[Cite as State v. Bell, 2017-Ohio-2621.]


                                         COURT OF APPEALS
                                     MUSKINGUM COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                   :       Hon. W. Scott Gwin, P.J.
                                                :       Hon. John W. Wise, J.
                          Plaintiff-Appellee    :       Hon. Craig R. Baldwin, J.
                                                :
-vs-                                            :
                                                :       Case No. CT2016-0050
MICHAEL A. BELL                                 :
                                                :
                     Defendant-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Muskingum
                                                    County Court of Common Pleas,
                                                    Case No. 2015-0246


JUDGMENT:                                           Affirmed




DATE OF JUDGMENT ENTRY:                             May 1, 2017



APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

GERALD ANDERSON II                                  ERIC ALLEN
Assistant Prosecutor                                4605 Morse Road, Ste. 201
27 North Fifth St.                                  Gahanna, OH 43240
Zanesville, OH 43702
Muskingum County, Case No. CT2016-0050                                                               2

Gwin, P.J.

       {¶1}      Defendant-appellant, Michael A. Bell (“Bell”), appeals from the consecutive

maximum sentences imposed for Sexual Battery and Gross Sexual Imposition.

                                        Facts and Procedural History

       {¶2}      Bell was indicted on or about August 19, 2015, on four counts of Gross

Sexual Imposition, each a felony of the third degree, three counts of Rape, each count a

felony of the first degree, and three counts of Sexual Battery, each a felony of the third

degree. The victim of those offenses is Bell’s daughter. That case was given case

number CR2015-0246.

       {¶3}      Bell was subsequently indicted on or about March 9, 2016, on two counts

of Gross Sexual Imposition, each count a felony of the fourth degree, and one count of

Endangering Children, a felony of the second degree. The victim of those offenses was

Bell’s other daughter. That case was given case number CR2016-01021.

       {¶4}      Bell resolved both of these cases together in a universal plea negotiation.

On July 19, 2016, Bell pled guilty to one count of Sexual Battery on the CR2015-0246

case, and one count of Gross Sexual Imposition on the CR2016-0102 case. All of the

other counts were dismissed by the state. Part of the reason for such a plea negotiation

was the consideration of the victims and their desire not to relive their experiences on

trial. (Sentencing Transcript at 11).

       {¶5}      Bell was sentenced on both cases on August 22, 2016. Prior to imposing

sentence, the trial court heard letters from the mother of the victims and the victims

expressing the injury caused to them by being sexually assaulted by their father and the


       1   This case is separately appealed as State v. Bell, 5th Dist. Muskingum No. CT2016-0049.
Muskingum County, Case No. CT2016-0050                                                  3


impact on their family and on their relationships with people in general. (Sentencing

Transcript at 8-11). The trial court sentenced Bell to the maximum on each count

consecutively, for an aggregate prison sentence of 78 months.

                                     Assignments of Error

      {¶6}   “I. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO

CONSECUTIVE SENTENCES AS THE COURT FAILED TO ENGAGE IN THE

REQUISITE THREE PART ANALYSIS REQUIRED TO SENTENCE A DEFENDANT TO

CONSECUTIVE SENTENCES BY FAILING TO FIND THAT ANY OF THE THREE

FACTORS LISTED IN R.C. 2929.14(C)(4)(a)-(e) APPLIED.

      {¶7}   “II. THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT TO

THE MAXIMUM SENTENCE FOR BOTH COUNTS.”

                                       Law and Analysis

      {¶8}   In accordance with R.C. 2953.08(A)(1), Bell is entitled to appeal as of right

the maximum sentence imposed on his convictions. In accordance with R.C. 2953.08(C)

(1) Bell is granted leave to appeal his consecutive prison terms because the sentence

imposed exceeds the maximum term for a felony of the third degree.

      {¶9}   We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶22;

State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31.               R.C.

2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence

and remand for resentencing where we clearly and convincingly find that either the record

does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.
Muskingum County, Case No. CT2016-0050                                                         4

See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659, ¶28.

       {¶10} Accordingly, pursuant to Marcum this Court may vacate or modify a felony

sentence on appeal only if it determines by clear and convincing evidence that: (1) the

record does not support the trial court's findings under relevant statutes, or (2) the

sentence is otherwise contrary to law.

       {¶11} Clear and convincing evidence is that evidence “which will provide 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, 120 N.E.2d 118(1954), paragraph three of the

syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the

degree of proof required to sustain an issue must be clear and convincing, a reviewing

court will examine the record to determine whether the trier of facts had sufficient

evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477

120 N.E.2d 118.

       R.C. 2929.13(B).

