[Cite as State v. Brady,
2019-Ohio-46.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27763
:
v. : Trial Court Case No. 2017-CR-392
:
BRANDON A. BRADY : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 11th day of January, 2019.
...........
MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
LUCAS W. WILDER, Atty. Reg. No. 0074057, P.O. Box 574, Dayton, Ohio 45409
Attorney for Defendant-Appellant
.............
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HALL, J.
{¶ 1} Brandon Brady appeals from his conviction on four counts of voyeurism, five
counts of pandering sexually oriented material involving a minor, and fourteen counts of
rape. Brady challenges the trial court’s decisions overruling his motions to suppress
statements that he made to a police officer and video recordings found on a USB drive.
Brady also challenges the 77-year aggregate prison sentence imposed by the trial court
as cruel and unusual punishment and challenges the court’s consecutive-sentence
findings as unsupported by the record.
{¶ 2} We conclude that the trial court did not err by either overruling the
suppression motions or imposing the aggregate prison sentence, and we affirm.
I. Facts and Proceedings
{¶ 3} Around 2:35 a.m. on February 4, 2017, the Huber Heights Police Department
received a report that a sexual assault had occurred at a residence on Rosebury Drive in
Huber Heights. The report said that a seventeen-year-old victim had been given
medication by her father earlier that night that had “knocked her out.” The victim awoke
to find herself naked in bed with her father engaging in intercourse with her. The incident
was reported by the victim’s boyfriend.
{¶ 4} Officer Corey Siegrist was the first to respond, arriving around 2:39 a.m.
When he drove up to the residence, he saw an individual, later identified as Brady,
standing next to the driver’s side door of a car parked in the driveway of the same address
where the sexual assault was reported. Officer Siegrist watched as Brady got into the car,
started the engine, and began to back out. Siegrist pulled up to make contact with Brady
and “begin [his] investigation” of the reported sexual assault. (Tr. 13.) Brady
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quickly backed his car into the street, directly in front of Siegrist’s cruiser. Officer Siegrist
turned on the cruiser’s overhead lights to initiate a traffic stop for illegal backing.
{¶ 5} Brady immediately stopped, and Officer Siegrist exited his cruiser and
approached the driver’s side window of Brady’s car. Siegrist told Brady why he had
stopped him and asked for Brady’s identification. Officer Siegrist took Brady’s
identification back to his cruiser to run a check on his onboard computer. Brady remained
in his car. By this time, another police officer, Officer Holbrook, had arrived. Siegrist asked
him to watch Brady while Siegrist continued his investigation of the sexual assault report.
{¶ 6} Officer Siegrist knocked on the front door of the house, and a young male
answered the door. Siegrist asked for the victim by name, and she appeared around a
corner. She was upset and crying. Officer Siegrist noticed that she was “unstable” in her
walking. The victim confirmed the allegations in the police report. Officer Siegrist then
went back to talk to Brady, who was still sitting in his car.
{¶ 7} Siegrist asked Brady to step out, telling him that he was a suspect in a sexual
assault allegation. Officer Siegrist told Brady that the police “were just trying to figure
things out, and work through the case.” (Tr. 18.) Standing in the street with Brady, Siegrist
asked him if there was “anything [he] should know about” inside his car. (Id. at 19). Brady
said that he had some prescription medication and a loaded handgun, for which he had
a valid concealed-carry permit. Officer Siegrist asked Brady if he could search the car,
and Brady consented. Officer Kerry Combs, who was also now on the scene, heard Brady
consent to the search.
{¶ 8} Officer Siegrist then began searching the car, while Brady stood by with
Officer Combs. On the front passenger floorboard, Siegrist found a backpack. He took a
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quick look inside and saw several bottles containing medication prescribed to Brady, the
handgun, and various other items. Officer Siegrist then learned that the detective
assigned to the case, Josh Fosnight, wanted to hold off searching the car until a search
warrant was obtained. Siegrist ended his search, and Brady was put in the back seat of
Officer Combs’s cruiser. Brady was then advised of his Miranda rights. Brady refused to
allow the police to search his house and refused to speak with the police without an
attorney. Brady was allowed to leave the scene around 3:35 a.m., though not in the car
that he had been driving when he was first stopped.
