[Cite as State v. Haynes,
2022-Ohio-4464.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NO. 2022-L-009
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
ROBERT C. HAYNES,
Trial Court No. 2021 CR 001319
Defendant-Appellant.
OPINION
Decided: December 12, 2022
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Kristi L. Winner, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).
Daniel J. Williams and Jerome Emoff, Dworken & Bernstein Co., LPA, 60 South Park
Place, Painesville, OH 44077 (For Defendant-Appellant).
MARY JANE TRAPP, J.
{¶1} Appellant, Robert C. Haynes (“Mr. Haynes”), appeals the judgment of the
Lake County Court of Common Pleas sentencing him to an aggregate prison term of 144
months (i.e., 12 years) following his guilty pleas to four counts of unlawful sexual conduct
with a minor and one count of attempted sexual battery.
{¶2} Mr. Haynes presents three assignments of error, contending that (1) his
“sentence” is contrary to law; (2) the trial court erred in imposing consecutive sentences;
and (3) the statute that governs appellate review of felony sentences, i.e., R.C.
2953.08(G)(2), is unconstitutional as applied to him.
{¶3} After a careful review of the record and pertinent law, we find as follows:
{¶4} (1) Mr. Haynes has not clearly and convincingly established that his
“sentence” is contrary to law. Mr. Haynes’ argument relates to the length of his aggregate
sentence, while R.C. 2929.11 and 2929.12 both apply only to individual sentences. Even
if Mr. Haynes had properly challenged his individual sentences, there would be no basis
to conclude that they are contrary to law.
{¶5} (2) Mr. Haynes has not established that the trial court erred in imposing
consecutive sentences. The trial court expressly made the required statutory findings at
the sentencing hearing and incorporated them into its sentencing entry; thus, there is no
basis to conclude that the consecutive sentences are contrary to law. In addition, the
premise underlying Mr. Haynes’ “support-in-the-record” argument is legally flawed.
{¶6} (3) Mr. Haynes did not present an existing set of facts under which the
statute could be found unconstitutional. This court’s application of R.C. 2953.08(G)(2),
as recently interpreted by the Supreme Court of Ohio, is not dispositive of Mr. Haynes’
assignments of error.
{¶7} Thus, we affirm the judgment of the Lake County Court of Common Pleas.
Substantive and Procedural History
{¶8} In November 2021, the state filed an information charging Mr. Haynes with
four counts of unlawful sexual conduct with a minor, third-degree felonies, in violation of
R.C. 2907.04(A) (counts 1 through 4), and one count of attempted sexual battery, a fourth-
degree felony, in violation of R.C. 2923.02 (count 5). The minor victim was 15 years old
at the time of the alleged offenses.
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{¶9} Mr. Haynes waived his right to a grand jury and pleaded guilty to all counts
in the information. The trial court held a plea hearing and engaged in a colloquy with Mr.
Haynes pursuant to Crim.R. 11. As a factual basis, the state indicated as follows:
{¶10} “[Mr. Haynes] met the victim … as a result of a voluntary coaching position
he had at a private gym. He was a Muay Thai coach and the minor female victim took
his class. As a result of that initial encounter and her taking that class they became friends
along with other folks in the class and that friendship eventually evolved into him giving
her rides, picking her up, things like that, going for coffee, going to movies in groups and
ultimately it turned into a situation where they began spending time alone.
{¶11} “During that time alone[,] [Mr. Haynes] would supply alcohol to the minor
female victim and ultimately their relationship turned into an intimate relationship.
{¶12} “And the evidence the state would have brought forth demonstrating that
intimate relationship is contained in some very detailed Facebook communication
between [Mr. Haynes] and the victim. And what would have been the testimony of the
minor female victim in this situation and those pieces of evidence … would have
demonstrated that there were various forms of sexual conduct that took place between
the victim and the defendant, a digital penetration, oral sex performed on the victim, oral
sex performed by the victim on [Mr. Haynes] and in one instance intercourse. That
particular evidence is what is offered to support Counts 1 through 4, the unlawful sexual
conduct with a minor … based on the various forms of sexual activity that have just been
outlined.