       {¶12} R.C. 2929.13(B) applies to one convicted of a fourth or fifth degree felony.

Bell plead guilty to Gross Sexual Imposition, a violation of R.C. 2907.05(A)(5), a felony of

the fourth degree by virtue of R.C. 2907.05 (C)(1).

       {¶13} In relevant part the statute provides,

              (b) The court has discretion to impose a prison term upon an offender

       who is convicted of or pleads guilty to a felony of the fourth or fifth degree

       that is not an offense of violence or that is a qualifying assault offense if any

       of the following apply:

                                              ***
Muskingum County, Case No. CT2016-0050                                                       5


              (v) The offense is a sex offense that is a fourth or fifth degree felony

       violation of any provision of Chapter 2907. of the Revised Code.

       {¶14} Accordingly, the trial court had discretion to impose a prison term for Gross

Sexual Imposition.

       R.C. 2929.13(D).

       {¶15} R.C. 2929.13(D) (1) applies to one convicted of a felony of the first or

second degree, for a felony drug offense that is a violation of any provision of Chapter

2925., 3719., or 4729. of the Revised Code for which a presumption in favor of a prison

term is specified as being applicable, and for a violation of division (A)(4) or (B) of section

2907.05 of the Revised Code for which a presumption in favor of a prison term is specified

as being applicable. Bell was convicted of a violation of R.C. 2907.05(A)(2) and R.C.

2907.03(A)(5). Accordingly, R.C. 2929.13(D) does not apply to Bell’s case.

       R.C. 2929.14 (B)(2)(e).

       {¶16} R.C. 2929.14(B)(2)(e) concerns additional prison sentences that a trial court

can impose upon a defendant under specified circumstances. Bell was not given an

additional prison sentence.

       R.C. 2929.14 (C)(4) Consecutive Sentences.

       {¶17} R.C. 2929.14(C)(4) concerns the imposition of consecutive sentences. Bell

was given a sentence of eighteen months in Case No. CR2016-0102 consecutive with

the 60-month sentence imposed for his plea to one count of Sexual Battery in violation

of R.C. 2907.03(A)(5), a felony of the third degree imposed in Case No. CR2015-0246.

       {¶18} In Ohio, there is a statutory presumption in favor of concurrent sentences

for most felony offenses.       R.C. 2929.41(A).      The trial court may overcome this
Muskingum County, Case No. CT2016-0050                                                    6


presumption by making the statutory, enumerated findings set forth in R.C. 2929.14(C)

(4). State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶23. This

statute requires the trial court to undertake a three-part analysis. State v. Alexander, 1st

Dist. Hamilton Nos. C–110828 and C–110829, 2012-Ohio-3349, 2012 WL 3055158, ¶ 15.

       {¶19} R.C. 2929.14(C)(4) provides,

              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.
Muskingum County, Case No. CT2016-0050                                                       7


              (c) The offender’s history of criminal conduct demonstrates that

       consecutive sentences are necessary to protect the public from future crime

       by the offender.

       {¶20} Thus, in order for a trial court to impose consecutive sentences the court

must find that consecutive sentences are necessary to protect the public from future crime

or to punish the offender. The court must also find that consecutive sentences are not

disproportionate to the offender’s conduct and to the danger the offender poses to the

public. Finally, the court must make at least one of three additional findings, which include

that (a) the offender committed one or more of the offenses while awaiting trial or

sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18, or

while 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 offenses 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 would adequately reflect the

seriousness of the offender’s conduct; or (c) the offender’s criminal history demonstrates

that consecutive sentences are necessary to protect the public from future crime by the

offender. See, State v. White, 5th Dist. Perry No. 12-CA-00018, 2013-Ohio-2058, ¶36.

       {¶21} Recently, in State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16

N.E.2d 659, syllabus, the Supreme Court of Ohio stated that:

              In order to impose consecutive terms of imprisonment, a trial court

       is required to make the findings mandated by R.C. 2929.14(C)(4) at the

       sentencing hearing and incorporate its findings into its sentencing entry,

       but it has no obligation to state reasons to support its findings.
Muskingum County, Case No. CT2016-0050                                                   8


       {¶22} Furthermore, the sentencing court is not required to recite “a word-for-word

recitation of the language of the statute.” Bonnell, ¶29. “[A]s long as the reviewing court

can discern that the trial court engaged in the correct analysis and can determine that the

record contains evidence to support the findings, consecutive sentences should be

upheld.” Id. A failure to make the findings required by R.C. 2929.14(C)(4) renders a

consecutive sentence contrary to law. Bonnell, ¶34. The findings required by R.C.