{¶ 9} Later that morning, around 6:00 a.m., a search warrant for Brady’s home and
car was issued. Detective Fosnight searched the backpack that Officer Siegrist had found
in the car and found a USB drive next to the bottles of medication. Fosnight was interested
in the drive’s contents, because he knew that Brady had recorded his sexual activity in
the past; Detective Fosnight had investigated a previous report accusing Brady of sexual
assault. The previous report was from a friend of Brady’s wife, who said that she had
visited the Bradys’ home. After being served a drink by the couple, the woman began
feeling “woozy” and then “blacked out,” but she remembered having some sort of sexual
encounter with Brady. She also remembered seeing what she believed was a camera
mounted on the dresser in Brady’s bedroom, where the sexual encounter took place. A
search of Brady’s home during the investigation turned up videos that Brady had taken of
he and his wife engaging in sexual activity.
{¶ 10} Detective Fosnight applied for a second search warrant, this one authorizing
a search of the USB drive’s contents. In his supporting affidavit, he included a paragraph
describing the videos that were found in the investigation of the previous sexual-assault
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allegations against Brady. The warrant was issued. On the USB drive, Detective Fosnight
found 59 separate video files dated from October 5, 2016, through January 24, 2017.
Some videos showed Brady’s daughter clothed and sleeping in her bed. Other videos
showed her naked in the shower; it appeared that these videos were recorded through a
hole in the shower wall. The remaining videos showed Brady sexually assaulting his
daughter while she slept. The images were of Brady forcing his fingers and penis into his
daughter’s mouth and vagina while she was unconscious. The final video showed Brady
ejaculating onto her face.
{¶ 11} After Brady was released from the scene, he fled to his mother’s home in
Tennessee. Brady was arrested there the following day and extradited back to Ohio,
where he was soon indicted on four counts of voyeurism, in violation of R.C. 2907.08(C);
five counts of pandering sexually oriented material involving a minor, in violation of R.C.
2907.322(A)(1); and fourteen counts of rape (substantially impaired victim), in violation of
R.C. 2907.02(A)(1)(a).
{¶ 12} On March 15, 2017, Brady filed a motion to suppress his statements to
police and the videos found on the USB drive. After a hearing, the trial court overruled the
motion to suppress. The court concluded that Brady was not in custody for Miranda
purposes when he was detained, that he validly consented to the search of his car, that
he was not unlawfully detained, and that both of the search warrants were valid. On May
10, 2017, Brady filed a second motion to suppress the videos under Franks v. Delaware,
438 U.S. 154,
98 S.Ct. 2674,
57 L.Ed.2d 667 (1978), arguing that the affidavit supporting
the search warrant of the USB drive contained false or misleading information. The trial
court also overruled this motion to suppress, concluding that Brady had “not made a
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substantial preliminary showing that a false statement, knowingly and intentionally, or with
reckless disregard for the truth, was included in the warrant affidavit.”
{¶ 13} Brady pleaded no contest to all the charges and was found guilty. At his
presentence interview, Brady said that he could not figure out why he did those things to
his daughter. He claimed that none of the crimes was planned and that, when he
committed each act, he was under the influence of alcohol or prescription medication.
The trial court sentenced Brady to a total of 77 years in prison.
{¶ 14} Brady appeals.
II. Analysis
{¶ 15} Brady assigns two errors to the trial court. The first assignment of error
challenges the court’s decisions overruling the motions to suppress. The second
assignment of error challenges the aggregate prison sentence that the court imposed.
A. The motions to suppress
{¶ 16} The first assignment of error alleges:
THE TRIAL COURT ERRED IN OVERRULING BRADY’S MOTIONS TO
SUPPRESS.
