[Cite as State v. Rosencranz, 2019-Ohio-2392.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                   :   JUDGES:
                                                 :
                                                 :   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                       :   Hon. John W. Wise, J.
                                                 :   Hon. Patricia A. Delaney, J.
 -vs-                                            :
                                                 :   Case No. 2019AP010002
                                                 :
 ALEXANDER ROSENCRANZ                            :
                                                 :
                                                 :
        Defendant-Appellant                      :   OPINION


CHARACTER OF PROCEEDING:                             Appeal from the Tuscarawas County
                                                     Court of Common Pleas, case no.
                                                     2018CR040117



JUDGMENT:                                            AFFIRMED




DATE OF JUDGMENT ENTRY:                              June 14, 2019




APPEARANCES:

 For Plaintiff-Appellee:                             For Defendant-Appellant:

 AMANDA K. MILLER                                    LINDSEY K. DONEHUE-ANGLER
 125 East High Ave.                                  120 Southgate Parkway
 New Philadelphia, OH 44663                          Cambridge, OH 43725
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Delaney, J.

      {¶1} Appellant Alexander Rosencranz appeals from the Judgment Entry of

Sentencing of the Tuscarawas County Court of Common Pleas dated December 20,

2018. Appellee is the state of Ohio.

                        FACTS AND PROCEDURAL HISTORY

      {¶2} A statement of the facts underlying appellant’s criminal conviction is not

necessary to our resolution of this appeal. Between the dates of July 5, 2017 and August

1, 2017, appellant had unlawful sexual conduct with an individual whose date of birth was

July 25, 2004.

      {¶3} Appellant was charged by indictment with one count of unlawful sexual

conduct with a minor pursuant to R.C. 2907.04(A) and (B)(1), a felony of the fourth

degree.

      {¶4} On November 6, 2018, appellant appeared before the trial court and

changed his previously-entered plea of not guilty to one of no contest. On December 18,

2018, the trial court sentenced appellant to a prison term of 18 months.

      {¶5} Appellant raises two assignments of error:

                             ASSIGNMENTS OF ERROR

      {¶6} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO

PERMIT COUNSEL TO REVIEW THE VICTIM IMPACT STATEMENT.”

      {¶7} “II.    THE TRIAL COURT ABUSED ITS DISCRETION BY VIOLATING

O.R.C. 2929.11(B).”
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                                        ANALYSIS

                                             I.

       {¶8} In his first assignment of error, appellant argues the trial court committed

plain error in refusing to permit counsel to review the victim impact statement. We

disagree.

       {¶9} The trial court is required to consider the victim impact statement in any

criminal case in which a felony offender caused, attempted to cause, threatened to cause,

or created a risk of physical harm to the victim in committing the offense.            R.C.

2947.051(A). Regarding disclosure of a victim impact statement prepared for the court,

R.C. 2947.051(C) states in pertinent part, “A victim impact statement prepared under this

section shall be kept confidential and is not a public record as defined in section 149.43

of the Revised Code. However, the court may furnish copies of the statement to both the

defendant or the defendant's counsel and the prosecuting attorney. * * * *.”

       {¶10} A trial court’s decision to deny a defendant access to a victim impact

statement is neither a denial of due process nor a violation of equal protection. See, State

v. Stewart, 149 Ohio App.3d 1, 2002-Ohio-4124, 775 N.E.2d 563 (12th Dist.). A trial

court’s decision not to release a victim impact statement is generally reviewed for an

abuse of discretion. Id., 2002-Ohio-4124 at ¶ 11.

       {¶11} In the instant case, the issue of the victim impact statement arose at

sentencing. Upon opening the hearing, the trial court stated it reviewed a defense

sentencing memorandum, a presentence investigation report (P.S.I.), a Melymbrosia

report, and “victim impact statements.” T. 2. The father of the minor victim made an oral

statement at sentencing. T. 3-4. When the defense was given an opportunity to make
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a statement, counsel stated he had reviewed the P.S.I. and there was a factual dispute

as to whether the victim was 12 or 13 at the time of the offense.1 The following comments

were made:

                    * * * *.

                    [DEFENSE COUNSEL:] I, I also had an opportunity to review

             [the P.S.I.] and I did not see a copy of the victim impact statement in

             the report.

                    THE COURT: That is for me, those are written for the Court.

                    [DEFENSE COUNSEL:]             Okay.        But would I have an

             opportunity to review that?

                    THE COURT: No.