2929.14(C)(4) must be made at the sentencing hearing and included in the sentencing

entry. Id. at the syllabus. However, a trial court’s inadvertent failure to incorporate the

statutory findings in the sentencing entry after properly making those findings at the

sentencing hearing does not render the sentence contrary to law; rather, such a clerical

mistake may be corrected by the court through a nunc pro tunc entry to reflect what

actually occurred in open court. Bonnell, ¶30.

       {¶23} In this case, the record does support a conclusion that the trial court made

all of the findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive

sentences.

       R.C. 2929.14(C)(4): [T]he 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.

       {¶24} At sentencing the trial court found,

              The Court finds that consecutive sentences are necessary to protect

      the public and punish the offender.           Consecutive sentences are not
Muskingum County, Case No. CT2016-0050                                                   9


       disproportionate for the seriousness of the conduct and the danger you

       pose to the public.

Sentencing Transcript at 16. The findings are reflecting in the court’s sentencing entries.

Judgment Entry on Sentence, filed August 25, 2016 at 2.

       R.C. 2929.14(C)(4)(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.

       {¶25} This provision does not apply to Bell’s case.

      R.C. 2929.14(C)(4)(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.

      {¶26} In the case at bar, the trial court found,

              The Court finds that multiple offenses with which you were sentenced

      were -- the harm caused by those were so great and unusual that no single

      prison term for any of the offenses committed would adequately reflect the

      seriousness of your conduct.

Sentencing Transcript at 16. The findings are reflecting in the court’s sentencing entries.

Judgment Entry on Sentence, filed August 25, 2016 at 2.
Muskingum County, Case No. CT2016-0050                                                      10


       R.C.    2929.14(C)(4)(c):    The    offender’s    history    of   criminal    conduct

demonstrates that consecutive sentences are necessary to protect the public from

future crime by the offender.

       {¶27} The Court made no findings concerning this factor in Bell’s case.

       {¶28} We find that the record in the case at bar clearly and convincingly supports

the trial court’s findings under R.C. 2929.14(C)(4). Bell abused and breached the trust

of his two young daughters. In the case at bar, the trial court heard victim impact letters

from the two victims, heard a letter from the victims’ mother, heard arguments from the

state and defense counsel, heard Bell's statement, reviewed the presentence

investigation report, read the other letters sent, and had a brief interaction with Bell before

imposing a sentence. Each victim informed the trial court of the particular, significant

harm that she suffered and continues to suffer because of Bell’s actions. Bell fails to

comprehend the damage he caused to his children and expressed little if any remorse for

his action.

       R.C. 2929.20.

       {¶29} R.C. 2929.20 (I) is inapplicable, as Bell was not applying to the court for

judicial release.

       R.C. 2929.11 and R.C. 2929.12 and Maximum Sentences.

       {¶30} A trial court’s imposition of a maximum prison term for a felony conviction is

not contrary to law as long as the sentence is within the statutory range for the offense,

and the court considers both the purposes and principles of felony sentencing set forth in

R.C. 2929.11 and the seriousness and recidivism factors set forth R.C. 2929.12. State v.

Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016–Ohio–5234, ¶ 10, 16.
Muskingum County, Case No. CT2016-0050                                                    11

       {¶31} The Marcum court further noted,

              We note that some sentences do not require the findings that R.C.

       2953.08(G) specifically addresses. Nevertheless, it is fully 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.

146 Ohio St.3d at ¶23, 2016–Ohio–1002, 59 N.E.3d 1231 (emphasis added).

       {¶32} R.C. 2929.11(A) governs the purposes and principles of felony sentencing

and provides that a sentence imposed for a felony shall be reasonably calculated to

achieve the two overriding purposes of felony sentencing, which are (1) to protect the

public from future crime by the offender and others, and (2) to punish the offender using

the minimum sanctions that the court determines will accomplish those purposes.

Further, the sentence imposed shall be “commensurate with and not demeaning to the

seriousness of the offender's conduct and its impact on the victim, and consistent with

sentences imposed for similar crimes by similar offenders.” R.C. 2929.11(B).

