[Cite as State v. Harvey, 2010-Ohio-5408.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              HANCOCK COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 5-10-05

        v.

BRIAN K. HARVEY,                                          OPINION

        DEFENDANT-APPELLANT.




                Appeal from Hancock County Common Pleas Court
                          Trial Court No. 2009-CR-00166

                                      Judgment Affirmed

                           Date of Decision: November 8, 2010




APPEARANCES:

        Andrew R. Schuman for Appellant

        Mark C. Miller for Appellee
Case No. 5-10-05


SHAW, J.

         {¶1} Defendant-appellant, Brian Harvey (“Harvey”), appeals the February

16, 2010 judgment of the Common Pleas Court of Hancock County, Ohio, finding

him guilty of four counts of gross sexual imposition (“GSI”) in violation of R.C.

2907.05(A)(4), each a felony of the third degree, and eight counts of rape in

violation of R.C. 2907.02(A)(1)(b), each a felony of the first degree and each

containing a sexually violent predator specification pursuant to R.C. 2941.148, and

sentencing him to an aggregate prison term of 100 years to life.

         {¶2} The facts relevant to this appeal are as follows.1 On August 6, 2009,

Harvey’s ex-wife met with Detective Tuttle of the Findlay Police Department to

discuss a video she had surreptitiously made of Harvey. Mrs. Harvey explained

that she and Harvey were divorced. However, during the school year, Harvey

watched their two daughters, K.H., who was eleven at the time, and M.H., who

was ten at the time, in the early morning hours at her apartment until they left for

school because Mrs. Harvey was working. However, during the summer break,

Harvey did not watch the girls during the morning. Mrs. Harvey further stated that

shortly before contacting Det. Tuttle she saw a text message on K.H.’s phone from



1
  These facts are derived from the pre-sentence investigation, the sentencing hearing, the exhibits admitted
into evidence for purposes of sentencing, and various other filings contained in the record. During the
sentencing hearing, counsel for Harvey objected to a number of statements made by the prosecutor, some
of which he maintained were inaccurate representations of the facts but did not object to any of the facts
contained in the pre-sentence investigation. None of the prosecutor’s statements to which counsel for
Harvey objected is contained in this Court’s representation of the facts.


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Harvey that read, “can’t wait to see you in the morning,” which she thought was

strange because he was not supposed to be there. As a result, Mrs. Harvey set up a

camera in her living room to record the interaction between Harvey and the girls.

      {¶3} Mrs. Harvey gave the video recording to Det. Tuttle, who then

watched it. This video depicted Harvey giving K.H. a long kiss on the lips,

squeezing her buttocks over her pants, and then placing his hand inside of her

pants and grabbing her buttocks again. The video also showed Harvey using his

mouth on K.H.’s breasts and rubbing her vagina.

      {¶4} Mrs. Harvey informed Det. Tuttle that her ex-husband was with the

children at their gymnastics class and that he was scheduled to keep them

overnight. Det. Tuttle, Det. Domme, Sergeant Blunk of the Hancock County

Sheriff’s Office, and a caseworker from Hancock County Children’s Services

went to the gymnastics class and asked Harvey to come with them to the police

department for an interview. Harvey agreed and went to the police department

while the children were taken to the Crimes Against Children Center in Findlay,

Ohio, to be interviewed.

      {¶5} In her interview, K.H. revealed that Harvey had vaginal intercourse

with her on August 4, 2009, during bedtime, and that a similar incident that also

involved vaginal intercourse occurred the week prior on July 28 or July 30, 2009.

K.H. also stated that Harvey had anal intercourse with her approximately one



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month prior. She further told the investigators that Harvey had penetrated her

vagina with his fingers on more than one occasion, usually before having vaginal

intercourse with her, and that he had put his mouth on her breasts and vagina on

prior occasions. She also informed them that she had witnessed her sister, M.H.,

put her mouth on Harvey’s penis.

       {¶6} During his interview, Harvey admitted that he had been engaging in

inappropriate activities with his daughters since 2008. More specifically, Harvey

admitted to touching K.H.’s breasts and rubbing her vagina on more than one

occasion, having vaginal intercourse with K.H. on more than one occasion,

performing oral sex on K.H. and having her perform oral sex on him, digitally

penetrating K.H.’s vagina, and having anal intercourse with K.H. Harvey also

admitted to touching M.H.’s breasts and rubbing her vagina and digitally

penetrating M.H.’s vagina. In addition, Harvey informed the investigators that he

had inappropriate photographs of young girls on his personal computer. At some

point in the interview, Harvey consented to a search of his home and accompanied

the officers there, where various items including his computers were seized.

       {¶7} A few days after the interviews with K.H. and Harvey, Det. Domme

interviewed M.H. In this interview, M.H. revealed that Harvey had touched her

“private parts” on more than one occasion and that she had used her mouth “a few

times on his privates.”