                    [DEFENSE COUNSEL:] Okay. Alright. Subject to that, your

             honor, I don’t, I don’t believe there were any, any other corrections

             or objections to anything in the P.S.I. * * * *.

                    T. 6.

      {¶12} Defense trial counsel advocated for a term of community control, as urged

in the defense sentencing memorandum and as recommended by appellee. The trial

court sentenced appellant to a prison term of 18 months, noting that the victim impact

statements were a factor in weighing the seriousness of the offense:

                    * * * *. But I don’t want to overlook that there is also a burden

             and a lasting impact on, not only the child victim, but her parents.




1As noted supra, the date of the victim’s 13th birthday was during the indicted course of
conduct.
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              So, in reading through the, the victim impact statement, there is a

              ripple effect to the crime and it really, it doesn’t have to be a sex

              crime. Anyone who sits in the chair where you are, there is a ripple

              effect to that crime. And so, it’s a large part of that of course is we

              look at the impact to this victim. * * * *. And a child who is not legally

              capable of consenting to this kind of activity. And a child who, by her

              own handwritten impact statement, has described for me an affect

              (sic) on her social interactions, her disposition, her grades, and a

              variety of other feelings that, that this has caused her. Confusion,

              grief, depression, anxiety, sadness, guilt, fear, anger, trouble with

              concentrating, and a lack of trust. She’s, she’s listed several things.

              I won’t read the entire thing, but I did read it. And then, both of her

              parents also describe how, how that impact, as I said, ripples to

              them, causing great emotional harm to them as well. And those are

              the things that make this more serious. * * * *.

                     T. 13-14.

       {¶13} The trial court went on to note that other factors weighing in the seriousness

of the offense included appellant’s failure to take responsibility for his conduct, which was

noted in his statement to the trial court and in the report from Melymbrosia.              The

Melymbrosia report indicated appellant’s risk of re-offending was higher because,

although he had no criminal history, he was not taking accountability for this crime. T. 15.

       {¶14} Appellant argues on appeal, however, that the trial court committed plain

error in refusing to permit defense trial counsel to review the victim impact statements.
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As is apparent from the conversation cited supra, counsel’s request to see the victim

impact statements was ambiguous at best and no objection was raised when the trial

court demurred. A defendant's failure to object to the trial court's use of victim impact

statements requires a plain error review. State v. Randlett, 10th Dist. Franklin No. 03AP-

385, 2003-Ohio-6934, ¶ 49, appeal not allowed, 102 Ohio St.3d 1447, 2004-Ohio-2263,

808 N.E.2d 398.

       {¶15} Pursuant to Crim.R. 52(B), “plain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the court.” The

rule places several limitations on a reviewing court’s determination to correct an error

despite the absence of timely objection at trial: (1) “there must be an error, i.e., a deviation

from a legal rule,” (2) “the error must be plain,” that is, an error that constitutes “an

‘obvious’ defect in the trial proceedings,” and (3) the error must have affected “substantial

rights” such that “the trial court’s error must have affected the outcome of the trial.” State

v. Dunn, 5th Dist. No. 2008-CA-00137, 2009-Ohio-1688, citing State v. Morales, 10 Dist.

Nos. 03-AP-318, 03-AP-319, 2004-Ohio-3391, at ¶ 19 (citation omitted).

       {¶16} The decision to correct a plain error is discretionary and should be made

“with the utmost caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.” Barnes, supra, quoting State v. Long, 53 Ohio St.2d 91, 372

N.E.2d 804 (1978), paragraph three of the syllabus.

       {¶17} The instant case is similar to Randlett, supra, which also involves plain-error

review of a trial court’s decision not to disclose victim-impact statements to the defense.

2003-Ohio-6934, supra, at ¶ 50. In that case, also involving child sex abuse, the Tenth

District Court of Appeals found no plain error “because the trial court placed on the record
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those aspects of the victim impact statements on which it relied to impose its sentence,”

in effect advising the defendant of the content of the statements and giving the defendant

the opportunity to respond, if appropriate. Id. at ¶ 54. The defendant was “therefore not

sentenced on the basis of victim impact statements whose content was unknown to him,”

and there was no plain error. Id.

       {¶18} We find the Randlett analysis applicable in the instant case because the

trial court revealed the aspects of the victim-impact statements which were significant to

the sentencing decision.

       {¶19} Appellant cites another case arising from the same trial court, State v.

