[Cite as State v. J.H.S., 2015-Ohio-254.]

                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


State of Ohio,                                    :

                 Plaintiff-Appellee,              :
                                                             No. 14AP-399
v.                                                :      (C.P.C. No. 13CR-3403)

[J.H.S.],                                         :    (REGULAR CALENDAR)

                 Defendant-Appellant.             :




                                            D E C I S I O N

                                     Rendered on January 27, 2015


                 Ron O'Brien, Prosecuting Attorney, and Valerie B. Swanson,
                 for appellee.

                 Yeura R. Venters, Public Defender, and Emily L. Huddleston,
                 for appellant.

                   APPEAL from the Franklin County Court of Common Pleas.

BROWN, J.
        {¶ 1} This is an appeal by defendant-appellant, J.H.S., from a judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas
following his entry of a guilty plea to four counts of sexual battery.
        {¶ 2} On June 26, 2013, appellant was indicted on four counts of sexual battery,
in violation of R.C. 2907.03, and one count of disseminating matter harmful to juveniles,
in violation of R.C. 2907.31. On January 21, 2014, appellant entered a guilty plea to four
counts of sexual battery.
        {¶ 3} During the plea proceedings, the prosecutor presented the following factual
background. The Hilliard Division of Police received information that appellant "is the
No. 14AP-399                                                                              2

biological father of [the alleged victim R.D.]" (Jan. 21, 2014 Tr. 3.) R.D. indicated that
"she and the defendant had had sexual intercourse numerous times from August through
* * * September 25th of 2012. The acts that she described include vaginal intercourse,
fellatio, cunnilingus, and anal intercourse." (Jan. 21, 2014 Tr. 3-4.) R.D. related that
these events first took place "at an aunt's house in West Virginia, but they continued in
Franklin County * * * in Hilliard and also at the Motel 6 at 3950 Parkway Lane." (Jan. 21,
2014 Tr. 4.) R.D. stated that appellant "asked her to send naked photos and videos of
herself to him, and she did that." (Jan. 21, 2014 Tr. 4.)
       {¶ 4} A paternity test performed in 2011 "indicated the defendant was the
biological father of R.D. to a probability of 99.99 percent." (Jan. 21, 2014 Tr. 4.) The
relationship began when appellant "found out the paternity results and began writing to
[R.D.] while he was incarcerated." (Jan. 21, 2014 Tr. 4.) Appellant also sent R.D. letters
in which he "expressed his love for his daughter and explicitly described what he wanted
to do to her sexually when he was released." (Jan. 21, 2014 Tr. 4.) R.D. placed a
controlled call, during which appellant "admitted to having sex with her and that it was
okay because she's 16 and of the age of consent. He was very concerned in that call about
her cell phone and who has it." (Jan. 21, 2014 Tr. 5.)
       {¶ 5} The cell phone was recovered and a detective examined it, discovering
"numerous text messages, photos, videos. The text messages expressed their love for each
other." (Jan. 21, 2014 Tr. 5.) Appellant sent one message "stating, 'I can't wait to make
love to you,' and there were some videos that the victim had described sending where she
was fondling herself or masturbating. They found photos of the defendant's erect penis
and also of the victim posing." (Jan. 21, 2014 Tr. 5.)
       {¶ 6} During an interview with law enforcement officials, appellant admitted he
gave R.D. the cell phone. Appellant "claimed that he had spoken to a Franklin County
detective who told him that it was legal to have sex with your daughter after she's over the
age of 16." (Jan. 21, 2014 Tr. 5.) When "asked more specifics * * * about having sex,"
appellant responded, "I guess so." (Jan. 21, 2014 Tr. 5.)
       {¶ 7} After accepting appellant's guilty plea, the trial court ordered preparation of
a presentence investigation report. On March 27, 2014, the court conducted a sentencing
hearing. By judgment entry filed April 16, 2014, the court sentenced appellant to 60
No. 14AP-399                                                                              3

months incarceration as to each count, with the sentences to run consecutive, for a total
term of imprisonment of 20 years.
       {¶ 8} On appeal, appellant sets forth the following three assignments of error for
this court's review:
              First Assignment of Error: The trial court erred by imposing
              consecutive sentences without making findings required by
              R.C. 2929.14(C)(4) and State v. Bonnell, [140 Ohio St.3d
              209], 2014-Ohio-3177.

              Second Assignment of Error: The trial court erred by
              imposing a sentence that is contrary to law in that it failed to
              properly evaluate the proportionality and consistency of the
              sentence pursuant to R.C. 2929.11.