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      {¶8} Harvey’s computer hard drives were seized and a number of

photographs of his daughters in the nude were discovered.           Some of these

photographs also depicted his daughters engaged in sexual activity with an

unknown adult male. The computer hard drives also contained video files. Two

of these videos showed Harvey engaged in sexual activity with one of his

daughters on a boat out in the open. There were five other videos where Harvey’s

daughters were engaged in sexual activity with an unknown adult male. However,

in these recordings, the girls refer to this adult male several times as “Daddy.” On

one video, K.H. is shown performing fellatio on Harvey and tells him, “Daddy, it’s

choking me,” but Harvey has her continue. According to the victims, Harvey

often had M.H. photograph the sexual acts between him and K.H., and often times

he had the victims watch one another engage in sexual activity with him.

      {¶9} On August 11, 2009, Harvey was indicted for the following

offenses:

      Count 1: GSI – victim: K.H.– Date of Offense: July 15, 2009-
      August 6, 2009;

      Count 2: GSI – victim: K.H.– Date of Offense: July 15, 2009-
      August 6, 2009;

      Count 3: GSI – victim: K.H.– Date of Offense: July 15, 2009-
      August 6, 2009;

      Count 4: Rape (vaginal intercourse) – victim: K.H. – Date of
      Offense: August 4, 2009 – Sexually Violent Predator Specification;



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       Count 5: Rape (vaginal intercourse) – victim: K.H. – Date of
       Offense: July 28, 2009-July 30, 2009 – Sexually Violent Predator
       Specification;

       Count 6: Rape (vaginal intercourse) – victim: K.H. – Date of
       Offense: August 6, 2008-August 6, 2009 – Sexually Violent Predator
       Specification;

       Count 7: Rape (oral sex) – victim: K.H. – Date of Offense:
       August 6, 2008-August 6, 2009 – Sexually Violent Predator
       Specification;

       Count 8: Rape (oral sex) – victim: K.H. – Date of Offense:
       August 6, 2008-August 6, 2009 – Sexually Violent Predator
       Specification;

       Count 9: Rape (digital penetration) – victim: K.H. – Date of
       Offense: August 6, 2008-August 6, 2009 – Sexually Violent Predator
       Specification;

       Count 10: Rape (anal penetration) – victim: K.H. – Date of
       Offense: August 6, 2008-August 6, 2009 – Sexually Violent Predator
       Specification;

       Count 11: GSI – victim: M.H. – Date of Offense: August 6, 2008-
       August 6, 2009; and

       Count 12: Rape (digital penetration) – victim: M.H. – Date of
       Offense: April 30, 2009-August 6, 2009 – Sexually Violent Predator
       Specification.

Each count of GSI was charged under R.C. 2907.05(A)(4) and each count of rape

was charged under R.C. 2907.02(A)(1)(b) because both victims were under

thirteen at the time of the alleged offenses.

       {¶10} Initially, Harvey entered pleas of not guilty to each count and

eventually entered pleas of not guilty by reason of insanity. Throughout the next


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few months, counsel for Harvey filed a number of motions, including motions to

suppress Harvey’s statements and the evidence seized from the search of his home

and a motion to have Harvey’s competency to stand trial evaluated. Harvey was

found competent to stand trial on January 4, 2010.

       {¶11} On January 11, 2010, Harvey withdrew all pending motions,

withdrew his previously tendered pleas of not guilty and not guilty by reason of

insanity, and entered pleas of guilty on each count and each specification. In

exchange, the State agreed not to pursue charges against Harvey for the images

and recordings found on his computer hard drives. However, the images and

recordings from the computer hard drives were placed on a compact disc, marked

State’s Exhibit 2, and submitted to the trial court for its review for purposes of

sentencing. The court accepted Harvey’s guilty pleas and ordered a pre-sentence

investigation.

       {¶12} On January 25, 2010, Harvey was sentenced on each count as

follows:

       Counts 1, 2, 3, & 11:      Five years; ordered served consecutively
       to each other;

       Counts 4, 5, & 6: Twenty-five years to life; ordered served
       concurrently to each other and concurrently to Counts 1-3 & 11;

       Counts 7, 8, & 9: Twenty-five years to life; ordered served
       concurrently to each other but consecutively to Counts 1-6 & 11;




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         Count 10:    Twenty-five years to life; ordered served consecutively
         to Counts 1-9 & 11; and

         Count 12:    Twenty-five years to life; ordered served consecutively
         to Counts 1-11.

The trial court noted that its specific intention was that Harvey be sentenced to an

aggregate sentence of 100 years to life in prison.

         {¶13} This appeal followed, and Harvey now asserts eight assignments of

error.

                           ASSIGNMENT OF ERROR I

         HARVEY RECEIVED PREJUDICIALLY INEFFECTIVE
         ASSISTANCE OF COUNSEL IN VIOLATION OF HIS SIXTH
         AND FOURTEENTH AMENDMENT RIGHTS, AS WELL AS
         HIS RIGHTS UNDER ARTICLE I, SECTION 10 OF THE
         OHIO CONSTITUTION.

                          ASSIGNMENT OF ERROR II

         THE TRIAL COURT FAILED TO MERGE THE
         CONVICTIONS PURSUANT TO R.C. 2941.25 AND
         ERRONEOUSLY IMPOSED A SENTENCE FOR EACH
         CONVICTION, WHEN IT SHOULD HAVE IMPOSED ONE
         SENTENCE FOR THE MOST SERIOUS OFFENSE, RAPE.

