[Cite as State v. Bernhardt,
2021-Ohio-4366.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
VAN WERT COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 15-21-04
v.
EUNICE BERNHARDT, OPINION
DEFENDANT-APPELLANT.
Appeal from Van Wert County Common Pleas Court
Trial Court No. 2017 CR 164
Judgment Affirmed
Date of Decision: December 13, 2021
APPEARANCES:
Tyler W. Dunham for Appellant
Kelly J. Rauch for Appellee
Case No. 15-21-04
SHAW, J.
{¶1} Defendant-Appellant, Eunice Bernhardt (“Bernhardt”), appeals from a
judgment of the Van Wert County Court of Common Pleas sentencing her to concurrent
terms of imprisonment following a plea of guilty to three criminal charges.
Relevant Facts and Procedural History
{¶2} On August 6, 2020, Bernhardt was indicted in a twelve-count indictment on
five counts of pandering obscenity involving a minor or impaired person in violation of
R.C. 2907.321(A)(2) and (C), felonies of the second degree (Counts One to Five); five
counts of pandering obscenity involving a minor or impaired person in violation of R.C.
2907.321(A)(6) and (C), felonies of the second degree (Counts Six to Ten); and two counts
of pandering obscenity involving a minor or impaired person in violation of R.C.
2907.321(A)(5) and (C), felonies of the fourth degree (Counts Eleven and Twelve). On
March 15, 2021, Bernhardt pled guilty to Counts One, Six, and Eleven in exchange for the
State’s agreement to dismiss all remaining counts. Before sentencing Bernhardt, the trial
court ordered a presentence investigation (“PSI”) report.
{¶3} Both parties filed sentencing memorandums prior to Bernhardt’s sentencing
hearing. At sentencing on April 20, 2021, defense counsel argued for imposition of
“probation” by pointing to Bernhardt’s lack of criminal activity and the letters of support
for Bernhardt that the trial court had before it. The trial court heard from Bernhardt herself.
The State responded by emphasizing the quantity of child pornography discovered on
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Bernhardt’s tablet computer and cell phone and the nature of the images. The trial court
also had before it the PSI prepared by the Van Wert County Probation Department. This
report concluded with a recommendation of prison. The trial court sentenced Bernhardt to
an indefinite prison term of a minimum of six years to a maximum of nine years on Count
One; an indefinite prison term of a minimum of four years to a maximum of six years on
Count Six; and twelve months in prison on Count Eleven. The prison terms for these counts
were ordered to be served concurrently. Bernhardt was classified as a Tier II sex offender.
{¶4} Bernhardt now appeals, raising the following assignment of error for review:
THE TRIAL COURT ERRED BY FINDING THAT THE
PRESUMPTION IN FAVOR OF A PRISON TERM HAD NOT BEEN
OVERCOME, AND AS A RESULT IMPOSED A SENTENCE THAT
IS CONTRARY TO LAW.
{¶5} In her sole assignment of error, Bernhardt claims that the trial court’s
sentence is contrary to law because the record demonstrates that she was amenable to
community control and, therefore, the trial court erred in finding that the presumption of a
prison term was not overcome under R.C. 2929.13(D)(2).
{¶6} Division (D) of R.C. 2929.13 provides in relevant part:
(1) [F]or a felony of the … second degree … it is presumed that a
prison term is necessary in order to comply with the purposes and
principles of sentencing under section 2929.11 of the Revised Code.…
(2) Notwithstanding the presumption established under division (D)(1)
of this section … the sentencing court may impose a community
control sanction or a combination of community control sanctions
instead of a prison term on an offender for a felony of the … second
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degree … for which a presumption in favor of a prison term is
specified as being applicable if it makes both of the following findings:
(a) A community control sanction or a combination of community
control sanctions would adequately punish the offender and protect the
public from future crime, because the applicable factors under section
2929.12 of the Revised Code indicating a lesser likelihood of recidivism
outweigh the applicable factors under that section indicating a greater
likelihood of recidivism.
(b) A community control sanction or a combination of community
control sanctions would not demean the seriousness of the offense,
because one or more factors under section 2929.12 of the Revised Code
that indicate that the offender’s conduct was less serious than conduct
normally constituting the offense are applicable, and they outweigh the
applicable factors under that section that indicate that the offender’s
conduct was more serious than conduct normally constituting the
offense.
R.C. 2929.13(D).
{¶7} Relying on R.C. 2929.13(D)(2), Bernhardt argues that the trial court did not
properly consider and weigh the recidivism and seriousness factors to impose community
control for her second degree felonies instead of the presumed prison term pursuant to R.C.
