State v. Jessen, 031819 OHCA3, 2-18-16

Docket Nº:2-18-16
Opinion Judge:ZIMMERMAN, P.J.
Attorney:Jose M. Lopez for Appellant Benjamin R. Elder for Appellee.
Judge Panel:SHAW and PRESTON, J.J, concur.
Case Date:March 18, 2019
Court:Court of Appeals of Ohio





No. 2-18-16

Court of Appeals of Ohio, Third District, Auglaize

March 18, 2019

Appeal from Auglaize County Common Pleas Court Trial Court No. 2017-CR-172

Jose M. Lopez for Appellant

Benjamin R. Elder for Appellee.



{¶1} Defendant-appellant, David L. Jessen ("Jessen"), appeals the October 3, 2018 journal entry - orders on sentence of the Auglaize County Court of Common Pleas finding him guilty of two counts of gross sexual imposition. On appeal, Jessen asserts that: 1) the trial court erred in ordering Jessen to serve consecutive sentences, and 2) that the trial court's imposition of consecutive sentences is excessive and disproportional. For the reasons that follow, we affirm the judgment of the trial court.

{¶2} On December 14, 2017, the Auglaize County Grand Jury indicted Jessen on four counts of gross sexual imposition, each in violation of R.C. 2907.05(A)(4) and being felonies of the third-degree, arising out of his sexual contact with a minor child that occurred at or between the 1st day of August, 2017 and the 2nd day of September, 2017. (Doc. No. 1).

{¶3} On December 18, 2017, Jessen appeared for arraignment and entered pleas of not guilty. (Doc. No. 10).

{¶4} On July 23, 2018, Jessen withdrew his pleas of not guilty and pled guilty, under a negotiated plea agreement with the State, to Counts One and Two, as indicted. (Doc. No. 52, 53). In exchange for his guilty pleas, the State agreed to dismiss Counts Three and Four of the indictment. The State further agreed to join the defendant pursuant to R.C. 2953.08(D) in recommending that Jessen be placed on community control by the trial court subject to the following conditions: 1) "same terms and conditions as in 15CR25"1, 2) that Jessen be notified that upon a violation of the conditions of community control that he may be sentenced to serve "sixty (60) months" on Count One and on Count Two for a total possible maximum term of incarceration of one hundred and twenty (120) months, 3) that a victim impact statement ("VIS") be prepared by the Auglaize County Victim Advocate; and 4) that Jessen be registered as a Tier II sex offender. (Doc. No. 52). The trial court accepted Jessen's guilty pleas, found him guilty, dismissed Counts Three and Four, and ordered the preparation of a presentence investigation report ("PSI"). (Doc. No. 53).

{¶5} Relevant to this appeal, during Jessen's change of plea hearing, the State gave a recitation of the facts relative to Counts One and Two which included two separate incidents of over-the-clothing sexual contact where Jessen admitted to touching the minor child's buttocks with his fingers. (July 23, 2018 Tr. at 14-15, PSI). Both incidents occurred while the minor child was seated on Jessen's lap pretending to drive his vehicle. (Id.). During the plea hearing, Jessen admitted to touching the minor child's buttocks for his own sexual gratification. (July 23, 2018 Tr. at 13-14). Also during the plea hearing, the trial court noted Jessen's previous conviction for child endangerment which was a result of a negotiated plea2involving facts similar to the present case. (Id.). Jessen admitted to the trial court that the prior incident involved multiple minor children victims wherein Jessen had skin-to-skin sexual contact with the minor children's buttocks. (Id.)

{¶6} Ultimately, on October 3, 2018, the trial court sentenced Jessen to 30 months in prison on Count One and 24 months in prison on Count Two of the indictment. (Doc. No. 63). The trial court further ordered Jessen to serve the sentences consecutively for an aggregate term of 54 months in prison. (Id.). Further, the trial court found Jessen to be a Tier II sex offender and ordered him to register for a period of 25 years with in-person verification every 180 days. (Id.). The trial court also ordered the imposition of a ten thousand dollar ($10, 000.00) fine as to Count One and a ten thousand dollars ($10, 000.00) fine on Count Two, for a total fine of twenty thousand dollars ($20, 000.00), plus court costs. (Id.).

{¶7} On October 22, 2018, Jessen timely filed a notice of appeal. (Doc. No. 90). He raises two assignments of error for our review.

Assignment of Error No. I

The trial court erred in ordering Appellant to serve consecutive sentences.


of Error No. II

The trial court's imposition of consecutive sentences is excessive and disproportional and constitutes an abuse of discretion.

{¶8} For ease of discussion and because appellant's assignments of error are interrelated, we will discuss them together.

Consecutive Sentences

{¶9} In his assignments of error, Jessen argues that the trial court erred by imposing consecutive sentences. Specifically, he argues that "the sentencing court failed to consider the "proportionality" of imposing consecutive sentences in relation to the seriousness of...

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