[Cite as State v. Holbrook, 2013-Ohio-3786.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              AUGLAIZE COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 2-13-06

        v.

JAMIE B. HOLBROOK,                                        OPINION

        DEFENDANT-APPELLANT.




                Appeal from Auglaize County Common Pleas Court
                           Trial Court No. 2012-CR-65

                                      Judgment Affirmed

                          Date of Decision: September 3, 2013




APPEARANCES:

        Gerald F. Siesel for Appellant

        Edwin A. Pierce for Appellee
Case No. 2-13-06


PRESTON, P.J.

       {¶1} Defendant-appellant, Jamie B. Holbrook, appeals the Auglaize County

Court of Common Pleas’ judgment entry of sentence. We affirm.

       {¶2} On March 16, 2012, the Auglaize County Grand Jury indicted

Holbrook on nine counts of unlawful sexual conduct with a minor in violation of

R.C. 2907.04(A)(B)(3), third-degree felonies, stemming from separate incidents

with two female victims over the course of several months. (Doc. No. 1).

       {¶3} On May 1, 2012, Holbrook filed a written plea of not guilty. (Doc.

No. 20).

       {¶4} On November 1, 2012, Holbrook pled guilty to Counts One, Eight,

and Nine of the indictment. (Nov. 1, 2012 Tr. at 15-16); (Doc. No. 38). Pursuant

to the parties’ written plea agreement, the State dismissed the remaining counts.

(Id.); (Id.). The State alleged that Count One charged Holbrook of engaging in

sexual conduct—in particular fellatio—with a female victim (15 years old), and

Counts Eight and Nine charged Holbrook of engaging in sexual conduct—

specifically, vaginal intercourse—with a female victim (13 years old). (Nov. 1,

2012 Tr. at 16-17). The defense requested a pre-sentence investigation (“PSI”)

report, which the State did not oppose pursuant to the plea agreement, and which

the trial court ordered. (Id. at 18-21); (Doc. Nos. 38, 42).




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       {¶5} On January 16, 2013, the trial court held a combined sexual offender

classification/sentencing hearing. The trial court classified Holbrook as a Tier II

Sexual Predator. (Jan. 16, 2013 Tr. at 5). Thereafter, the trial court sentenced

Holbrook to 60 months imprisonment on Count One, 60 months imprisonment on

Count Eight, and 54 months imprisonment on Count Nine. (Id. at 17). The trial

court further ordered that Holbrook serve the terms consecutive to each other for

an aggregate sentence of 174 months imprisonment. (Id. at 18). The trial court

filed its judgment entry of sentence that same day. (Doc. No. 48).

       {¶6} On February 14, 2013, Holbrook filed a notice of appeal. (Doc. No.

62). Holbrook now raises the following assignment of error:

                               Assignment of Error

       The trial court’s sentence of consecutive prison terms for
       unlawful sexual conduct with a minor consisting of 60 months
       for Count One, 60 months for Count Eight, and 54 months for
       Count Nine of the indictment for a combined total of 174 months
       was contrary to law and constituted an abuse of discretion in
       failing to properly consider and apply the felony sentencing
       guidelines set forth in Ohio Revised Code, Section 2929.11 and
       2929.12.

       {¶7} In his sole assignment of error, Holbrook argues that the record is

unclear whether the trial court considered R.C. 2929.11 and 2929.12 at the

sentencing hearing, and the trial court failed to reference specific criteria under the

sentencing guidelines.     He further argues that, had the trial court properly



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considered the sentencing factors, it would not have sentenced him to consecutive

terms of imprisonment totaling 174 months.

      {¶8} A trial court’s sentence will not be disturbed on appeal absent a

defendant’s showing by clear and convincing evidence that the sentence is

unsupported by the record; the sentencing statutes’ procedure was not followed or

there was not a sufficient basis for the imposition of a prison term; or that the

sentence is contrary to law. State v. Ramos, 3d Dist. Defiance No. 4-06-24, 2007-

Ohio-767, ¶ 23 (the clear and convincing evidence standard of review set forth

under R.C. 2953.08(G)(2) remains viable with respect to those cases appealed

under the applicable provisions of R.C. 2953.08(A), (B), and (C) * * *); State v.

Rhodes, 12th Dist. Butler No. CA2005-10-426, 2006-Ohio-2401, ¶ 4; State v.

Tyson, 3d Dist. Allen Nos. 1-04-38 and 1-04-39, 2005-Ohio-1082, ¶ 19, citing

R.C. 2953.08(G).

      {¶9} Clear and convincing evidence is that “which will produce in the mind

of the trier of facts a firm belief or conviction as to the facts sought to be

established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus; State v. Boshko, 139 Ohio App.3d 827, 835 (12th Dist.2000).         An

appellate court should not, however, substitute its judgment for that of the trial

court because the trial court is ‘“clearly in the better position to judge the

defendant’s dangerousness and to ascertain the effect of the crimes on the


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Case No. 2-13-06


victims.”’ State v. Watkins, 3d Dist. Auglaize No. 2-04-08, 2004-Ohio-4809, ¶ 16,

quoting State v. Jones, 93 Ohio St.3d 391, 400 (2001).

