[Cite as State v. Corcoran, 2017-Ohio-7084.]



                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO



STATE OF OHIO,                                 :   APPEAL NO. C-160627
                                                   TRIAL NO. B-1501302-A
         Plaintiff-Appellee,                   :

   vs.                                         :
                                                      O P I N I O N.
APRIL CORCORAN,                                :

         Defendant-Appellant.                  :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 4, 2017


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Brian T. Goldberg, for Defendant-Appellant.
                    OHIO FIRST DISTRICT COURT OF APPEALS


DETERS, Judge.

        {¶1}   Defendant-appellant April Corcoran appeals her convictions for

complicity to rape, corrupting another with drugs, and endangering children,

stemming from a four-month period where Corcoran allowed her codefendant,

Shandell Willingham, to sexually abuse Corcoran’s then-11-year-old child, in

exchange for heroin. Corcoran also furnished her child with heroin during this time.

Because we determine that Corcoran’s assignments of error challenging the nature of

her guilty pleas and her sentence are without merit, we affirm the judgment of the

trial court.

                         Facts and Procedural History

        {¶2}   Corcoran, a heroin addict, lived in a tent in the backyard of her

parents’ home.     Corcoran’s two children lived inside the home with Corcoran’s

parents. Corcoran did not have stable employment, and when Corcoran could not

pay Willingham, her heroin dealer, she engaged in sexual acts with him, and allowed

him to take pictures and videos of her during these acts. Corcoran also brought

others to Willingham for his sexual gratification. In February of 2014, Corcoran

began introducing one of her children to Willingham. At first, Corcoran took her

child to Willingham so that he could masturbate while watching the child, and

Corcoran received heroin in return. Corcoran then began leaving Willingham and

her child alone at Willingham’s apartment. According to a detailed interview of the

child by police, Willingham raped the child multiple times over several months.

Willingham penetrated the child anally, and he forced the child to perform fellatio

and cunnilingus. In exchange for offering up the child to Willingham, Corcoran

received heroin.


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                    OHIO FIRST DISTRICT COURT OF APPEALS


       {¶3}    The abuse Corcoran’s child suffered came to light on a visit that

Corcoran’s children had with their father and stepmother. An investigation ensued,

leading to the arrest and joint indictment of Corcoran and Willingham.

       {¶4}    The joint indictment against Corcoran and Willingham contained 40

counts related to rape, complicity to rape, gross sexual imposition, human

trafficking, pandering sexually-oriented matter involving a minor, endangering

children, and drug charges. Corcoran pleaded guilty to counts 2, 4, 6, 8, 25, and 28,

as well as the human-trafficking charges, in exchange for dismissal of the other

counts. Counts 2, 4, 6, and 8, the complicity-to-rape charges, charged Corcoran with

transporting her child to Willingham and allowing him to perform anal intercourse

on the child, insert his tongue in the child’s anus, perform cunnilingus on the child,

and force the child to perform fellatio—all in exchange for heroin. Count 25 charged

Corcoran with corrupting another with drugs by furnishing heroin to the child.

Count 28 charged Corcoran with child endangering under R.C. 2919.22(B)(2), which

prohibits torture or cruel abuse of a child.

       {¶5}    The trial court accepted Corcoran’s guilty pleas and held a sentencing

hearing. Over Corcoran’s objection, the trial court declined to merge the child-

endangering charge with the other counts for purposes of sentencing, however, the

trial court merged the trafficking charges. The trial court sentenced Corcoran to an

aggregate prison term of 51 years to life. Corcoran appeals.

                     Corcoran Challenges Her Guilty Pleas

       {¶6}    We address Corcoran’s third assignment of error first, in which she

argues that her guilty pleas were not knowing, voluntary, and intelligent, because the




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                    OHIO FIRST DISTRICT COURT OF APPEALS


trial court failed to determine that Corcoran understood that most of the charges

against her carried a mandatory prison sentence.