                          ASSIGNMENT OF ERROR III

         THE TRIAL COURT ERRED IN IMPOSING ANY PRISON
         TERM FOR THE GROSS SEXUAL IMPOSITION
         CONVICTIONS BECAUSE IT DID NOT MAKE THE
         FINDINGS REQUIRED BY R.C. 2907.05(C)(2).




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                   ASSIGNMENT OF ERROR IV

      THE TRIAL COURT ERRED IN IMPOSING PRISON
      SENTENCES ON ANY OF THE CONVICTIONS BECAUSE
      IT FAILED TO COMPLY WITH THE REQUIREMENTS OF
      R.C. 2929.19(B)(3).

                   ASSIGNMENT OF ERROR V

      THE TRIAL COURT ERRED IN IMPOSING MAXIMUM
      SENTENCES FOR THE GROSS SEXUAL IMPOSITION
      CONVICTIONS, IN VIOLATION OF R.C. 2929.14.

                   ASSIGNMENT OF ERROR VI

      THE TRIAL COURT ERRED IN IMPOSING MAXIMUM
      SENTENCES FOR THE GROSS SEXUAL IMPOSITION
      CONVICTIONS BECAUSE IT DID NOT STATE ITS
      REASONING FOR DOING SO AS REQUIRED BY R.C.
      2929.19(B)(2) AND (B)(2)(d).

                   ASSIGNMENT OF ERROR VII

      THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE
      SENTENCES BECAUSE IT FAILED TO MAKE THE
      FINDINGS REQUIRED BY R.C. 2929.14(E)(4).

                   ASSIGNMENT OF ERROR VIII

      THE TRIAL COURT ERRED IN IMPOSING AN
      AGGREGATE SENTENCE OF 100 YEARS TO LIFE IN
      PRISON, WHICH SENTENCE IS DISPROPORTIONATE IN
      COMPARISON WITH OTHER SENTENCES IMPOSED FOR
      SIMILAR OFFENSES.




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                      First and Second Assignments of Error

       {¶14} Harvey’s first two assignments of error involve whether his offenses

constituted allied offenses of similar import, which should have been merged. As

such, we elect to address these assignments of error together.

       {¶15} In his first assignment of error, Harvey contends that he received

ineffective assistance of counsel when his attorney failed to request that his counts

be merged and that he be sentenced to one sentence rather than twelve individual

sentences. In his second assignment of error, Harvey contends that the trial court

erred in not merging all of his offenses and imposing only one sentence for rape.

       {¶16} Initially we note that attorneys licensed by the State of Ohio are

presumed to provide competent representation. State v. Hoffman (1998), 129 Ohio

App.3d 403, 407, 717 N.E.2d 1149. An ineffective assistance of counsel claim

requires proof that trial counsel’s performance fell below objective standards of

reasonable representation and that the defendant was prejudiced as a result. State

v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the

syllabus. In reviewing such a claim, courts are to afford a high level of deference

to the performance of trial counsel. Id. at 142. Also, in order to show that a

defendant has been prejudiced by counsel’s deficient performance, the defendant

must prove that there exists a reasonable probability that, but for counsel’s errors,

the outcome at trial or in his legal proceedings would have been different. Id. at



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paragraph three of the syllabus.       “Reasonable probability” is a probability

sufficient to undermine confidence in the result. Id. at 142.

        {¶17} When a defendant maintains that he received ineffective assistance

of counsel based upon a claim that his counsel failed to make a motion to the

court, he must also show a reasonable probability that the motion would have been

successful in order for such failure to rise to the level of ineffective assistance of

counsel. See State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448, 721

N.E.2d 52; State v. Robinson (1996), 108 Ohio App.3d 428, 433, 670 N.E.2d

1077.    Thus, this Court’s determination of whether counsel for Harvey was

ineffective depends upon whether there was a reasonable probability that a motion

to merge the offenses in this case would have been successful.

        {¶18} The Revised Code provides that “[w]here the same conduct by

defendant can be construed to constitute two or more allied offenses of similar

import, the indictment or information may contain counts for all such offenses, but

the defendant may be convicted of only one.” R.C. 2941.25(A). However, when

the “defendant’s conduct constitutes two or more offenses of dissimilar import, or

where his conduct results in two or more offenses of the same or similar kind

committed separately or with a separate animus as to each, * * * the defendant

may be convicted of all of them.” R.C. 2941.25(B).




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       {¶19} Determining whether two or more offenses are allied offenses of

similar import requires a two-step process. The first step requires the court to

compare the elements of the two offenses to determine whether they “correspond

to such a degree that the commission of one crime will result in the commission of

the other[.]” State v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d

816. The second step requires a court to determine whether the crimes were

committed separately or with a separate animus. Id.