{¶13} “With respect to Count 5, the attempted sexual battery, this was the last
occasion that the relationship between [Mr. Haynes] and the minor female victim occurred
on an intimate basis. [Mr. Haynes] attempted sexual conduct, the victim objected, there
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was no consent. She alleges that she attempted to vocalize her objection and that was
stopped. She had been supplied with alcohol and was impaired so [Mr. Haynes] didn’t
want to immediately return her to her home until she was less upset, calmed down and
for lack of a better term sobered up at that time. …
{¶14} “As I outlined in the charge[,] [Mr. Haynes] was ten or more years older than
the minor victim, I believe he was 26 years of age at the time that these offenses took
place.”
{¶15} Mr. Haynes agreed that the state’s factual basis was accurate.
{¶16} The trial court accepted Mr. Haynes’ guilty pleas and found him guilty. It
ordered a presentence investigation (“PSI”) report, a psychological evaluation, and a
victim impact statement and set the matter for sentencing.
{¶17} In January 2022, the trial court held a sentencing hearing. Mr. Haynes
addressed the court, and his mother and two friends spoke regarding his good character
and remorse. The victim spoke about the effects Mr. Haynes’ conduct had on her life,
which included a diagnosis of PTSD and extensive therapy. Counsel for Mr. Haynes and
the state also presented arguments regarding the statutory sentencing factors.
{¶18} Prior to announcing sentence, the trial court stated that it considered the
PSI report, the psychological evaluations, the letters in support of Mr. Haynes, Mr.
Haynes’ letter, the victim impact statement, all statements made in court, as well as “all
aspects of 2929.11, 2929.12, 2929.13, and 2929.14.” The trial court also made extensive
findings on the record.
{¶19} The trial court sentenced Mr. Haynes to prison terms of 48 months on each
of counts 1 through 4 and 12 months on count 5. It ordered Mr. Haynes to serve counts
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1 through 3 consecutively to one another and counts 4 and 5 concurrently to count 3, for
an aggregate prison term of 144 months (i.e., 12 years).
{¶20} In ordering consecutive sentences, the court found, “consecutive sentences
are necessary to protect the public from future crime by you and to punish the offender”;
“consecutive sentences are not disproportionate to the seriousness of your conduct and
the danger that you pose”; and “at least two of these offenses were committed as part of
one or more courses of conduct and the harm caused to [the victim] by at least two of
these offenses committed was so great or unusual that no single prison term for any of
these offenses committed as part of this course of conduct adequately reflects the
seriousness of the conduct.”
{¶21} The trial court filed a judgment entry memorializing Mr. Haynes’ sentences,
which it subsequently amended.
{¶22} Mr. Haynes appealed and raises the following three assignments of error:
{¶23} “[1.] Clear And Convincing Evidence Affirmatively Demonstrates That The
Trial Court Failed To Consider The Principles And Purposes Of Felony Sentencing
Mandated In R.C. 2929.11 And The Sentencing Factors Found In R.C. 2929.12 And/Or
That Appellant’s Sentence Was Not Reasonably Calculated To Achieve The Principles
And Purposes Of Sentencing And/Or That The Trial Court’s Sentence Was Otherwise
Contrary To Law.
{¶24} “[2.] The Trial Court Erred In Imposing Consecutive Sentences.
{¶25} “[3.] R.C. 2953.08(G)(2) Is Unconstitutional As Applied to Appellant.”
Individual Felony Sentences
{¶26} In his first assignment of error, Mr. Haynes contends that his “sentence” is
contrary to law. Specifically, Mr. Haynes contends that the trial court failed to consider
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the purposes and principles of felony sentencing; that his 12-year prison sentence was
not “consistent with sentences imposed for similar crimes committed by similar offenders”;
that the public does not require 12 years of protection from him; and that it is unlikely that
he will be rehabilitated by serving a 12-year prison sentence.
