[Cite as State v. Berry, 2016-Ohio-3022.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                 :       Hon. Patricia A. Delaney, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
FRANKLIN J. BERRY                            :       Case No. 15-COA-009
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Ashland County
                                                     Court of Common Pleas, Case No.
                                                     14-CRI-144




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    May 16, 2016




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

CHRISTOPHER R. TUNNELL                               CHRISTINA I. REIHELD
Prosecuting Attorney                                 P.O. Box 532
                                                     Danville, Ohio 43014
By: GARY D. BISHOP
Assistant Prosecuting Attorney
110 Cottage Street
Ashland, Ohio 44805
Ashland County, Case No. 15-COA-009                                                         2



Baldwin, J.

      {¶1}    Appellant Franklin J. Berry appeals a judgment of the Ashland County

Common Pleas Court convicting him of rape (R.C. 2907.02(A)(1)(b)) and three counts of

gross sexual imposition (R.C. 2907.05(A)(4)) and sentencing him to an aggregate term

of imprisonment of 30 years to life. Appellee is the State of Ohio.

                           STATEMENT OF THE FACTS AND CASE

      {¶2}    Over the course of a year, appellant committed multiple acts of sexual

abuse on a female family member, who was seven/eight years old at the time. The acts

included grooming activities, such as showing her pornography and asking her if she

knew about sex, causing her to touch his penis, touching her vagina with possible

penetration, performing oral sex on the victim, having the child perform fellatio on him,

and having her rub her vagina on his penis on multiple occasions.

      {¶3}    Appellant moved out of state, and the incidents stopped. Six years later,

the victim told an adult. Appellant was indicted by the Ashland County Grand Jury with

four counts of rape and five counts of gross sexual imposition. On December 1, 2014,

he entered a plea of guilty to one count of rape and three counts of gross sexual

imposition. The remaining counts were dismissed. The court sentenced appellant to

fifteen years to life imprisonment for rape and sixty months incarceration on each count

of gross sexual imposition, to be served consecutively.

      {¶4}    Counsel for appellant originally filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967). Upon review, this Court found the appeal to not be wholly frivolous

as is required to file an Anders brief. We ordered the trial court to appoint replacement

counsel for appellant, who assigns the following error:
Ashland County, Case No. 15-COA-009                                                     3


       {¶5}   “THE TRIAL COURT IMPOSED A SENTENCE WHICH WAS CONTRARY

TO LAW AND NOT SUPPORTED BY THE RECORD WHEN IT LEVIED CONSECUTIVE

SENTENCES AGAINST MR. BERRY BASED IN PART UPON UNSUPPORTED

ALLEGATIONS CONCERNING AN UNNAMED SECOND VICTIM IN VIOLATION OF

MR. BERRY’S CONSTITUTIONAL RIGHTS TO DUE PROCESS.”

       {¶6}   R.C. 2929.14(C)(4) provides for the imposition of consecutive sentences as

follows:

              (4) 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

       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.
Ashland County, Case No. 15-COA-009                                                  4


             (c)    The offender's history of criminal conduct demonstrates that

      consecutive sentences are necessary to protect the public from future crime

      by the offender.

      {¶7}   The trial court stated on the record during the sentencing hearing:

             I am further finding that consecutive sentences in the case is not

      disproportionate to the seriousness of your conduct and to the danger you

      pose to the public, and there is information that there might be actually a

      second victim out there in Oregon. I think that you received consideration

      in the reduction in charges that was negotiated in exchange for a plea and

      I am further finding that at least two of these offenses were committed as

      part of one or more courses of conduct, and the harm caused collectively

      by the offense so committed was so great or unusual that no single prison

      term committed for the offenses committed as part of the course of the

      conduct adequately reflects the seriousness of your conduct simply

      because as Mr. Tunnell pointed out, this is not just an offense that, oops,

      you were tempted at that moment, that was a planned activity where you

      groomed the child and gradually increased the activity with an ultimate

      purpose in mind that went well beyond the initial contact.

      {¶8}   Tr. 30-31.

      {¶9}   In the sentencing entry, the court found that consecutive sentences were

necessary to protect the public from future crime, to punish appellant, and that

consecutive sentences were not disproportionate to the seriousness of his conduct and

the danger appellant poses to the public. The court also found that at least two of the
Ashland County, Case No. 15-COA-009                                                      5


offenses were committed as a part of one or more courses of conduct, and the harm

caused was so great or unusual that no single prison term adequately reflected the

seriousness of his conduct.

      {¶10} Appellant argues that the evidence concerning a second victim was

unsubstantiated and based solely on suspicions of the family because appellant had a

picture of a girl on his phone.     Upon review of the sentencing transcript and the

presentence investigation report, we find that any error in considering this information

was harmless because the other information in the record supported the imposition of

consecutive sentences.

      {¶11} The court did not include the second victim in the sentencing entry, and it is

not clear from the passing comment in the transcript that the court based the imposition

of consecutive sentences on this possibility. The PSI report is rife with information

concerning the extreme emotional and financial harm caused to the victim and to her

family as a result of appellant’s crimes. The victim suffers from post-traumatic stress

disorder, and has dropped out of school to be homeschooled as a result. Her mother is

unable to work and contribute financially to the family due to the time required for

counseling appointments and to homeschool the victim.

      {¶12} Further, as noted by the court during the sentencing hearing, appellant did

not appear to fully accept responsibility for his behavior. He stated in open court that he

did not hold what happened against the victim.         Similarly, in his interview for the

presentence investigation report, he noted that the victim did not object to what happened

between them, and referred to the sexual acts that she “liked” to do with him. Based on

his continued suggestion that the child victim was in some way responsible for the crimes
Ashland County, Case No. 15-COA-009                                                     6


he committed against her, the court did not err in finding that consecutive sentences were

not disproportionate to the seriousness of his conduct and the danger appellant poses to

the public.

       {¶13} The court’s findings concerning consecutive sentences are supported by

abundant evidence in the record, independent of the family’s suspicions that a second

victim existed in Oregon. The assignment of error is overruled.


By: Baldwin, J.

Delaney, J. concurs.

Hoffman, P.J. dissents.
Ashland County, Case No. 15-COA-009                                                        7

Hoffman, P.J., dissenting

       {¶14} I respectfully dissent from the majority opinion.

       {¶15} I agree there was ample evidence in the record to support the imposition of

consecutive sentences. I further agree it is not clear the trial court based its decision on

the unsubstantiated suspicion of a second out-of-state victim.

       {¶16} While the trial court’s reference to the possibility of a second victim may well

have been what the majority describes as a “passing comment”, it, nevertheless, was

considered.   I believe justice is best served by vacating Appellant’s sentence and

remanding the matter to the trial court to resentence Appellant without consideration of a

possible second victim.