       {¶20} As for the first step, all the offenses of rape and the sexually violent

predator specifications charged against Harvey were identical in their elements, as

were all of the offenses of GSI. Thus, all the counts of rape and the sexually

violent predator specifications satisfied the first step of Blankenship, as did all the

counts of GSI. In addition, the Ohio Supreme Court has held that GSI is a lesser

included offense of rape so a defendant may not be convicted of both GSI and rape

“when the counts arise out of the same conduct.” State v. Foust, 105 Ohio St.3d

137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 143, citing State v. Johnson (1988), 36

Ohio St.3d 224, 522 N.E.2d 1082, paragraph one of the syllabus. However, this

does not mean that Harvey cannot be convicted on all counts as this Court must

proceed to the second step. See State v. Lowd, 3rd Dist. No. 5-09-16, 2010-Ohio-

193.




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       {¶21} Crimes involving distinct sexual activity, i.e., vaginal intercourse,

cunnilingus, and digital penetration, each constitute a separate crime with a

separate animus, and they do not constitute allied offenses of similar import. State

v. Nicholas (1993), 66 Ohio St.3d 431, 435, 613 N.E.2d 225. This Court has

previously followed the rationale of Nicholas, and applied it to the offense of GSI.

See State v. Austin, 138 Ohio App.3d 547, 549-550, 2000-Ohio-1728, 741 N.E.2d

927.

       {¶22} In Austin, the defendant was found guilty of two counts of GSI, one

in which the defendant touched the victim’s breast with his hand and one in which

he kissed the victim’s breast with his mouth. Id. at 550. This Court found that the

record did not demonstrate that these acts occurred “in a single, simultaneous

instance; rather [these] acts occurred separately but in close proximity of time

during the same extended assault of the victim.” Id. Thus, we concluded that

“these acts were of sufficiently separate character * * * so as to constitute separate

crimes that do not constitute allied offenses of similar import. Therefore, the trial

court acted properly in not treating these offenses as allied offenses of similar

import and sentencing defendant for both.” Id.

       {¶23} At the sentencing hearing in the case sub judice, the prosecutor

noted that the charges of GSI that listed K.H. as the victim were based on the

video that Mrs. Harvey provided to Det. Tuttle. As previously noted, the video



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showed Harvey grabbing K.H.’s buttocks, rubbing her vagina, and using his

mouth on her breasts. Similarly to the facts in Austin, the record in this case did

not demonstrate that these acts occurred in a single, simultaneous instance; rather

these acts occurred separately but in close proximity of time during the same

extended assault of the victim. Thus, they are not allied offenses of similar

import.

      {¶24} Further, the fourth GSI charge was committed against M.H. Both

M.H. and Harvey informed the detectives that he had touched her breasts and

rubbed her vagina. Clearly, a defendant can be convicted for more than one

offense if each offense involves a different victim, even though the offenses

charged are identical, i.e. two counts of GSI. See State v. Jones (1985), 18 Ohio

St.3d 116, 117, 480 N.E.2d 408 (holding a defendant may be convicted of two

counts of aggravated vehicular homicide when two people are killed as the result

of a single instance of a defendant’s reckless operation of a motor vehicle); State

v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 48 (holding a

defendant who set only one fire that killed six people committed six counts of

aggravated arson because defendant knowingly set a fire that created a substantial

risk of serious harm or injury to six people). Thus, Count 11, the GSI offense

naming M.H. as the victim, was not an allied offense of similar import to the other

three counts of GSI naming K.H. as the victim.



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       {¶25} As to the rape counts, the rape in Count 4 was of K.H. and occurred

on August 4, 2009. This is one of the specific dates that K.H. could recall that her

father had vaginal intercourse with her. Count 5 was for the rape of K.H. and

occurred between July 28, 2009, and July 30, 2009. This was another specific

time period that K.H. could recall that her father had vaginal intercourse with her.

Count 6 was for the rape of K.H. and occurred between August 6, 2008, and

August 6, 2009. Harvey was arrested on August 6, 2009. He admitted having

vaginal intercourse with his daughter on multiple occasions beginning

approximately a year earlier in 2008. Counts 7 and 8 were for acts of oral sex

between K.H. and Harvey from August 6, 2008, until August 6, 2009. Harvey

admitted that he performed cunnilingus on K.H. and had her perform fellatio on

him. Count 9 was for the rape of K.H. via digital penetration committed during

the same one-year time frame as Counts 6-8. Both K.H. and Harvey informed

investigators that he penetrated K.H.’s vagina with his fingers. K.H. further stated

that Harvey would usually do this before he had vaginal intercourse with her.

Count 10 was the anal rape of K.H. committed during the same one-year time

frame. Both K.H. and Harvey told the detectives that he had anal intercourse with

K.H. during the year that he performed multiple acts of sexual abuse upon K.H.

and M.H. Lastly, the rape in Count 12 was based upon the digital penetration of

M.H.’s vagina by Harvey during this time, which Harvey also admitted doing.



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       {¶26} The acts of vaginal intercourse (Counts 4-6), anal intercourse (Count

10), and digital penetration (Counts 9 & 12) each involve distinct sexual activity.

Hence, they each constituted a separate crime with a separate animus, and they do

not constitute allied offenses of similar import. These acts are also separate and

distinct from the acts of fellatio and cunnilingus (Counts 7 & 8). Moreover, the

acts of vaginal intercourse occurred on separate dates, each with a separate animus

and not simply incidental to one another. In addition, Count 12 was committed

against M.H. while the others were committed against K.H. Thus, each of these

offenses was separate and distinct. Likewise, the acts of rape were separate and

distinct from each of the GSI counts, as the acts of GSI were not simply incidental

to the commission of the rapes but were separate acts with a separate animus.

