State v. Wiesenborn

135 N.E.3d 812

2019 Ohio 4487

STATE of Ohio, Plaintiff-Appellee

v.Zaren P. WIESENBORN, Defendant-Appellant

No. 28224

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on November 1, 2019

OPINION

WELBAUM, P.J.

{¶ 1} Defendant-Appellant, Zaren Wiesenborn, appeals from his conviction and sentence on 13 counts of rape, 13 counts of gross sexual imposition (by force), and seven counts of kidnapping (sexual activity). After Wiesenborn pled no contest to all the charges, the trial court sentenced him (after merging some offenses) to 78.5 years in prison.

{¶ 2} Wiesenborn contends that the trial court erred in sentencing him to 78.5 years in prison because the record does not support consecutive sentences. In addition, he contends that his no contest pleas were not made knowingly, intelligently, and voluntarily because he was told that he was eligible for community control sanctions.

{¶ 3} We find that the trial court did not err in sentencing Wiesenborn. Although the time at which Wiesenborn will be eligible to move for judicial release under the combination of sentences for his juvenile and adult crimes exceeds his life expectancy, the sentence on the juvenile offenses would allow him to be released when he is 52 years old; thus, the sentence did not violate State v. Moore , 149 Ohio St.3d 557, 2016-Ohio-8288, 76 N.E.3d 1127. Also, the trial court did not err in instructing Wiesenborn with respect to his no-contest plea, and the plea, therefore, was made knowingly, intelligently, and voluntarily. The judgment of the trial court is affirmed.

I. Facts and Course of Proceedings

{¶ 4} On March 1, 2018, Dayton Police Officers Jamie Luckowski and Bryan Camden were dispatched to an address in Dayton, Ohio, for a welfare check. The police had received a call from a gentleman who had been speaking with his online girlfriend via video chat and had seen some things happen between the girlfriend, "Audrey,"¹ and her brother, Wiesenborn. When the police arrived, Audrey answered the door. Audrey was a "smaller 17-year-old female" who appeared to have some disabilities. She had difficulty speaking, was "partially handicapped," and had trouble walking. The police explained why they were there and said they had received a call from a gentleman in another state, who asked them to check on her.

{¶ 5} Audrey said she was okay, but the officers could tell "something was wrong" and inquired further. Audrey indicated she had been in a disagreement with her brother and that he had perhaps touched her inappropriately.² She pointed to her chest and the officers then asked if the brother had touched her on the chest. Audrey said yes.

{¶ 6} After learning that Audrey's parents were not home, the officers asked if they could speak with Wiesenborn. Audrey took them up to the third floor of the home and told Wiesenborn that someone was there to see him. Wiesenborn said "Who the f*ck is it?" As soon as Wiesenborn realized that police officers were there, his attitude immediately changed, and he became calm and well-spoken.

{¶ 7} When the police officers spoke with Wiesenborn, he admitted that after getting into an argument with Audrey, he dragged her across the room, pinned her on the floor, lifted her skirt, and sexually fondled her breasts. Wiesenborn was then taken into custody and transported to jail. At the time, Wiesenborn was a senior in high school and was 19 years old.

{¶ 8} Subsequently, Audrey told the police that on multiple occasions, Wiesenborn forcibly removed her from her room, took her clothes off, and attempted to place his penis into her vagina. He had also licked her vagina and had forced her to perform oral sex. During an interview with Detective Spears, Wiesenborn admitted to raping Audrey against her will. Wiesenborn further said that Audrey was not able to get away from him due to being pinned or being fearful. He admitted that he liked feeling the power of control over Audrey and did these things as punishment for her aggravating him at home or at school.

{¶ 9} On April 5, 2018, an indictment was filed charging Wiesenborn with having committed six counts of rape between November 30, 2016 and February 28, 2018. He was also charged with three counts of gross sexual imposition and two counts of kidnapping during the same time period. In addition, Wiesenborn was charged with one count of gross sexual imposition and one count of kidnapping with respect to the incident on March 1, 2018.

{¶ 10} After Wiesenborn pled not guilty, his appointed counsel filed a motion to suppress statements that Wiesenborn made to the police. Counsel also filed a motion for a competency and sanity evaluation. On July 9, 2018, after receiving the evaluation, the court found Wiesenborn competent to stand trial. The court then held a hearing on the motion to suppress and filed a decision in August 2018 overruling the motion.