              Third Assignment of Error: Trial counsel provided ineffective
              assistance of counsel in violation of appellant's rights
              according to the Sixth Amendment to the United States
              Constitution and Article I, Sections 10 and 16 of the Ohio
              Constitution.

       {¶ 9} Under the first assignment of error, appellant asserts the trial court erred in
failing to make the requisite findings under R.C. 2929.14(C)(4) at the sentencing hearing.
Appellant further argues that the court's judgment entry fails to set forth findings
supporting consecutive sentences.
       {¶ 10} Following the General Assembly's enactment of Am.Sub.H.B. No. 86,
effective September 20, 2011, "a sentencing court is required to make certain factual
findings when imposing consecutive sentences." State v. Moore, 11th Dist. No. 2104-G-
3183, 2014-Ohio-5182, ¶ 19.
       {¶ 11} R.C. 2929.14(C) provides as follows:
              (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:
No. 14AP-399                                                                              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.

              (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.

       {¶ 12} Thus, R.C. 2929.14(C)(4) requires a trial court, in order to impose
consecutive sentences, to find that: "(1) consecutive sentences are necessary to protect the
public from future crime or to punish the offender; (2) consecutive sentences are not
disproportionate to the seriousness of the offender's conduct and to the danger the
offender poses to the public; and (3) at least one of the factors enumerated in R.C.
2929.14(C)(4)(a)-(c) applies." State v. Smith, 8th Dist. No. 101105, 2014-Ohio-5547, ¶ 7.
       {¶ 13} The Supreme Court of Ohio recently construed R.C. 2929.14(C)(4) to hold
that the statute "requires the trial court to make statutory findings prior to imposing
consecutive sentences, and Crim.R. 32(A)(4) therefore directs the court to state those
findings at the time of imposing sentence." State v. Bonnell, 140 Ohio St.3d 209, 2014-
Ohio-3177, ¶ 26. In Bonnell at ¶ 29-30, the court further elaborated:
              When imposing consecutive sentences, a trial court must state
              the required findings as part of the sentencing hearing, and by
              doing so it affords notice to the offender and to defense
              counsel. See Crim.R. 32(A)(4). And because a court speaks
              through its journal * * * the court should also incorporate its
              statutory findings into the sentencing entry. However, a
              word-for-word recitation of the language of the statute is not
              required, and as 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.
No. 14AP-399                                                                            5

             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. * * * But a nunc
             pro tunc entry cannot cure the failure to make the required
             findings at the time of imposing sentence. See State v. Miller,
             127 Ohio St.3d 407, 2010-Ohio-5705, * * * ¶ 16 ("a nunc pro
             tunc order cannot cure the failure of a judge to impose
             restitution in the first instance at sentencing").

      {¶ 14} Under the facts of Bonnell, the court concluded that the trial court's
"description of Bonnell's criminal record as atrocious and its notation of his lack of
respect for society do not permit us to conclude that the trial court had made the
mandated statutory findings in accordance with R.C. 2929.14(C)(4)." Id. at ¶ 34.
      {¶ 15} In the present case, appellant cites to the following statements by the trial
court during the sentencing hearing:
             THE COURT: All right. * * * And you were out on bond
             before – when the offense was committed. You have a prior
             pretty bad criminal history. There's no question about that. I
             think we can all agree on that.

             You haven't responded favorably in the past to sanctions
             imposed for your criminal convictions. You've demonstrated
             a pattern of drug abuse, drug or alcohol abuse, and refused to
             acknowledge a pattern. You don't show too much remorse.
             The remorse is questionable. I mean, you might be sorry in
             some sense for the situation that you're in; but I'm not so sure
             that you're sorry for the damage, the mental injury, that
             you've caused this girl, or you fully – fully realize it.

             So, you know, in terms of the seriousness factors, there is
             significant injury, it sounds like, to the victim in this case. You
             took complete advantage of your daughter. There's proof that
             she is your daughter. There's no denying that, 99 percent
             results here indicating that you are 99.9 percent the father in
             this matter. She suffered serious physical or psychological
             mental harm as a result of your manipulation. It was a
             relationship with a family member, and there is a clear need
             for severe punishment for your actions and to protect the
             community.
No. 14AP-399                                                                                 6

              So all those issues, all those factors, have been clearly met in
              this case; and I'm not hearing any real rebuttal or response on
              your behalf as to why I shouldn't impose the maximum
              sentence and run it consecutive.