Therefore, pursuant to R.C. 2941.25(B), Harvey could be convicted for each of the

twelve counts and given separate sentences for each, and the trial court did not err

in failing to merge any of these offenses. Accordingly, if Harvey’s trial counsel

would have raised the issue of merger, there was not a reasonable probability that




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he would have been successful.2

         {¶27} For all of these reasons, the first and second assignments of error are

overruled.

                                     Third Assignment of Error

         {¶28} Harvey next asserts that the trial court erred in sentencing him to

prison on any of the four counts of GSI because it did not make any of the

necessary findings pursuant to R.C. 2907.05(C)(2). This section states:

         Whoever violates this section is guilty of gross sexual imposition.

         ***

         (2) Gross sexual imposition committed in violation of division
         (A)(4) or (B) of this section is a felony of the third degree.
         Except as otherwise provided in this division, for gross sexual
         imposition committed in violation of division (A)(4) or (B) of this
         section there is a presumption that a prison term shall be
         imposed for the offense. The court shall impose on an offender
         convicted of gross sexual imposition in violation of division
         (A)(4) or (B) of this section a mandatory prison term equal to

2
  We also note that during the plea hearing, counsel for Harvey informed the trial court, in Harvey’s
presence, that he “devoted a lot of time visiting Mr. Harvey” at the jail, visited and consulted with him over
a dozen times, reviewed the indictment, the nature of the allegations, and what the State would have to
prove beyond a reasonable doubt, reviewed each motion with Harvey, the ramifications of the motions and
several different ways the case could turn depending upon the court’s rulings on those motions, the insanity
defense and how that would impact the case, and reviewed the conversations he had with the detectives and
what his own investigation of the case revealed. As noted, trial counsel filed a number of motions with
supporting memorandums on Harvey’s behalf: a request for discovery, a request for a bill of particulars, a
motion to suppress his statements, a motion to suppress evidence seized from Harvey’s home and
computers, a motion in limine to prevent the admission of Mrs. Harvey’s surreptitious videotape, a motion
to bifurcate the charges related to K.H. from those related to M.H., a motion for an in camera inspection of
children services’ records in this case, a motion to bar the testimony of the caseworker, a motion to
suppress the results of the testing of the buccal swabs taken from the defendant, and a motion for a
competency evaluation of the defendant. All of these filings and their contents evidence an attorney who
was very active on his client’s behalf, was addressing every possible issue with the case, was well aware of
the factual allegations against Harvey, including Harvey’s own admissions, and was providing competent
representation.


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       one of the prison terms prescribed in section 2929.14 of the
       Revised Code for a felony of the third degree if either of the
       following applies:

       (a) Evidence other than the testimony of the victim was
       admitted in the case corroborating the violation;

       (b) The offender previously was convicted of or pleaded guilty
       to a violation of this section, rape, the former offense of felonious
       sexual penetration, or sexual battery, and the victim of the
       previous offense was less than thirteen years of age.

R.C. 2907.05(C)(2). Harvey contends that the trial court could not sentence him

to prison for his GSI charges unless either sub-section (a) or (b) applied. He

further contends that no evidence was presented to support a finding that one of

these sub-sections applied and that the trial court, consequently, did not make the

required finding before sentencing him to a term of imprisonment. We disagree

with Harvey’s interpretation of R.C. 2907.05(C)(2) and what the trial court was

required to find before imposing a prison term in this instance.

       {¶29} Harvey was convicted of four counts of GSI in violation of R.C.

2907.05(A)(4). Division (C) specifically states that a violation of division (A)(4)

carries a presumption that a prison term shall be imposed. Therefore, Harvey’s

contention that any prison term for these offenses was prohibited by this statute is

baseless. Further, the sub-divisions with which Harvey is concerned require a trial

court to impose a mandatory prison term within the range proscribed by R.C.

2929.14 if either of those sub-sections applies. In this case, the trial court never



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referenced R.C. 2907.05(C)(2)(a) or (b) and did not impose a mandatory prison

term for any of these offenses. The trial court merely exercised the discretion

afforded to it by R.C. 2929.14(A)(3) in imposing a five-year-prison term for each

of these four counts and in accordance with the presumption that a prison term

must be imposed for violations of R.C. 2907.05(A)(4). Thus, Harvey’s third

assignment of error is overruled.

                                    Fourth Assignment of Error

         {¶30} Harvey contends in his fourth assignment of error that the trial court

erred in sentencing Harvey to a term of imprisonment for his rape convictions

because it failed to follow the requirements of R.C. 2929.19(B)(3). This section of

the Revised Code states: “Subject to division (B)(4) of this section, if the

sentencing court determines at the sentencing hearing that a prison term is

necessary or required, the court shall do all of the following: (a) Impose a stated

prison term and, if the court imposes a mandatory prison term, notify the offender

that the prison term is a mandatory prison term[.]” R.C. 2929.19(B)(3). Harvey

maintains that the trial court failed to inform him that his sentence was mandatory

and that this failure renders his sentence void.3 We disagree.




