[Cite as State v. Mahler, 2019-Ohio-3817.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                    OTTAWA COUNTY


State of Ohio                                    Court of Appeals No. OT-17-035

        Appellee                                 Trial Court No. 15 CR 048

v.

Robert Mahler                                    DECISION AND JUDGMENT

        Appellant                                Decided: September 20, 2019

                                             *****

        James J. VanEerten, Ottawa County Prosecuting Attorney, and
        Barbara Gallé Rivas, Assistant Prosecuting Attorney, for appellee.

        Russell V. Leffler, for appellant.

                                             *****

        PIETRYKOWSKI, J.

        {¶ 1} This is an appeal of the judgment of the Ottawa County Court of Common

Pleas, convicting appellant, Robert Mahler, of one count of gross sexual imposition in

violation of R.C. 2907.05(A)(4) and (C)(2), a felony of the third degree, and sentencing

him to 60 months in prison. For the reasons that follow, we affirm.
                          I. Facts and Procedural Background

       {¶ 2} On May 13, 2015, the Ottawa County Grand Jury indicted appellant on two

counts of gross sexual imposition in violation of R.C. 2907.05(A)(4), felonies of the third

degree. Appellant pleaded guilty to one count of gross sexual imposition, and in

exchange the state dismissed the other count. The trial court then sentenced appellant to

60 months in prison.

       {¶ 3} Appellant appealed his conviction, and in State v. Mahler, 6th Dist. Ottawa

No. OT-16-009, 2017-Ohio-1222, we reversed. We held that because the trial court

failed to advise appellant at the plea hearing that he would be classified as a Tier II sex

offender, and likewise failed to inform appellant of his community notifications and

residential restrictions, the plea must be vacated. We thus remanded the case to the trial

court for a new plea hearing.

       {¶ 4} The plea hearing upon remand was held on August 4, 2017. At that hearing,

appellant admitted that between June 1, 2010, and September 21, 2010, he touched the

genitals of his girlfriend’s granddaughter, who was less than 13 years old at the time.

The trial court accepted appellant’s plea, and the matter proceeded to a sentencing

hearing on November 3, 2017.

       {¶ 5} At the sentencing hearing, counsel for appellant asserted that appellant

became a very religious man who, despite previously denying the allegations when they

originally occurred in 2010, confessed to his counselor in 2015 that he had in fact

touched the victim. The counselor was required to report the admission, and then

appellant admitted to the crime to law enforcement. Counsel stated that appellant


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confessed as part of his reconciliation with God. Counsel argued that appellant was not a

risk to reoffend in that no other allegations have arisen in the intervening years, appellant

has no criminal history, and he has family in town that can support him. Further, counsel

noted that appellant has already served approximately 20 months in prison, and to the

extent that there are lessons to be learned from being sent to prison, appellant has learned

them. Therefore, counsel argued that appellant should be placed on community control.

       {¶ 6} Following the statements from the parties, the court stated that it considered

the principles and purposes of sentencing in R.C. 2929.11, and weighed the seriousness

and recidivism factors under R.C. 2929.12. In particular, the trial court found that the

“more likely” recidivism factors do not outweigh the “less likely” factors, but the “more

serious” factors do outweigh the “less serious” factors. Thus, the trial court sentenced

appellant to 60 months in prison, with credit for 610 days served.

                                 II. Assignment of Error

       {¶ 7} Appellant has timely appealed his judgment of conviction, and now asserts

one assignment of error for our review:

              1. It was prejudicial error and such an abuse of discretion for the

       court to sentence this defendant on these facts to the maximum sentence

       that it was an unlawful sentence.

                                       III. Analysis

       {¶ 8} We review felony sentences under the approach set forth in R.C.

2953.08(G)(2). State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶

11. R.C. 2953.08(G)(2) provides that an appellate court “may increase, reduce, or


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otherwise modify a sentence that is appealed under this section or may vacate the

sentence and remand the matter to the sentencing court for resentencing * * * * if it

clearly and convincingly finds: * * * (b) That the sentence is otherwise contrary to law.”

       {¶ 9} In Tammerine, we acknowledged that State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912, 896 N.E.2d 124, still can provide guidance for determining whether a

sentence is clearly and convincingly contrary to law. Tammerine at ¶ 15. The Ohio

Supreme Court in Kalish held that where the trial court considered the purposes and

principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly applied

postrelease control, and sentenced the defendant within the statutorily permissible range,

the sentence was not clearly and convincingly contrary to law. Kalish at ¶ 18.

       {¶ 10} In his brief, appellant argues that this was a one-time incident based on the

facts that he has no prior criminal record, he is now in his late 50s, he has confessed to

the crime, and has reconciled with God. Thus, he concludes that a prison term is not

necessary to protect the public from future crime as that standard is set forth in R.C.

2929.11.

       {¶ 11} Under R.C. 2929.12, the trial court has “discretion to determine the most

effective way to comply with the purposes and principles of sentencing set forth in

section 2929.11 of the Revised Code.” Moreover, we have held that “[a] trial court’s

discretion to impose a sentence within the statutory guidelines is very broad.” State v.

Harmon, 6th Dist. Lucas No. L-05-1078, 2006-Ohio-4642, ¶ 16. In reaching its

conclusion that a 60-month prison term was warranted, the trial court expressly

considered the principles and purposes of sentencing in R.C. 2929.11, and weighed the


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seriousness and recidivism factors in R.C. 2929.12. In reviewing the court’s decision, we

cannot diminish the fact that appellant admitted to touching the genitals of a minor child

for purposes of sexual gratification. Therefore, we hold that appellant’s prison sentence

is not clearly and convincingly contrary to law.

       {¶ 12} Accordingly, appellant’s assignment of error is not well-taken.

                                     IV. Conclusion

       {¶ 13} For the foregoing reasons, we find that substantial justice has been done the

party complaining, and the judgment of the Ottawa County Court of Common Pleas is

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

                                                                      Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Gene A. Zmuda, J.                                          JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE



           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.



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