[Cite as State v. Stamper, 2013-Ohio-5669.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                              BUTLER COUNTY




STATE OF OHIO,                                      :
                                                          CASE NO. CA2012-08-166
        Plaintiff-Appellee,                         :
                                                                 OPINION
                                                    :            12/23/2013
   - vs -
                                                    :

LEONARD STAMPER,                                    :

        Defendant-Appellant.                        :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2012-01-0103



Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Michael K. Allen & Associates, Joshua A. Engel, 5181 Natorp Boulevard, Suite 210, Mason,
Ohio 45040, for defendant-appellant



        M. POWELL, J.

        {¶ 1} Defendant-appellant, Leonard Stamper, appeals his sentence in the Butler

County Court of Common Pleas for rape.

        {¶ 2} Appellant was indicted in February 2012 on three counts of rape and one count

of gross sexual imposition.           The state alleged that from November 1, 2007, through

September 30, 2010, appellant engaged in sexual conduct with the pre-teenage daughter of
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his then paramour. The victim was ten years old when the offenses began. At the time of

the offenses, appellant was living with the victim and her mother.

       {¶ 3} On July 9, 2012, appellant pled guilty to three counts of rape in violation of R.C.

2907.02(A)(1)(c) (first-degree felonies). During the plea hearing, the state indicated that from

November 1, 2007, through September 30, 2010, appellant engaged in sexual conduct with

the victim constituting rape by fellatio, cunnilingus, and digital penetration of the vagina. In

exchange for appellant's guilty plea, the gross sexual imposition charge was merged, and

appellant's sentence upon conviction was to be "capped at 10 years per count, no life

sentence." At the time of the plea, appellant was 74 years old.

       {¶ 4} On August 24, 2012, following a sentencing hearing, the trial court sentenced

appellant to ten years in prison on each count of rape, and ordered that two of the sentences

be served consecutively, for an aggregate prison term of 20 years.

       {¶ 5} Appellant appeals, raising two assignments of error.

       {¶ 6} Assignment of Error No. 1:

       {¶ 7} THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING MAXIMUM

SENTENCES.

       {¶ 8} Appellant argues the trial court abused its discretion in sentencing him to the

maximum prison term for each of the three counts of rape. Appellant asserts the trial court

failed to properly consider the factors under R.C. 2929.12, in that the court gave significant

weight to the victim's statements at sentencing but failed to take into account the fact

appellant accepted responsibility for his actions. Appellant further asserts that his sentence

is disproportionate to similarly situated offenders because he received a longer sentence

compared to lesser sentences received by other defendants charged with similar rape

offenses in other counties. Appellant also asserts that "nothing in the record suggests that

his conduct was 'egregious' when compared to others who committed the same offense." In
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support of his disproportionality argument, appellant cites to a list of 15 cases from other

appellate courts as well as to two opinions from this court, State v. Mathes, 12th Dist.

Clermont No. CA2012-03-028, 2013-Ohio-1732; and State v. Alkire, 12th Dist. Madison No.

CA2008-09-023, 2009-Ohio-2813.

       {¶ 9} At the outset, we note that we no longer review felony sentences under an

abuse of discretion standard. State v. Crawford, 12th Dist. Clermont No. CA2012-12-088,

2013-Ohio-3315, ¶ 6-7. Rather, we review felony sentences to determine whether the

imposition of those sentences is clearly and convincingly contrary to law. Id. A sentence is

not clearly and convincingly contrary to law where the record supports the trial court's findings

under R.C. 2929.14(C)(4) and where the trial court considers the purposes and principles of

R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly applies postrelease

control, and sentences appellant within the permissible statutory range. See id. at ¶ 7, 9;

R.C. 2953.08(G)(2).

       {¶ 10} Appellant does not dispute that the trial court sentenced him within the statutory

range, nor does he dispute that the trial court properly applied postrelease control in this

case. The judgment entry of conviction specifically states that the trial court considered "the

principles and purposes of sentencing under Ohio Revised Code Section 2929.11, and has

balanced the seriousness and recidivism factors of Ohio Revised Code Section 2929.12."

       {¶ 11} We find that the trial court did not err in sentencing appellant to the maximum

prison term for each rape count. When sentencing a defendant, a trial court is not required

to consider each sentencing factor, "but rather to exercise its discretion in determining

whether the sentence satisfies the overriding purpose of Ohio's sentencing structure." State

v. Oldiges, 12th Dist. Clermont No. CA2011-10-073, 2012-Ohio-3535, ¶ 17. Factors set forth

in R.C. 2929.12 are nonexclusive, and R.C. 2929.12 explicitly permits a trial court to consider

any relevant factors in imposing a sentence. State v. Birt, 12th Dist. Butler No. CA2012-02-
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031, 2013-Ohio-1379, ¶ 64.