{¶27} The standard of review for felony-sentencing appeals is governed by R.C.
2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002,
59 N.E.3d 1231,
¶ 21. That provision states:
{¶28} “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.
{¶29} “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:
{¶30} “(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;
{¶31} “(b) That the sentence is otherwise contrary to law.”
{¶32} “‘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 facts a firm belief or conviction as to the facts sought to be
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established.’” Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469,
120 N.E.2d
118 (1954), paragraph three of the syllabus.
{¶33} We conclude that Mr. Haynes has not clearly and convincingly established
that his “sentence” is contrary to law.
{¶34} R.C. 2929.11 and 2929.12 apply as a general judicial guide for every
sentencing. State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856,
845 N.E.2d 470, ¶ 36,
abrogated on other grounds by Oregon v. Ice,
555 U.S. 160,
172 L.Ed.2d 517,
129 S.Ct.
711 (2009). R.C. 2929.11(A) provides that the trial court “shall be guided by the overriding
purposes of felony sentencing,” which are “[1] to protect the public from future crime by
the offender and others, [2] to punish the offender, and [3] 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
government resources.” To “achieve those purposes,” the trial 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.”
Id. A felony sentence “shall be reasonably calculated to achieve the three
overriding purposes of felony sentencing …, 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.” R.C.
2929.11(B).
{¶35} R.C. 2929.12(A) grants the sentencing court “discretion to determine the
most effective way to comply with the purposes and principles of sentencing ….” In
exercising that discretion, the court shall consider, along with any other “relevant” factors,
the seriousness factors in R.C. 2929.12(B) and (C) and the recidivism factors in R.C.
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2929.12(D) and (E). Foster at ¶ 37. There is no mandate for judicial fact-finding in the
general guidance statutes; rather the court is merely to “consider” the statutory factors.
Id. at ¶ 42.
{¶36} Mr. Haynes’ argument relates to his aggregate prison sentence of 12 years,
which resulted from the trial court’s decision to run Mr. Haynes’ prison sentences on
counts 1 through 3 consecutively. The Supreme Court of Ohio has held that “R.C.
2929.11 and 2929.12 both clearly apply only to individual sentences. R.C. 2929.11
speaks in terms of a court’s imposing ‘a sentence’ for ‘a felony.’ Likewise, R.C.
2929.12(A) speaks in terms of a court’s imposing ‘a sentence’ for ‘a felony.’” (Emphasis
sic.) State v. Gwynne, 158 Ohio St.3d 279,
2019-Ohio-4761,
141 N.E.3d 169, ¶ 17; see
State v. Saxon,
109 Ohio St.3d 176,
2006-Ohio-1245,
846 N.E.2d 824, paragraph one of
the syllabus (“A sentence is the sanction or combination of sanctions imposed for each
separate, individual offense.”) For that reason alone, Mr. Haynes’ first assignment of
error lacks merit.
{¶37} Even if Mr. Haynes had properly challenged his individual sentences, there
would be no basis to conclude that the trial court did not consider the purposes and
principles of felony sentencing. A sentencing court fulfills its duty when it states that it
has considered the factors under R.C. 2929.11 and R.C. 2929.12. State v. DeLuca, 11th
Dist. Lake No. 2020-L-089, 2021-Ohio-1007, ¶ 18. Here, the trial court expressly stated
that it “considered … the principles and purposes of sentencing under R.C. 2929.11”
and “balanced the seriousness and recidivism factors under R.C. 2929.12.”
{¶38} Further, to the extent Mr. Haynes sought to challenge the trial court’s
application of R.C. 2929.11 and 2929.12, it would be outside the scope of our review.
