[Cite as State v. Nichols, 2013-Ohio-3285.]




                IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

STATE OF OHIO                                          :

        Plaintiff-Appellee                             :            C.A. CASE NO.     2012 CA 38

v.                                                     :            T.C. NO.    10CR98

MARTIN NICHOLS                                         :            (Criminal appeal from
                                                                     Common Pleas Court)
        Defendant-Appellant                            :

                                                       :

                                              ..........

                                              OPINION

                          Rendered on the       26th       day of        July       , 2013.

                                              ..........

LISA M. FANNIN, Atty. Reg. No. 0082337, Assistant Prosecuting Attorney, 50 E.
Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501
      Attorney for Plaintiff-Appellee

J. ALLEN WILMES, Atty. Reg. No. 0012093, 4428 N. Dixie Drive, Dayton, Ohio 45414
      Attorney for Defendant-Appellant

                                              ..........

DONOVAN, J.

        {¶ 1}     Defendant-appellant Martin Nichols appeals from a sentence imposed by the
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Clark County Court of Common Pleas, Criminal Division, during a re-sentencing hearing

held pursuant to our holding in State v. Nichols, 195 Ohio App.3d 323, 2011-Ohio-4671,

959 N.E.2d 1082 (2d Dist.) (hereinafter “Nichols I”). Nichols filed a timely notice of

appeal on June 4, 2012.

       {¶ 2}      We set forth the history of the case in Nichols I, and repeat it herein in

pertinent part:

                  Nichols worked as a janitor at the Enon Elementary School for

       approximately four years, and one of his responsibilities was to clean the

       cafeteria after lunch. Pursuant to his plea, Nichols admitted to sexual contact

       with four girls, who were first and second grade students at the school;

       specifically, according to the facts stated by the prosecutor at the plea hearing,

       he touched the girls “on their butts and pubic area of their skirts and under

       their skirts and over their clothing” while they worked with him to clean the

       cafeteria.

                  Nichols was indicted on four counts of gross sexual imposition, which

       occurred over a period of five months, and pled guilty to each offense. In

       exchange, the State agreed that a presentence investigation (“PSI”) would be

       prepared and considered before sentencing.

                  The PSI that was submitted to the court included a probation

       department report, which indicated that Nichols was 40 years old, was

       married with two young children, and had no prior adult or juvenile criminal

       record. It also included numerous letters from Nichols’s family members,
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       church associates, friends, and his attorney asking that his good character,

       contributions to the community, and genuine remorse be considered in

       imposing sentence. The PSI did not include any recommendation from the

       court’s probation officer.

               The court was also presented with a “Victim Impact Statement”

       regarding one of the victims, R.T., and a letter purportedly from another

       victim, B.P. The two other victims chose not to complete victim impact

       statements, but one of the mothers spoke at sentencing.

       {¶ 3}    Nichols subsequently pled guilty to four counts of gross sexual imposition.

He was sentenced to a five-year term of imprisonment on each count, to be served

consecutively, for an aggregate term of twenty years, five years of mandatory post-release

control, and was classified as a Tier II sexual offender.        Nichols appealed from his

conviction, challenging only his sentence.

       {¶ 4}    On appeal, Nichols contended that the sentence imposed by the trial court

was contrary to law because it failed to apply the recidivism factors enumerated in R.C.

2929.12(D). Nichols also argued that the trial court abused its discretion when it imposed

maximum consecutive sentences. In reversing the sentence imposed by the trial court, we

held that Nichols’ sentence was not contrary to law, but we also found that the trial court

abused its discretion when it sentenced Nichols to maximum, consecutive prison terms.

Accordingly, we remanded the matter to the trial court for re-sentencing.

       {¶ 5}    On September 29, 2011, the State filed an application for reconsideration of

our decision in Nichols I. On December 27, 2011, we issued a decision overruling the
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State’s application for reconsideration. In that decision, we found that the State was not

permitted to expand upon previously presented evidence at Nichols’ resentencing.