       {¶ 12} During the sentencing hearing, the trial court allowed appellant to present

mitigating evidence. In a statement to the court, appellant took responsibility for his actions,

apologized for his criminal conduct, and stated he was "prepared to take the consequences

of whatever sentence" the trial court deemed appropriate. The victim subsequently took the

stand and described how appellant "stalked [her] life day and night for years," and how she

was:

               the innocent little girl whose life you screwed up, the courage and
               fight that you took out of her, the light and happiness that left her
               eyes. * * * The girl that grew up before her time, who lost her
               innocence and youth. The girl who was silently screaming,
               begging for someone, anyone to notice.

The victim also explained she had recently been hospitalized in a mental institution because

she "couldn't handle being at home with the triggers and the memories." The victim closed

her statement with, "Whoever knew the word dad could mean molester."

       {¶ 13} In sentencing appellant to the maximum prison term for each rape count, the

trial court found that:

               It seems clear to me that the harm that was visited on [the victim]
               in this case was a result of predatory behavior. * * * you
               groomed this family, you groomed this little girl, and when the
               time was right, you took advantage of it, and you took advantage
               of it for a period of time. The harm here was great. I've seen
               that little girl stand up there and talk about what happened to her,
               a terrible thing. You made her grow up too soon. She shouldn't
               have to be talking about those things to this Court or to anybody
               else. And I understand why her parents were concerned about
               her well-being.

       {¶ 14} In light of the foregoing, we find that the trial court did not err in sentencing

appellant to the maximum prison term for each of the three counts of rape. Appellant's

maximum sentences are not clearly and convincingly contrary to law. State v. Humes, 12th

Dist. Clermont No. CA2009-10-057, 2010-Ohio-2173, ¶ 18.


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       {¶ 15} With regard to appellant's disproportionality argument, we have held that a

"defendant has no substantive right to a particular sentence within the statutorily authorized

range." State v. Isreal, 12th Dist. Butler No. CA2010-07-170, 2011-Ohio-1474, ¶ 70. "A

consistent sentence is not derived from a case-by-case comparison, but from the trial court's

proper application of the statutory sentencing guidelines." Id. at ¶ 72. "In other words, a

defendant claiming inconsistent sentencing must show the trial court failed to properly

consider the statutory sentencing factors and guidelines found in R.C. 2929.11 and 2929.12."

Id. "When sentencing an offender, each case stands on its own unique facts." State v.

Mannarino, 8th Dist. Cuyahoga No. 98727, 2013-Ohio-1795, ¶ 58.

       {¶ 16} In support of his disproportionality argument, appellant cites 15 cases from

other Ohio appellate courts, including the name of the case, the date of the case, whether it

was a jury or bench trial, the statutory offense or offenses each defendant was convicted of

and the number of counts, and the sentence each offender received. As listed, those cases

do not tell any facts about the individual cases, do not tell anything about the offenders'

characteristics, and provide no information beyond the convictions and terms of the

sentences. Id. at ¶ 60-61. Thus, those cases do not tell whether the offenders in those

cases were similar to appellant. Id.

       {¶ 17} Appellant also cites two opinions from this court, Mathes, 2013-Ohio-1732, and

Alkire, 2009-Ohio-2813.     In Mathes, the defendant was convicted by a jury of rape,

kidnapping, and unlawful restraint for raping a 14-year-old girl. The offenses were merged as

allied offenses of similar import, and the defendant was sentenced to five years in prison for

his rape conviction. The defendant did not appeal his sentence.

       {¶ 18} In Alkire, the defendant was convicted by a jury of two counts of rape (under

two statutory theories) for raping a 17-year-old girl. The rape convictions were merged as

allied offenses and the defendant was sentenced to nine years in prison. The defendant did
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not appeal his sentence.

        {¶ 19} We find that Mathes and Alkire are factually distinguishable from the case at

bar and are therefore not comparable. Unlike the case at bar, the victims in Mathes and

Alkire were not pre-teenagers. Further, the sexual conduct was a single, isolated incident

and did not span several years. In addition, while the victim knew the defendant in Mathes,

and while the victim was friends with the defendant's niece in Alkire, these offenders did not

live with their victims and were not a parental figure to them. In the case at bar, appellant

took advantage of his close relationship to the victim. Finally, the offenders in Mathes and

Alkire were sentenced after their offenses were merged.

        {¶ 20} As stated earlier, the trial court properly considered the statutory sentencing

factors and guidelines found in R.C. 2929.11 and 2929.12 before sentencing appellant, and

imposed a sentence within the statutory range for the offenses. Isreal, 2011-Ohio-1474 at ¶

73; R.C. 2929.14. Accordingly, appellant failed to show his sentence is inconsistent with

other similarly situated offenders.

        {¶ 21} While we find that the trial court did not err in imposing maximum prison terms,

we sua sponte find it improperly imposed consecutive sentences.1 State v. Warren, 12th

Dist. Clermont No. CA2012-12-087, 2013-Ohio-3483, ¶ 14. After reviewing the record, we

clearly and convincingly find that the consecutive nature of the sentences was improperly

imposed because the trial court did not make the required statutory findings on the record at

sentencing.