{¶ 17} In reviewing a trial court’s motion-to-suppress ruling, “an appellate court
must accept the trial court’s findings of fact if they are supported by competent, credible
evidence.” (Citation omitted.) State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372,
797 N.E.2d 71, ¶ 8. “Accepting these facts as true, the appellate court must then
independently determine, without deference to the conclusion of the trial court, whether
the facts satisfy the applicable legal standard.” (Citation omitted.)
Id.
{¶ 18} Brady argues that the trial court should have sustained his first motion to
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suppress based on a Miranda violation and invalid consent to search the car. He argues
that the court should have sustained his second motion to suppress based on a Franks
violation and a lack of probable cause.
1. There was no Miranda violation.
{¶ 19} “The right to [Miranda] warnings is grounded in the Fifth Amendment’s
prohibition against compelled self-incrimination.” State v. Strozier, 172 Ohio App.3d 780,
2007-Ohio-4575,
876 N.E.2d 1304, ¶ 16 (2d Dist.), citing Moran v. Burbine,
475 U.S. 412,
420,
106 S.Ct. 1135,
89 L.Ed.2d 410 (1986). “Miranda warnings are not required simply
because the questioning takes place in a coercive atmosphere.” State v. Hoffner,
102
Ohio St.3d 358,
2004-Ohio-3430,
811 N.E.2d 48, ¶ 26, citing Oregon v. Mathiason,
429
U.S. 492, 495,
97 S.Ct. 711,
50 L.Ed.2d 714 (1977). Instead, “[t]he procedural safeguards
prescribed by Miranda apply only when persons are subjected to ‘custodial
interrogation.’ ” State v. Thomas, 2d Dist. Montgomery No. 20643,
2005-Ohio-3064, ¶ 27,
citing Miranda v. Arizona,
384 U.S. 436, 444,
86 S.Ct. 1602,
16 L.Ed.2d 694 (1966).
{¶ 20} “ ‘Custodial interrogation’ means questioning initiated by the police after the
person has been taken into custody or otherwise deprived of his freedom to the degree
associated with a formal arrest.” (Citations omitted.) State v. Vineyard, 2d Dist.
Montgomery No. 25854, 2014-Ohio-3846, ¶ 32. In deciding whether a person was in
custody, a court “must first inquire into the circumstances surrounding the questioning
and, second, given those circumstances, determine whether a reasonable person would
have felt that he or she was not at liberty to terminate the interview and leave.” Hoffner at
¶ 27, citing Thompson v. Keohane,
516 U.S. 99, 112,
116 S.Ct. 457,
133 L.Ed.2d 383
(1995). Based on the factual circumstances, “the court must apply an objective test to
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resolve ‘the ultimate inquiry’ of whether there was a ‘ “formal arrest or restraint on freedom
of movement” of the degree associated with a formal arrest.’ ” Id., quoting California v.
Beheler,
463 U.S. 1121, 1125,
103 S.Ct. 3517,
77 L.Ed.2d 1275 (1983), quoting
Mathiason at 495. “The subjective views of the interviewing officer and the suspect are
immaterial to the determination of whether a custodial interrogation was conducted.”
(Citations omitted.) State v. Earnest, 2d Dist. Montgomery No. 26646,
2015-Ohio-3913,
¶ 22.
{¶ 21} Here, Officer Siegrist approached Brady’s car and gathered Brady’s
information. When Officers Holbrook and Combs arrived, Officer Siegrist went to the
house and spoke with the victim, who confirmed the allegations against Brady. While
Officer Siegrist spoke with the victim, Brady remained in his car. When Officer Siegrist
returned to Brady, Siegrist asked him to exit the car so that he (Siegrist) could explain
what was going on. Officer Siegrist then told Brady that he was a suspect in a sexual-
assault report, asked Brady if there was anything illegal inside the car, and asked for
Brady’s consent to search the car. Brady responded that prescription medication and a
handgun were in the car. Brady was never handcuffed or otherwise physically restrained.
No police officer ever drew his weapon or tried to intimidate him. Brady was never formally
arrested, and he was allowed to leave the scene about an hour after he was first stopped.