       {¶ 6}    On May 4, 2012, Nichols was resentenced to three years on each of the four

counts of GSI to be served consecutively, for an aggregate sentence of twelve years in

prison. Nichols was also designated as a tier-two sexual offender.

       {¶ 7}    It is from this judgment that Nichols now appeals.

       {¶ 8}    Initially, we note that at re-sentencing, the State informed the trial court, and

the court agreed, that Nichols should be re-sentenced under H.B. 86, rather than the law in

effect at the time Nichols was originally sentenced. The trial court believed and stated at

re-sentencing that even though H.B. 86's statutory range was twelve to thirty-six months, it

still intended to sentence Nichols using the pre-H.B. 86 statutory range of one to five years

but made the finding that H.B. 86 requires regarding consecutive sentences.1 This decision

made by the trial court resulted in what we would characterize as a hybrid sentence using

elements of both pre and post-H.B. 86 sentencing guidelines. On March 14, 2013, we

ordered the parties to submit additional briefing regarding which version of the sentencing

guidelines should have been utilized at Nichols’ re-sentencing.

       {¶ 9}     Upon review, we conclude that H.B. 86 controls in the instant case.

Recently, the Eighth District Court of Appeals held that in a sentencing or re-sentencing

occurring on or after the effective date of H.B. 86, September 30, 2011, the revived version

of R.C. 2929.14(C)(4) was in effect and the court had to make certain findings before



          1
           However, the correct sentencing range for one count of GSI under H.B.
   86 is twelve to sixty months in prison.
                                                                                          5

imposing consecutive sentences. State v. Venes, 2013-Ohio-1891, --- N.E.2d ---, 2013 WL

1932857 (8th Dist.). Nichols was originally sentenced on May 6, 2010, after pleading guilty

to four counts of GSI. As previously stated, Nichols appealed his sentence, and we reversed

and remanded for re-sentencing. On May 4, 2012, the trial court re-sentenced Nichols to

three years on each of the four GSI counts and ordered the sentences to be served

consecutively.    Nichols was sentenced after the effective date of H.B. 86. Therefore,

pursuant to H.B. 86, the trial court was required to make certain findings before imposing

consecutive sentences. See Id.

        {¶ 10} Having found that the trial court’s decision to impose consecutive sentences

was governed by R.C. 2929.14(C)(4), we conclude on this record that the court’s finding

fails to meet the statutory criteria.

        {¶ 11} R.C. 2929.14(C)(4) under H.B. 86 requires a trial court to make certain

findings before imposing consecutive sentences:

                 If multiple prison terms are imposed on an offender for convictions of

        multiple offenses, the court may require the offender to serve the prison terms

        consecutively if the court finds that the consecutive service is necessary to

        protect the public from future crime or to punish the offender and that

        consecutive sentences are not disproportionate to the seriousness of the

        offender's conduct and to the danger the offender poses to the public, and if

        the court also finds any of the following:

                 (a) The offender committed one or more of the multiple offenses

        while the offender was awaiting trial or sentencing, was under a sanction
                                                                                         6

       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.

       {¶ 12} Significantly, the record does not support the trial court’s imposition of

consecutive sentences under H.B. 86.            Specifically, the court misapplied R.C.

2929.14(C)(4)(b). At the sentencing hearing on May 4, 2012, the trial court made the

following finding with respect to the imposition of consecutive sentences:

               I am going to order that on Counts One, Two, and Three and Four, for

       each count you will be sentenced to three years in the Ohio State Penitentiary.

        I find that consecutive sentences are necessary to protect the public from

       future crime, and to punish you.

               I don’t believe consecutive sentences are disproportionate to the

       seriousness of your conduct, and it’s not disproportionate to the danger you

       pose to the public.

               I also find that these offenses were part of a course of conduct and
                                                                                          7

       that the harm caused was so great that no single prison term for any of the

       offenses committed accurately reflects the seriousness of your conduct, so I

       will order that these sentences will run consecutively. Your total sentence

       will be twelve years in the Ohio State Penitentiary.

