[Cite as State v. Baker, 2013-Ohio-2891.]


                                       COURT OF APPEALS
                                   COSHOCTON 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. 2013CA0001
JAMES E. BAKER, JR.                           :
                                              :
                     Defendant-Appellant      :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Coshocton County
                                                  Court of Common Pleas, Case No. 12-CR-
                                                  0031

JUDGMENT:                                         Affirmed

DATE OF JUDGMENT ENTRY:                           July 1, 2013

APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

JASON GIVEN                                       JEFFREY MULLEN
Coshocton County Prosecuting Attorney             Coshocton County Public Defender
318 Chestnut Street                               239 N. Fourth Street
Coshocton, OH 43812                               Coshocton, OH 43812
[Cite as State v. Baker, 2013-Ohio-2891.]


Gwin, P.J.

        {¶1}     On May 21, 2012, James E. Baker, Jr. [“Baker”] was indicted on nineteen

(19) counts. Baker was charged with one count of Rape, R.C. 2907.02(A)(1)(b); eight

counts of Rape, R.C. 2907.02(A)(2); and ten (10) additional counts of Gross Sexual

Imposition.

        {¶2}     On August 31, 2012 Baker entered pleas of guilty to counts one (1)

through ten (10) of the Indictment, consisting of 9 counts of rape, felonies of the first

degree one count in violation of R.C. 2907.02(A)(1)(b) and eight counts in violation of

R.C. 2907.02(A)(2); and one count of gross sexual imposition a felony of the third

degree in violation of R.C. 2907.05(A)(4). In exchange, the state requested and the

court granted a nolle prosequi of counts eleven (11) through nineteen (19) of the

Indictment. The state also agreed to take no position as it related to Baker’s sentence.

        {¶3}     Following Baker's pleas of guilty, the court ordered a pre-sentence

investigation (PSI). Additionally, upon Baker’s motion, the court ordered that a

psychological examination of Baker be performed to aid the court in sentencing and as

part of the PSI process. Per said order Dr. Gary Wolfgang, Ph.D., conducted the

examination and filed a report with the court. This report was incorporated into the PSI

and was made part of the record at the time of sentencing.

        {¶4}     On December 12, 2012, the court conducted a sentencing hearing. The

court imposed a sentence of 10 years to life imprisonment for Count 1, Rape; sentences

of 5 years for each of counts 2 through 9, each a count of Rape felonies of the first

degree; and a sentence of 36 months for Count 10, Gross Sexual Imposition. The

sentencing court ordered that the sentences for counts 2, 3, and 4 were to be
Coshocton County, Case No. 2013CA0001                                                   3


consecutive to each other and consecutive to Count 1; and that the remaining counts be

concurrent to each other, and concurrent to counts 1 through 4. Thus, Baker’s

aggregate sentence is life imprisonment with the possibility of parole in twenty-five (25)

years.

                                       Assignment of Error

         {¶5}   Baker assigns one assignment of error,

         {¶6}   “I. THE IMPOSITION OF CONSECUTIVE SENTENCES WAS AN ABUSE

OF DISCRETION.”

         {¶7}   In his sole assignment of error, Baker challenges his consecutive

sentences.

         {¶8}   In 2003, the Ohio Supreme Court held in State v. Comer, 99 Ohio St.3d

463, 2003-Ohio-4165, a court may not impose consecutive sentences unless it “finds”

three statutory factors enumerated in then 2929.14(E)(4). The statutory factors were the

same as those now enumerated in the revised version of R.C. 2929.14(C)(4) following

enactment of 2011 Am.Sub.H.B. No. 86. The revised version of the statute again

requires the trial court to “find” the factors enumerated.

         {¶9}   The Court in Comer, supra, read R.C. 2929.14(E)(4), as it existed then, in

conjunction with then R.C. 2929.19(B) to reach its conclusion the trial court must also

state its reasons for the sentence imposed. Then R.C. 2929.19(B) stated the trial court

“shall impose a sentence and shall make a finding that gives its reasons for selecting

the sentence imposed in any of the following circumstances...(c) if it imposes

consecutive sentences under R.C. 2929.14.”
Coshocton County, Case No. 2013CA0001                                                4


      {¶10} 2011 Am.Sub.H.B. No. 86, which became effective on September 30,

2011, revived the language provided in former R.C. 2929.14(E) and moved it to R.C.

