[Cite as State v. Lucius, 2019-Ohio-741.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 8-18-31

        v.

SCOTT J. LUCIUS,                                          OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Logan County Common Pleas Court
                           Trial Court No. CR 17 05 0167

                                      Judgment Affirmed

                             Date of Decision: March 4, 2019




APPEARANCES:

        Eric J. Allen for Appellant

        Sarah J. Warren for Appellee
Case No. 8-18-31


SHAW, J.

       {¶1} Defendant-appellant, Scott J. Lucius (“Lucius”), brings this appeal from

the June 19, 2018, judgment of the Logan County Common Pleas Court sentencing

him to an aggregate fifty-four month prison term after Lucius pled guilty to, and

was convicted of, Endangering Children in violation of R.C. 2919.22(B)(3), a felony

of the third degree, and Attempted Endangering Children in violation of R.C.

2923.02(A) and R.C. 2919.22(B)(3), a felony of the fourth degree. On appeal

Lucius argues that the record does not support the imposition of consecutive

sentences, and that the imposition of consecutive sentences in this matter constituted

cruel and unusual punishment in violation of the Eighth Amendment.

                      Relevant Facts and Procedural History

       {¶2} Lucius was the parent of five children that he adopted. He adopted two

children, G.L. and B.L., after they were placed with him in foster care. He then later

adopted three children who were his great nieces and nephew, R.L., S.L., and L.L.

       {¶3} On February 14, 2018, a superseding indictment was filed against

Lucius alleging five counts of Felonious Assault in violation of R.C. 2903.11(A)(2),

all felonies of the second degree, five counts of Endangering Children in violation

of R.C. 2919.22(B)(3), all felonies of the third degree, five counts of Endangering

Children in violation of R.C. 2919.22(B)(3) alleging serious physical harm, all

felonies of the second degree, and five counts of Endangering Children in violation


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of R.C. 2919.22(B)(1), all felonies of the second degree.1 All of the counts alleged

that Lucius had abused the children in some form. The differing counts related to

different children, different dates, and varying severity of the abuse. There were

counts related to G.L., R.L., S.L., and L.L., but none related to B.L.

        {¶4} On May 2, 2018, the parties entered into a written, negotiated plea

agreement wherein Lucius agreed to plead guilty to one count of Endangering

Children in violation of R.C. 2919.22(B)(3), a felony of the third degree, and one

amended count of Attempted Endangering Children in violation of R.C.

2919.22(B)(3)/(E)(3), a felony of the fourth degree.2 As part of the agreement

Lucius also agreed to consent to granting permanent custody of all five children to

Logan County Children’s Services.

        {¶5} Lucius filed a memorandum prior to sentencing detailing his significant

health concerns as a 51-year-old man. In addition, the memorandum indicated that

Lucius had led a relatively law-abiding life, that there was no presumption in favor

of prison, and that he was no danger to the public. It contended that house arrest

was an appropriate sanction for Lucius’s condition.




1
  The original indictment against Lucius alleged a single count of Endangering Children; however, new
counts were added after the children were removed from his care and felt more comfortable detailing what
had happened, resulting in the final superseding indictment filed February 14, 2018.
2
  The Endangering Children charge was related to S.L., and the Attempted Endangering Children charge was
related to L.L.

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        {¶6} On June 18, 2018, the matter proceeded to sentencing. At sentencing

the children’s GAL spoke on their behalf, showing photographs of S.L.’s injuries

from one of the beatings. S.L. was seven years old at the time of the beating, which

the GAL characterized as “extensive and horrific.” (June 18, 2018, Tr. at 36).

Photographs of L.L. were also shown, who was three years old at the time of the

beating.

        {¶7} Lucius read a statement at the sentencing hearing, and presented two

witnesses attesting to his character and his progress in counseling. Lucius requested

leniency from the trial court.

        {¶8} The trial court then proceeded to sentencing, describing the injuries in

this case as “shocking * * * on children of tender years.” (June 18, 2018, Tr. at 46).

The trial court emphasized that Lucius was on community control at the time he

committed these offenses.        After reviewing the principles and purposes of

sentencing, the trial court sentenced Lucius to a maximum thirty-six month prison

term on the Endangering Children conviction, and a maximum eighteen month

prison term on the Attempted Endangering Children conviction. Those prison terms

were ordered to be served consecutively, for an aggregate fifty-four month prison

term.




