State v. Nichols

• Citation: 2011 -Ohio- 4671,959 N.E.2d 1082,195 Ohio App.3d 323
• Decision Date: 16 September 2011
• Docket Number: No. 2010 CA 60.,2010 CA 60.
• Parties: The STATE of Ohio, Appellee, v. NICHOLS, Appellant.
• Court: United States Court of Appeals (Ohio)

195 Ohio App.3d 323

2011 -Ohio- 4671

959 N.E.2d 1082

The STATE of Ohio, Appellee,

v.NICHOLS, Appellant.

No. 2010 CA 60.

Court of Appeals of Ohio, Second District, Clark County.

Decided Sept. 16, 2011.

Andrew R. Picek, Assistant Clark County Prosecuting Attorney, for appellee.

J. Allen Wilmes, for appellant.

FROELICH, Judge.

[Ohio App.3d 325] {¶ 1} Martin Nichols was found guilty on his guilty pleas to four counts of gross sexual imposition. He was sentenced to a five-year term of imprisonment on each count, to be served consecutively, for an aggregate term of 20 years, with five years of mandatory postrelease control. He was classified as a Tier II sexual offender. Trial counsel filed a timely notice of appeal and requested that Nichols be appointed new counsel for the appeal; this motion was overruled by the trial judge. Counsel was then appointed by this court. Nichols appeals from his conviction, challenging only his sentence.

[Ohio App.3d 326] {¶ 2} Nichols worked as a janitor at the Enon Elementary School for approximately four years, and one of his responsibilities was to clean the cafeteria after lunch. Pursuant to his plea, Nichols admitted to sexual contact with four girls, who were first- and second-grade students at the school; specifically, according to the facts stated by the prosecutor at the plea hearing, he touched the girls “on their butts and pubic area of their skirts and under their skirts and over their clothing” ¹ while they worked with him to clean the cafeteria.

{¶ 3} Nichols was indicted on four counts of gross sexual imposition, which occurred over a period of five months, and pleaded guilty to each offense. In exchange, the state agreed that a presentence investigation (“PSI”) would be prepared and considered before sentencing.

{¶ 4} The PSI that was submitted to the court included a probation department report, which indicated that Nichols was 40 years old, was married with two young children, and had no prior adult or juvenile criminal record. It also included numerous letters from Nichols's family members, church associates, friends, and his attorney asking that his good character, contributions to the community, and genuine remorse be considered in imposing sentence. The PSI did not include any recommendation from the court's probation officer.

{¶ 5} The court was also presented with a “Victim Impact Statement” regarding one of the victims, R.T.,² and a letter purportedly from another victim, B.P. The two other victims chose not to complete victim-impact statements, but one of the mothers spoke at sentencing.

{¶ 6} According to the victim-impact statement, R.T.'s mother reported changes in her daughter's behavior, including “crying a lot, nervousness, not sleeping, biting her fingernails and being withdrawn.” It also indicated that R.T. had become more “introverted.” Under headings entitled “Physical Injuries Suffered by Victim” and “Seriousness and Permance [sic] of Injuries,” the statement indicated “N/A.”

{¶ 7} The letter from B.P.³ stated, “I feel really upset that you did this to all these girls, including me. I'm very mad and upset that you did this to younger [Ohio App.3d 327] girls. You made my mom be very worried about me. I've been doing bad at school because of you. I hope this time in prison really makes you think of what you did and understand everything you've done to hurt people. I'm not going to let this overpower my life.”

{¶ 8} A third victim's mother spoke at the sentencing hearing. She stated that her daughter, A.B., had “nightmares, bedwetting, anger issues and anxiety” and was in therapy “to help her get through this.” She also stated that her daughter was insecure, had low self-esteem, and was fighting with her siblings in ways that the mother attributed to the abuse.

{¶ 9} The prosecutor's comments at sentencing included an acknowledgement that Nichols's statement of remorse was “one of the most sincere statements [he had] heard” in his many years of prosecuting sexual crimes against children, noting that Nichols did not ask for the minimum sentence or for leniency and commenting on Nichols's “true genuine remorse.” However, the prosecutor cited the young age of the victims, the existence of multiple victims, and Nichols's “brazen” act of abusing the children in a public place as factors contributing to the seriousness of the offense. The prosecutor encouraged the court to impose a “substantial sentence” and consecutive sentences because of the high risk of recidivism with “pedophilia” and because a concurrent sentence “really only punishes him for one crime, one act.”