{¶ 11} In September 2018, the State filed a reindictment, adding additional charges for earlier dates. With respect to the time period of January 4, 2013 through September 1, 2014, Wiesenborn was charged with two counts of kidnapping and six counts of gross sexual imposition. Concerning the time period from September 2, 2014 through November 29, 2016, Wiesenborn was charged with three counts of gross sexual imposition, two counts of kidnapping, and seven counts of rape. These charges all resulted from events that occurred when Wiesenborn was between the ages of 14 and 17. Wiesenborn pled not guilty to these charges as well.

{¶ 12} The State did not present any plea offers to Wiesenborn, nor did it accept any of the offers that Wiesenborn made. On October 4, 2018, Wiesenborn pled no contest to all the charges (13 counts of rape, felonies of the first degree; seven counts of kidnapping (sexual activity), felonies of the first degree; and 13 counts of gross sexual imposition (by force), felonies of the fourth degree). The court accepted Wiesenborn's plea and found him guilty. On October 30, 2018, the trial court imposed less-than-maximum sentences but imposed all sentences consecutively. This resulted in a prison term of 78.5 years. The court also classified Wiesenborn as a Tier I and III sex offender. Before the judgment entry was filed, Wiesenborn filed a motion to withdraw his plea, but the court did not rule on it.³ Wiesenborn then filed a notice of appeal in December 2018.

I. Alleged Sentencing Errors

{¶ 13} Wiesenborn's First Assignment of Error states that:

The Trial Court Erred in Sentencing the Defendant.

{¶ 14} Under this assignment of error, Wiesenborn first contends that the record does not support the trial court's imposition of consecutive sentences. Specifically, Wiesenborn had no criminal record, was 19 years old at the time of sentencing, and expressed remorse. In addition, the majority of the charged offenses (20 out of 33) took place when he was a juvenile. In this regard, Wiesenborn argues that if his behavior had been addressed while he was a juvenile, he would likely have received treatment in an effort to rehabilitate him. Instead, when Audrey told their parents about the problem, the parents failed to intervene. The abuse then came to light after Wiesenborn turned 18.

{¶ 15} On appeal, defendants can challenge consecutive sentences in two ways. "First, the defendant can argue that consecutive sentences are contrary to law because the court failed to make the necessary findings required by R.C. 2929.14(C)(4)." (Emphasis omitted.) State v. Adams , 2d Dist. Clark No. 2014-CA-13, 2015-Ohio-1160, 2015 WL 1402904, ¶ 17, citing R.C. 2953.08(G)(2)(b) and State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29. "Second, the defendant can argue that the record does not support the findings made under R.C. 2929.14(C)(4)." Id. , citing R.C. 2953.08(G)(2)(a) and State v. Moore , 2014-Ohio-5135, 24 N.E.3d 1197 (8th Dist.). In this case, Wiesenborn does not assert that the trial court failed to make the findings that R.C. 2929.14(C)(4) requires.

{¶ 16} Regarding the second type of challenge, and as pertinent here, " R.C. 2953.08(G)(2)(a) compels appellate courts to modify or vacate sentences if they find by clear and convincing evidence that the record does not support any relevant findings under * * * ‘division * * * (C)(4) of section 2929.14 * * * of the Revised Code.’ " State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22, quoting R.C. 2953.08(G)(2). " ‘Clear and convincing evidence is that measure or degree of proof which is more than a mere "preponderance of the evidence," but not to the extent of such certainty as is required "beyond a reasonable doubt" in criminal cases, and which will produce in the mind of the trier of fac[t] a firm belief or conviction as to the facts sought to be established.’ " Id. , quoting Cross v. Ledford , 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.

{¶ 17} " R.C. 2929.14(C)(4) is an exception to the presumption in favor of concurrent sentences in R.C. 2929.41(A)." State v. Withrow , 2016-Ohio-2884, 64 N.E.3d 553, ¶ 29 (2d Dist.). As relevant here (according to the trial court's findings), R.C. 2929.14(C)(4) provides that:

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:

* * *

(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

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