[Cite as State v. Bilicic, 2020-Ohio-982.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                     ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                   :         OPINION

                  Plaintiff-Appellee,            :
                                                           CASE NO. 2019-A-0047
         - vs -                                  :

JESSE J. BILICIC, II,                            :

                  Defendant-Appellant.           :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2016
CR 00626.

Judgment: Affirmed.


Cecelia M. Cooper, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellee).

James D. Ingalls, 55 Public Square, 21st Floor, Cleveland, OH 44113 (For Defendant-
Appellant).



CYNTHIA WESTCOTT RICE, J.

         {¶1}     Appellant, Jesse J. Bilicic, appeals from the judgment of the Ashtabula

County Court of Common Pleas, resentencing him to a total term of six years

imprisonment.         Appellant challenges the trial court’s imposition of the maximum,

consecutive prison term. We affirm.

         {¶2}     Appellant was originally charged in a seven-count indictment; to wit: Count

One, rape, in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree; Counts Two
and Three, sexual battery, in violation of R.C. 2907.03(A)(2), felonies of the third

degree; Count Four, unlawful sexual conduct with a minor, in violation of R.C.

2907.04(A)(B)(3), a felony of the third degree; Counts Five and Six, corrupting another

with drugs, in violation of R.C. 2925.02(A)(4)(a)(C)(3), a felony of the fourth degree; and

Count Seven, sexual imposition, in violation of R.C. 2907.06(A)(4), a misdemeanor of

the third degree. Appellant entered a plea of not guilty to the charges.

       {¶3}   On July 5, 2017, the state dismissed the indictment and filed a bill of

information, charging appellant with two counts of endangering children, a violation

of R.C. 2919.22(A)(E)(2)(c), felonies of the third degree. Appellant subsequently

entered a plea, pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). After

conducting a hearing on the plea, the trial court accepted appellant’s plea and found

him guilty. Following a sentencing hearing, the court ordered appellant to serve 36-

months imprisonment on each count, for a total of six years in prison. Appellant

appealed and, in State v. Bilicic, 11th Dist. Ashtabula No. 2017-A-0066, 2018-Ohio-

5377, this court affirmed the trial court in part, reversed in part, and remanded the

matter for the limited purpose of a de novo resentencing hearing.            After holding a

resentencing hearing, the trial court again imposed a 36-month term for each count and

ordered the terms to run consecutively for a total of six years.           Appellant appeals

assigning the following error:

       {¶4}   “The trial court abused its discretion when it sentenced defendant Bilicic to

maximum, consecutive sentences.”

       {¶5}   We first point out that appellant cites State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912 for the governing standard of review in felony-sentencing cases. The




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standard set forth in Kalish was abrogated by the Ohio Supreme Court in State v.

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, which, inter alia, eliminated the abuse of

discretion prong of the Kalish standard.

      {¶6}   With this in mind, appellant concedes the trial court corrected the

sentencing error identified in Bilicic I, when it resentenced appellant to consecutive

terms of imprisonment. As such, we need not specifically address the trial court’s

compliance with R.C. 2929.14(C)(4). Appellant essentially argues the trial court erred in

selecting the maximum, consecutive sentences because it failed to adequately consider

the seriousness and recidivism relevant to this case.

      {¶7}   Recently, in State v. Gwynne, ___ Ohio St.3d ___, 2019-Ohio-4761, the

Supreme Court of Ohio observed R.C. 2929.11 and R.C. 2929.12 apply to the review of

the duration of individual sentences.      Gwynne, supra, at ¶17-18. R.C. 2929.11

addresses the purposes and principles of felony sentencing and R.C. 2929.12 sets forth

“seriousness” and “recidivism” factors.     A sentencing court is not required to use

specific language and render precise findings to satisfactorily “consider” the relevant

seriousness and recidivism factors. State v. Long, 11th Dist. Lake No. 2013-L-102,

2014-Ohio-4416, ¶79. Instead, 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 applicable sentencing factors. Id. Thus,

we presume a trial court considered the statutory purposes, principles, and factors from

a silent record. State v. Morefield, 2d Dist. Clark No. 2013-CA-71, 2014-Ohio-5170, ¶41.

