[Cite as State v. Vanderpool,
2020-Ohio-1327.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2019-P-0076
- vs - :
RICHARD W. VANDERPOOL, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas.
Case No. 2019 CR 00013.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Seneca Konturas, P.O. Box 662, Aurora, OH 44202 (For Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Richard W. Vanderpool (“Vanderpool”), appeals from the
sentencing entry entered in the Portage County Court of Common Pleas in Case No.
2015-CR-0013, sentencing him on two counts of sexual battery—with each prison term
ordered to run consecutively—for a total prison term of five years. Vanderpool’s argument
is that a judgment entry filed in Case No. 2015-CR-0622, which has not been appealed,
is defective. The judgment entry in Case No. 2015-CR-0622, as well as the record in that
case, are not properly before this court. Therefore, Vanderpool has failed to make any
argument with regard to the court’s judgment entry in Case No. 2019-CR-0013, and we
affirm that judgment.
{¶2} On January 4, 2019, Vanderpool was indicted in Case No. 2019-CR-0013.
The indictment in that matter alleged several instances of inappropriate sexual conduct
between Vanderpool and his minor stepdaughter, including two charges of sexual battery
and one charge of rape. The rape charge was ultimately nolled as part of the plea
agreement between the parties. On April 9, 2019, Vanderpool pled guilty in Case No.
2019-CR-0013 to counts one and two, each for sexual battery, in accordance with that
plea agreement.
{¶3} The sentencing hearing for that matter was held on June 3, 2019. During
the hearing, the trial court also heard testimony and ruled on a motion to revoke and
modify sanctions on a separate matter in Case No. 2015-CR-0622. Case No. 2015-CR-
0622 was not appealed, and that matter is not before this court. At the time of the hearing,
Vanderpool was already serving a term in prison for a separate conviction on an unrelated
matter. With regard to the present appeal, Vanderpool was sentenced to a term of 36
months on count one and 24 months on count two, to be served consecutively to each
other. The trial court specifically found that Vanderpool either lacked remorse for his
actions or had blamed the victim in his pre-sentence investigation (“PSI”) interview for the
sexual conduct alleged. Further, the trial court stated the following on the record at the
hearing:
All right. I have reviewed the PSI. I’ve certainly listened to the
recommendations of counsel and the victim impact information …
For you, I am definitely finding that a prison sentence is consistent
with the purposes and principles of sentencing. Probation is not
something that I would consider given the gravity of the violation of
this little girl, and especially given the fact that you might think you
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have accepted responsibility by pleading. But, quite frankly, what
you said in the PSI seems much more consistent with your attitude.
I am going to specifically find these are F3s. There is no presumption
either way, but I am going to find that a prison sentence is consistent
with the purposes and principles of sentencing, that in sentencing the
Court must first consider protecting the public from future crimes,
which absolutely I have considered. I don’t know that having you out
in the community is a benefit to anybody right now. I have to punish
you using the minimum sanctions I determine and accomplish those
purposes without imposing an unnecessary burden on the state. …
*
After having considered all the relevant seriousness and recidivism
factors and weighing those factors, a prison term is absolutely
consistent with the purposes and principles of sentencing and you
are not amenable to community control sanctions. I am going to
sentence you to … three years on Count One in the Ohio
Department of Corrections. I am going to sentence to you [sic] two
years on Count Two. I am going to order that those sentences run
consecutively with each other, not concurrently[,] for a total of five
years. I am specifically finding that they are run – they are to be run
consecutively to protect the public from future crimes and to punish
the Defendant. And consecutive sentences are not disproportionate
to the seriousness of the Defendant’s conduct and the danger he
poses to the public.
I am sentencing you to consecutive sentences because your
offenses are part of a course of conduct, and the harm caused is so
great or unusual that a single prison term does not adequately reflect
the seriousness of that conduct. … I am ordering that that sentence
run consecutively with the motion to revoke in [Case No. 2015-CR-
0622], which was a total of two years. …
{¶4} Further, the sentencing entry states, in pertinent part:
The Court considered the purpose of felony sentencing which is to
protect the public from future crimes by the Defendant and to punish
the Defendant using the minimum sanctions that the Court
determines to accomplish those purposes without imposing an
unnecessary burden on state or local government resources.
The Court also considered the need for incapacitating the Defendant,
deterring the defendant and others from future crime, rehabilitating
the Defendant, making restitution to the victim of the offense, the
public or both.
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The Court also considered the evidence presented by counsel, oral
statements, any victim impact statements, the Pre-Sentence Report
and the defendant’s statement.
The Court finds that the Defendant has entered a Written plea of
Guilty pursuant to Crim. R. 11 (F) Plea Negotiations to Counts One
and Two of the Indictment, charging the Defendant with the offense
of “Sexual Battery” felonies of the third degree, and in violation of
R.C. 2907.03 A5B.