2929.14(C)(4). The revisions to the felony sentencing statutes under 2011 Am.Sub.H.B.

No. 86 now require a trial court to make specific findings when imposing consecutive

sentences. R.C. 2929.14(C)(4) provides, in relevant part:

             (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.
Coshocton County, Case No. 2013CA0001                                                        5


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

       consecutive sentences are necessary to protect the public from future

       crime by the offender. (Emphasis added).

       {¶11} In Section 11, the legislature explained that in amending former R.C.

2929.14(E)(4), it intended “to simultaneously repeal and revive the amended language

in those divisions that was invalidated and severed by the Ohio Supreme Court's

decision in State v. Foster (2006), 109 Ohio St.3d 1.” The General Assembly further

explained that the amended language in those divisions “is subject to reenactment

under the United States Supreme Court's decision in Oregon v. Ice (2009), 555 U.S.

160, and the Ohio Supreme Court's decision in State v. Hodge (2010), ––– Ohio St.3d –

–––, Slip Opinion No. 2010–Ohio–6320.” Thus, it is the legislature's intent that courts

interpret the language in R.C. 2929.14(C)(4) in the same manner as the courts did prior

to State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d 470.

       {¶12} When it is clear from the record that the trial court engaged in the

appropriate analysis, little can be gained by sending the case back for the trial court to,

in essence, recite the “magic” or “talismanic” words when imposing consecutive

sentences. In other words, because the record supports the trial court’s imposition of

consecutive sentences, the trial court cannot err in imposing consecutive sentences

after remand. Our review on appeal of any subsequent resentencing will be directed at

looking at the entire trial court record to determine if that record supports the trial court’s

findings that the R.C. 2929.14(C) factors were met. See, State v. Alexander, 1st Dist.

Nos. C–110828, C–110829, 2012–Ohio–3349, ¶18; State v. Frasca, 11th Dist. 2011–T–

0108, 2012–Ohio–3746, ¶57.
Coshocton County, Case No. 2013CA0001                                                 6


      {¶13} The transcript and sentencing entries reveal that the trial court reviewed

Baker’s presentence investigation report and Dr. Wolfgang’s a report.

      {¶14} During the sentencing hearing, the trial judge made the following findings,

             Mr. Baker, now we need to get down to the numbers. I believe that

      your lawyer has done everything he can for you under the circumstances,

      but your lawyer's ability to defend your position is somewhat limited

      because of the nature of the crimes and the harm caused by you. I

      understand that you have some limited mental abilities, but it's also clear

      to me that you knew what you were doing was wrong and you continued

      to do that. Because of your actions, and the age of the victim, who was

      under age 13 with regard to Count 1, the General Assembly of this state

      has decided to allow for a specific penalty, and that penalty is the only one

      available to you for Count 1 of the indictment.

             In consideration of the criteria established in section 2907.02 and

      the penalty section for Count 1, and Count 1, again, is rape, in violation of

      Revised Code Section 2907.02(A) (1)(b), a felony of the first degree, when

      the victim was less than 13 years of age, meaning the penalty section is

      2971.03(B) (1)(a), James E. Baker, you are hereby sentenced to serve for

      that offense, again, that's rape, in violation of Revised Code Section

      2907.02(A)(1)(b), a felony of the first degree as set forth in Count 1 of the

      indictment, you are hereby sentenced to serve a minimum term of 10

      years and a maximum term of life imprisonment. That is exactly the way
Coshocton County, Case No. 2013CA0001                                               7


     the statute is set out. A minimum term of 10 years and a maximum term of

     life imprisonment. That's the penalty for Count 1.

