State v. Wright

2020 Ohio 5195

STATE OF OHIO, Plaintiff-Appellee, v. BENJAMIN J. WRIGHT, Defendant-Appellant.

CASE NO. 20CA0005

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY

October 26, 2020

DECISION AND JUDGMENT ENTRY

APPEARANCES:

Benjamin J. Wright, Marion, Ohio, pro se.

Anneka P. Collins, Highland County Prosecuting Attorney, and Adam J. King, Highland County Assistant Prosecuting Attorney, Hillsboro, Ohio, for appellee.

CRIMINAL APPEAL FROM COMMON PLEAS COURT

ABELE, J.

{¶ 1} This is an appeal from a Highland County Common Pleas Court judgment of conviction and sentence. Benjamin Wright, defendant below and appellant herein, pleaded guilty to one count of sexual battery and received a thirty-six-month prison sentence. Appellant assigns two errors for review:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRONEOUSLY USED AN ELEMENT OF APPELLANT'S CHARGE TO ELEVATE THE CRIME AND TO ELEVATE THE SERIOUSNESS TO IMPOSE A PRISON TERM."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED BY IMPOSING A THIRTY-SIX MONTH PRISON TERM THAT IS CLEARLY AND CONVINCINGLY NOT SUPPORTED BY THE RECORD."

{¶ 2} In September 2018, a Highland County Grand Jury returned an indictment that charged appellant with one count of sexual battery in violation of R.C. 2907.03(A)(5), a third-degree felony. The indictment charged that, from approximately May 2017 through January 2018, appellant engaged in sexual conduct with a child while appellant, a foster parent, was a person in loco parentis and the victim's guardian. On January 25, 2019, appellant pleaded guilty to the charge in the indictment.

{¶ 3} We derive the statement of facts that follows from appellant's March 6, 2019 sentencing hearing. Appellant, a foster parent, specifically requested that his victim, a foster child, be placed in his home. At the hearing, the prosecutor stated:

The victim * * * was placed on a web page that advises adoptive parents of the availability of a child that's ready to be placed in a forever home.

The victim's sexual orientation was on the web page, and [appellant] actually found him and sought him out, according to the victim's caseworker, * * * and these are her words, 'I couldn't get the victim in his home fast enough for him. He called on a daily basis asking to have the victim placed in his home.' And, the day after school ended for the victim, he was placed in that home, and within a month the sexual assaults began.

Defense counsel related:

I think I submitted to the PSI [pre-sentence investigation] some thirty (30) pages of letters. I've got about sixty (60) more pages. * * * I've read letters from people that say they'd trust their life with [appellant]; they'd trust their kids with [appellant].

[Appellant] has adopted [C] here, one of his foster kids. He's fostered five (5) other children throughout his career. [Appellant] has helped other deaf kids in this community as a teacher.]

The trial court stated:

Well, the first thing the Court looks at in any case is what is the offense that is committed. And this is a sexual offense against a child victim.

Now this particular child, he has had a rough life; has a lot of issues of his own; and those are well documented in the files, and I think were well known to the Defendant when he chose to apply to become the foster parent placement for adoption of this victim.

Unfortunately, most of the cases that I see as a Judge, and I've seen in my career of almost 43 years now in this business, child victims are vulnerable. And those who have issues such as this child, are more vulnerable, and are often the objects of people who are seeking victims for this type of conduct.

Now in your case, Mr. Wright, this is the only known victim. According to the report there wasn't just one act, there was at least four (4) separate times that this occurred. And while there is, again, no confirmation or reports of any other victims, my forty-three (43) years of experience and doing lots of classes and educational courses on this subject, having been involved in hundreds, if not thousands of these types of cases, seldom do we have a perpetrator who has only offended against one victim, particularly child victims.

It is very concerning to me that not only was this an act in which you were victimizing a child; but, that you actually sought to have this child come into your home.

And your comments in the PSI to the Probation Officer, uh, while again you're taking responsibility, and saying you understand your responsibility, uh, you almost seem to place some of the blame on this child. - And, again, it was not a forcible type of offense, it was the exploitation of a child with a lot of problems whose decision making has not always been the best in his own life. So, that's what I have to look at. I take a very dim view of any child offense, sexual offense, against a child; and, I don't think there is any reason to treat you any differently (referring to the fact that appellant, who had an interpreter present, is deaf).

{¶ 4} The trial court thereupon ordered appellant to (1) serve thirty-six months in prison with five years of post-release control; and (2) register as a Tier III sex offender. This appeal followed.

I.

{¶ 5} Appellate review of felony sentences generally employ the standard of review set forth in R.C. 2953.08. State v. Prater, 4th Dist. Adams No. 18CA1069, 2019-Ohio-2745, at ¶ 12, citing State v. Graham, 4th Dist. Adams No. 17CA1046, 2018-Ohio-1277, at ¶ 13. Under R.C. 2953.08(G)(2), "[t]he appellate court's standard of review is not whether the sentencing court abused its discretion." Instead, R.C. 2953.08(G)(2) specifies that an appellate court may increase, reduce, modify, or vacate and remand a challenged felony sentence if the court clearly and convincingly finds either:

(a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

"[C]lear 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 facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. Thus, an appellate court may vacate or modify a sentence if the court concludes, by clear and convincing evidence, the record does not support the sentence. State v. Bowling, 4th Dist. Jackson No. 19CA2, 2020-Ohio-813, ¶ 6.

{¶ 6} In Ohio, two statutes, R.C. 2929.11 and 2929.12, serve as a general guide for every sentence. State v. Day, 2019-Ohio-4816, 149 N.E.3d 122, ¶ 15 (4th Dist.), quoting State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, ¶ 17-18. R.C. 2929.11 sets forth the overriding purposes of felony sentencing:

(A) A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others, to punish the offender, and to promote the effective rehabilitation of the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local resources. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.

(B) A sentence imposed for a felony shall be reasonably calculated to achieve the three overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender's conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.

(C) A Court that imposes a sentence upon an offender for a felony shall not base the sentence upon the race, ethnic background, gender, or religion of the offender.

R.C. 2929.12 establishes a non-exhaustive list of factors to consider in felony sentencing:

(A) Unless otherwise required by section 2929.13 or 2929.14 of the Revised Code, a court that imposes a sentence under this chapter upon an offender for a felony has discretion to determine the most effective way to comply with the purposes and principles of sentencing set forth in section 2929.11 of the Revised Code. In exercising that discretion, the court shall consider the factors set forth in divisions (B) and (C) of this section relating to the serousness of the conduct, the factors provided in divisions (D) and (E) of this section relating to the likelihood of the offender's recidivism, and the factors set forth in division (F) of this section pertaining to the offender's service in the armed forces of the United States and, in addition, may consider any other factors that are relevant to achieving those purposes and principles of sentencing.

(B) 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 indicating that the offender's conduct is more serious than conduct normally constituting the offense:

* * *

(6) The offender's relationship with the victim facilitated the offense.

* * *

(8) In committing the offense, the offender was motivated by prejudice based on race, ethnic background, gender, sexual orientation, or religion.

{¶ 7} This court has held that, generally, a sentence is not contrary to law if a trial court considered the R.C. 2929.11 purposes and principles of sentencing, the R.C. 2929.12 seriousness and recidivism factors, properly applied...