The Supreme Court of Ohio has held that R.C. 2953.08(G)(2)(b) “does not provide a basis
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for an appellate court to modify or vacate a sentence based on its view that the sentence
is not supported by the record under R.C. 2929.11 and 2929.12.” State v. Jones, 163
Ohio St.3d 242,
2020-Ohio-6729,
169 N.E.3d 649, ¶ 39. According to the court, “[n]othing
in R.C. 2953.08(G)(2) permits an appellate court 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.” Id. at ¶ 42. As we have
observed, “the competing factors in R.C. 2929.11 and 2929.12 are for the sentencing
court to weigh, not the court of appeals.” State v. Stanley, 11th Dist. Trumbull No. 2020-
T-0039,
2021-Ohio-549, ¶ 12.
{¶39} Although Mr. Haynes asks us to find that Jones was wrongly decided, we
have no authority to do so. “‘As an intermediate appellate court, we are bound to follow
precedent set by the Supreme Court of Ohio[,] and we cannot issue a decision in conflict
with a decision of the Supreme Court that has not been reversed or overruled.’” State v.
Bruce, 10th Dist. Franklin No. 21AP-376, 2022-Ohio-909, ¶ 40, appeal not accepted,
167
Ohio St.3d 1527,
2022-Ohio-3322,
195 N.E.3d 163, quoting State v. Tatom, 10th Dist.
Franklin No. 17AP-758,
2018-Ohio-5143, ¶ 24. Rather, the authority to examine previous
decisions is vested in the Supreme Court itself. See Westfield Ins. Co. v. Galatis,
100
Ohio St.3d 216,
2003-Ohio-5849,
797 N.E.2d 1256, ¶ 43 (“[A] supreme court not only has
the right, but is entrusted with the duty to examine its former decisions and, when
reconciliation is impossible, to discard its former errors.”).
{¶40} Mr. Haynes’ first assignment of error is without merit.
Consecutive Sentences
{¶41} In his second assignment of error, Mr. Haynes contends that the trial court
erred in imposing consecutive sentences.
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{¶42} An appellate court reviews the trial court’s imposition of consecutive
sentences pursuant to R.C. 2953.08(G)(2), which permits us to modify or vacate
consecutive sentences if we clearly and convincingly find that (a) the record does not
support the trial court’s findings under R.C. 2929.14(C)(4) or (b) the sentence is otherwise
contrary to law.
{¶43} R.C. 2929.41 creates a statutory presumption in favor of concurrent
sentences, providing, in pertinent part, that “[e]xcept as provided in … division (C) of
section 2929.14, … a prison term … or sentence of imprisonment shall be served
concurrently with any other prison term … or sentence of imprisonment imposed by a
court of this state ….” R.C. 2929.41(A). R.C. 2929.14(C)(4), in turn, provides that “[i]f
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 it finds that (1)
“the consecutive service is necessary to protect the public from future crime or to punish
the offender”; (2) “consecutive sentences are not disproportionate to the seriousness of
the offender’s conduct and to the danger the offender poses to the public”; and (3) any of
the following:
{¶44} “(a) The offender committed one or more of the multiple 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.
{¶45} “(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
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committed as part of any of the courses of conduct adequately reflects the seriousness
of the offender’s conduct.
{¶46} “(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime by the
offender.”
{¶47} The Supreme Court of Ohio has held that “[i]n order to impose consecutive
terms of imprisonment, a trial court is required to make the findings mandated by R.C.
2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing
entry, but it has no obligation to state reasons to support its findings.” State v. Bonnell,
140 Ohio St.3d 209,
2014-Ohio-3177,
16 N.E.3d 659, ¶ 37. The trial court is not required
“to give a talismanic incantation of the words of the statute, provided that the necessary
findings can be found in the record and are incorporated into the sentencing entry.”
Id.
Otherwise, “the imposition of consecutive sentences … is contrary to law.”
Id.
{¶48} In addition, “as long as the reviewing court can discern that the trial court
engaged in the correct analysis and can determine that the record contains evidence to
support the findings, consecutive sentences should be upheld.” Id. at ¶ 29. In other
words, “If the court has properly made the required findings in order to impose
consecutive sentences, we must affirm those sentences unless we ‘clearly and
convincingly’ find ‘[t]hat the record does not support the court’s findings[.]’” State v.