              So with that being the case, the court will impose the following
              sentence: For Counts 1, 2, 3, and 4 – they're all the same
              counts here. They're all sexual battery, felonies of the third
              degree, which have a five-year prison sentence – the court will
              impose five years for Counts 1, 2, 3, and 4 to run consecutive
              for a total of 20 years.

(Mar. 27, 2014 Tr. 21-22.)

       {¶ 16} Appellant maintains that the above findings by the trial court fail to satisfy
the requirements of R.C. 2929.14(C). In response, the state acknowledges that the trial
court failed to make a specific finding that imposing consecutive sentences would not be
"disproportionate to the seriousness of the offender's conduct and to the danger the
offender poses to the public." The state also acknowledges that the trial court did not
state its findings in the judgment entry. The state argues, however, that this court should
find that the trial court's statements at the sentencing hearing, indicating in general that it
was making findings under R.C. 2929.14(C)(4), should be sufficient to satisfy the statutory
requirements to impose consecutive sentences. We disagree.
       {¶ 17} This court has consistently held that "when the record demonstrates that
the trial court failed to make the findings required by R.C. 2929.14(C)(4) before imposing
consecutive sentences on multiple offenses, 'appellant's sentence is contrary to law and
constitutes plain error.' " State v. Ayers, 10th Dist. No. 13AP-371, 2014-Ohio-276, ¶ 15,
quoting State v. Wilson, 10th Dist. No. 12AP-551, 2013-Ohio-1520, ¶ 18. See also State v.
Jones, 10th Dist. No. 14AP-80, 2014-Ohio-3740, ¶ 18, citing State v. Boynton, 10th Dist.
No. 12AP-975, 2013-Ohio-3794 (because the trial court failed to make the R.C.
2929.14(C)(4) findings on the record, appellant's sentence is contrary to law and
constitutes plain error).
       {¶ 18} Upon review, we conclude that the trial court failed to make the requisite
findings under R.C. 2929.14(C)(4). Accordingly, remand is necessary for the trial court
"to consider whether consecutive sentences are appropriate, pursuant to R.C.
2929.14(C)(4), and, if so, to make the proper findings on the record at the sentencing
No. 14AP-399                                                                               7

hearing and incorporate those findings into its sentencing entry." Jones at ¶ 18, citing
Bonnell.
       {¶ 19} Based upon the foregoing, appellant's first assignment of error is sustained.
       {¶ 20} Under the second assignment of error, appellant contends the trial court
imposed a sentence contrary to law in that it failed to evaluate the proportionality and
consistency of the sentence under R.C. 2929.11. Appellant argues that the trial court
focused primarily upon the fact the victim was appellant's daughter and that such focus
distracted it from the analysis required by R.C. 2929.11.
       {¶ 21} In sentencing a felony offender, a trial court "must consider R.C. 2929.11,
which sets forth the overriding purposes of felony sentencing.          In advancing these
purposes, sentencing courts are instructed to 'consider the need for incapacitating the
offender, deterring the offender and others from future crime, rehabilitating the offender,
and making restitution to the victim of the offense, the public, or both.' " State v. Hurley,
3d Dist. No. 6-13-02, 2014-Ohio-2716, ¶ 69, citing R.C. 2929.11(A). R.C. 2929.11(B) also
"requires that felony sentences not demean 'the seriousness of the offender's conduct and
its impact upon the victim' and be consistent with sentences imposed in similar cases."
Id., citing State v. Snyder, 3d Dist. No. 13-12-38, 2013-Ohio-2046, ¶ 24. It has been
noted, "[f]or purposes of R.C. 2929.11(B), 'consistency' relates to the sentences in the
context of sentences given to other offenders; 'proportionality' relates solely to the
punishment in the context of the offender's conduct (does the punishment fit the crime)."
State v. Moore, 8th Dist. No. 99788, 2014-Ohio-5135, ¶ 17. In determining a sentence, a
trial court is also required to consider seriousness and recidivism factors as set forth
under R.C. 2929.12.
       {¶ 22} As noted, appellant contends the trial court was so preoccupied with the
relationship between appellant and the victim that it failed to engage in the proper
analysis required by R.C. 2929.11. Upon review of the record, including the sentencing
hearing transcript, we disagree. While the trial court noted the fact that the victim was
appellant's daughter, the court additionally cited on the record appellant's "bad criminal
history," and that he was under supervision at the time of the offense. (Mar. 27, 2014 Tr.
21.) Further, the court observed that appellant had not "responded favorably in the past
to sanctions imposed" and that he had "demonstrated a pattern of drug abuse, drug or
No. 14AP-399                                                                               8