{¶ 22} These circumstances do not show that Brady was in custody for purposes
of Miranda. It is true that Brady was detained, but “the freedom-of-movement test
identifies only a necessary and not a sufficient condition for Miranda custody.” Maryland
v. Shatzer, 559 U.S. 98, 112,
130 S.Ct. 1213,
175 L.Ed.2d 1045 (2010). “Miranda is to be
enforced ‘only in those types of situations in which the concerns that powered the decision
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are implicated.’ ” Id., quoting Berkemer v. McCarty,
468 U.S. 420, 437,
104 S.Ct. 3138,
82 L.Ed.2d 317 (1984). Accordingly, “the temporary and relatively nonthreatening
detention involved in a traffic stop or Terry stop does not constitute Miranda custody.” Id.
at 113, citing
McCarty at 439-440. These investigatory detentions are “limited in duration
and purpose and can only last as long as it takes a police officer to confirm or to dispel
his suspicions.” Strozier,
172 Ohio App.3d 780,
2007-Ohio-4575,
876 N.E.2d 1304, at ¶
17, citing Terry v. Ohio,
392 U.S. 1,
88 S.Ct. 1868,
20 L.Ed.2d 889 (1968).
{¶ 23} Here, police officers did briefly restrict Brady’s movement while they
investigated the sexual-assault report. But that does not mean that Brady was in custody
for the purposes of Miranda. It is true that during an investigatory detention “a reasonable
person would have believed that he was not free to leave.” Strozier at ¶ 17, citing United
States v. Mendenhall,
446 U.S. 544, 553,
100 S.Ct. 1870,
64 L.Ed.2d 497 (1980). The
question is whether a reasonable person would have understood the detention to
constitute a restraint on freedom of movement of the degree which the law associates
with a formal arrest.
Id., citing Yarborough v. Alvarado,
541 U.S. 652,
124 S.Ct. 2140,
158 L.Ed.2d 938 (2004). For example, in Hoffner, police officers briefly restricted the
defendant’s movement during the initial stages of a search, in order to secure the location
and search the area for weapons and evidence. The Ohio Supreme Court held that, given
the circumstances in the case, directing the defendant to stay in a specific location was
reasonable. Hoffner,
102 Ohio St.3d 358,
2004-Ohio-3430,
811 N.E.2d 48, at ¶ 30. Here,
given the allegations in the sexual-assault report, the officers’ detention of Brady while
they completed their initial investigation was reasonable. We note too that Brady never
said that he wanted to leave. Compare
id. (noting the same about the defendant in that
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case). Finally, that the officers allowed Brady to leave after they had completed their initial
investigation supports the conclusion that he was not in custody for purposes of Miranda.
{¶ 24} As a final matter, we cannot identify any statement that Brady made to
Officer Siegrist that might have incriminated him. All Brady said was that he had
prescription medication and a handgun in the car. Brady claims that the medication and
backpack in which the USB drive was found were obtained as a result of his statements.
But even if he had not said anything to Officer Siegrist, the backpack, medication, and
USB drive would have been found during the later search conducted under a warrant.
2. Brady’s consent to search his car was valid.
{¶ 25} Brady argues that his consent to search the car was invalid. He contends
that the consent was given while he was being detained illegally. Brady also contends
that Officer Siegrist had no valid reason to ask for consent to search.
{¶ 26} Brady was not being detained illegally. As we have already said, a police
officer may temporarily detain a person for investigatory purposes, and the investigatory
detention may last as long as it takes to confirm or dispel the officer’s suspicions. Here,
the trial court found that Brady was detained for both the traffic offense and the report of
sexual assault. The report alleged that the perpetrator of the assault was the victim’s
father. Officer Siegrist arrived at the scene at 2:30 in the morning, shortly after the report
was made, and he saw Brady attempting to leave. Officer Siegrist testified that he did not
detain Brady based solely on the traffic violation. Siegrist said that he was responding to
the residence based on the sexual-assault report and that, when he saw Brady in the
driveway, he intended to make contact with him in order to begin the investigation into the
report. We think that the traffic violation merely provided an additional objective
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justification for the detention, because even without the traffic violation, any reasonable
police officer in Siegrist’s position would have detained Brady.