{¶ 10} As discussed above, the trial court sentenced Nichols to the maximum term of imprisonment on each count and ordered that his sentences be served consecutively.

{¶ 11} Nichols raises two assignments of error on appeal.

{¶ 12} “The trial court's sentence is contrary to law in that it totally failed to apply the factors for recidivism mandated by O.R.C. 2929.12(D).

{¶ 13} “The trial court abused its discretion by imposing maximum consecutive sentences herein.”

{¶ 14} Nichols argues that the trial court failed to properly apply the law and abused its discretion in imposing maximum, consecutive sentences under the circumstances presented in this case.

{¶ 15} “The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender. To achieve those purposes, the sentencing 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.” R.C. 2929.11(A). A court that imposes a sentence for a felony has discretion to determine the most effective way to comply with the purposes and principles of sentencing set forth in R.C. 2929.11. R.C. 2929.12(A). “Although [Ohio App.3d 328] [ State v.] Foster [109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470] eliminated judicial fact-finding, courts have not been relieved of the obligation to consider the overriding purposes of felony sentencing, the seriousness and recidivism factors, or the other relevant considerations set forth in R.C. 2929.11, 2929.12, and 2929.13.” State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶ 25.

{¶ 16} We review a felony sentence using a two-step procedure. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 4. “The first step is to ‘examine the sentencing court's compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law.’ ” State v. Stevens, 179 Ohio App.3d 97, 2008-Ohio-5775, 900 N.E.2d 1037, ¶ 4, quoting Kalish at ¶ 4. If this step is satisfied, the second step requires that the trial court's decision be reviewed under an abuse-of-discretion standard. Id. Generally, abuse of discretion occurs when a decision is grossly unsound, unreasonable, illegal, or unsupported by the evidence. State v. Money, Clark App. No. 2009CA119, 2010-Ohio-6225, 2010 WL 5276904, ¶ 13. A brief, but thorough, attempt to define the term is set out by Judge Fain in State v. Beechler, Clark App. No. 09CA54, 2010-Ohio-1900, 2010 WL 1731784, ¶ 60–70. In felony sentencing, the sentencing court abuses its discretion if it unreasonably or arbitrarily weighs the factors in R.C. 2929.11 and 2929.12. State v. Jordan, Columbiana App. No. 09 CO 31, 2010-Ohio-3456, 2010 WL 2891699, ¶ 12.

{¶ 17} R.C. 2929.12(B) and (C) enumerate factors to be considered in weighing the seriousness of an offender's conduct, and R.C. 2929.12(D) and (E) enumerate factors to be considered in weighing the likelihood of the offender's recidivism. The court also may consider any other factors that are relevant to achieving the purposes and principles of sentencing. State v. Saunders, Greene App. No. 2009 CA 82, 2011-Ohio-391, 2011 WL 334299, ¶ 11.

{¶ 18} The trial court stated that it considered the statutory factors in imposing its sentence, and it imposed a sentence within the statutory range. Accordingly, Nichols's sentence was not “clearly and convincingly contrary to law.”

{¶ 19} Having concluded that Nichols's sentence was not contrary to law, we must consider whether the trial court abused its discretion in imposing the sentence that it did. R.C. 2929.12(A) mandates that in exercising its discretion, “the court shall consider the factors set forth in divisions (B) and (C) of this section relating to the seriousness of the conduct and the factors provided in divisions (D) and (E) of this section relating to the likelihood of the offender's recidivism and, in addition, may consider any other factors that are relevant to achieving those purposes and principles of sentencing.” The court did not elaborate on which factors it considered, nor was it required to do so. [Ohio App.3d 329] Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the syllabus. The court had discretion to consider additional relevant factors as well. To the extent it may consider other, nonstatutory factors (e.g., facts adduced at trial, prior arrests, crimes of which the defendant was acquitted, otherwise inadmissible evidence that was suppressed), the court did not indicate that it did so, and the record does not contain any such factors. In addressing Nichols's argument that the court abused its discretion in imposing the sentence, we must consider the seriousness and recidivism factors more closely.

Seriousness

{¶ 20} Factors “indicating that the offender's conduct is more serious than conduct normally constituting the offense” (R.C. 2929.12(B)) include (1) the physical or mental injury to the victim was exacerbated because of the physical or mental condition of the victim, (2) the victim suffered serious physical, psychological, or economic harm as a result of the offense, (3) the offender held a public office or position of...