial court’s sentence is fashioned in such a way that defendant has an

opportunity to rejoin society albeit under court supervision and subject to certain

conditions. If he violates community control, defendant will be returned to prison to

complete the remainder of his sentence.

      {¶27} Defendant relies upon R.C. 2929.15(A)(1) which provides,

      (A)(1) If in sentencing an offender for a felony the court is not required to
      impose a prison term, a mandatory prison term, or a term of life
      imprisonment upon the offender, the court may directly impose a sentence
      that consists of one or more community control sanctions authorized
      pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code. If
      the court is sentencing an offender for a fourth degree felony OVI offense
      under division (G)(1) of section 2929.13 of the Revised Code, in addition to
      the mandatory term of local incarceration imposed under that division and
      the mandatory fine required by division (B)(3) of section 2929.18 of the
      Revised Code, the court may impose upon the offender a community
      control sanction or combination of community control sanctions in
      accordance with sections 2929.16 and 2929.17 of the Revised Code. If the
      court is sentencing an offender for a third or fourth degree felony OVI
      offense under division (G)(2) of section 2929.13 of the Revised Code, in
      addition to the mandatory prison term or mandatory prison term and
      additional prison term imposed under that division, the court also may
      impose upon the offender a community control sanction or combination of
      community control sanctions under section 2929.16 or 2929.17 of the
      Revised Code, but the offender shall serve all of the prison terms so
      imposed prior to serving the community control sanction.

      The duration of all community control sanctions imposed upon an offender
      under this division shall not exceed five years. If the offender absconds or
      otherwise leaves the jurisdiction of the court in which the offender resides
      without obtaining permission from the court or the offender’s probation
      officer to leave the jurisdiction of the court, or if the offender is confined in
      any institution for the commission of any offense while under a community
      control sanction, the period of the community control sanction ceases to run
      until the offender is brought before the court for its further action. If the
      court sentences the offender to one or more nonresidential sanctions under
      section 2929.17 of the Revised Code, the court shall impose as a condition
      of the nonresidential sanctions that, during the period of the sanctions, the
      offender must abide by the law and must not leave the state without the
       permission of the court or the offender’s probation officer. The court may
       impose any other conditions of release under a community control sanction
       that the court considers appropriate, including, but not limited to, requiring
       that the offender not ingest or be injected with a drug of abuse and submit
       to random drug testing as provided in division (D) of this section to
       determine whether the offender ingested or was injected with a drug of
       abuse and requiring that the results of the drug test indicate that the offender
       did not ingest or was not injected with a drug of abuse.

(Emphasis added.)

       {¶28} The above-cited statute does not require the term of community control

sanction to commence immediately. In fact, portions of the statute recognize that where

both a prison term and community control sanctions are imposed, the offender must serve

the prison term first.

       {¶29} R.C. 2929.13(A) provides,

       Except as provided in division (E), (F), or (G) of this section and unless a
       specific sanction is required to be imposed or is precluded from being
       imposed pursuant to law, a court that imposes a sentence upon an offender
       for a felony may impose any sanction or combination of sanctions on the
       offender that are provided in sections 2929.14 to 2929.18 of the Revised
       Code.

(Emphasis added.)

       {¶30}     The Fifth District has addressed the exact issue presented here and held

that a court can impose community control sanctions for one count, a prison term for a

separate count and order the sentences to be served consecutively. State v. Connor, 5th

Dist. No. 04CAA04-028, 2004-Ohio-6752, ¶ 28-29, citing, State v. Kinder, 5th Dist. No.

03CAA12075, 2004-Ohio-4340.

       {¶31}     The law as set forth above supports the finding that the trial court has

discretion to impose a combination of sanctions, i.e., a prison term for one count and
community control for another, and to order the offender to serve them consecutively.

This assignment of error is overruled.

       {¶32}    “Assignment of Error III: The trial court committed a reversible error by

requiring appellant to submit to polygraph examinations as part of his community control

sanctions.”

       {¶33} This aspect of defendant’s sentence will not take effect until defendant

completes his six year prison sentence.

       {¶34}     R.C. 2929.15(A)(1) vests the trial court to impose any condition of

community control sanctions it deems appropriate. Courts have broad discretion when

imposing conditions. State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d

1201. The parties agree that the relevant inquiry to determine whether a court abused

this discretion in imposing a condition three-fold: (1) is the condition reasonably related

to rehabilitating the offender, (2) does it have some relationship to the crime of which the

offender was convicted, and (3) does it relate to conduct that is criminal or reasonably

related to future criminality and serves the ends of probation. Talty, 2004-Ohio-4888, ¶

14, citing State v. Jones, 49 Ohio St.3d 51, 550 N.E.2d 469 (1990).

       {¶35}    The transcript reflects that submitting to polygraph testing was part of

defendant’s supervision and treatment through the county probation department’s sex

offender unit. It is reasonably related to monitoring defendant’s conduct in light of the

nature of his serious offenses.

       {¶36} The Ohio Supreme Court addressed the constitutionality of requiring a

juvenile delinquent sex offender to submit to polygraph examinations as part of
community control sanctions in In re D.S., 111 Ohio St.3d 361, 2006-Ohio-0992, 856

N.E.2d 921, ¶ 5. Therein, the court’s dicta provides that “for the most part on cases

involving adult offenders, that full-disclosure polygraphs are common in the treatment of

sex offenders.” Id. at ¶ 6.    The Ohio Supreme Court, however, drew a distinction

between juvenile and adult offenders. Nonetheless, still it found that the use of a

polygraph could be a reasonable probationary condition even for a juvenile under certain

circumstances. Id. at ¶ 15 (holding that

      before a polygraph can be considered to be a reasonable probationary
      condition [for a juvenile] there must be a showing that a polygraph is
      needed for therapeutic reasons in a particular case, that is, for the treatment
      and monitoring of the juvenile’s behavior. The juvenile court judge may
      then select the condition on a case-by-case basis, based upon advice of a
      therapist or other relevant expert.)

      {¶37}     Because this case involves an adult sex offender, the imposition of

polygraph testing as part of defendant’s treatment and supervision while on community

control sanctions is reasonable. This assignment of error is overruled.

      {¶38}    Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
JAMES J. SWEENEY, JUDGE

PATRICIA ANN BLACKMON, A.J., CONCURS;
LARRY A. JONES, SR., J., CONCURS IN JUDGMENT ONLY