{¶ 27} Brady’s continued detention was reasonable too. The report alleged that the
victim’s father committed the assault, so Officer Siegrist had good reason to suspect
Brady. That justified Brady’s detention while Siegrist talked to the victim. Officer Siegrist’s
actions constituted reasonable means by which to either confirm or dispel the sexual-
assault allegation. The victim’s confirmation of the allegation reasonably increased Officer
Siegrist’s suspicion, justifying Brady’s continued detention while Siegrist continued the
investigation. Given the allegation that Brady had drugged the victim and that Brady
appeared to be fleeing the scene when he arrived, it was reasonable for Officer Siegrist
to ask Brady what he had with him in the car. In sum, Officer Siegrist was gathering
information on the scene and making assessments as new facts became known to him.
{¶ 28} Finally, Brady contends that Officer Siegrist had no valid reason to ask for
consent to search. He says that the request was made under false pretenses. Even in the
context of the sexual-assault investigation, says Brady, there was no indication, nothing
in plain view in the car, that would justify a search. But Brady cites no legal authority for
the proposition that a police officer must have a valid reason to ask for consent to search
a vehicle, and we find none. Regardless, as we just said, under the circumstances, it was
reasonable to want to know what Brady was taking with him.
{¶ 29} “Consent is an exception to the warrant requirement, and requires the State
to show by clear and positive evidence that the consent was freely and voluntarily given.”
State v. George, 2d Dist. Montgomery No. 25945, 2014-Ohio-4853, ¶ 28. Since Brady
was lawfully detained at the time Officer Siegrist asked for consent, the standard totality-
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of-the-circumstances analysis for voluntariness applies. See Schneckloth v. Bustamonte,
412 U.S. 218, 222-223,
93 S.Ct. 2041,
36 L.Ed.2d 854 (1973). Officers Siegrist and
Combs testified that Brady readily gave consent for a search of his car. At the time he
consented, Brady was standing in the street next to the car. He was not in handcuffs, and
no officer had threatened him or acted in a coercive or intimidating manner. Brady offered
no evidence that his consent was involuntary. The trial court’s finding that Brady
voluntarily consented to the search of his car was supported by competent, credible
evidence.
3. The warrant to search the USB drive was valid.
{¶ 30} Brady’s last suppression argument challenges the warrant authorizing the
search of the USB drive. He first argues that the supporting affidavit contained false or at
least misleading information. Brady also argues that a lack of probable cause precluded
issuing the warrant.
{¶ 31} Paragraph f of the supporting affidavit stated:
In a prior investigation of Brandon Brady regarding an alleged rape revealed
the possibility of the suspect recording his victim after slipping something in
her drink. She alleged to having been drugged and not remembering much.
A search warrant was executed then and a number of computers, disks and
tapes were seized and searched, finding he did record sexual activity,
though at the time, the only activity was with his wife, Tara Brady. The USB
in this incident was taken as it was alongside the medications presumed to
have been given to his daughter and due to the fact that he is known to
digitally record his sexual activity.
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Brady points out that there was no indication that the alleged sexual assault in this case
had been recorded. He also points out that, in the previous rape investigation, he was
never charged, and the only recordings discovered were legal and involved only his wife.
Paragraph f, says Brady, was included in the affidavit to mislead.
{¶ 32} The U.S. Supreme Court held in Franks that, “where the defendant makes
a substantial preliminary showing that a false statement knowingly and intentionally, or
with reckless disregard for the truth, was included by the affiant in the warrant affidavit,
and if the allegedly false statement is necessary to the finding of probable cause, the
Fourth Amendment requires that a hearing be held at the defendant’s request.” Franks,
438 U.S. at 155-156,
98 S.Ct. 2674,
57 L.Ed.2d 667. A supporting affidavit is presumed
valid.
Id. at 171. An attack “must be more than conclusory and must be supported by
more than a mere desire to cross-examine.”
Id. Rather, “[t]here must be allegations of
deliberate falsehood or of reckless disregard for the truth, and those allegations must be
accompanied by an offer of proof.”