       {¶7}    Before a trial court can accept a guilty plea in a felony case, the trial

court must “[d]etermin[e] that the defendant is making the plea voluntarily, with

understanding of the nature of the charges and of the maximum penalty involved,

and if applicable, that the defendant is not eligible for probation or for the imposition

of community control sanctions at the sentencing hearing.” Crim.R. 11(C)(2)(a). The

requirement in Crim.R. 11(C)(2)(a) that a trial court inform the defendant that he or

she is not eligible for probation or community control does not involve constitutional

rights, thus, the trial court need only substantially comply with this requirement.

State v. Maggard, 1st Dist. Hamilton No. C-100788, 2011-Ohio-4233, ¶ 5, citing

State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).                Substantial

compliance with Crim.R. 11 means that “ ‘under the totality of the circumstances the

defendant subjectively understands the implications of his plea and the rights he is

waiving.’ ”   State v. Dean, 1st Dist. Hamilton No. C-150478, 2016-Ohio-3076, ¶ 5,

quoting Nero at 108. Furthermore, even if a trial court failed to substantially comply

with the nonconstitutional requirements of Crim.R. 11(C), a defendant seeking to

void pleas as unknowing, unintelligent, or involuntary must show prejudice—

meaning that, but for the trial court’s failure to substantially comply with the rule,

the plea would not have been made. Dean at ¶ 5, citing Nero.

       {¶8}    In State v. Nero, the Ohio Supreme Court held that the trial court

substantially complied with Crim.R. 11 when accepting the defendant’s guilty plea to

rape, even though the trial court failed to inform the defendant that he was ineligible

for probation, because the record indicated that the defendant knew he was ineligible


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                    OHIO FIRST DISTRICT COURT OF APPEALS


for probation. At the plea hearing, defendant’s counsel told the trial court that the

defendant knew he would be incarcerated, and requested “some time to straighten

out [his] affairs.” Nero at 108. The Nero court determined that the totality of the

circumstances indicated that the defendant knew he was ineligible for probation,

and, therefore, was not prejudiced by the trial court’s failure to comply with Crim.R.

11(C)(2)(a). See State v. Stewart, 51 Ohio St.2d 86, 92, 364 N.E.2d 1163 (1977)

(holding that the trial court substantially complied with Crim.R. 11(C)(2)(a) when

accepting the defendant’s guilty plea to murder, even though the trial court did not

specifically inform the defendant that he would be ineligible for probation, because

the trial court informed him of the maximum penalty of an indefinite term of 15

years to life in prison); compare State v. Farley, 1st Dist. Hamilton No. C-1011478,

2002-Ohio-1142 (holding that the trial court failed to substantially comply with

Crim.R. 11(C)(2)(a) because it accepted the defendant’s guilty plea to rape without

informing him that he would be ineligible for probation or community control, and

because the defendant’s plea form indicated that a prison term was not mandatory

for the rape charge).

       {¶9}   During Corcoran’s plea colloquy, the trial court stated:

              For the felonies -- the type of felonies you are being

              charged with, the felonies of the first degree, the

              potential penalty is 10 years to life in prison on Counts

              2, 4, 6, and 8, and a maximum fine on each in the

              amount of $20,000. * * * On Count 25, which is a felony

              of the second degree, there is a potential sentence of two

              to eight years and a maximum penalty in the amount of


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                    OHIO FIRST DISTRICT COURT OF APPEALS


               $15,000. * * * On Count 28, a felony of the third degree.

               There’s a potential sentence of nine to 36 months at the

               Ohio Department of Corrections and a maximum fine in

               the amount of $10,000.

       {¶10} Corcoran argues that the trial court’s statement during its colloquy did

not inform Corcoran that prison sentences were mandatory, and that she would be

ineligible for community control, and therefore the trial court did not comply with

Crim.R. 11. Although the trial court did not affirmatively tell Corcoran that she

would be ineligible for community control as a result of her guilty pleas, the trial

court did inform Corcoran of the maximum penalties, which included ten years to

life in prison for the more serious first-degree rape charges. Moreover, the plea form

that Corcoran signed indicated that counts 2, 4, 6, 8, and 25 carried mandatory

prison terms. Corcoran initialed by the paragraph in the plea form, which provided,

“I understand the maximum penalty as set out above, and any mandatory prison

term during which I am not eligible for judicial release * * *.” Finally, Corcoran’s

counsel stated at the plea hearing that Corcoran “wish[ed] to take responsibility for

her actions. She does not wish to have her daughter go through further trauma by

having to testify at trial. She’s been very adamant about that with me. And she

knows that a sentence that amounts to life in prison is a very realistic possibility.”