                                           ***

            And your lawyer has argued for concurrent sentences, based on

     your cooperation and your lack of a criminal history. I have to balance that

     cooperation and I do take that into consideration, Mr. Baker, that you did

     not require some young girl to come up here and sit on this witness stand

     and talk about what it's like to be raped by you, to have to relive those

     horrors and explain that to numerous strangers sitting about the

     courtroom, specifically those in the jury box. So I do grant you some credit

     for that. But, I have to find that the harm caused by you is so great that a

     single term of imprisonment cannot adequately punish you for these

     offenses. In consideration of the criteria established in sections 2929.12,

     13, 14, and all other matters pertinent, including the content and

     recommendation of the pre-sentence investigation and report, it is the

     judgment and sentence of this court as follows: For the offense of rape, in

     violation of Revised Code Section 2907.02(A)(2), a felony of the fifth

     degree, the defendant, James E. Baker Jr., is hereby sentenced to serve

     five years’ incarceration in a state penal institution.

            For the offense of rape, in violation of Revised Code Section

     2907.02(A)(2), a felony of the first degree, as set forth in Count 3 of the

     indictment, the defendant, James E. Baker Jr., is hereby sentenced to

     serve five years' incarceration in a state penal institution.
Coshocton County, Case No. 2013CA0001                                               8


           For the offense of rape, in violation of Revised Code Section

     2907.02(A) (2), a felony of the first degree, as set forth in Count 4 of the

     indictment, the defendant, James E. Baker Jr., is hereby sentenced to

     serve five years’ incarceration in a state penal institution. The sentences

     for counts 2, 3, and 4 will be served consecutively with each other. And

     consecutively with the sentence imposed in Count 1.

           In sentencing the defendant to consecutive prison terms, the court

     finds that the consecutive service is necessary to protect the public from

     future crime and 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 at least two of the

     offenses were committed as part -- I should say, those offenses noted in

     counts 1 through 4 were committed as part of a course of conduct and the

     harm caused by the multiple 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 adequately reflects the seriousness of the offender's

     conduct.

           Now, that's a lot of legal terminology for you, Mr. Baker. What I

     have just said in terms that you might understand is that when you raped a

     little girl, you stole from her, you took from her her innocence. You took

     from her something that she can never regain, and you placed upon her a

     burden that she will carry around for the rest of her life. The harm caused

     by you is absolutely immeasurable, I can't even begin to explain it. And
Coshocton County, Case No. 2013CA0001                                                     9


       therefore, you will serve those sentences that I just pointed out

       consecutively so that, in effect, it's a life sentence and you will be in prison

       for the rest of your life.

                                            ***

Sent. T. at 7-11.

       {¶15} Upon review of the sentencing entries and the pertinent transcripts, we

find the trial court properly considered the purposes and principles of felony sentencing,

the factors of seriousness and recidivism and the R.C. 2929.14(C) factors when it re-

sentenced Baker. We further hold the trial court's consecutive sentences in this matter

are not unreasonable, arbitrary or unconscionable, and they are not contrary to law.

       {¶16} Baker’s sole assignment of error is overruled and the judgment of the

Coshocton County Court of Common Pleas is affirmed.



By Gwin, P.J.,

Wise, J., and

Baldwin, J., concur


                                               _________________________________
                                               HON. W. SCOTT GWIN


                                               _________________________________
                                               HON. JOHN W. WISE


                                               _________________________________
                                               HON. CRAIG R. BALDWIN
WSG:clw 0618
[Cite as State v. Baker, 2013-Ohio-2891.]


            IN THE COURT OF APPEALS FOR COSHOCTON COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :
                                               :
                      Plaintiff-Appellee       :
                                               :
                                               :
-vs-                                           :       JUDGMENT ENTRY
                                               :
JAMES E. BAKER, JR.                            :
                                               :
                                               :
                     Defendant-Appellant       :       CASE NO. 2013CA0001




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

judgment of the Coshocton County Court of Common Pleas is affirmed. Costs to

appellant.




                                                   _________________________________
                                                   HON. W. SCOTT GWIN


                                                   _________________________________
                                                   HON. JOHN W. WISE


                                                   _________________________________
                                                   HON. CRAIG R. BALDWIN