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        {¶9} A judgment entry memorializing Lucius’s sentence was filed June 19,

2018.    It is from this judgment that Lucius appeals, asserting the following

assignments of error for our review.

                           Assignment of Error No. 1
        The record in this matter does not support the imposition of
        consecutive sentences pursuant to state law R.C. 2929.14.

                            Assignment of Error No. 2
        The imposition of consecutive sentences violates the appellant’s
        Eighth Amendment right against cruel and unusual punishment
        applicable to the State of Ohio by the Fourteenth Amendment.

        {¶10} In Lucius’s first assignment of error, he argues that the record did not

support the imposition of consecutive sentences in this matter. Specifically, he

argues that the trial court failed to properly consider a number of mitigating factors

in this case.

                                 Standard of Review

        {¶11} “Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

‘only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.’ ” State v. Nienberg, 3d Dist. Putnam Nos. 12-16-15 and

12-16-16, 2017-Ohio-2920, ¶ 8, quoting State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, ¶ 1. “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



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be established.” ’ ” Id., quoting Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio

St. 469 (1954), paragraph three of the syllabus.

       {¶12} “Except as provided in * * * division (C) of section 2929.14, * * * a

prison term, jail term, or sentence of imprisonment shall be served concurrently with

any other prison term, jail term, or sentence of imprisonment imposed by a court of

this state, another state, or the United States.” R.C. 2929.41(A).

       {¶13} Revised Code 2929.14(C) 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.


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       {¶14} Revised Code 2929.14(C)(4) requires a trial court to make specific

findings on the record when imposing consecutive sentences. State v. Hites, 3d Dist.

Hardin No. 6-11-07, 2012-Ohio-1892, ¶ 11; State v. Peddicord, 3d Dist. Henry No.

7-12-24, 2013-Ohio-3398, ¶ 33. Specifically, the trial court must find: (1)

consecutive sentences are necessary to either protect the public or punish the

offender; (2) the sentences would not be disproportionate to the offense committed;

and (3) one of the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. Id.; Id.

       {¶15} The trial court must state the required findings at the sentencing

hearing when imposing consecutive sentences and incorporate those findings into

its sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-4140,

¶ 50, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 29. A trial

court “has no obligation to state reasons to support its findings” and is not “required

to give a talismanic incantation of the words of the statute, provided that the

necessary findings can be found in the record and are incorporated into the

sentencing entry.” Bonnell at ¶ 37.

                                       Analysis

       {¶16} In this case, after hearing statements at the sentencing hearing, the trial

court conducted a lengthy analysis of its reasoning, going through the sentencing

factors. The trial court made it clear that it had considered the protection of the




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public and the seriousness of the offenses. In addition, the trial court stated as

follows.

       I do believe that consecutive sentences are warranted because
       they are necessary to punish this offender for the seriousness of
       his conduct, and the Court notes that this was committed while
       the defendant was already on community control for offenses
       which, coincidentally, tie back, once again, to the children. His
       criminal history demonstrates that these consecutive sentences
       are warranted.

(June 18, 2018, Tr. at 46). The trial court thus clearly made all of the appropriate

findings to impose consecutive sentences as required under R.C. 2929.14(C)(4).

       {¶17} The judgment entry filed by the trial court similarly stated all the

necessary requirements under R.C. 2929.14(C)(4).

       The Court finds that consecutive sentences are necessary to
       protect the public from future crime and/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. 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.

(Doc. No. 233).

       {¶18} The record before this Court thus reflects that the trial court made the

appropriate findings to impose consecutive sentences in this matter. However,

Lucius seems to contend that while the trial court made the appropriate findings,

they were not supported by the record. Notably, the trial court is not required to


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support its findings on the record, so long as the findings are properly made.

Nevertheless, the trial court did engage in a lengthy discussion of its sentencing

rationale.

       {¶19} At the sentencing hearing the trial court indicated it was concerned

with the “shocking injuries on children of tender years.” (June 18, 2018, Tr. at 46).

The trial court was concerned with the fact that children are “exquisitely a

vulnerable population.” (Id. at 43). The trial court was also concerned with the fact

that Lucius was on community control for falsifying documentation to receive

public assistance at the time he committed these offenses. Lucius had improperly

received public assistance for the children based on his falsification in excess of

$38,000.