2929.13(D)(1). A trial court must make both of the findings under R.C. 2929.13(D)(2) in
order to overcome the presumption of a prison sentence. State v. Mathis, 109 Ohio St.3d
54,
2006-Ohio-855, paragraph one of the syllabus. However, “[n]o findings are required
to impose the prison term under R.C. 2929.13(D)(1).” State v. Searles, 3d Dist. Van Wert
No. 15-19-05,
2020-Ohio-973, ¶ 4. Additionally, when sentencing a defendant, a trial court
is required to consider the purposes and principles of sentencing as set forth in R.C. 2929.11
and the statutory factors set forth in R.C. 2929.12. Id. at ¶ 5. Nevertheless, neither R.C.
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2929.11 nor 2929.12 requires a trial court to make any specific factual findings on the
record. State v. Jones, 163 Ohio St.3d 242,
2020-Ohio-6729, ¶ 20, citing State v. Wilson,
129 Ohio St.3d 214,
2011-Ohio-2669, ¶ 31; State v. Arnett,
88 Ohio St.3d 208, 215 (2000).
Therefore, although the trial court must consider the factors, the court is not required to
discuss its conclusions based upon the consideration given. Searles at ¶ 5, citing State v.
Vanmeter, 3d Dist. Allen No. 1-18-18,
2018-Ohio-3528, ¶ 11.
{¶8} In this case, we note that the transcript of the sentencing hearing and the
judgment entry demonstrate that the trial court considered the purposes and principles of
sentencing in R.C. 2929.11, as well as the seriousness and recidivism factors pursuant to
R.C. 2929.12. The trial court found that Bernhardt had no prior criminal record and it
noted “positive things” about Bernhardt, such as that she has maintained employment and
has provided numerous letters of support demonstrating goodwill in the community and
providing help and care to her aunt. Additionally, the trial court also considered “more
serious” factors contained in the PSI and specifically noted that: “The PSI reveals the
pornography in this case is described as child and infant torture and not only was the
pornography of child and infant torture imported into the State of Ohio but also then shared
and distributed. Hundreds of images are involved in this matter.” J.E. Sentence April 20,
2021, p. 3; accord April 20, 2021 Tr. at 52-53. Ultimately, the trial court found that
Bernhardt was not amenable to community control and that prison was consistent with the
purposes and principles of sentencing set forth in R.C. 2929.11.
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{¶9} When reviewing a trial court’s sentence, an appellate court may increase,
reduce, or otherwise modify a sentence that is appealed or may vacate the sentence and
remand the matter to the sentencing court for resentencing if it clearly and convincingly
finds that the record does not support the sentencing court’s findings under division (D) of
section 2929.13 or the sentence is otherwise contrary to law. R.C. 2953.08(G)(2). A
sentence is contrary to law if the sentence falls outside the statutory range for the particular
degree of offense or if the trial court fails to consider the purposes and principles of felony
sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12.
Searles at ¶ 7; State v. Maggette, 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 30.
The weight that is given to any one sentencing factor is left to the discretion of the trial
court. Searles at ¶ 7, citing Vanmeter at ¶ 10; see also R.C. 2929.12(A). Moreover, an
appellate court is not permitted “to independently weigh the evidence in the record and
substitute its judgment for that of the trial court concerning the sentence that best reflects
compliance with R.C. 2929.11 and 2929.12.”
Jones at ¶ 42.
{¶10} The trial court in this case followed the presumption in favor of a prison term
and imposed a mid-range and a slightly higher than mid-range prison term on Bernhardt’s
second-degree felony convictions. Thus, the trial court was not required to set forth any
reasons regarding whether community control sanctions would have been appropriate
under R.C. 2929.13(D). See Searles at ¶ 7 (concluding that “the trial court was not required
to set forth any reasons regarding whether community control sanctions would have been
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appropriate under R.C. 2929.13(D)”). As set forth above, the record indicates the trial
court did consider the purposes and principles of felony sentencing and did consider the
sentencing factors set forth in R.C. 2929.12. Accordingly, based upon the record before
us, the trial court’s decision to sentence Bernhardt to a presumed prison sentence is not
clearly and convincingly contrary to law.
{¶11} Bernhardt’s assignment of error is overruled.
{¶12} Having found no error prejudicial in the particulars assigned and argued, the
judgment of the trial court is affirmed.
Judgment Affirmed
WILLAMOWSKI, P.J., and ZIMMERMAN, J., concur.
/jlr
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