Id.
{¶ 33} We agree with the trial court’s conclusion that Brady did not make the
required preliminary showing with respect to paragraph f. The court found no evidence in
the record suggesting that paragraph f contained any false statement. Detective Fosnight
testified that he sought a search warrant for the contents of the USB drive because it was
found inside the backpack that Brady was carrying in his car, because it was found near
prescription sleeping pills, and because Fosnight had helped investigate a prior allegation
of sexual assault against Brady in which the victim alleged that he had recorded the
sexual encounter. Detective Fosnight also said that the earlier investigation yielded
evidence that Brady had recorded his sexual activity. We note too that paragraph f
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specifically says that the only sexual activity previously discovered was a recording of
Brady with his wife, not with the alleged victim in the prior investigation.
{¶ 34} Brady also argues that there was no probable cause to justify a search of
the USB drive. He points out that there was no allegation prior to the search that he had
recorded any sexual encounter with his daughter. Brady says that the only reason to think
that he may have recorded an encounter was that, in the previous, unrelated investigation
of a rape allegation, police discovered that he had lawfully recorded sexual encounters
with his wife.
{¶ 35} The Fourth Amendment to the United States Constitution and Article I,
Section 14 of the Ohio Constitution provide that search warrants may be issued only upon
probable cause. State v. Jones, 143 Ohio St.3d 266,
2015-Ohio-483,
37 N.E.3d 123, ¶
11-12. “The Supreme Court of the United States has provided that in determining whether
a search warrant was issued upon a proper showing of probable cause, reviewing courts
must examine the totality of the circumstances.” Id. at ¶ 13, citing Illinois v. Gates,
462
U.S. 213, 238,
103 S.Ct. 2317,
76 L.Ed.2d 527 (1983). “[T]he duty of a reviewing court is
simply to ensure that the magistrate had a ‘substantial basis for … conclud[ing]’ that
probable cause existed.”
Gates at 238-239, quoting Jones v. United States,
362 U.S. 257,
271,
80 S.Ct. 725,
4 L.Ed.2d 697 (1960), overruled on other grounds, United States v.
Salvucci,
448 U.S. 83,
100 S.Ct. 2547,
65 L.Ed.2d 619 (1980). “[T]he issuing magistrate’s
duty is to determine whether ‘there is a fair probability that contraband or evidence of a
crime will be found in a particular place.’ ” Jones at ¶ 13, quoting
Gates at 238. “The duty
of a reviewing court is simply to ensure that the magistrate had a substantial basis for
concluding that probable cause existed. In conducting any after-the-fact scrutiny of an
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affidavit submitted in support of a search warrant, trial and appellate courts should accord
great deference to the magistrate’s determination of probable cause, and doubtful or
marginal cases in this area should be resolved in favor of upholding the warrant.” State
v. George, 45 Ohio St.3d 325,
544 N.E.2d 640 (1989), paragraph two of the syllabus.
{¶ 36} Here, Detective Fosnight reasonably inferred that Brady might have
recorded himself sexually assaulting his daughter and that those recordings might be on
the USB drive. Fosnight knew that the victim in the previous case had alleged that Brady
video-recorded a sexual assault, and the allegations in that case were similar to the
allegations in this case. Although Detective Fosnight could not verify that Brady had
recorded the sexual assault alleged in the previous case, Fosnight did discover that Brady
had recorded his sexual activity. In this case, Brady was carrying the USB drive in the
backpack that he was taking with him at 2:30 in the morning. The drive was found next to
a bottle of sleep medication. The victim had said that Brady gave her medication to help
her sleep, and it was while she was sleeping that Brady was alleged to have assaulted
her.
{¶ 37} The trial court here had a duty to examine the totality of the circumstances
to determine whether probable cause existed for issuing the search warrant for the USB
drive. Our duty is the same. See Jones at ¶ 15 (“[b]oth the trial court and the appellate
court had a duty to examine the totality of the circumstances in determining whether
probable cause existed for issuing the search warrant”). The trial court found that the
warrant was based on probable cause. We agree. After reviewing the supporting affidavit,
we think that it was sufficient to give the issuing judge a substantial basis to conclude that
there was a fair probability that a search of the USB drive would lead to the discovery of
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evidence that Brady had sexually assaulted his daughter.