       {¶33} R.C. 2929.12 sets forth the seriousness and recidivism factors for the

sentencing court to consider in determining the most effective way to comply with the

purposes and principles of sentencing set forth in R.C. 2929.11. The statute provides a

non-exhaustive list of factors a trial court must consider when determining the

seriousness of the offense and the likelihood that the offender will commit future offenses.
Muskingum County, Case No. CT2016-0050                                                   12

       {¶34} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the

court discussed the effect of the State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court

severed the judicial-fact-finding portions of R.C. 2929.14, holding that “trial courts have

full discretion to impose a prison sentence within the statutory range and are no longer

required to make findings or give their reasons for imposing maximum, consecutive, or

more than the minimum sentences.” Kalish at ¶ 1 and ¶11, citing Foster at ¶100, See

also, State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306; State v.

Firouzmandi, 5th Dist. Licking No. 2006-CA-41, 2006-Ohio-5823.

       {¶35} “Thus, a record after Foster may be silent as to the judicial findings that

appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶ 12.

However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C.

2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶13,

see also State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1; State v.

Firouzmandi supra at ¶ 29.

       {¶36} Thus, post-Foster, “there is no mandate for judicial fact-finding in the

general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster

at ¶ 42. State v. Rutter, 5th Dist. No. 2006-CA-0025, 2006-Ohio-4061; State v. Delong,

4th Dist. No. 05CA815, 2006-Ohio-2753 at ¶ 7-8. Therefore, post-Foster, trial courts are

still required to consider the general guidance factors in their sentencing decisions.

       {¶37} There is no requirement in R.C. 2929.12 that the trial court states on the

record that it has considered the statutory criteria concerning seriousness and recidivism

or even discussed them. State v. Polick, 101 Ohio App.3d 428, 431(4th Dist. 1995); State
Muskingum County, Case No. CT2016-0050                                                     13

v. Gant, 7th Dist. No. 04 MA 252, 2006-Ohio-1469, at ¶60 (nothing in R.C. 2929.12 or the

decisions of the Ohio Supreme Court imposes any duty on the trial court to set forth its

findings), citing State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d 94(1992); State v.

Hughes, 6th Dist. No. WD-05-024, 2005-Ohio-6405, ¶10 (trial court was not required to

address each R.C. 2929.12 factor individually and make a finding as to whether it was

applicable in this case), State v. Woods, 5th Dist. No. 05 CA 46, 2006-Ohio-1342, ¶19

(“... R.C. 2929.12 does not require specific language or specific findings on the record in

order to show that the trial court considered the applicable seriousness and recidivism

factors”). (Citations omitted).

       {¶38} In the case at bar, the trial court heard victim impact letters from the two

victims, heard a letter from the victims’ mother, heard arguments from the state and

defense counsel, heard Bell's statement, reviewed the presentence investigation report,

read the other letters sent, and had a brief interaction with Bell before imposing a

sentence.

       {¶39} In the case at bar, the record shows that the trial court considered all

relevant factors, including the harm caused to the victims, that Bell's relationship to his

victims facilitated the offenses and the delayed prosecution of the victimization, and that

Bell still failed to realize that he victimized his daughters. (Sentencing Transcript at 9-11,

15). "You victimized your own children, and then when I say that, you look at me

quizzically like it didn't happen. You victimized your children. They are victims. You're

the perpetrator. You still show no remorse, and I find that astounding.” Sentencing

Transcript at 15.

       {¶40} Accordingly, the trial court considered the purposes and principles of
Muskingum County, Case No. CT2016-0050                                                    14


sentencing [R.C. 2929.11] as well as the factors that the court must consider when

determining an appropriate sentence. [R.C. 2929.12]. The trial court has no obligation

to state reasons to support its findings. Nor is it 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.

       {¶41} Upon review, we find that the trial court's sentencing on the charges

complies with applicable rules and sentencing statutes. The sentence was within the

statutory sentencing range.      Furthermore, the record reflects that the trial court

considered the purposes and principles of sentencing and the seriousness and recidivism

factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised Code and

advised Bell regarding post-release control. Upon a thorough review, we find the record

clearly and convincing supports the sentence imposed by the trial court.

       {¶42} We find the trial court properly considered the purposes and principles of

sentencing set forth in R.C. 2929.11, as well as the applicable factors set forth in R.C.

2929.12, along with all other relevant factors and circumstances. While Bell may disagree

with the weight given to these factors by the trial judge, Bell’s sentence was within the

applicable statutory range for a felony of the third degree and a felony of the fourth degree

and therefore, we have no basis for concluding that it is contrary to law.

       {¶43} Bell’s first and second assignments of error are overruled.
Muskingum County, Case No. CT2016-0050                                15


      {¶44} The judgment of the Muskingum County Court of Common Pleas is

affirmed.



By Gwin, P.J.,

Wise, J., and

Baldwin, J., concur
