[Cite as State v. Davis, 2011-Ohio-3101.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. CT2010-0052
ROBERT DAVIS, JR.

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. CR2010-0120


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         June 23, 2011



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

RONALD L. WELCH                                ERIC J. ALLEN
ASSISTANT PROSECUTOR                           THE LAW OFFICE OF
27 North Fifth Street                          ERIC J. ALLEN, LTD.
Post Office Box 189                            713 South Front Street
Zanesville, Ohio 43702-0189                    Columbus, Ohio 43206
Muskingum County, Case No. CT2010-0052                                                2

Wise, J.

      {¶1}    Defendant-appellant Robert Davis, Jr. appeals his sentence entered in the

 Muskingum County Court of Common Pleas following a plea of guilty to one count of

 rape, one count of rape of a person under the age of thirteen and one count of gross

 sexual imposition on a person under the age of thirteen.

      {¶2}    Plaintiff-appellee is the State of Ohio.

                          STATEMENT OF THE CASE AND FACTS

      {¶3}    On April 6, 2010, the Muskingum County Sheriff's Office responded to a

 call concerning the sexual abuse of two minor children and one adult child by the

 Appellant. The adult child, J.E.D., and one of the minor children, K.J.D., are the

 Appellant's natural children; their mother has been deceased since 1997. E.D. is the

 Appellant's step-child. A complaint soon followed.

      {¶4}    The Sheriff’s investigation uncovered a number of allegations of sexual

 offenses perpetrated by Appellant against these victims dating from 1998 to the

 present. All three of these victims, in separate interviews, claimed that Appellant

 threatened to harm them or other family members if they ever told anyone what he

 was doing to them. Further investigation revealed that there were several other victims

 as well.

      {¶5}    On June 9, 2010, a multi-count indictment was returned against Appellant

 alleging numerous instances of sexual misconduct with the previously mentioned

 victims and with other children.

      {¶6}    At the arraignment, Appellant pled not-guilty and bond was set at one

 million dollars.
Muskingum County, Case No. CT2010-0052                                                 3


      {¶7}   On August 9, 2010, counsel for Appellant withdrew.

      {¶8}   On August 11, 2010, with new counsel present, the Prosecutor negotiated

 a plea bargain with Appellant whereby Appellant agreed to plead guilty to (1) count of

 rape of a person under age 13, (1) count of rape, and (1) count of gross sexual

 imposition on a person under the age of 13. In exchange for his guilty plea, the

 Prosecutor agreed not to indict Appellant on the remaining counts and to recommend

 a sentence of twenty years to life.

      {¶9}   At the plea hearing, Appellant withdrew his not-guilty plea and entered a

 guilty plea. The trial court accepted Appellant's guilty plea and proceeded to

 sentencing. After both counsel clarified their understanding of the terms of the plea

 bargain, the trial court imposed a sentence of twenty-five years to life.

      {¶10} It is from this upward departure that Appellant now appeals, assigning the

 following error for review:

                                 ASSIGNMENT OF ERROR

      {¶11} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING

 THE DEFENDANT TO MORE THAN THE AGREED UPON SENTENCE OF TWENTY

 YEARS TO LIFE.”

                                               I.

      {¶12} In his sole assignment of error, Appellant asserts that the trial court erred

 by failing to sentence him in accordance with the negotiated plea agreement. We

 disagree.

      {¶13} In the instant case, Appellant argues that the trial court’s decision to

 depart from the prosecutor’s recommendation of twenty years to life was influenced by
Muskingum County, Case No. CT2010-0052                                                    4


 the prosecutor’s statements to the court that the prepared indictment contained 293

 counts, but that the State was willing to negotiate a plea deal which included only a

 guilty plea to three separate counts.

      {¶14} Initially, we note that the trial court in this matter did not breach the plea

 agreement, as it never agreed to sentence Appellant to the twenty to life prison term

 recommended by the prosecutor. The agreement that Appellant signed acknowledged

 that the trial court was not bound by the prosecutor's recommendation. (T. at 10).

      {¶15} “A trial court does not err by imposing a sentence greater than ‘that

 forming the inducement for the defendant to plead guilty when the trial court forewarns

 the defendant of the applicable penalties, including the possibility of imposing a

 greater sentence than that recommended by the prosecutor.’ ” State ex rel Duran v.

 Kelsey, 106 Ohio St.3d 58, 2006-Ohio-3674; State v. Buchanan, 154 Ohio App.3d

 250, 2003-Ohio-4772, 796 N.E.2d 1003, ¶ 13, quoting State v. Pettiford (Apr. 22,

 2002), Fayette App. No. CA2001-08-014.

      {¶16} In State v. Kalish, 120 Ohio St.3d 23, 2009-Ohio-4912, the Ohio Supreme

 Court set forth a two-step approach for appellate courts to follow in reviewing felony

 sentences. “First, they must examine the sentencing court's compliance with all

 applicable rules and statutes in imposing the sentence to determine whether the

 sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the

 trial court's decision in imposing the term of imprisonment shall be reviewed under an

 abuse of discretion standard.” Kalish at paragraph 4, State v. Foster, 109 Ohio St.3d

 1, 2006–Ohio–856, 845 N.E.2d 470.
Muskingum County, Case No. CT2010-0052                                                    5


      {¶17} In the instant case, the sentence Appellant received was within the

 permissible statutory range, and the court stated in its judgment that it had considered

 the principles and purposes of sentencing under R.C. §2929.11 and balanced the

 seriousness and recidivism factors under R.C. §2929.12. We further note that

 Appellant does not allege that he was not properly advised of post-release control in

 this case.

      {¶18} Based on the foregoing, we find that the trial court did not abuse its

 discretion in imposing the sentence of 25 years to life on Appellant for one count of

 rape of a person under the age of 13, one count of rape and one count of gross sexual

 imposition on a person under the age of 13.

      {¶19} Appellant herein argues that the trial court was influenced by the

 magnitude of the unindicted offenses in this matter. In support, Appellant cites this

 Court to the trial court’s statement that “upon review of the presentence investigation

 and everything involved in the case the court will impose those sentences

 consecutively for a total of twenty-five years.”

      {¶20} Subsequent to the Ohio Supreme Court's decision in State v. Foster, i.e.

 “* * * 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.” 109 Ohio St.3d 1, 30,

 2006–Ohio–856 at ¶ 100, 845 N.E.2d 470, 498.

      {¶21} We have reviewed the record in this matter and find that the trial court's

 decision was not arbitrary, unconscionable or unreasonable. In considering the

 sentence in this case, the trial court had before it the fact that the rape victims in this
Muskingum County, Case No. CT2010-0052                                               6


 case were Appellant’s biological daughters and were only ten and fifteen years old at

 the time of the rapes. The victim of the gross sexual imposition was Appellant’s step-

 daughter and was only twelve years old when she was assaulted. These facts alone

 could account for the trial court’s decision to impose a sentence greater than the

 sentence recommended by the State of Ohio.

      {¶22} We find Appellant’s sole assignment of error not well-taken and hereby

 overrule same.

      {¶23} For the foregoing reasons, the judgment of the Court of Common Pleas,

 Muskingum County, Ohio, is affirmed.


By: Wise, J.

Gwin, J. and

Delaney, J. concur

                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                              JUDGES
JWW/d 0613
Muskingum County, Case No. CT2010-0052                                        7


          IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                            :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
ROBERT DAVIS, JR.                        :
                                         :
       Defendant-Appellant               :         Case No. CT2010-0052



       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Muskingum County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                         ___________________________________


                                         ___________________________________


                                         ___________________________________

                                                            JUDGES