       {¶11} We determine that under the totality of the circumstances Corcoran

subjectively understood that prison was mandatory, and Corcoran was not

prejudiced by the trial court’s failure to technically comply with Crim.R. 11(C)(2)(a).

       {¶12} Corcoran’s contention that the trial court erred in accepting her guilty

pleas lacks merit. We overrule Corcoran’s third assignment of error.


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                   OHIO FIRST DISTRICT COURT OF APPEALS


                                   Allied Offenses

       {¶13} In her first assignment of error, Corcoran argues that the trial court

erred by failing to merge the child-endangering charge, count 28, with either the

complicity-to-rape counts or with the corrupting-another-with-drugs charge,

because the offenses constituted allied offenses of similar import subject to merger

under R.C. 2941.25. Count 28 of the indictment alleged that Corcoran recklessly

tortured or cruelly abused her child from February 2014 to June 2014, in violation of

R.C. 2919.22(B)(2).

       {¶14} R.C. 2919.22(B)(2) prohibits torture or cruel abuse of a person under

18 years old. The statute does not define “torture” or “cruel abuse,” however, courts

have defined “torture” as used in the child-endangering statute as “ ‘the infliction of

severe pain or suffering (of body or mind)[.]’ ” State v. Wainscott, 12th Dist. Butler

No. CA2015-07-056, 2016-Ohio-1153, ¶ 24, quoting State v. Surles, 9th Dist. Summit

No. 23345, 2007-Ohio-6050, ¶ 5. “Abuse” has been defined as “ ‘ill-use, maltreat; to

injure, wrong or hurt.’ ” Wainscott at ¶ 24, quoting Surles at ¶ 5. “Cruelly” means to

“ ‘demonstrate indifference to * * * another’s suffering,’ ” or to treat “ ‘severely,

rigorously, or sharply.’ ” Wainscott at ¶ 24, quoting State v. Brown, 9th Dist.

Summit No. 23737, 2008-Ohio-2956, ¶ 12. The 1973 Legislative Service Commission

Notes indicate that R.C. 2919.22(B) deals with “actual physical abuse of a child,” and

that such abuse may inhibit a child’s ability to learn and develop because of the

“repeated punishment inflicted.”

       {¶15} Because Corcoran raised an allied-offense argument to the trial court,

and the trial court made a merger determination, this court applies a de novo

standard of review. See State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983


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                    OHIO FIRST DISTRICT COURT OF APPEALS


N.E.2d 1245, ¶ 28 (“An appellate court should apply a de novo standard of review in

reviewing a trial court’s R.C. 2941.25 merger determination.”).

       {¶16} Whether two or more offenses constitute allied offenses of similar

import subject to merger under R.C. 2941.25 requires a three-step analysis of the

conduct, animus, and import. See State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995,

34 N.E.3d 892, paragraph one of the syllabus. “Under R.C. 2941.25(B), a defendant

whose conduct supports multiple offenses may be convicted of all the offenses if any

one of the following is true: (1) the conduct constitutes offenses of dissimilar import,

(2) the conduct shows that the offenses were committed separately, or (3) the

conduct shows that the offenses were committed with separate animus.” Id. at

paragraph three of the syllabus. The defendant bears the burden of establishing

entitlement to merger under R.C. 2941.25. State v. Washington, 137 Ohio St.3d 427,

2013-Ohio-4982, 999 N.E.2d 661, ¶ 18.

