[Cite as State v. Bailey,
2024-Ohio-4641.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 23CA1182
v. :
DANIEL BAILEY, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Brian T. Goldberg, Cincinnati, Ohio, for appellant.
Aaron E. Haslam, Adams County Prosecuting Attorney, West Union,
Ohio, for appellee.
__________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:9-19-24
ABELE, J.
{¶1} This is an appeal from an Adams County Common Pleas Court
judgment of conviction and sentence. Daniel Bailey, defendant
below and appellant herein, raises one assignment of error for
review:
“THE TRIAL COURT ERRED IN
IMPOSING CONSECUTIVE SENTENCES WHEN
THE RECORD DID NOT SUPPORT THE
FINDINGS MADE BY THE TRIAL COURT TO
IMPOSE CONSECUTIVE SENTENCES.”
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{¶2} On September 27, 2023, an Adams County Grand Jury
returned an indictment that charged appellant with five counts of
rape in violation of R.C. 2907.02(A)(1)(b), all first-degree
felonies. These charges resulted from an investigation that
revealed appellant engaged in multiple instances of sexual activity
with a victim under 13 years of age.
{¶3} On November 21, 2023, appellant, pursuant to the parties’
plea agreement, entered guilty pleas to five counts of gross sexual
imposition, all third-degree felonies. On December 11, 2023, the
trial court conducted a sentencing hearing and sentenced appellant
(1) to serve five years in prison on each count; (2) ordered that
the sentences be served consecutively to one another for a total
term of 25 years in prison, and (3) ordered appellant to be
classified as a tier III sex offender. This appeal followed.
{¶4} In his sole assignment of error, appellant asserts that
the trial court’s decision to impose consecutive sentences is
improper. In particular, appellant argues that, although the trial
court recited the necessary findings and placed the findings in the
sentencing entry, a review of the record reveals that the record
does not support those findings. Appellant claims that although
the court made the appropriate findings on the record and in the
sentencing entry that (1) consecutive sentences are necessary to
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protect the public from future crime and to punish the offender,
(2) consecutive sentences are not disproportionate to the
seriousness of appellant’s conduct and the danger to the public,
(3) appellant committed at least two offenses as part of one or
more courses of conduct, and (4) the harm caused is so great or
unusual that no single prison term for any offense adequately
reflects the seriousness of appellant’s conduct, appellant
maintains that in the case sub judice consecutive sentences are not
necessary to protect the public from future crime or to punish
appellant. Appellant argues that, at 41 years of age and with no
criminal history, concurrent sentences will sufficiently protect
the public. Appellant further points out that after five years, he
will serve five years of post-release control, register as a sex
offender for the remainder of his life and engage in sex offender
treatment. Additionally, appellant maintains that he accepted
responsibility for his actions and pleaded guilty to avoid a trial
and to avoid the necessity of the young victim’s testimony in
court.
{¶5} Appellee, however, argues that the trial court made all
required findings to impose consecutive sentences. Appellee points
to the court’s statement at the sentencing hearing:
“Because multiple prison terms have been imposed upon the
offender for convictions of multiple offenses, committed
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over the course of a period of time in excess of a year,
the court may require the offender to serve the prison
terms consecutively. The court is requiring the defendant
to serve the terms consecutively because the court finds
that consecutive service is necessary to protect the public
from future crime as well as to punish the offender, and
that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger he
poses to the public.
The court further finds that 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 is so great and so unusual,
particularly because a child was victimized, that no single
prison term for any of the offenses committed as part of
any of the courses of conduct would adequately reflect the
seriousness of the offender’s conduct.”
Appellee further asserts that the multiple incidents with a young
child that occurred over a 13-month period warrants the imposition
of consecutive sentences. Appellee further cites to another
statement the court offered at the sentencing hearing:
“The, um, it’s hard to fathom, um, even though I, I deal
with it, regularly, but it’s hard to fathom, uh, that a
human being, uh, would violate a child, and especially to
violate a, a, a child in this manner. I realized that the,
uh, facts that were given were, uh, um, no conduct, uh,
but it was a, uh, pattern that, uh, ranged over a period
of time, uh, from August of 2022 until September of 2023,
um, a period of time, uh, that, uh, one can only describe
as hell, uh, for [victim].”