Venes, 2013-Ohio-1891,
992 N.E.2d 453, ¶ 19 (8th Dist.), quoting R.C. 2953.08(G)(2)(a).
{¶49} Here, the trial court expressly made the required statutory findings at the
sentencing hearing and incorporated them into its sentencing entry. Thus, there is no
basis to conclude that the trial court’s imposition of consecutive sentences is contrary to
law.
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{¶50} In addition, the premise underlying Mr. Haynes’ “support-in-the-record”
argument is legally flawed. According to Mr. Haynes, the trial court “emphasized” nine
particular facts in its “2929.14(C)(4) analysis,” and those facts do not support a “12-year
consecutive sentence.” However, there is no indication that those particular facts formed
the basis of the trial court’s consecutive sentence findings, and a review of the hearing
transcript demonstrates that the trial court discussed those facts in the context of
considering the principles and purposes of felony sentencing. Further, Mr. Haynes’
argument misunderstands the proper standard of review. The relevant inquiry under R.C.
2953.08(G)(2)(a) is not whether the record supports Mr. Haynes’ aggregate prison
sentence but whether there is evidence in the record supporting the trial court’s
consecutive sentence findings.
{¶51} Accordingly, Mr. Haynes has not established that the trial court erred in
imposing consecutive sentences.
{¶52} Mr. Haynes’ second assignment of error is without merit.
Constitutional Challenge
{¶53} In his third and final assignment of error, Mr. Haynes contends that R.C.
2953.08(G)(2), i.e., the statute that governs appellate review of felony sentences, is
unconstitutional as applied to him. According to Mr. Haynes, the statute, as interpreted
by the Supreme Court of Ohio in Jones, fails to provide him with a right of review of a final
order or judgment from a trial court in violation of Article IV, Section 3(B)(2) of the Ohio
Constitution. He submits that unless an appellate court “can review a trial court’s
consideration of the sentencing mandates in R.C. 2929.11 and R.C. 2929.12,” he is
denied a “complete determination” of his assignments of error on appeal.
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{¶54} Mr. Haynes acknowledges that he did not raise this constitutional challenge
at sentencing. “Failure to raise at the trial court level the issue of the constitutionality of
a statute or its application, which issue is apparent at the time of trial, constitutes a waiver
of such issue and a deviation from this state’s orderly procedure, and therefore need not
be heard for the first time on appeal.” State v. Awan, 22 Ohio St.3d 120,
489 N.E.2d 277
(1986), syllabus. The waiver doctrine in Awan, however, is discretionary. In re M.D.,
38
Ohio St.3d 149 (1988), syllabus (“Even where waiver is clear, this court reserves the right
to consider constitutional challenges to the application of statutes in specific cases of
plain error or where the rights and interests involved may warrant it.”)
{¶55} Even if a plain error analysis was warranted in this case, we find it
unnecessary to reach the merits of Mr. Haynes’ constitutional argument. State v. Talty,
103 Ohio St.3d 177,
2004-Ohio-4888,
814 N.E.2d 1201, ¶ 9 (courts should avoid
answering constitutional questions unless it is absolutely necessary). In an as-applied
constitutional challenge, the challenging party “bears the burden of presenting clear and
convincing evidence of a presently existing set of facts that make the statute[]
unconstitutional and void when applied to those facts.” (Emphasis added.) Harrold v.
Collier,
107 Ohio St.3d 44,
2005-Ohio-5334,
836 N.E.2d 1165, ¶ 38. “A person to whom
a statute may be constitutionally applied may not be heard to challenge the statute on the
ground that it may conceivably be applied unconstitutionally to others, in other situations
not before the court.” (Emphasis added.) State v. Taubman,
78 Ohio App.3d 834, 845,
606 N.E.2d 962 (2d Dist.1992).
{¶56} As explained above, Mr. Haynes’ first assignment of error challenges the
length of his aggregate sentence, while R.C. 2929.11 and 2929.12 apply only to individual
sentences. Mr. Haynes’ second assignment of error challenges the trial court’s imposition
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of consecutive sentences, which does not involve R.C. 2929.11 or 2929.12. Thus, this
court’s application of R.C. 2953.08(G)(2), as interpreted in Jones, is not dispositive of Mr.
