[Cite as State v. Domokos, 2016-Ohio-739.]




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


State of Ohio                                          Court of Appeals No. OT-15-008

        Appellee                                       Trial Court No. 13-CR-176

v.

Darrell R. Domokos                                     DECISION AND JUDGMENT

        Appellant                                      Decided: February 26, 2016

                                                *****

        Mark E. Mulligan, Ottawa County Prosecuting Attorney, and
        Joseph H. Gerber, Assistant Prosecuting Attorney, for appellee.

        Howard C. Whitcomb, III, for appellant.

                                                *****

        YARBROUGH, J.

                                             I. Introduction

        {¶ 1} This is an appeal from the judgment of the Ottawa County Court of

Common Pleas, convicting appellant, Darrell Domokos, of one count of gross sexual

imposition and two counts of unlawful sexual conduct with a minor. Appellant

challenges the trial court’s imposition of a maximum prison sentence. For the following

reasons, we affirm.
                         A. Facts and Procedural Background

       {¶ 2} On November 13, 2013, appellant was indicted on 12 counts of sexual

offenses stemming from his alleged sexual acts with minors over a period spanning from

June 1995 through May 2011. Following pretrial matters and plea negotiations, appellant

appeared before the court on February 10, 2015, and decided to enter a plea of guilty

pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970),

to one count of gross sexual imposition in violation of R.C. 2907.05(A)(4), a felony of

the third degree, and two counts of unlawful sexual conduct with a minor in violation of

R.C. 2907.04(A), felonies of the fourth degree. Appellant’s trial counsel clarified at the

plea hearing that appellant maintained his innocence as to the charges contained in the

indictment, but wished to plead guilty in order to avoid the potential 65-year prison

sentence he would be facing if he were to proceed to trial and be found guilty of all

charges. The trial court accepted the plea, ordered the preparation of a presentence

investigation report, and continued the matter for sentencing.

       {¶ 3} At the sentencing hearing on March 16, 2015, the trial court imposed the

maximum sentence for each of the offenses to which appellant pleaded guilty.

Specifically, the court ordered appellant to serve 5 years in prison on the gross sexual

imposition count, and 18 months on each of the counts for unlawful sexual conduct with

a minor. The court ordered the sentences to be served consecutively for a total prison

term of eight years.




2.
       {¶ 4} Prior to imposing sentence, the trial court recited the language of R.C.

2929.11, and informed appellant that it had considered the sentencing factors in R.C.

2929.12. Upon consideration, the court stated that it found that “[t]he more serious

factors do outweigh the less serious factors.” Additionally, the court stated that it

considered R.C. 2929.13 and found that appellant was not amenable to community

control. The court’s consideration of these sentencing statutes was reiterated in its

subsequent judgment entry, which stated, in pertinent part:

              The Court has considered the record, oral statements, any victim

       impact statement, and the pre-sentence report prepared, as well as the

       principles and purposes of sentencing under Ohio Revised Code Section

       2929.11. The Court further has balanced the seriousness and recidivism

       factors under Ohio Revised Code 2929.12. The Court finds that the more

       likely recidivism factors do not outweigh the less likely factors and that the

       more serious factors do outweigh the less serious factors. The Court further

       finds that factors supporting Community Control Sanctions under Ohio

       Revised Code Section 2929.13 are not present and finds that the Defendant

       is NOT amenable to community control.

                                 B. Assignments of Error

       {¶ 5} Appellant has timely appealed the trial court’s imposition of sentence,

asserting the following assignments of error for our review:




3.
              I. The trial court erred in imposing a maximum eight (8) year

       sentence upon defendant-appellant in that it did not comply with the

       requirements of Ohio Revised Code Sections 2929.11 et seq and by doing

       so, violated defendant-appellant’s right to due process.

              II. The trial court abused its discretion in imposing a maximum

       eight (8) year sentence upon defendant-appellant as it was against the

       manifest weight of the evidence.

       {¶ 6} Because appellant’s assignments of error each essentially challenge the trial

court’s compliance with the sentencing guidelines found in R.C. 2929.11 and 2929.12,

we will address them simultaneously.

                                         II. Analysis

       {¶ 7} We review felony sentences under the two-prong approach set forth in R.C.

2953.08(G)(2). R.C. 2953.08(G)(2) provides that an appellate court may increase,

reduce, modify, or vacate and remand a disputed sentence 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.