      {¶8}   In Marcum, supra, the Supreme Court stated:

      {¶9}   We note that some sentences do not require the findings that R.C.
             2953.08(G) specifically addresses. Nevertheless, it is fully



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                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. Marcum, supra, at
                ¶23.

       {¶10} With this standard in mind, appellant first notes only two of the

seriousness factors apply; namely, that his criminal acts caused psychological harm to

his minor victims and that his relationship facilitated the offenses, i.e., he was living with

the victims and their mother. See R.C. 2929.12(B)(2) and (6). He additionally contends

that his crimes were “less serious” because, he maintains, he did not cause or expect to

cause physical harm to the minor victims. See R.C. 2929.12(C)(3).                  Next, he

recognizes, with no apparent disagreement, the court found recidivism would be more

likely due to his criminal history and his pattern of drug and alcohol abuse. Appellant

counters, however, that the presentence investigation report found his likelihood to

recidivate “low.” And, according to a “Sexual Behavior Evaluation” report submitted to

the court on appellant’s behalf, “the risk [of] recidivism for [appellant] would be seen at a

low end and had he not committed a sexual offense at all, he would be at a 0% risk of

reoffending.”    Given these points, appellant maintains the trial court erred when it

imposed the maximum of 36 months for each offense. We do not agree.

       {¶11} At the sentencing hearing, the trial court stated:

       {¶12} I’ve obviously looked at all the documents. The Court of Appeals
             has looked at the documents. We’ve all looked at the documents
             again. [Defense counsel], on behalf of our client, you cited
             2929.12(B)(2) and (6). (B)(2) says the victim of the offenses
             suffered serious physical, psychological or economic harm. I would
             agree with the Court of Appeals that there is psychological harm. If
             you’re given drugs as a child and then forced to perform oral sex, *



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              * * then I don’t think it’s unreasonable to believe they suffered harm
              after being sexually assaulted. And his relationship with the
              victim[s] facilitated the offense.

        {¶13} Under 2929.12(C), I don’t find that there are any of those grounds
              that apply. And I don’t know how you can give a child drugs and
              then have sex with them and not expect to cause any harm to
              them. And he did plead guilty. You’re claiming that’s under
              2929.12(D) he’s not required to show remorse because it’s an
              Alford plea. I am not aware of any case law that says that’s true.

        {¶14} You - - in reviewing the Presentence Investigation and in looking at
              his treatment, he does have a history of substance abuse and then
              got two juveniles to use drugs. And, of course, he does have some
              prior, although misdemeanor, convictions.

        {¶15} Because this was two victims in the same household, and I agree
              with [the prosecutor], I would find that if he’s out of prison and he
              has access to drugs and juveniles, recidivism would be likely.

        {¶16} Looking at the seriousness factors, the court finds that the more
              serious factors do override the less serious factors. There is
              absolutely no recommendation for community control. A term of
              community control would demean the seriousness of these
              offenses and would not adequately protect the public from future
              crimes.

        {¶17} The trial court considered and addressed the statutory factors raised by

defense counsel and its considerations were consistent and supported by the record.

Of particular import in this matter was its discussion of the applicable R.C. 2929.12(B)

seriousness factors. R.C. 2929.12(B) provides a list of non-exhaustive factors a court

must consider that would indicate “the offender’s conduct is more serious than conduct

normally constituting the offense.” (Emphasis added.) The court stressed the victims

suffered serious psychological harm from appellant’s actions and his relationship with

the victims facilitated the offense. The court also highlighted the facts of the offense;

namely, appellant provided the minor victims with drugs and compelled oral sex from

them.    In light of the facts and circumstances, there is nothing to support appellant’s



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claim that the sentencing order is clearly and convincingly contrary to the record.

Marcum, supra. To the contrary, the record fundamentally supports the trial court’s

sentencing order.   The court clearly complied with the statutory mandates of R.C.

2929.11 and R.C. 2929.12. We therefore conclude the trial court did not err in the

imposition of a maximum 36-month term of imprisonment on each count of child

endangering.

      {¶18} Appellant’s assignment of error lacks merit.

      {¶19} The judgment of the Ashtabula Court of Common Pleas is affirmed.



THOMAS R. WRIGHT, J.,

MATT LYNCH, J.,

concur.




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