Garcia, 5th Dist. Tuscarawas No. 2018AP060024, 2018-Ohio-4818, in which a defendant

was sentenced to a prison term of 8 months upon one count of unlawful sexual conduct

with a minor. Appellant argues the only “significant” difference between the instant case

and Garcia is the “apparent desires of the victim or the victim’s representative.” Brief, 10.

Appellant concludes the trial court in the instant case abused its discretion in yielding to

the request of the victim’s family, resulting in a longer prison term. While we find a number

of significant differences between Garcia and the instant case, we note this argument

does not support appellant’s assignment of error regarding nondisclosure of the victim

impact statements. Appellant’s complaint is that the victim’s family asked for prison time.

The victim’s father made his request on the record, in open court, and stated that he

wanted appellant to serve the maximum sentence. The statement was, in fact, made

directly to appellant. There is no indication in the record that the father’s sentencing

request was adopted from the trial court, but moreover, the father’s sentencing request
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was fully known to appellant and was not hidden away in the victim impact statement.

Appellant’s reliance upon Garcia in this context is misplaced.

       {¶20} The trial court did not commit plain error in not releasing the victim impact

statements to defense trial counsel. Appellant’s first assignment of error is therefore

overruled.

                                                II.

       {¶21} In his second assignment of error, appellant argues the trial court abused

its discretion in imposing a prison term of 18 months upon appellant. We disagree.

       {¶22} Appellant argues the trial court violated R.C. 2929.11(B), requiring that a

felony sentence should be consistent with sentences imposed for similar crimes upon

similar offenders. Appellant cites two cases arising from the same trial court involving

sex offenses with minors: State v. Stevens, 5th Dist. Tuscarawas No. 2000 AP 11 0083,

2001 WL 698142 [plea to one count of corruption of a minor, sentence of 18 months

based in part upon extensive criminal history] and State v. Reynolds, 5th Dist.

Tuscarawas No. 2000 AP 11 0080, 2001 WL 881786 [plea to one count of corruption of

a minor, sentence of 14 months, prior sex offense against a child].

       {¶23} Our review of these cases indicates their only similarity to the case at bar is

the fact that they arose in the same trial court and involved sexual conduct with minors.

Although appellant has not framed his argument in terms of disproportionate sentencing,

he summarily argues his sentence is disproportionate to those of these (purportedly)

similarly-situated individuals. A felony sentence should be proportionate to the severity of

the offense committed so as not to “shock the sense of justice in the community.” State

v. Chafin, 30 Ohio St.2d 13, 17, 282 N.E.2d 46; R.C. 2929.11(B). A defendant alleging
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disproportionality in felony sentencing has the burden of producing evidence to “indicate

that his sentence is directly disproportionate to sentences given to other offenders with

similar records who have committed these offenses * * *.” State v. Ewert, 5th Dist.

Muskingum No. CT2012–0002, 2012–Ohio–2671, ¶ 33, citing State v. Breeden, 8th Dist.

No. 84663, 2005–Ohio–510, ¶ 81. Appellant has failed to provide any evidence his

sentence is constitutionally disproportionate. See, State v. Artripe, 5th Dist. Knox No.

15CA7, 2015-Ohio-4155, ¶ 15.

       {¶24} In the instant case, on the record at the sentencing hearing, the trial court

noted it considered the purposes and principles of sentencing contained in R.C. 2929.11

and considered the seriousness factors of R.C. 2929.12. The trial court cited the relevant

factors listed in its sentencing entry, to wit: the injury to the victim was worsened because

of the age of the victim, as the victim was age 12 at the time of the offense and appellant

was age 19; the victim suffered serious psychological harm, as it affected her grades,

disposition, and social interactions; the crime also caused emotional and psychological

harm to the victim’s parents; appellant demonstrates no genuine remorse; and the sex

offender evaluation indicates a moderate risk for sexual reoffending, with a need for

treatment to take greater accountability for the crime. The prison term of 18 months is

within the statutory range for the offense and is in accordance with law. R.C.

2907.04(B)(1); R.C. 2929.14(A). We further find the sentence of the trial court is

supported by the record and does not constitute an abuse of discretion.

       {¶25} Appellant’s second assignment of error is overruled.
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                                   CONCLUSION

      {¶26} Appellant’s two assignments of error are overruled and the judgment of the

Tuscarawas County Court of Common Pleas is affirmed.

By: Delaney, J.,

Gwin, J. and

Wise, John, J., concur.