3
  Other than the statute at issue, Harvey cites no authority nor has this Court found any authority for his
position that a failure to use the exact term “mandatory” to inform a defendant that his sentence of twenty-
five years to life for a count of rape with a sexually violent predator specification is mandatory renders the
sentence void ab initio.


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        {¶31} Although Harvey correctly notes that the trial court did not

specifically use the magic word that his sentences for rape were “mandatory,” the

trial court informed Harvey in other ways that these sentences were mandatory.

For example, the court told Harvey, “with respect then to counts four, five, six,

seven, eight, nine, ten, and twelve, the Defendant having pled guilty to a charge of

rape with a sexual predator specification, the Court is required for each of these

offenses to impose an indefinite term. With the minimum sentence being 25 years

to a maximum sentence of life.” (Emphasis added.) (Sent. Hrg., 1/25/10, pp. 31-

32.) Later, the trial court told Harvey in regards to Counts 7, 8, and 9 that he

“must serve a period of 25 years to life[.]” (Emphasis added.) (id. at p. 33.)

Eventually the court informed Harvey, “[n]ow based upon this Court’s finding, the

Defendant is obviously not eligible for any prison program that could possibly

shorten his sentence.” (id. at pp. 34-35.) Moreover, throughout the sentencing

hearing, the court, the prosecutor, counsel for Harvey, and Harvey, himself, during

his allocution, spoke in terms that evidenced that all involved knew the rape

sentences were mandatory.4 Although the better practice would be to simply use



4
   The trial court also specifically discussed the sentencing possibilities with Harvey during the plea
colloquy on January 11, 2010. At that time the trial court informed Harvey that the least amount of time he
could possibly serve would be twenty-five years, that he would be subject to a mandatory term of twenty-
five years, and then explained what a mandatory term of twenty-five years meant: “[w]hat that means is,
it’s a minimum term that must be served prior to any consideration of release.” (Plea Hrg., 1/11/10, pp. 28-
29.) The court also informed Harvey that he could serve up to a maximum of 200 years to life for the rape
counts, if they were ordered to be served consecutively. Thus, Harvey certainly knew prior to changing his
pleas of guilty that his rape sentences would be mandatory.


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Case No. 5-10-05


the exact wording of the statute, in this case we find that the information provided

by the trial court and the language it employed throughout the sentencing was

sufficient to notify Harvey that his sentences for the eight counts of rape were

mandatory. Accordingly, the fourth assignment of error is overruled.

                   Fifth, Sixth, and Seventh Assignments of Error

       {¶32} In his fifth and sixth assignments of error, Harvey maintains that the

trial court erred by ordering that he serve the maximum sentence of five years on

each of his counts of GSI without making the findings required by R.C.

2929.14(B) and 2929.19(B)(2). Similarly, in his seventh assignment of error,

Harvey maintains that the trial court erred by ordering that a number of his

sentences be served consecutively to one another without making the findings

required by R.C. 2929.14(E)(4).

       {¶33} The Ohio Supreme Court has previously held,

      The following sections, because they either create presumptive
      minimum or concurrent terms or require judicial fact-finding to
      overcome the presumption, have no meaning now that judicial
      findings are unconstitutional: R.C. 2929.14(B), 2929.19(B)(2),
      and 2929.41. These sections are severed and excised in their
      entirety, as is R.C. 2929.14(C), which requires judicial fact-
      finding for maximum prison terms, and 2929.14(E)(4), which
      requires judicial findings for consecutive terms.

State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 97. Each

section of the Revised Code relied upon by Harvey in these three assignments of

error was specifically severed from the sentencing statutes in Foster. Therefore,


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Harvey’s fifth, sixth, and seventh assignments of error are without merit, and,

accordingly, each is overruled.

                                   Eighth Assignment of Error

        {¶34} In Harvey’s eighth assignment of error, he asserts that the trial court

erred in imposing an aggregate sentence of 100 years to life in prison. In support

of this assertion, Harvey cites to two other cases wherein the defendants were

convicted of sexual offenses and claims that his sentences were disproportionate to

other sentences imposed for similar offenses in other cases.

        {¶35} An appellate court must conduct a meaningful review of the trial

court’s sentencing decision. State v. Daughenbaugh, 3rd Dist. No. 16-07-07, 2007-

Ohio-5774, ¶ 8, citing State v. Carter, 11th Dist. No. 2003-P-0007, 2004-Ohio-

1181. A meaningful review means “that an appellate court hearing an appeal of a

felony sentence may modify or vacate the sentence and remand the matter to the

trial court for re-sentencing if the court clearly and convincingly finds that the

record does not support the sentence or that the sentence is otherwise contrary to

law.” Daughenbaugh, 2007-Ohio-5774, at ¶ 8, citing Carter, 2004-Ohio-1181, at

¶ 44; R.C. 2953.08(G).5 Clear and convincing evidence is “[t]he measure or



5
  We note that the Supreme Court of Ohio’s recent plurality opinion in State v. Kalish, 120 Ohio St.3d 23,
896 N.E.2d 124, 2008-Ohio-4912, establishes a two-part test utilizing an abuse of discretion standard for
appellate review of felony sentencing decisions under R.C. 2953.08(G). While we cite to this Court’s
precedential clear and convincing review standard adopted by three dissenting Justices in Kalish, we note
that the outcome of our decision in this case would be identical under the Kalish plurality’s two-part test.