       {¶17} Corcoran takes issue with the first Ruff prong—dissimilar import—and

argues that this case involves only one victim, and that no separate, identifiable harm

exists to support her child-endangering conviction. See Ruff at paragraph two of the

syllabus (“[t]wo or more offenses of dissimilar import exist within the meaning of

R.C. 2941.25(B) when the defendant’s conduct constitutes offenses involving

separate victims or if the harm that results from each offense is separate and

identifiable.”). Specifically, Corcoran relies on the bill of particulars, which states

that the child-endangering charge is based upon “Corcoran and Willingham

repeatedly sexually assaulting [Corcoran’s child] over the course of several months,

which caused serious physical harm to the child by means of physical assault and

mental anguish.”


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                   OHIO FIRST DISTRICT COURT OF APPEALS


       {¶18} Although Corcoran’s allied-offense argument addresses dissimilar

import and ignores the other two Ruff factors, separate animus and separate

conduct, this court can begin an allied-offense analysis with any one of these factors.

See State v. Bailey, 1st Dist. Hamilton No. C-140129, 2015-Ohio-2997, ¶ 83.

Therefore, we will begin our analysis with separate conduct.

       {¶19} The material provided to the trial court at sentencing and contained in

this record demonstrates that Corcoran’s actions in facilitating her child’s sexual

assaults extend beyond the multiple rape offenses and the drug offense to which

Corcoran pleaded guilty. The record shows that Corcoran took her child with her to a

Target store where they met Willingham, and Corcoran left her child in the car while

Corcoran used heroin, at which point Willingham masturbated.             On multiple

occasions, Corcoran brought her child to Willingham’s apartment and left to get

high, then Willingham either masturbated while watching Corcoran’s child, or he

forced the child to masturbate him. Willingham also touched the child’s breasts on

more than one occasion. Furthermore, Willingham further sexually exploited the

child by videotaping and photographing her during several of these assaults. This

eventually led to the rapes as charged in the indictment.        The repeated sexual

exploitation Corcoran’s child endured, which was made possible only by Corcoran,

the victim’s own mother, demonstrates torture or cruel abuse of Corcoran’s child as

those terms are used in the child-endangering statute, even without Corcoran’s

conduct in permitting Willingham to rape her child and in furnishing her child with

heroin.

       {¶20} Therefore, we determine that the child-endangering offense and the

complicity-to-rape offenses and the corrupting-another-with-drugs offense were


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                     OHIO FIRST DISTRICT COURT OF APPEALS


committed separately, and they are not subject to merger under R.C. 2941.25. We

overrule Corcoran’s first assignment of error.

                                 Excessive Sentences

       {¶21} In her second assignment of error, Corcoran argues that the trial court

erred by imposing consecutive prison terms, and by imposing an aggregate sentence

of 51 years to life in prison.

       {¶22} R.C. 2953.08(G)(2) governs appellate review of felony sentences. This

court will only modify or vacate a sentence under R.C. 2953.08(G)(2) if it clearly and

convincingly finds that either the record does not support the mandatory sentencing

findings or the sentence is otherwise contrary to law. State v. White, 2013-Ohio-

4225, 997 N.E.2d 629, ¶ 11 (1st Dist.).

       {¶23} A trial court must consider certain statutes when sentencing a felony

offender, including R.C. 2929.11, the purposes and principles of felony sentencing,

and R.C. 2929.12, the seriousness and recidivism factors. A trial court need not

make specific findings under R.C. 2929.11 and 2929.12, because this court presumes

these statutes were considered, in the absence of an affirmative demonstration by the

defendant to the contrary. State v. Hendrix, 1st Dist. Hamilton Nos. C-150194 and

C-150200, 2016-Ohio-2697, ¶ 51.

       {¶24} R.C. 2929.14(C)(4) governs consecutive sentences, and a trial court

must make certain findings under that statute before imposing consecutive

sentences. See State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659,

syllabus.   A trial court need not provide reasoning to support its consecutive-

sentencing findings, as long as the record contains evidence to support the findings.

State v. Ruff, 1st Dist. Hamilton Nos. C-160385 and C-160386, 2017-Ohio-1430, ¶


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20, citing Bonnell at ¶ 29 and syllabus. Under R.C. 2929.14(C)(4), the trial court

must find that (1) consecutive sentences are necessary either 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 the danger the

defendant poses to the public, and (3) relevant to this appeal, 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.

