[Cite as State v. Baker, 2013-Ohio-2891.]

COURT OF APPEALS 

COSHOCTON COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsJAMES E. BAKER, JR. 

 Defendant-Appellant 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. John W. Wise, J. 

: Hon. Craig R. Baldwin, J. 

: 

: 

: Case No. 2013CA0001 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Criminal appeal from the Coshocton County 

Court of Common Pleas, Case No. 12-CR0031 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: July 1, 2013 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JASON GIVEN JEFFREY MULLEN 

Coshocton County Prosecuting Attorney Coshocton County Public Defender 

318 Chestnut Street 239 N. Fourth Street 

Coshocton, OH 43812 Coshocton, OH 43812
[Cite as State v. Baker, 2013-Ohio-2891.]

Gwin, P.J. 

{¶1} On May 21, 2012, James E. Baker, Jr. [“Baker”] was indicted on nineteen 

(19) counts. Baker was charged with one count of Rape, R.C. 2907.02(A)(1)(b); eight 

counts of Rape, R.C. 2907.02(A)(2); and ten (10) additional counts of Gross Sexual 

Imposition. 

{¶2} On August 31, 2012 Baker entered pleas of guilty to counts one (1) 

through ten (10) of the Indictment, consisting of 9 counts of rape, felonies of the first 

degree one count in violation of R.C. 2907.02(A)(1)(b) and eight counts in violation of 

R.C. 2907.02(A)(2); and one count of gross sexual imposition a felony of the third 

degree in violation of R.C. 2907.05(A)(4). In exchange, the state requested and the 

court granted a nolle prosequi of counts eleven (11) through nineteen (19) of the 

Indictment. The state also agreed to take no position as it related to Baker’s sentence. 

{¶3} Following Baker's pleas of guilty, the court ordered a pre-sentence 

investigation (PSI). Additionally, upon Baker’s motion, the court ordered that a 

psychological examination of Baker be performed to aid the court in sentencing and as 

part of the PSI process. Per said order Dr. Gary Wolfgang, Ph.D., conducted the 

examination and filed a report with the court. This report was incorporated into the PSI 

and was made part of the record at the time of sentencing. 

{¶4} On December 12, 2012, the court conducted a sentencing hearing. The 

court imposed a sentence of 10 years to life imprisonment for Count 1, Rape; sentences 

of 5 years for each of counts 2 through 9, each a count of Rape felonies of the first 

degree; and a sentence of 36 months for Count 10, Gross Sexual Imposition. The 

sentencing court ordered that the sentences for counts 2, 3, and 4 were to be 
Coshocton County, Case No. 2013CA0001 3 

consecutive to each other and consecutive to Count 1; and that the remaining counts be 

concurrent to each other, and concurrent to counts 1 through 4. Thus, Baker’s 

aggregate sentence is life imprisonment with the possibility of parole in twenty-five (25) 

years. 

Assignment of Error 

{¶5} Baker assigns one assignment of error, 

{¶6} “I. THE IMPOSITION OF CONSECUTIVE SENTENCES WAS AN ABUSE 

OF DISCRETION.” 

{¶7} In his sole assignment of error, Baker challenges his consecutive 

sentences. 

{¶8} In 2003, the Ohio Supreme Court held in State v. Comer, 99 Ohio St.3d 

463, 2003-Ohio-4165, a court may not impose consecutive sentences unless it “finds” 

three statutory factors enumerated in then 2929.14(E)(4). The statutory factors were the 

same as those now enumerated in the revised version of R.C. 2929.14(C)(4) following 

enactment of 2011 Am.Sub.H.B. No. 86. The revised version of the statute again 

requires the trial court to “find” the factors enumerated. 

{¶9} The Court in Comer, supra, read R.C. 2929.14(E)(4), as it existed then, in 

conjunction with then R.C. 2929.19(B) to reach its conclusion the trial court must also 

state its reasons for the sentence imposed. Then R.C. 2929.19(B) stated the trial court 

“shall impose a sentence and shall make a finding that gives its reasons for selecting 

the sentence imposed in any of the following circumstances...(c) if it imposes 

consecutive sentences under R.C. 2929.14.” 
Coshocton County, Case No. 2013CA0001 4 

{¶10} 2011 Am.Sub.H.B. No. 86, which became effective on September 30, 

2011, revived the language provided in former R.C. 2929.14(E) and moved it to R.C. 