       {¶ 13} These findings made by the trial court, however, fly directly in the face of

our decision in Nichols I. In regards to R.C. 2929.14(C)(4), we specifically found the

following:

               Insofar as only one of the statutory factors applied to suggest that

       Nichols’s offense was more serious than conduct normally constituting the

       offense, and there were no statutory or non-statutory factors tending to show

       that Nichols is likely to commit future crimes and all of the statutory factors

       were present to show that he is not likely to commit future crimes, it is

       difficult to imagine the trial court’s basis for imposing maximum consecutive

       sentences in this case. Nichols I, ¶ 34.

       {¶ 14} Accordingly, the trial court had no basis upon which to order Nichols to

serve consecutive sentences pursuant to 2929.14(C)(4) because we previously held that the

evidence adduced established that he is not likely to commit future crimes.

       {¶ 15} With respect to 2929.14(C)(4)(b), we stated the following in Nichols I:

               However, there is little, if any, evidence in the record to suggest that

       the victims suffered “great” damage. As we discussed above, there was no

       evidence of physical injury, and while the anger, fear, and disturbances

       experienced by the children are heartbreaking, there is nothing in the record
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       to suggest that these injuries are qualitatively greater than those predictably

       experienced by any victim of a gross sexual imposition or that the children

       are unlikely to overcome these effects in a reasonable period of time with the

       love and support of their families and the knowledge that Nichols has

       admitted his wrongdoing and been punished for it.

               We in no way detract from the criminality of Nichols’s actions and

       the wrong done to the children; however, treating this case as if it were the

       most serious form of the offense and Nichols as being the most depraved

       offender is not supported by the record and, further, depreciates the

       lawfulness and validity of such a finding in those cases that truly do merit

       such conclusions.

       ***

       “It will take a courageous judge not to ‘*** stack’ every sentence in

       multiple-count   cases.”   State   v.   Hairston,   118   Ohio    St.3d   289,

       2008-Ohio-2338, 888 N.E.2d 1073, at ¶ 31 (Lanzinger, J., concurring).

Nichols I, ¶¶ 38-39.

       {¶ 16} In light of the above language from Nichols I, the trial court had no

evidentiary or legal basis upon which to order Nichols to serve consecutive sentences

pursuant to R.C. 2929.14(C)(4)(b) because we previously held that his conduct, while

certainly egregious, did not constitute the most serious form of the offense. We note that in

Nichols I, the only factor indicating that Nichols’s offense was more serious than conduct

normally constituting the offense of gross sexual imposition was that his occupation
                                                                                            9

facilitated the offense. We held, however, that finding, standing alone, was insufficient to

be the basis for the imposition of consecutive sentences on Nichols. In the instant case, as

in Nichols I, the trial court abused its discretion by imposing consecutive sentences.

       {¶ 17} Lastly, we note that the trial court again failed to properly consider the

factors for “seriousness” and likelihood of recidivism pursuant to R.C. 2929.12(B)(C)(D) &

(E). As we emphasized in Nichols I, Nichols had no prior criminal record, and the record

failed to establish that the victims suffered any “serious” psychological harm as a result of

Nichols’ actions. No evidence was adduced at any point that the victims suffered any

physical harm.

       {¶ 18} R.C. 2929.12(B) and (C) enumerate factors to be considered in weighing the

seriousness of an offender’s conduct, and R.C. 2929.12(D) and (E) enumerate factors to be

considered in weighing the likelihood of the offender’s recidivism. The court also may

consider any other factors that are relevant to achieving the purposes and principles of

sentencing. State v. Saunders, 2d Dist. Greene No. 2009 CA 82, 2011-Ohio-391, ¶11.

       {¶ 19} Nichols’ sole supplemental assignment of error is sustained.