4.
       {¶ 8} In appellant’s assignments of error, he argues that the trial court erred in

imposing a maximum sentence in this case because it failed to consider certain

sentencing guidelines under R.C. 2929.11 and 2929.12. Appellant’s argument is limited

to the second prong of R.C. 2953.08(G)(2), namely that the sentence is contrary to law.

       {¶ 9} Appellant’s eight-year sentence was within the permissible range for the

charges to which he pleaded guilty. However, appellant asserts that the trial court failed

to properly consider R.C. 2929.11 and 2929.12 in fashioning his sentence.

       {¶ 10} First, appellant argues that the trial court erred in failing to properly

consider all of the factors of R.C. 2929.12(B), concerning whether an offender’s conduct

is more serious than conduct normally constituting the offense.

       {¶ 11} R.C. 2929.12(B) provides, in relevant part:

              (B) The sentencing court shall consider all of the following that

       apply regarding the offender, the offense, or the victim, and any other

       relevant factors, as indicating that the offender’s conduct is more serious

       than conduct normally constituting the offense:

              (1) The physical or mental injury suffered by the victim of the

       offense due to the conduct of the offender was exacerbated because of the

       physical or mental condition or age of the victim.

              (2) The victim of the offense suffered serious physical,

       psychological, or economic harm as a result of the offense.

              ***




5.
              (6) The offender’s relationship with the victim facilitated the

       offense.

       {¶ 12} Although appellant acknowledges the trial court’s finding that “the more

serious factors do outweigh the less serious factors,” appellant urges that the record does

not support the trial court’s finding. We disagree.

       {¶ 13} Notably, the presentence investigation report, which was referenced by the

court at the sentencing hearing, reveals that the sexual acts that gave rise to the

indictment in this case began when the victim was only eight years old, a fact that is

relevant under R.C. 2929.12(B)(1). Further, the sexual offenses continued over a ten-

year period. The record also reveals that the victim was appellant’s niece, a relevant fact

under R.C. 2929.12(B)(6). Finally, the court noted that, in the process of committing the

sexual offenses, appellant “was having [the victim] followed,” and “threatened to kill the

victim.” In light of these facts, we conclude that the trial court did not err in finding that

appellant’s conduct is more serious than conduct normally constituting the offense.

       {¶ 14} Next, appellant argues that the trial court erred in failing to consider the

application of any of the “less serious factors” under R.C. 2929.12(C), which provides:

              (C) The sentencing court shall consider all of the following that

       apply regarding the offender, the offense, or the victim, and any other

       relevant factors, as indicating that the offender’s conduct is less serious

       than conduct normally constituting the offense:




6.
              (1) The victim induced or facilitated the offense.

              (2) In committing the offense, the offender acted under strong

       provocation.

              (3) In committing the offense, the offender did not cause or expect to

       cause physical harm to any person or property.

              (4) There are substantial grounds to mitigate the offender’s conduct,

       although the grounds are not enough to constitute a defense.

       {¶ 15} Appellant asserts, without support from the record, that the trial court

“could have, and most likely would have, found at least one factor of less serious

conduct” had it considered the factors in R.C. 2929.12(C). Having reviewed the record

ourselves, we find no facts that would support a finding of any of the less serious factors

above. Consequently, we cannot agree with appellant’s assertion that any of these factors

apply in this case.

       {¶ 16} Appellant’s remaining arguments loosely track the recidivism factors

contained in R.C. 2929.12(D) and 2929.12(E). However, as stated in our recitation of the

facts, the trial court’s finding regarding the recidivism factors was favorable to appellant

in that the court concluded that “the more likely recidivism factors do not outweigh the

less likely factors.” Thus, it is unclear how any alleged error in the trial court’s

recidivism analysis prejudiced appellant.




7.
       {¶ 17} In summary, we have reviewed the record in this case, and conclude that

the trial court properly considered the sentencing guidelines under R.C. 2929.11 and

2929.12.

       {¶ 18} Accordingly, appellant’s assignments of error are not well-taken.

                                     III. Conclusion

       {¶ 19} In light of the foregoing, we affirm the judgment of the Ottawa County

Court of Common Pleas. Costs are hereby assessed to appellant in accordance with

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
Thomas J. Osowik, J.
                                               _______________________________
Stephen A. Yarbrough, 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.sconet.state.oh.us/rod/newpdf/?source=6.




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