Haynes’ assignments of error. Accordingly, Mr. Haynes did not present an existing set of
facts under which the statute could be found unconstitutional.
{¶57} Mr. Haynes’ third assignment of error is without merit.
{¶58} For the foregoing reasons, the judgment of the Lake County Court of
Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, J., concurs,
JOHN J. EKLUND, P.J., concurs with a Concurring Opinion.
____________________
JOHN J. EKLUND, P.J., concurs with a Concurring Opinion.
{¶59} For the following reasons, I concur in the judgement.
{¶60} Within his first assignment of error, Haynes makes three arguments: (1) that
the trial court failed to consider the purposes and principals of felony sentencing set forth
in R.C. 2929.11 and the sentencing considerations in R.C. 2929.12; (2) that his sentence
is not reasonably calculated to achieve his effective rehabilitation; and (3) that his
sentence is otherwise contrary to law because his sentence is not consistent with
sentences imposed for similar crimes committed by similar offenders. The majority
opinion mischaracterizes the second and ignores the third.
{¶61} The majority addresses Haynes’ argument that his sentence is not
reasonably calculated to promote his effective rehabilitation by stating that a “sentencing
court fulfills its duty when it states that it has considered the factors under R.C. 2929.11
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and R.C. 2929.12.” State v. DeLuca, 11th Dist. Lake No. 2020-L-089, 2021-Ohio-1007,
¶ 18. That principle bears upon Appellant’s first argument. It has nothing to do with his
second. The “duty” to which DeLuca and its ilk refer is for the sentencing court to “be
guided by” the purposes of felony sentencing (R.C. 2929.11(A)) and to “consider” certain
factors (R.C. 2929.12 (A) – (F)). However, the “duty” set forth in R.C. 2929.11(B) (which
is what Appellant invokes) is for the sentencing court, having been “guided” and after
“considering,” to impose a sentence that is (“shall be”) “reasonably calculated to achieve”
the purposes of felony sentencing. Properly framed, we would review the record (as R.C.
2953.08(F) and (G) command) and analyze Appellant’s second argument to determine
whether his sentence is reasonably calculated “to promote his effective rehabilitation,”
and if not whether it is “clearly and convincingly” contrary to law under R.C.
2953.08(G)(2)(b). Nevertheless, I agree with the majority’s judgment because, on the
record before us, I cannot find clearly and convincingly that Haynes’ sentence was not
reasonably calculated to promote his effective rehabilitation.
{¶62} I next address Haynes’ third argument within his first assignment of error:
That his sentence is not consistent with sentences imposed for similar crimes committed
by similar offenders. R.C. 2929.11(B) mandates that felony sentences shall be
“consistent with sentences imposed for similar crimes committed by similar offenders.”
The majority gives less than short shrift to this argument; they ignore it.
{¶63} I acknowledge that this court has long held that “sentencing consistency is
not derived from the trial court’s comparison of the current case to prior sentences for
similar offenders and similar offenses,” but, rather, it is the “proper application of the
statutory sentencing guidelines that ensures consistency.” (Citations omitted.) State v.
Phifer, 11th Dist. Trumbull No. 2020-T-0010, 2020-Ohio-4694, ¶ 35. However, if
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“consistency” is simply a matter of following the dictates of R.C. 2929.12, 2929.13, and
2929.14, the “consistency” mandate in R.C. 2929.11(B) would be entirely superfluous.
No wonder, then, that R.C. 2929.11(B) makes no reference to R.C 2929.12, 2929.13, or
2929.14.