       {¶ 20} On the authority contained in Section 3(B)(2), Article IV of the Ohio

Constitution and R.C. § 2953.08(G)(2)(b), Nichols’ prison sentence is modified to a

sentence of three years on each of the four counts of gross sexual imposition to run

concurrently to one another for an aggregate sentence of three years imprisonment. This

modification does not alter Nichols’ Tier II sex offender designation nor the five year period

of post-release control.

                                         ..........
                                                                                                10

FAIN, P.J., concurs.

WELBAUM, J., dissenting:

       {¶ 21}     I very respectfully dissent.

THE TRIAL COURT COMPLIED WITH HB 86

       {¶ 22}     Although at the May 4, 2012 re-sentencing, the trial court stated the

maximum sentence for each count of Gross Sexual Imposition was three years in prison, as

noted by the majority it was actually five under HB 86. R.C. 2907.05(A)(4). The HB 86

version of R.C. 2929.14(A)(3)(a) provides for a maximum term of 60 months for such

violations. The trial court imposed a mid-range thirty-six month sentence for each count

provided by HB 86 evidently thinking it was the maximum. In any event, this error benefits

Nichols and is not prejudicial.

       {¶ 23}     The majority in Nichols I and the majority today determined that the trial

court properly found one factor specifically listed in the sentencing statute to support that

Nichols’ multiple offenses were more serious than conduct normally constituting the

offenses. This sole listed factor was that Nichols’ occupation facilitated the offenses. R.C.

2929.12(B)(4).     Although these majorities found this singular listed factor inadequate, the

weight to be given to sentencing factors is not numerical in nature and is within the sound

discretion of the trial court. Additionally, the court is required to consider all relevant factors

regarding the offender, the offenses, and the victims, rather than being limited to the list.

       {¶ 24}     The statute pertaining to consideration of seriousness states:

       The sentencing court shall consider all of the following that apply regarding

       the offender, the offense, or the victim, and any other relevant factors, as
                                                                                           11

        indicating that the offender’s conduct is more serious than conduct normally

        constituting the offense. * * * R.C. 2929.12(B). Emphasis added.

        {¶ 25}    When the factor of occupation facilitating the offense is weighed with the

tender ages of the four victims, the number of offenses occurring over a five month period at

an elementary school, and the injurious effect of the crimes regarding two of the victims

who provided information, I do not believe the trial court abused its discretion in

determining that the seriousness element had been satisfied in favor of imposing consecutive

mid-range sentences totaling twelve years under authority of R.C. 2929.14(C)(4). I would

affirm the trial court.

IF   THE CASE IS NOT AFFIRMED IT SHOULD BE REMANDED FOR A FULL POST                    HB 86

EVIDENTIARY SENTENCING HEARING

        {¶ 26}    Today, on the basis of a pre-HB 86 record the case is reversed for lack of

evidentiary support for findings retroactively required by HB 86. In Nichols I, the decision

of September 29, 2011, overruling the State’s motion for reconsideration prohibited the

parties from expanding the record at the re-sentencing. This prohibited the parties from

presenting any evidence or facts to address the retroactive application of HB 86 regarding

consecutive sentencing.

        {¶ 27}    The sentencing statutes requiring such findings were not in existence at the

time of the original sentencing when evidence was presented. Accordingly if the case were

reversed, I would remand the matter for re-sentencing allowing the parties to expand the

record to address the requirements of HB 86 as retroactively applied.

IF THE CASE IS REVERSED IT SHOULD BE REMANDED FOR RE-SENTENCING
[Cite as State v. Nichols, 2013-Ohio-3285.]
        {¶ 28}     In the event the sentence were reversed, I believe the more appropriate

procedure would be to remand the case for re-sentencing by the trial court in accordance

with R.C. § 2953.08(G)(2).

        {¶ 29}     For these reasons, I very respectfully dissent.

                                              ..........

Copies mailed to:

Lisa M. Fannin
J. Allen Wilmes
Hon. Douglas M. Rastatter
Warden Norm Robinson