       {¶10} A trial court must consider R.C. 2929.11 and 2929.12 when

sentencing an offender. State v. Pence, 3d Dist. Auglaize No. 2-11-18, 2012-

Ohio-1794, ¶ 9. However, the trial court is not required to use specific language

regarding its consideration of the seriousness and recidivism factors. State v.

Smith, 3d Dist. Auglaize No. 2-06-37, 2007-Ohio-3129, ¶ 26, citing State v.

Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶ 38. See also State v. Arnett, 88 Ohio

St.3d 208, 215 (2000) and State v. Snyder, 3d Dist. Seneca No. 13-12-38, 2013-

Ohio-2046, ¶ 25. Further, there is no requirement in R.C. 2929.12 that the trial

court state on the record that it has considered the statutory criteria. Smith at ¶ 26,

citing State v. Polick, 101 Ohio App.3d 428, 431 (4th Dist.1995).

       {¶11} R.C. 2929.14(C)(4) requires a trial court to make specific findings

when imposing consecutive sentences. State v. Rust, 3d Dist. Marion No. 9-12-49,

2013-Ohio-2151, ¶ 13, citing State v. Bentley, 3d Dist. Marion No. 9-12-31, 2013-

Ohio-852, ¶ 11. Although R.C. 2929.14(C)(4) requires the trial court to make

findings before imposing a consecutive sentence, the statute does not require the

trial court to give its reasons for imposing the sentence. Id. at ¶ 14 (citations

omitted).




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          {¶12} At the hearing, the State and defense counsel made statements to the

trial court outlining the different factors it should consider in sentencing Holbrook.

(Jan. 16, 2013 Tr. at 7-8). The trial court inquired into the nature of the sexual

offenses, including the age of the victims, and Holbrook’s previous sexual offense

against his wife’s nine-year-old sister. (Id. at 14-15). Thereafter, the trial court

stated:

          After consideration of the information provided to the Court by the

          parties and the PreSentence Investigation, the Court SENTENCES

          THE DEFENDANT AS FOLLOWS * * *. THE COURT FINDS

          THAT     CONSECUTIVE         SERVICE      IS   NECESSARY         TO

          PROTECT THE PUBLIC FROM FUTURE CRIME AND TO

          PUNISH     THE    OFFENDER       AND     THAT     CONSECUTIVE

          SENTENCES ARE NOT DISPROPORTIONATE TO THE

          SERIOUSNESS OF THE OFFENDER’S CONDUCT AND THE

          DANGER THE OFFENDER POSES TO THE PUBLIC.                       AND

          THE COURT ALSO FINDS THAT CONSECUTIVE SENTENCES

          ARE NECESSARY TO PROTECT THE PUBLIC FROM FUTURE

          CRIMES BY THE OFFENDER. (Id. at 17-18).

In its judgment entry of sentence, the trial court stated that it considered R.C.

2929.11 and 2929.12 in rendering its sentence. (Jan. 16, 2013 JE, Doc. No. 48).


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Based upon the foregoing, we are not persuaded that the trial court failed to

consider the applicable sentencing statutes.

       {¶13} Next, Holbrook argues that, had the trial court properly considered

the statutory factors, it would not have sentenced him to consecutive sentences

totaling 174 months imprisonment.        We disagree.      Holbrook was originally

indicted on nine counts of unlawful sexual conduct with a minor involving two

victims over the course of several months. Each count carried a potential sixty-

month term of imprisonment (R.C. 2929.14(A)(3)(a)) for an aggregate potential of

540 months imprisonment. Holbrook, however, pled guilty and was sentenced on

only three of those nine counts, thereby reducing his potential sentence to 180

months. Holbrook’s criminal record was extensive, including a previous sexual

offense against a nine-year-old, several probation violations, passing bad checks,

receiving stolen property, and felony theft, to name a few. (PSI). The sexual

offenses in this case occurred just shortly after Holbrook finished his mandatory

post-release control from another case.        (Jan. 16, 2013 Tr. at 10). (See R.C.

2929.12(D)(1)). The first victim in this case, like his previous victim, was a

fifteen-year-old relative who functioned with the mental capacity/maturity of a

nine-year-old. (PSI). (See R.C. 2929.12(B)(6)). This first victim alleged that

Holbrook had forced her to have vaginal and anal sex an estimated thirteen times.

(PSI). The second victim, the thirteen-year-old cousin of the first victim, alleged


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that Holbrook “raped” her approximately 30 times over a one-year period. (Id.).

Holbrook denied ever forcing the girls to have sex; instead, he alleged that they

asked him for sex. (Id.). Holbrook minimized his criminal behavior and blamed it

on his failure to take his medications. (Id.).

       {¶14} Upon review of the entire record, we are not persuaded that the trial

court should have imposed a lesser, i.e. concurrent, sentence in this case.

       {¶15} Holbrook’s assignment of error is, therefore, overruled.

       {¶16} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




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