       {¶25} Corcoran argues that the trial court erred by imposing consecutive

sentences. Specifically, Corcoran argues that she was not the principal offender with

regard to the rape charges, she took responsibility for her crimes by pleading guilty,

she had no criminal history, and a doctor testified at her sentencing hearing that she

suffers from opioid-use disorder.

       {¶26} In this case, the trial court complied with R.C. 2929.14(C)(4) by

making the consecutive-sentencing findings on the record at the sentencing hearing

and in the sentencing entry.        See Bonnell at syllabus.   The trial court further

explained at the sentencing hearing that it had seen many addicts, but none where an

addict had victimized his or her child in this manner. The trial court also noted the

extreme and ongoing harm caused to Corcoran’s child by Corcoran’s actions, as

detailed in the victim-impact statements. Moreover, as the trial court stated, the

child’s mother, who should be the child’s “first line of defense,” threw her child

“under a bus * * * to get high.”




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                       OHIO FIRST DISTRICT COURT OF APPEALS


       {¶27} Given the shocking severity of Corcoran’s conduct, particularly the

harm suffered by her child, the victim, the record supports the mandatory sentencing

findings, and is not otherwise contrary to law. See White, 2013-Ohio-4225, 997

N.E.2d 629, at ¶ 11.

       {¶28} We now turn to Corcoran’s argument that her aggregate sentence

amounts to cruel and unusual punishment. As a general rule, a sentence that falls

within an appropriate statutory range cannot amount to cruel and unusual

punishment. State v. Bell, 2015-Ohio-1711, 34 N.E.3d 405, ¶ 66 (1st Dist.), citing

McDougle v. Maxwell, 1 Ohio St.2d 68, 69, 203 N.E.2d 334 (1964). Furthermore, an

aggregate sentence does not amount to cruel and unusual punishment “ ‘[w]here

none   of the    individual   sentences   imposed   on   an    offender   are   grossly

disproportionate to their respective offenses.’ ” Bell, quoting State v. Hairston, 118

Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, syllabus.

       {¶29} The prison terms imposed by the trial court fell within valid statutory

ranges. As to counts 2, 4, 6, and 8, the complicity-to-rape offenses, the trial court

imposed indefinite prison terms of ten years to life.         A complicitor “shall be

prosecuted and punished as if he were a principal offender.” See R.C. 2923.03(F).

Rape of a child less than 13 years old under R.C. 2907.02(A)(1)(b) is punishable by a

prison term or term of life imprisonment. See R.C. 2907.02(B). In this case, the

court was authorized to impose an indefinite prison term of a minimum term of ten

years and a maximum term of life imprisonment on the complicity-to-rape charges.

See R.C. 2971.03(B)(1)(a).

       {¶30} Count 25, corrupting another with drugs under R.C. 2925.02(A)(4)(a),

in this instance is a second-degree felony. See R.C. 2925.02(C)(1)(a). A second-


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                     OHIO FIRST DISTRICT COURT OF APPEALS


degree felony is punishable by two, three, four, five, six, seven, or eight years in

prison, and the trial court imposed an eight-year prison term.                  See R.C.

2929.14(A)(2). Count 28, endangering children under R.C. 2919.22(B)(2), is a third-

degree felony punishable in this instance by a prison term of nine, 12, 18, 24, or 36

months. See R.C. 2919.22(E)(3); R.C. 2929.14(A)(3)(b). The trial court sentenced

Corcoran to 36 months in prison on count 28.

       {¶31} Corcoran’s sentences are within the appropriate statutory ranges for

her offenses, and for the reasons stated by the trial court at the sentencing hearing,

the individual sentences are not grossly disproportionate to their respective offenses.

Thus, the aggregate prison term of 51 years to life resulting from the imposition of

consecutive sentences does not constitute cruel and unusual punishment.

       {¶32} We overrule Corcoran’s second assignment of error.

                                     Conclusion

       {¶33} In conclusion, we determine that Corcoran’s assignments of error

challenging the nature of her pleas and her sentences lack merit. The judgment of

the trial court is affirmed.


                                                                     Judgment affirmed.


CUNNINGHAM, P.J., and ZAYAS, J., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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