                                                   -22-
Case No. 5-10-05


degree of proof that will produce in the mind of the trier of fact a firm belief or

conviction as to the allegations sought to be established. It is intermediate, being

more than a mere preponderance, but not to the extent of such certainty as required

beyond a reasonable doubt as in criminal cases. It does not mean clear and

unequivocal.” In re Estate of Haynes (1986), 25 Ohio St.3d 101, 103-04, 495

N.E.2d 23.

        {¶36} As previously noted, in Foster the Supreme Court of Ohio found

those portions of the felony sentencing statute requiring judicial fact-finding

before the imposition of a sentence to be unconstitutional. The Court stated,

“[t]rial courts [now] 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.” Id. at

paragraph seven of the syllabus.

        {¶37} Although the trial court is given full discretion in sentencing

pursuant to Foster, the trial court must consider the overriding purposes of felony

sentencing, which are to protect the public from future crimes by the offender and

to punish the offender. R.C. 2929.11(A); State v. Scott, 3rd Dist. No. 6-07-17,

2008-Ohio-86, ¶ 49, citing State v. Foust, 3rd Dist. No. 3-07-11, 2007-Ohio-5767,

¶ 27.    Additionally, “[a] sentence imposed for a felony shall be reasonably

calculated to achieve the two overriding purposes of felony sentencing * * *



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Case No. 5-10-05


commensurate with and not demeaning to the seriousness of the offender’s

conduct and its impact upon the victim, and consistent with sentences imposed for

similar crimes committed by similar offenders.” R.C. 2929.11(B).

       {¶38} Here, each of the four counts of GSI was punishable by one to five

years in prison. See R.C. 2907.05(C)(2), 2929.14(A)(3). In addition, Harvey’s

convictions for rape each contained a specification that he was a sexually violent

predator pursuant to R.C. 2941.148. Due to these specifications on the eight

counts of rape, the trial court was required to sentence Harvey to “an indefinite

prison term consisting of a minimum term of twenty-five years and a maximum

term of life imprisonment.” R.C. 2971.03(A)(3)(d)(i). Thus, Harvey was facing a

possible sentence of 220 years to life.

       {¶39} The trial court sentenced Harvey to five years on each count of GSI

to be served consecutively to one another for an aggregate term of twenty years.

As to Counts 4, 5, and 6, the rape counts based upon the acts of vaginal

intercourse Harvey perpetrated upon K.H., the trial court imposed the required

sentences of twenty-five years to life.      However, he ordered that these three

offenses be served concurrently with one another and concurrently with the GSI

counts. Thus, these seven counts resulted in an aggregate sentence of twenty-five

years to life. The trial court also imposed the required sentences of twenty-five

years to life for Counts 7, 8, and 9. These offenses were also rapes, two of which



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Case No. 5-10-05


were for the acts of oral sex involving K.H. and one for the digital penetration of

K.H. The trial court also ordered these to be served concurrently to one another

but consecutively to Counts 1-6 and 11. The court also imposed the required

sentence of twenty-five years to life for Count 10, the rape of K.H. by anal

penetration, and for Count 12, the rape of M.H. by digital penetration. However,

the court ordered that these sentences run consecutively to each other and all other

counts, resulting in an aggregate sentence of 100 years to life.

       {¶40} Clearly, the trial court grouped similar offenses together for

purposes of sentencing and chose to sentence according to each grouping and

victim: (1) all GSI counts; (2) vaginal rapes of K.H.; (3) oral and digital rapes of

K.H.; (4) anal rape of K.H.; and (5) the digital rape of M.H. In fact, the trial court

acknowledged its decision in this regard was based upon the “different forms of

conduct, * * * [and] as to count 12, which involves a separate victim, the Court

feels obligated to impose a consecutive sentence there because it is necessary to

vindicate the rights of another daughter.” (Sent. Hrg., 1/25/10, pp. 33-34.) In so

doing, the trial court structured a sentence that addressed the purposes and

principles of sentencing for the various types of criminal behavior in which

Harvey engaged.




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Case No. 5-10-05


          {¶41} At the sentencing hearing, the trial court noted on the record that it

had considered the sentencing statutes and relevant case law. The court also

stated,

          Never in my 21 plus years on the bench have I been forced to
          witness such graphic and disturbing conduct. The Defendant’s
          manipulation and molestation of his children is unspeakable and
          foremost unimaginable. I choose today not to detail the
          Defendant’s many transgressions, only to say that what occurred
          must have been the product of a deeply twisted and disturbed
          mind.

(Id. at p. 27.) The court further noted that the defendant, as the father of the

victims, had a duty to protect his children from harm, that he betrayed the sacred

trust between a parent and child, deprived the children of a normal childhood, and

“[i]n all likelihood impair[ed] future relationships by confusing the parent/child

relationship and by fostering distrust with adults in general.” (id. at p. 28.)