The Court finds that the consecutive sentence is necessary to protect
the public from future crime or to punish the Defendant; that
consecutive sentences are not disproportionate to the seriousness
of the Defendant’s conduct and to the danger the defendant poses
to the public. Also, [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 committed was so
great or unusual that no single prison term for any of the offenses
committed as a part of any of the courses of conduct adequately
reflects the seriousness of the Defendant’s conduct.
IT IS THEREFORE ORDERED that the Defendant is sentenced to
the Ohio Department of Rehabilitation and Correction to a term of
imprisonment of Thirty-six (36) months to be served for the offense
in Count One and Twenty-four (24) months, to be served for the
offense in Count Two, of which shall run consecutive to one another,
and concurrent to the sentence Defendant is presently serving, or
until such time as he is otherwise legally released.
{¶5} Vanderpool filed a timely notice of appeal and raises one assignment of
error for review.
{¶6} Vanderpool’s sole assignment of error states:
THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO
MAXIMUM, CONSECUTIVE TERMS ON FIFTH DEGREE
FELONIES AS CHARGED IN CASE NO. 2015CR0622 AND
FURTHER RUNNING THIS SENTENCE CONSECUTIVE TO THE
SENTENCE SIMULTANEOUSLY IMPOSED BY THE TRIAL
COURT IN CASE NO. 2019CR0013 WITHOUT NOTING THE
REQUISITE FINDINGS ON THE RECORD OR JUDGMENT
ENTRY.
{¶7} Our standard of review is set forth in R.C. 2953.08(G)(2):
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The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the
sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the
sentence and remand the matter to the sentencing court for
resentencing. The appellate court’s standard of review is not whether
the sentencing court abused its discretion. The appellate court may
take any action authorized by this division if it clearly and
convincingly finds either of the following:
(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.
{¶8} “‘A sentence is contrary to law if (1) the sentence falls outside the statutory
range for the particular degree of offense, or (2) the trial court failed to consider the
purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing
factors in R.C. 2929.12.’” State v. Wilson, 11th Dist. Lake No. 2017-L-028, 2017-Ohio-
7127, ¶18, quoting State v. Price, 8th Dist. Cuyahoga No. 104341, 2017-Ohio-533, ¶14
(citations omitted).
{¶9} R.C. 2929.14(A)(3)(a) states: “For a felony of the third degree that is a
violation of section … 2907.03 … of the Revised Code, … the prison term shall be a
definite term of twelve, eighteen, twenty-four, thirty, thirty-six, forty-two, forty-eight, fifty-
four, or sixty months.” Vanderpool’s prison terms of 24 months and 36 months contained
in the sole sentencing entry being appealed are within the permissible range for sexual
assault offenses under R.C. 2907.03(A)(5)(b). The trial court also stated on the record at
the hearing and within the sentencing entry that the purposes and principles of felony
sentencing were considered. Therefore, the individual sentences are not contrary to law.
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For that reason, we must consider whether the trial court’s findings for imposing
consecutive sentencing are clearly and convincingly not supported by the record. See
Wilson, supra, at ¶20.
{¶10} R.C. 2929.41, which governs multiple sentences, provides, in pertinent part:
“(A) Except as provided in … division (C) of section 2929.14, … a prison term, jail
term, or sentence of imprisonment shall be served concurrently with any other prison
term, jail term, or sentence of imprisonment imposed by a court of this state[.]” Therefore,
a presumption exists in favor of concurrent sentencing absent the applicable statutory
exception.
{¶11} Pursuant to R.C. 2929.14(C)(4), a trial court may order separate prison
terms for multiple offenses be served consecutively only if the court finds it “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[.]” The trial court must also find that one of
the following statutory factors applies:
(a) The offender committed one or more of the multiples 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.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
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{¶12} In the matter sub judice, the sentencing entry being appealed contains all
the mandatory language required to impose consecutive sentences in this matter. The
appropriate considerations were also contained in the transcript of the sentencing
hearing. The trial court properly considered the PSI, testimony, and victim statements
before determining that consecutive sentences were appropriate under the sentencing
statute.
{¶13} Vanderpool’s assignment of error fails to acknowledge the entry which is
subject of the appeal. Instead, Vanderpool argues that a judgment entry filed in Case No.
2015-CR-0622 is defective. That judgment entry has not been appealed. Therefore, the
judgment entry Vanderpool challenges in Case No. 2015-CR-0622, as well as the record
in that case, are not properly before this court. Because of this, Vanderpool has failed to
make any argument to show the court’s findings in Case No. 2019-CR-0013 are clearly
and convincingly not supported by the record.
{¶14} Vanderpool’s sole assignment of error is without merit.
{¶15} The judgment of the Portage County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, J.,
MARY JANE TRAPP, J.,
concur.
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