       {¶20} Lucius argued to the trial court, and maintains on appeal, that he was

chronically ill, that he was disabled, that he was remorseful, and that he had led a

law-abiding life prior to the falsification and the charges in this case. He contends

that the trial court should have weighed these issues and other mitigating factors

more heavily in its consideration. However, it is clear that the trial court was aware

of these factors, having read Lucius’s sentencing memorandum stating as much.

The trial court also addressed some of the mitigating factors at the sentencing

hearing specifically, finding that they did not outweigh the seriousness of the crimes

in this matter.


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       {¶21} Finally, we would note that Lucius had eighteen counts in his

indictment dismissed against him in his plea deal, including counts related to two of

his other children. Some of these counts were second degree felonies. “[A]

sentencing court may consider charges that have been dismissed or reduced pursuant

to a plea agreement.” State v. Parsons, 7th Dist. Belmont No. 12 BE 11, 2013-

Ohio-1281, ¶ 18, citing State v. Starkey, 7th Dist. No. 06MA110, 2007–Ohio–6702,

¶ 2; State v. Cooey, 46 Ohio St.3d 20, 35, 544 N.E.2d 895 (1989).

       {¶22} Based on the record before us, and the trial court’s clear and careful

analysis at sentencing, we cannot find that the trial court’s imposition of consecutive

sentences was clearly and convincingly contrary to law. Therefore, Lucius’s first

assignment of error is overruled.

                            Second Assignment of Error

       {¶23} In Lucius’s second assignment of error, he contends that his aggregate

sentence constitutes cruel and unusual punishment in violation of the Eighth

Amendment of the Constitution of the United States. Specifically, he contends that

for felonies of the third and fourth degree probation was the desired outcome.

Lucius argues that his sentence was “grossly disproportionate” to the harm inflicted.

                                 Standard of Review

       {¶24} The Supreme Court of Ohio recognized in State v. Anderson, 151 Ohio

St.3d 212, 2017-Ohio-5656, ¶ 27,


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       The Eighth Amendment to the United States Constitution
       precludes cruel and unusual punishment. “A key component of
       the Constitution’s prohibition against cruel and unusual
       punishment is the ‘precept of justice that punishment for the
       crime should be graduated and proportioned to [the] offense.’ ”
       (Brackets sic.) State v. Moore, 149 Ohio St.3d 557, 2016-Ohio-
       8288, 76 N.E.3d 1127, ¶ 31, quoting Weems v. United States, 217
       U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910). To constitute
       cruel and unusual punishment, “the penalty must be so greatly
       disproportionate to the offense as to shock the sense of justice of
       the community.” McDougle v. Maxwell, 1 Ohio St.2d 68, 70, 203
       N.E.2d 334 (1964).

                                    Analysis

       {¶25} Lucius argues in this case that his sentence is “grossly disproportionate

to the harm inflicted.” (Appt.’s Br. at 12). He continues by contending that “[t]his

is particularly true in looking at other cases of similar facts.” (Id.)

       {¶26} Despite these bald claims, Lucius provides no factual or legal support

as to how his sentence in this matter was grossly disproportionate to the harm

inflicted upon a seven year old child and a three year old child, harm that the trial

court called “shocking” after viewing photographs of the injuries. In addition, he

provides no legal support as to how the sentence in this case was disproportionate

to sentences in other cases. He does not cite a single case where anyone was even

sentenced for Endangering Children or Attempted Endangering Children to




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compare the sentences.3

        {¶27} It is undisputed that the sentences in this case were within the statutory

range set by the legislature. There is no indication that the punishment in this case

is grossly disproportionate to the “shocking” injuries perpetrated on young children

in this matter. Therefore, Lucius’s second assignment of error is overruled.

                                            Conclusion

        {¶28} For the foregoing reasons Lucius’s assignments of error are overruled

and the judgment of the Logan County Common Pleas Court is affirmed.

                                                                              Judgment Affirmed

ZIMMERMAN, P.J. and PRESTON, J., concur.

/jlr




3
  Cases can readily be found where maximum sentences have been imposed on third and fourth degree felony
Endangering Children charges. See State v. Tate, 8th Dist. Cuyahoga No. 104342, 2016-Ohio-8309
(maximum sentence imposed for third degree felony Endangering Children); State v. Boyd, 8th Dist.
Cuyahoga No. 97234, 2012-Ohio-1836 (maximum sentence imposed for Attempted Endangering Children
as a fourth degree felony).

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