{¶6} In his assignment of error, appellant asserts that the
trial court erred in the case sub judice when it imposed
consecutive sentence because, appellant argues, the record does not
support consecutive sentences. Although appellant concedes that
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the trial court made all the requisite findings to impose
consecutive sentences, appellant maintains that a review of the
record does not support the trial court’s decision to impose
consecutive sentences.
{¶7} R.C. 2929.14(C)(4) provides:
If 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
the court finds 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,
and if the court also finds any of the following:
(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.
(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.
{¶8} To impose consecutive sentences a court must make the
findings mandated in R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate those findings into the sentencing entry. However,
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a court has no obligation to state reasons to support its findings.
State v. Jones, 2024-Ohio-1083, ¶ 11; State v. Bonnell, 2014-Ohio-
3177, ¶ 37.
{¶9} When appellate courts review felony sentences, they must
apply R.C. 2953.08(G)(2) which provides:
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 for review is not whether the sentencing court
abused it 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.
Consequently, R.C. 2953.08(F) requires an appellate court to review
the entire record, including oral or written statements made to or
by the trial court at the sentencing hearing, and any presentence,
psychiatric, or other investigative report submitted to the court
before the court imposes sentence. R.C. 2953.08(F)(1) through (4).
Jones at ¶ 12. Furthermore, R.C. 2953.08(G) permits an appellate
court to increase, reduce, otherwise modify, or vacate a sentence
only ‘if it clearly and convincingly finds’ that the record does
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not support the sentencing court’s findings or that the sentence is
otherwise contrary to law. Id. at ¶ 13, citing R.C. 2953.08(G)(2),
and State v. Marcum, 2016-Ohio-1002, ¶ 22.
{¶10} Once again, we point out that in the case at bar
appellant concedes that the trial court made all of the requisite
findings in order to impose consecutive prison sentences.
Appellant, however, argues that a single five-year prison sentence
will adequately punish his misconduct. Appellant emphasizes that
he had no criminal record and he should receive credit for his
willingness to enter a guilty plea to dispense with the necessity
of the victim’s testimony at trial.
{¶11} After our review of the entire record, however, we
believe that the record does, in fact, support the trial court’s
findings. Although appellant has no criminal history, his conduct
involved a victim of very tender years. Furthermore, his multiple
instances of sexual activity, committed over a span of 13 months,
and the great disparity in the ages of the offender and the victim
weigh against appellant’s argument. At the sentencing hearing, the
trial court also reviewed the PSI, victim impact statements, and
heard from the victim’s guardian who stated that the young victim
suffered great trauma, has been diagnosed with PTSD, anxiety and
depression, will not sleep alone in her room and awakes every night
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scared, crying and with nightmares. The court also read a
statement from the victim’s twin brother who had observed the
improper contact but did not reveal those facts because appellant
threatened him not to tell and would strike him with a belt. The
court also noted that this situation apparently began when the
victim was under age ten.
{¶12} In view of the foregoing, we cannot say in the case at
bar that the trial court erred in its imposition of consecutive
prison sentences. Accordingly, for the foregoing reasons, we
affirm the trial court’s judgment.
JU
DGMENT
AFFIRME
D.
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JUDGMENT ENTRY
It is ordered that the judgment be affirmed. Appellee shall
recover from appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court
directing the Adams County Common Pleas Court to carry this
judgment into execution.
If a stay of execution of sentence and release upon bail has
been previously granted by the trial court or this court, it is
temporarily continued for a period not to exceed 60 days upon the
bail previously posted. The purpose of a continued stay is to
allow appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in
that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period, or
the failure of the appellant to file a notice of appeal with the
Supreme Court of Ohio in the 45-day appeal period pursuant to Rule
II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of 60 days, the stay will terminate as of the
date of such dismissal.
A certified copy of this entry shall constitute that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:_____________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
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commences from the date of filing with the clerk.