{¶ 38} The trial court properly overruled both of Brady’s motions to suppress. The
first assignment of error is overruled.
B. The aggregate prison sentence
{¶ 39} The second assignment of error alleges:
BRADY’S 77 YEAR CONSECUTIVE PRISON SENTENCE WAS CRUEL
AND UNUSUAL PUNISHMENT AND WAS NOT SUPPORTED BY THE
RECORD.
{¶ 40} Brady contends that the aggregate prison sentence imposed by the trial
court violates the Eighth Amendment prohibition against cruel and unusual punishment.
He also contends that consecutive prison terms were not supported by the record.
{¶ 41} Under the sentence-review standard set forth in R.C. 2953.08(G)(2), “we
may vacate or modify a sentence only if we find, by clear and convincing evidence, that
the sentence is contrary to law or that the record does not support the trial court’s findings
under certain statutes (including the findings required for consecutive sentences).” State
v. Beverly, 2016-Ohio-8078,
75 N.E.3d 847, ¶ 9 (2d Dist.), citing State v. Marcum,
146
Ohio St.3d 516,
2016-Ohio-1002,
59 N.E.3d 1231, ¶ 22.
1. The aggregate prison sentence was not a cruel and unusual punishment.
{¶ 42} The Eighth Amendment to the U.S. Constitution prohibits cruel and unusual
punishment and imposes a requirement of proportionality. State v. Broom, 146 Ohio St.3d
60,
2016-Ohio-1028,
51 N.E.3d 620, ¶ 36, citing Miller v. Alabama,
567 U.S. 460, 469,
132 S.Ct. 2455,
183 L.Ed.2d 407 (2012). “ ‘[A]s a general rule, a sentence that falls within
the terms of a valid statute cannot amount to a cruel and unusual punishment.’ ” State v.
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Hairston, 118 Ohio St.3d 289,
2008-Ohio-2338,
888 N.E.2d 1073, ¶ 21, quoting
McDougle v. Maxwell,
1 Ohio St.2d 68, 69,
203 N.E.2d 334 (1964). “[W]e are bound to
give substantial deference to the General Assembly, which has established a specific
range of punishment for every offense and authorized consecutive sentences for multiple
offenses.” (Citation omitted.) Id. at ¶ 24.
{¶ 43} Brady does not dispute that each of his individual sentences was authorized
by statute. He also does not challenge the constitutionality of the sentencing statute or
contend that any of his individual sentences was grossly disproportionate to the specific
offenses for which the sentence was imposed. Rather, Brady’s argument regards his
sentence as a whole, as a package.
{¶ 44} Ohio rejects the sentencing-package doctrine. State v. Saxon, 109 Ohio
St.3d 176,
2006-Ohio-1245,
846 N.E.2d 824, ¶ 10. “[A]ppellate courts may not utilize the
doctrine when reviewing a sentence or sentences.”
Id. at paragraph two of the syllabus.
Rather, “[a]n appellate court may modify, remand, or vacate only a sentence for an
offense that is appealed by the defendant and may not modify, remand, or vacate the
entire multiple-offense sentence based upon an appealed error in the sentence for a
single offense.”
Id. at paragraph three of the syllabus. “Where none of the individual
sentences imposed on an offender are grossly disproportionate to their respective
offenses, an aggregate prison term resulting from consecutive imposition of those
sentences does not constitute cruel and unusual punishment.” Hairston at syllabus.
{¶ 45} Given that each of Brady’s individual prison sentences was within the
authorized statutory range, we conclude that the total sentence did not constitute cruel
and unusual punishment.
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2. Consecutive sentences are supported by the record.
