State v. Pierce
| Decision Date | 10 November 2014 |
| Docket Number | CASE NO. 2012-G-3103 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. RICKY H. PIERCE, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 12 C 000012.
Judgment: Modified and affirmed as modified.
James R. Flaiz, Geauga County Prosecutor, and Nicholas A. Burling, Assistant Prosecuting Attorney, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For Plaintiff-Appellee).
Derek Cek, 2725 Abington Road, #102, Fairlawn, OH 44333 (For Defendant-Appellant).
{¶1} Appellant, Ricky H. Pierce, appeals from the judgment of conviction entered by the Geauga County Court of Common Pleas. For the reasons discussed in this opinion, we modify the judgment of the trial court and affirm the entry as modified.
{¶2} On February 6, 2012, appellant was indicted on one count of gross sexual imposition, in violation of R.C. 2907.05(A)(4), a felony of the third degree. The charge arose from an allegation that appellant touched his seven-year-old granddaughter'svaginal area while he was babysitting the child. When confronted by his son, appellant did not dispute or deny his conduct. On June 7, 2012, appellant pleaded guilty to the indictment. The trial court ordered a presentence investigation report ("PSI"), which revealed appellant had been previously convicted of sexual battery in Florida in 1982. The conviction was a result of a sexually oriented offense committed against his then seven-year-old daughter. Appellant served four years in prison for that crime.
{¶3} At the sentencing hearing, appellant took full responsibility for the underlying offense, and defense counsel stated appellant was prepared to accept whatever punishment the court deemed appropriate. After considering the statements of appellant, the statements of counsel for both sides, a victim impact statement, and the PSI, the trial court sentenced appellant to five years in prison and a $10,000 fine. The trial court also imposed costs.
{¶4} The trial court appointed counsel for appellant's appeal. Counsel ultimately filed a brief, pursuant to Anders v. California, 386 U.S. 738 (1967). The brief was served upon appellant. This court issued a judgment giving appellant 30 days to raise additional arguments in support of the underlying appeal. Appellant failed to meet this deadline. On April 29, 2013, however, appellant filed a "motion to file supplemental assignments of error" with a pro se brief attached. After receipt of appellant's motion, this court issued a judgment permitting prior counsel to withdraw. And, after an independent review of the proceedings below, two members of the judicial panel in this case concluded the record disclosed colorable issues to support appellant's direct appeal. This court set forth those issues, appointed new counsel, and advised new counsel to review the issues set forth in appellant's pro se brief.
{¶5} Appellant's first assignment of error provides:
{¶6} "The trial court's sentence was contrary to law and an abuse of discretion when the trial court demonstrated judicial bias and failed to properly weigh the seriousness and recidivism factors of R.C. 2929.12."
{¶7} State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶26.
{¶8} Appellant initially contends certain comments made by the trial court at the sentencing hearing indicate the sentence was a product of bias and thus an abuse of discretion. Appellant challenges three particular statements. First, he objects to the trial judge's reference to his status as a grandfather. Next, appellant objects to the court's characterization of him as "not normal." And, finally, he objects to the trial court referring to him as a pervert after his sentence was imposed.
{¶9} It is axiomatic that judicial bias in criminal proceedings is fundamentally unfair and violates a defendant's right to due process of law. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, ¶34, citing Rose v. Clark, 478 U.S. 570, 577 (1986). Judicial bias involves "a hostile feeling or spirit of ill will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mindwhich will be governed by the law and the facts." State ex rel. Pratt v. Weygandt, 164 Ohio St. 463 (1956), paragraph four of the syllabus.
{¶10} The Supreme Court of Ohio has observed:
{¶11} On the other hand, "[t]hey may do so [support a bias challenge] if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible." (Emphasis sic.) State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, ¶49, quoting Liteky v. United States, 510 U.S. 540, 555 (1994).
{¶12} Prior to imposing sentence, the trial court stated:
{¶13} There are a number of things that stand out in your situation. You have no reason to know this, although it should be common to everybody, I take great pleasure and pride in being a grandfather. But that's also an imposition of trust. It's one of the greatest events that anybody can have having a grandchild. But the trust is justwith normal people, and you are not normal, that you're going to do what you can to help and protect them. And I frankly cannot imagine the hurdle that your son had to overcome, especially with his wife, in saying I've got a Dad who's molested my sister but he's reformed. He's better. They're obviously people of faith and they extended even more trust to you. And you just ripped that asunder. You tore it apart.
{¶14} After imposing the five-year prison term and the fine, the court further commented:
{¶15} We do not perceive the trial judge's comments to be products of prejudicial bias.
{¶16} When the trial judge identified himself as a grandfather, he was not only drawing on his personal experience, but underscoring the special trust society reposes in the relationship between a grandparent and a grandchild. And, the trial court's characterization of appellant as "not normal" served to highlight that appellant's criminal conduct, to which he admitted full responsibility, placed him clearly outside the norm, i.e., not actions of an average, law-abiding citizen. Finally, by designating appellant a "pervert," the trial court was making a descriptive statement, albeit indelicately; namely, that appellant, by molesting his daughter 30 years ago and his granddaughter in 2012, he engaged in sexually deviant behavior that is socially and legally unacceptable.
{¶17} The crime appellant committed represented the second time he betrayed his family's trust by molesting a member with whom he had a relationship of trust. The trial judge, in making his statements, was emphasizing that, by violating the trust of his family and engaging in incestuous criminal conduct, appellant's actions were particularly heinous. The trial court's statements were founded on facts taken from the record, and not an extra-judicial source. And, although the statements reflect the trial court's opinions about the circumstances of the crime to which appellant pleaded guilty, they do not indicate the judge possessed a "deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky, supra. We therefore hold the trial court did not exhibit a bias in sentencing appellant that would necessitate a reversal of the sentence.
{¶18} Appellant next argues the trial court failed to give proper consideration to the seriousness and recidivism factors. We do not agree.
{¶19} The overriding purposes of felony sentencing in Ohio "are to protect the public from future crime by the offender * * * and to punish the offender." R.C. 2929.11(A). "A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, 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).
{¶20} It is well-recognized that a sentencing court "has discretion to determine the most effective way to comply with the purposes and principles of sentencing." R.C. 2929.12(A). And the Ohio Supreme Court has observed a sentencing court has "full discretion to impose a prison sentence within the statutory range." State v. Mathis, 109Ohio St.3d 54, 2006-Ohio-855, paragraph three of the syllabus; State v. Ries, 11th Dist. Portage No. 2008-P-0064, 2009-Ohio-1316, ¶13 ().
{¶21} Moreover, although a trial court must consider the seriousness...
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