          {¶42} In explaining why it ordered the four terms of twenty-five years to

life imprisonment to be served consecutively, the trial court stated

          Three reasons support the imposition of consecutive sentences.
          One is a practical concern. Given the depravity of the
          Defendant’s conduct and the unequivocal danger he poses to
          children, consecutive sentences would never permit him to be in
          a position of trust with or to have access to children again. To
          this point, having read the Defendant’s statement in the pre-
          sentence investigation, and listening today to his allocution, I am
          again and remain shocked at his attempt to minimize his
          conduct. I also remain shocked that he has a lack of insight into
          his very deep sociopathology. I am highly suspicious that
          rehabilitation would work, because I’m unconvinced that the
          Defendant truly appreciates the wrongfulness of his conduct. * *


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Case No. 5-10-05


       * Secondly, a lengthy sentence would send a signal loud and
       clear to the community that such horrific conduct will not be
       tolerated. In fact, the law lists deterrence as an important goal
       of sentencing. Third and finally, consecutive sentences are
       necessary in the opinion of this Court, considering the breadth
       of the Defendant’s unlawful conduct, and to rightly acknowledge
       the devastating impact his conduct had on two separate victims.
       When considering the imposition of consecutive sentences, the
       Court must always be confident that the conduct at issue is so
       egregious that consecutive sentences would not be
       disproportionate to the harm caused. I’m confident that they
       would not be out of line. Here the significance of the
       Defendant’s aberrant behavior cannot be understated.
       Moreover, the Court must also conclude that a lengthy sentence
       is necessary to protect an unsuspecting public. And I do
       conclude that.

(id. at pp. 29-30.)

       {¶43} Given the facts previously outlined by this Court, including the

numerous video recordings of Harvey and his daughters engaging in sexual acts,

the trial court’s reasons for imposing consecutive sentences, and the requirements

of R.C. 2971.03(A)(3)(d)(i), we do not find by clear and convincing evidence that

the trial court’s sentence was contrary to law or unsupported by the record.

Further, in reviewing a number of other cases involving defendants who were

convicted of multiple counts of rape, including those cited by Harvey and the

State, we find a range of sentences from forty years to multiple terms of life

imprisonment.         Also, one of the cases cited by Harvey occurred prior to

significant, recent amendments to R.C. 2971.03 and the other case did not involve

a sexually violent predator specification. Further, none of the cases cited by either


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Case No. 5-10-05


party involved the video recording of sexual activity between a father and his two

biological children, the viewing of sexual activity between a parent and child by

the child’s sibling, having a younger sibling photograph the sexual acts between

parent and child, and the vaginal, anal, digital, and oral rape of a child by her

father.     Thus, we cannot conclude under these circumstances that Harvey’s

sentences were disproportionate to other sentences imposed for similar offenses in

other cases.

          {¶44} In short, each sentence imposed on Harvey was well within the

statutory range for sentencing, and eight of these sentences were required by law.

Further, the record demonstrated the particularly egregious, systematic sexual

abuse perpetrated on the ten and eleven-year-old victims by their father.

Therefore, the trial court did not err in imposing an aggregate sentence of 100

years to life upon Harvey, and the eighth assignment of error is overruled.

          {¶45} For all of these reasons, we affirm the judgment of the Common

Pleas Court of Hancock County, Ohio.

                                                               Judgment Affirmed

PRESTON, J., concurs.

/jlr




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Case No. 5-10-05


WILLAMOWSKI, P.J., Concurring Separately.

        {¶46} I concur fully with the majority opinion, however write separately to

emphasize that the appropriate standard of review was applied. The standard of

review for sentences was set forth in the plurality opinion of Kalish, supra. In

Kalish, four panel members noted that R.C. 2953.08(G) requires that appellate

courts require appellants to meet a clearly and convincingly contrary to law

standard of review when reviewing a sentence.6 For example, if the sentencing

court imposed consecutive sentences, as in this case, the standard of review would

be whether appellant has shown that the sentence was clearly and convincingly

contrary to law. However, if the appeal is based upon the proper application of the

factors in R.C. 2929.12, four panel members in Kalish would require review using

an abuse of discretion standard as specifically set forth in R.C. 2929.12.7

        {¶47} In his assignments of error, Harvey alleges that the trial court erred

by failing to make the findings required by R.C. 2929.14 and 2929.12(B)(2).

Harvey’s appeal of his felony sentence did not raise issue with the application of

the factors set forth in R.C. 2929.12, which would require a review using an abuse

of discretion standard. Thus, the clearly and convincingly standard used to review




6
    Justices Pfeifer, Lundberg Stratton, Lanzinger, and Judge Willamowski, sitting by assignment, all
reached this conclusion.
7
   Justices O’Connor, Moyer, O’Donnell, and Judge Willamowski, sitting by assignment, concurred in this
position, although the first three would use both standards of review in all cases.


                                                -29-
Case No. 5-10-05


this case, as set forth in R.C. 2953.08(G)(2) is the proper standard of review

herein.




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