{¶64} Other appellate districts have held that reviewing the record to ensure
compliance with the statutory sentencing guidelines is not the only avenue to review
whether a sentence is “consistent.” The Tenth, First, and Fifth District Appellate Courts
have held alternatively that:
Consistency … does not necessarily mean uniformity. Instead,
consistency aims at similar sentences. Accordingly, consistency accepts
divergence within a range of sentences and takes into consideration a trial
court’s discretion to weigh relevant statutory factors [as provided in R.C.
2929.12(A)]. The task of an appellate court is to examine the available data,
not to determine if the trial court has imposed a sentence that is in lockstep
with others, but to determine whether the sentence is so unusual as to be
outside the mainstream of local judicial practice. Although offenses may be
similar, distinguishing factors may justify dissimilar sentences.
State v. Battle, 10th Dist. Franklin. No. 06AP–863, 2007-Ohio-1845, ¶ 24, quoting State
v. King, 5th Dist. Muskingum No. CT06–0020,
2006-Ohio-6566, ¶ 23, quoting State v.
Ryan, 1st Dist. Hamilton App. No. C–020283,
2003-Ohio-1188, ¶ 10.
{¶65} I would take this opportunity to have this court adopt that approach as an
additional analytic tool. Whether under that approach or under our current precedent, I
believe we should address Appellant’s contention.
{¶66} Here, Haynes plead guilty to five offenses. Four were felonies of the third-
degree and one was a fourth-degree felony. It is not so unusual as to be outside the
mainstream of local judicial practice for an offender to be sentenced to 12 years
imprisonment after pleading guilty to five sexual offenses with a minor. I would not have
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found clearly and convincingly that Haynes’ sentence is contrary to law as being
inconsistent with sentences imposed for similar crimes committed by similar offenders.
{¶67} Lastly, I would find that this court should fully address Haynes’ third
assignment of error, in which he contends that “R.C. 2953.08(G)(2) Is Unconstitutional
As Applied To Appellant.” Justice Fischer’s concurring opinion in Jones provides a more
expansive and apt discussion of this issue and states that:
There is also no reason to believe that a trial court’s
consideration under R.C. 2929.11 and 2929.12 is wholly
unreviewable. First, although, as the majority opinion
explains, R.C. 2929.11 and 2929.12 do not require a trial court
to make any specific findings on the record, those statutes are
not optional. Both statutes use the term “shall” multiple times
in relation to other matters. For example, R.C. 2929.11(A) and
2929.12(A) through (F) set forth matters that a sentencing
court “shall consider,” and R.C. 2929.11(A) provides that the
trial court “shall be guided by” the three overriding purposes
of felony sentencing. R.C. 2929.11(B) further states that the
sentence imposed by the trial court “shall” meet certain
specific criteria. … Second, R.C. 2953.08(G)(2) expressly
requires an appellate court to “review the record, including the
findings underlying the sentence.” The breadth of this
statutory provision necessarily means that if a trial court does
make findings under R.C. 2929.11 and 2929.12, the appellate
court may review those findings for certain limited purposes.
Third, R.C. 2953.08(G)(2)(b) provides that an appellate court
can modify or vacate a sentence on the ground that it is
“otherwise contrary to law.” This court’s holding today
specifies what an appellate court may not do under this
provision: it may not conduct an independent review of
whether the record supports the sentence and substitute its
own judgment regarding the appropriate sentence.
{¶68} State v. Jones, 163 Ohio St.3d 242,
2020-Ohio-6729,
169
N.E.3d 649 ¶ 46 (Fischer J., concurring).
{¶69} I find Justice Fisher’s analysis compelling, and would hold that R.C.
2953.08(G)(2) is constitutional as applied to Haynes because Jones is limited to the
holding that a court may not conduct an independent review of whether the record
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supports the sentence and substitute its own judgment regarding the appropriate
sentence, but does not render the results of the trial court’s consideration wholly
unreviewable. Id.
{¶70} I otherwise agree with the majority’s analysis, and I concur in the judgment.
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