        {¶ 22} Pursuant to R.C. 2929.14(C)(4), a trial court must engage in a three-step

analysis and make certain findings before imposing consecutive sentences. State v. Dillon,



1. "An appellate court has the discretion to recognize an issue not raised by the parties as long as the record
contains a sufficient basis for deciding the issue." Warren, 2013-Ohio-3483 at fn. 1, citing Hungler v. Cincinnati,
25 Ohio St.3d 338 (1986). This court has sufficient basis for deciding the issue because the record contains a
transcript of the sentencing hearing and the trial court's judgment entry of sentence.
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12th Dist. Madison No. CA2012-06-012, 2013-Ohio-335, ¶ 9. Specifically, the trial court must

find that (1) the consecutive sentence is necessary 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 to the danger the offender poses to the public; and (3) one of

the following applies:

              (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.

              (c) The offender's history of criminal conduct demonstrates that
              consecutive sentences are necessary to protect the public from
              future crime by the offender.

R.C. 2929.14(C)(4); Dillon at id.

       {¶ 23} The trial court is not required to give reasons explaining these findings, nor is

the court required to recite any "magic" or "talismanic" words when imposing consecutive

sentences. Crawford, 2013-Ohio-3315 at ¶ 14. However, it must be clear from the record

that the trial court actually made the required statutory findings. Id. "A consecutive sentence

is contrary to law where the trial court fails to make the consecutive sentencing findings as

required by R.C. 2929.14(C)(4)." State v. Marshall, 12th Dist. Warren No. CA2013-05-042,

2013-Ohio-5092, ¶ 8.

       {¶ 24} Although the trial court set forth the required statutory findings under R.C.

2929.14(C)(4) in its sentencing entry, it failed to make any of the required findings at

sentencing prior to imposing consecutive sentences. During the sentencing hearing, before


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imposing consecutive sentences, the trial court merely stated that:

              Having looked at the situation, I find that the harm here is so
              great that a single term does not adequately reflect the
              seriousness of your conduct. I can't look at the harm that was
              visited on this child, particularly at the tender age of between ten
              to twelve years, and not feel that the harm was that great, so I'm
              going to order that counts one and two be run consecutive to
              each other. I will run count three concurrently for a total of
              twenty years.

       {¶ 25} "[A]lthough trial courts are not required to use 'talismanic words' to comply with

the statute, the findings required by R.C. 2929.14(C)(4) must be made on the record at

sentencing prior to imposing consecutive sentences." State v. Wilson, 8th Dist. Cuyahoga

No. 97827, 2012-Ohio-4159, ¶ 13; State v. Boyd, 8th Dist. Cuyahoga No. 98342, 2013-Ohio-

30, ¶ 24. Compare State v. Smith, 12th Dist. Clermont No. CA2012-01-004, 2012-Ohio-

4523, ¶ 34 (finding that a trial court is not required to set forth its consecutive sentence

findings under R.C. 2929.14(C)(4) in its sentencing entry when the court makes the required

findings at sentencing); State v. Rose, 12th Dist. Butler No. CA2011-11-214, 2012-Ohio-5607

(same). Here, the trial court did not make the required findings regarding consecutive

sentences on the record at sentencing. Thus, this case must be remanded to the trial court

to make the necessary findings. Warren, 2013-Ohio-3483 at ¶ 17.

       {¶ 26} Having found that appellant's maximum sentences were proper, but that the

trial court failed to make the required statutory findings under R.C. 2929.14(C)(4) on the

record at sentencing before sentencing appellant to consecutive sentences, we find that the

trial court's imposition of consecutive sentences is contrary to law. See Marshall, 2013-Ohio-

5092 at ¶ 25. Accordingly, appellant's first assignment of error is overruled in part and

sustained in part. Warren at ¶ 18.

       {¶ 27} Assignment of Error No. 2:

       {¶ 28} THE DE FACTO LIFE SENTENCE IMPOSED IN THIS CASE CONSTITUTES

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CRUEL AND UNUSUAL PUNISHMENT.

       {¶ 29} Appellant challenges his 20-year prison term on the ground that given his age

(he was 74 years old at the time of sentencing), his sentence amounts to a de facto life

sentence and constitutes cruel and unusual punishment in violation of the Eighth Amendment

to the United States Constitution. However, given our decision to remand this case for

resentencing, we find that appellant's second assignment of error is moot and we decline to

address it. See State v. Bonner, 12th Dist. Butler No. CA2012-09-195, 2013-Ohio-3670.

       {¶ 30} We hereby vacate that portion of the trial court's judgment imposing

consecutive sentences and remand this matter to the trial court for resentencing. On

remand, the trial court shall consider whether consecutive sentences are appropriate under

R.C. 2929.14(C)(4), and if so, shall make the required statutory findings on the record at

resentencing. In all other respects, the trial court's sentence is affirmed.

       {¶ 31} Judgment affirmed in part, reversed in part, and cause remanded to the trial

court for resentencing consistent with this opinion.


       HENDRICKSON, P.J., and RINGLAND, J., concur.




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