[Cite as State v. Wise, 2013-Ohio-260.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 98086



                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                    MICHAEL R. WISE
                                                    DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-554977

         BEFORE: E.A. Gallagher, J., Stewart, A.J., and Rocco, J.

         RELEASED AND JOURNALIZED:                  January 31, 2013
ATTORNEY FOR APPELLANT

Brian R. McGraw
1370 Ontario Street
Suite 2000
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Jesse W. Canonico
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:

       {¶1} Michael Wise appeals from his sentence, which was imposed in the

Cuyahoga County Court of Common Pleas. Wise argues that the statement of the

minor victim’s father deprived him of his due process rights and that the aggregate

prison sentence of 108 years to life constituted cruel and unusual punishment. Finding

no merit to the instant appeal, we affirm the judgment of the trial court.

       {¶2} This case originated when the victim, A.R., (d.o.b. 6/15/1999) informed his

father that Wise had sexually abused him.            Police officers investigating the crime

discovered photographic and video evidence on Wise’s computer of the defendant

sexually assaulting the victim over a period of time. According to the state of Ohio, the

recovered evidence of the crime depicted numerous assaults on the victim, who was nine

when they began and 12 at the time of sentencing.

       {¶3}   Wise pleaded guilty to sixteen counts of rape of a child under the age of 13

with sexually violent predator specifications; 39 counts of pandering sexually oriented

matter involving a minor; nine counts of illegal use of a minor in nudity-oriented

performance and one count of possession of criminal tools; the court dismissed the

remaining counts against him.      The parties agreed that the offenses were not allied

offenses of similar import, that Wise was to have no contact with the victim and that he

would be classified as a Tier III sexual offender.

       {¶4} At Wise’s February 17, 2012 sentencing hearing, the court heard a
synopsis of the facts as presented by the state, a statement from a detective from the

Cleveland Police Department Sex Crimes and Child Abuse Unit, a statement from a man

who had been sexually assaulted by Wise in 1992 and a statement from the victim’s

father. Lastly, Wise and his counsel addressed the court. In imposing its sentence, the

court related that it had reviewed the presentence investigation report and both the state

and Wise’s sentencing memorandum.        The court then sentenced Wise as follows: 25

years to life on each rape count, with counts 2, 9, 16 and 23 to run consecutive and the

remaining 12 counts of rape to run concurrent; eight years on each count of pandering, to

run concurrent with each other but consecutive to the rape sentences; eight years on the

charges of illegal use of a minor in a nudity-oriented production to run concurrent with

one another and concurrent with all other counts; and one year on the charge of

possession of criminal tools to run concurrent with all other counts, for a total prison

sentence of 108 years to life.

       {¶5} Wise appeals, raising the following assignments of error:

                                 Assignment of Error I

       The statement delivered by the victim’s father at sentencing, which was
       threatening and violent, denied the appellant of his due process right to a
       fair, thoughtful and unbiased sentencing hearing.

                                 Assignment of Error II

       A sentence of 108 years to life is cruel and unusual and in violation of the
       appellant’s Eighth Amendment rights.

       {¶6} In his first assignment of error, Wise claims that the victim’s father’s

statement deprived him of a fair, and unbiased sentencing hearing.   We disagree.
       {¶7} Throughout his assigned error, Wise quoted extensively from the victim’s

father’s statement, which we admit was profanity laced and lacking in decorum.

However, nowhere in Wise’s appeal does he establish how this statement impacted the

court’s imposed prison sentence. Additionally, Wise has failed to supply this court with

any legal authority demonstrating that a victim statement such as this requires a

sentencing reversal.   Such a failure allows this court to disregard this assigned error.

See App.R. 12(A), App.R. 16(A).