alcohol abuse, and refused to acknowledge a pattern." (Mar. 27, 2014 Tr. 21.) The court
also discussed the "seriousness factors," expressing a "clear need for severe punishment
for your actions." (Mar. 27, 2014 Tr. 21-22.) Finally, in its judgment entry, the trial court
expressly stated it had "considered the purposes and principles of sentencing set forth in
R.C. 2929.11 and the factors set forth in R.C. 2929.12." Here, a review of the judgment
entry and the sentencing hearing fails to support appellant's contention that the trial court
erred in failing to consider the appropriate sentencing factors under R.C. 2929.11.
       {¶ 23} Appellant's second assignment of error is not well-taken and is overruled.
       {¶ 24} Under the third assignment of error, appellant contends his trial counsel
was ineffective by failing to offer any objection or mitigation in response to the state's
request for the maximum sentence. According to appellant, counsel failed to point out
mitigating factors such as the fact he entered a plea bargain and that he had accepted
responsibility for his actions.
       {¶ 25} Under Ohio law, in order to prevail on a claim of ineffective assistance of
counsel, a defendant is required to "show, first, that counsel's performance was deficient
and, second, that the deficient performance prejudiced the defense so as to deprive the
defendant of a fair trial." State v. Smith, 89 Ohio St.3d 323, 327 (2000), citing Strickland
v. Washington, 466 U.S. 668, 687 (1984). In order to establish prejudice, the defendant
is required to prove that "there exists a reasonable probability that, were it not for
counsel's errors, the result of the trial would have been different." State v. Bradley, 42
Ohio St.3d 136 (1989), paragraph three of the syllabus.
       {¶ 26} Appellant contends that trial counsel, by failing to point out that a 20-year
sentence did not achieve the overriding purpose of felony sentencing under R.C. 2929.11,
in effect precluded the trial court from evaluating the purposes and principles of
sentencing. We have previously noted, however, in addressing the second assignment of
error, that the court properly considered the factors under R.C. 2929.11. Further, the
record indicates that defense counsel offered mitigating evidence. During the sentencing
hearing, defense counsel noted that appellant was abused sexually as a child and that he
had been "incarcerated most of his life." (Mar. 27, 2014 Tr. 4.) In response to an inquiry
by the trial court as to the age of the victim, counsel responded: "This is not a rape * * *
she was at the age of consent." (Mar. 27, 2014 Tr. 4.) While noting this was "certainly not
No. 14AP-399                                                                              9

a correct relationship," counsel emphasized that the relationship "was a consensual" one.
(Mar. 27, 2014 Tr. 5.) Counsel further argued that appellant "didn't know her as a
daughter in the sense of * * * bringing her up." (Mar. 27, 2014 Tr. 5.) Counsel also
clarified, in response to an inquiry by the court, that appellant did not have a prior rape
conviction. Finally, counsel noted that appellant had "pled basically to the indictment"
and requested the court to "take all these matters into consideration." (Mar. 27, 2014 Tr.
6.)
       {¶ 27} Moreover, even assuming he could demonstrate that trial counsel's
performance was somehow deficient, appellant has not shown resulting prejudice.
During the sentencing hearing, the trial court indicated it had read the presentence
investigation report, which indicated a lengthy criminal history. Further, prior to the
state's request that the court enter the maximum sentence, the court stated to appellant:
"[T]here's no question you're going to do a long time; you're going to do some time here
for prison. But * * * assuming you're able to survive it for another two decades or so,
you'll be released." (Mar. 27, 2014 Tr. 13.) In addition to noting the significant physical
and psychological harm to R.D., the trial court cited appellant's criminal history, his
failure to respond favorably to past sanctions, a refusal to acknowledge a pattern of drug
or alcohol abuse, and lack of remorse. The record also indicates that appellant was on
post-release control at the time of the offenses. Upon review, appellant has failed to show
a reasonable probability that the trial court would have pronounced a different sentence
in the absence of counsel's alleged failures.
       {¶ 28} Appellant's third assignment of error is not well-taken and is overruled.
       {¶ 29} Accordingly, appellant's first assignment of error is sustained, and his
second and third assignments of error are overruled. Based upon the foregoing, the
judgment of the Franklin County Court of Common Pleas is affirmed in part and reversed
in part, and this matter is remanded to that court for resentencing.
                                          Judgment affirmed in part and reversed in part;
                                                                        cause remanded.

                       TYACK and LUPER SCHUSTER, JJ., concur.

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