{¶ 46} The trial court imposed an 11-year prison term for each of the fourteen rape
counts as well as shorter prison terms for the other counts. The court ordered Brady to
serve seven of the prison terms imposed for rape consecutively, for a total of 77 years in
prison. Brady argues that the record did not support sending him to prison for the rest of
his life and did not clearly and convincingly support the trial court’s consecutive-sentence
findings. We disagree.
{¶ 47} The law raises a presumption in favor of concurrent sentences. R.C.
2929.41(A) (absent specific exceptions, “a prison term … shall be served concurrently
with any other prison term”). A court may order consecutive sentences only if it makes
certain findings. The court must find 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.” R.C. 2929.14(C)(4). And the court must make one other
finding, one of which is that “[a]t 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,” R.C. 2929.14(C)(4)(b).
{¶ 48} The trial court here made the mandatory consecutive-sentence findings in
the termination entry. The transcript of the sentencing hearing shows that the judge very
consciously imposed a life sentence on Brady: “[T]he question really before this Court, at
the end of the day, is is there going to be—is this a life sentence or not? It really comes
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down to that.” (Tr. 118.) The judge said that he struggled with that question. In the end,
the judge concluded that Brady’s crimes demanded life in prison: “Why in God’s name
would you want to watch yourself raping your daughter? And I can’t get past that. No
matter what you say, [defense counsel], I can’t get past it. I can’t get past the conduct.”
(Id. at 120.) “To me,” continued the judge, “the conduct is so far outside societal []norms,
and I’ve represented abnormal societal conduct. But this is so far removed to me that I
can’t, I just can’t, get past it.” (Id..) The judge told Brady that he was going to make sure
that Brady would spend the rest of his life in prison: “… I’m going to make sure from the
sentence that I’m about to impose that you will not see the light of day outside of prison.
That’s the way I feel about it.” (Id. at 121.)
{¶ 49} Upon review, we do not think that the record clearly and convincingly fails
to support the trial court’s consecutive-sentence findings. The presentence investigation
report describes how, on the night police were called, Brady had given his daughter
sleeping pills and she awoke later to find him raping her. That was not the first time he
had done this. The videos found on the USB drive prove that Brady had drugged and
raped his daughter multiple times between October 2016 and January 2017. He had even
drilled a hole in the shower wall through which he recorded her showering. While Brady’s
aggregate prison term is harsh, we have no basis to conclude that the consecutive
sentences were clearly and convincingly unsupported by the record.
{¶ 50} In sum, neither Brady’s individual sentences nor his aggregate sentence
was contrary to law, as each individual sentence was within the authorized statutory
range. The trial court’s imposition of consecutive sentences was not contrary to law, as
the court made the mandatory consecutive-sentence findings. Finally, the record does
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not clearly and convincingly fail to support the trial court’s consecutive-sentence findings.
{¶ 51} The second assignment of error is overruled.
III. Conclusion
{¶ 52} We have overruled both assignments of error presented. The trial court’s
judgment is affirmed.
.............
FROELICH, J., concurring:
{¶ 53} Brady was facing a maximum sentence of 198 years, and it is clear from the
transcript that the court carefully and seriously weighed the statutory sentencing factors,
the statements of Brady’s relatives and friends, and the statement of the victim before
reaching its decision.
{¶ 54} Hairston, 118 Ohio St.3d 289,
2008-Ohio-2338,
888 N.E.2d 1073, a non-
homicide case in which the defendant received a 134-year sentence, holds that when
“none of the individual sentences are grossly disproportionate to their respective offenses,
an aggregate term resulting from consecutive imposition of those sentences does not
constitute cruel and unusual punishment.” As such, the sentence in this case was not
unconstitutional.
{¶ 55} I write only to comment that sentencing is more than mathematics and that
at some point, with specific facts and circumstances (again, not this case), the whole
sentence will be constitutionally greater than the sum of its parts.
DONOVAN, J., concurring:
{¶ 56} I concur in Judge Hall’s opinion and in Judge Froelich’s concurring opinion.
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Copies sent to:
Mathias H. Heck
Michael J. Scarpelli
Lucas W. Wilder
Hon. Richard Skelton