       {¶8} Nonetheless, this court has reviewed both the journal entry and the

sentencing transcript and we find no evidence that the victim’s father’s statement had

any impermissible impact upon the imposed sentence. Prior to imposing sentence, the

trial court stated that it had considered all the required factors of law and that prison was

consistent with the purposes of R.C. 2929.11. The court then went on to address the

reasons for imposing its sentence, which included the following: that Wise was a repeat

sexual offender of underage boys, that he used a position of trust to assault and exploit

the victim, that Wise not only raped a nine year-old boy while he was asleep but that he

memorialized it with video and photos for his own self-gratification and that Wise

committed one of the worst forms of the offenses the court had seen.        The court never

referenced the victim’s father’s statement before imposing sentence.

       {¶9} Thus, while the victim’s father did display anger and hostility towards

Wise during his statement, we find no proof that this statement deprived Wise of his

substantial rights. It is apparent from the record that this was an emotionally charged

case and that the trial court was simply providing the victim’s father with an opportunity
to express his emotions. Although we do not find the victim’s father’s statement to be

either appropriate or respectful of the courtroom environment, we find no error with the

court’s imposed sentence.    Notably, Wise does not even allege that the trial court’s

imposed sentence is contrary to law.

      {¶10} Wise’s first assignment of error is overruled.

      {¶11} In his second assigned error, Wise argues that a 108 year-to-life prison

sentence constitutes cruel and unusual punishment.        Specifically, Wise argues that

while his crimes were serious, he did not commit a murder and that he should be allowed

some hope of one day being a free man. We find no merit to Wise’s arguments.

      {¶12} The Ohio Supreme Court has stated that,

      [c]ases in which cruel and unusual punishments have been found are
      limited to those involving sanctions which under the circumstances would
      be considered shocking to any reasonable person,

 and furthermore that

      the penalty must be so greatly disproportionate to the offense as to shock

      the sense of justice of the community.

State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, citing State v.

Weitbrecht, 86 Ohio St.3d 368, 371, 1999-Ohio-113, 715 N.E.2d 167, quoting McDougle

v. Maxwell, 1 Ohio St.2d 68, 70, 203 N.E.2d 334 (1964).

{¶13} Wise’s prison term of 108 years to life is a cumulative sentence composed of

multiple, individual sentences for a myriad of crimes committed over multiple years.   In

such situations the Ohio Supreme Court has stated,

[F]or purposes of the Eighth Amendment and Section 9, Article I of the Ohio
Constitution, proportionality review should focus on individual sentences rather than on
the cumulative impact of multiple sentences imposed consecutively. Where none of the
individual sentences imposed on an offender are grossly disproportionate to their
respective offenses, an aggregate prison term resulting from consecutive imposition of
those sentences does not constitute cruel and unusual punishment.

State v. Moon, 8th Dist. No. 93673, 2010-Ohio-4483, at ¶ 25, quoting Hairston at ¶ 20.

{¶14} In the present case, Wise does not argue that any particular individual sentence is

cruel and unusual. In fact, each of Wise’s individual prison terms is within the range

authorized by the General Assembly.      Trial courts have discretion to impose a prison

sentence within the statutory range for the offense. Hairston at ¶ 21, citing State v.

Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the

syllabus.   “As a general rule, a sentence that falls within the terms of a valid statute

cannot amount to a cruel and unusual punishment.” Id.

{¶15} The facts of this case are particularly disturbing.   Thus, Wise’s sentence of 108

years to life for 16 counts of rape of a child under the age of 13, 39 counts of pandering

sexually oriented matter involving a minor, nine counts of illegal use of a minor in

nudity-oriented performance and one count of possession of criminal tools is not cruel or

unusual.    See also State v. Flagg, 8th Dist. Nos. 95958 and 95986, 2011-Ohio-5386.

{¶16} Wise’s second assignment of error is overruled.

{¶17} The judgment of the trial court is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution. The defendant’s conviction having been

affirmed, any bail pending appeal is terminated. Case remanded to the trial court for
execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

MELODY J. STEWART, A.J., and
KENNETH A. ROCCO, J., CONCUR