2929.14(C)(4). The revisions to the felony sentencing statutes under 2011 Am.Sub.H.B. 

No. 86 now require a trial court to make specific findings when imposing consecutive 

sentences. R.C. 2929.14(C)(4) provides, in relevant part: 

 (4) 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. 
Coshocton County, Case No. 2013CA0001 5 

 (c) The offender's history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from future 

crime by the offender. (Emphasis added). 

{¶11} In Section 11, the legislature explained that in amending former R.C. 

2929.14(E)(4), it intended “to simultaneously repeal and revive the amended language 

in those divisions that was invalidated and severed by the Ohio Supreme Court's 

decision in State v. Foster (2006), 109 Ohio St.3d 1.” The General Assembly further 

explained that the amended language in those divisions “is subject to reenactment 

under the United States Supreme Court's decision in Oregon v. Ice (2009), 555 U.S. 

160, and the Ohio Supreme Court's decision in State v. Hodge (2010), ––– Ohio St.3d –

–––, Slip Opinion No. 2010–Ohio–6320.” Thus, it is the legislature's intent that courts 

interpret the language in R.C. 2929.14(C)(4) in the same manner as the courts did prior 

to State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d 470. 

{¶12} When it is clear from the record that the trial court engaged in the 

appropriate analysis, little can be gained by sending the case back for the trial court to, 

in essence, recite the “magic” or “talismanic” words when imposing consecutive 

sentences. In other words, because the record supports the trial court’s imposition of 

consecutive sentences, the trial court cannot err in imposing consecutive sentences 

after remand. Our review on appeal of any subsequent resentencing will be directed at 

looking at the entire trial court record to determine if that record supports the trial court’s 

findings that the R.C. 2929.14(C) factors were met. See, State v. Alexander, 1st Dist. 

Nos. C–110828, C–110829, 2012–Ohio–3349, ¶18; State v. Frasca, 11th Dist. 2011–T–

0108, 2012–Ohio–3746, ¶57. 
Coshocton County, Case No. 2013CA0001 6 

{¶13} The transcript and sentencing entries reveal that the trial court reviewed 

Baker’s presentence investigation report and Dr. Wolfgang’s a report. 

{¶14} During the sentencing hearing, the trial judge made the following findings, 

 Mr. Baker, now we need to get down to the numbers. I believe that 

your lawyer has done everything he can for you under the circumstances, 

but your lawyer's ability to defend your position is somewhat limited 

because of the nature of the crimes and the harm caused by you. I 

understand that you have some limited mental abilities, but it's also clear 

to me that you knew what you were doing was wrong and you continued 

to do that. Because of your actions, and the age of the victim, who was 

under age 13 with regard to Count 1, the General Assembly of this state 

has decided to allow for a specific penalty, and that penalty is the only one 

available to you for Count 1 of the indictment. 

 In consideration of the criteria established in section 2907.02 and 

the penalty section for Count 1, and Count 1, again, is rape, in violation of 

Revised Code Section 2907.02(A) (1)(b), a felony of the first degree, when 

the victim was less than 13 years of age, meaning the penalty section is 

2971.03(B) (1)(a), James E. Baker, you are hereby sentenced to serve for 

that offense, again, that's rape, in violation of Revised Code Section 

2907.02(A)(1)(b), a felony of the first degree as set forth in Count 1 of the 

indictment, you are hereby sentenced to serve a minimum term of 10 

years and a maximum term of life imprisonment. That is exactly the way 
Coshocton County, Case No. 2013CA0001 7 

the statute is set out. A minimum term of 10 years and a maximum term of 

life imprisonment. That's the penalty for Count 1. 

* * * 

 And your lawyer has argued for concurrent sentences, based on 

your cooperation and your lack of a criminal history. I have to balance that 

cooperation and I do take that into consideration, Mr. Baker, that you did 

not require some young girl to come up here and sit on this witness stand 

and talk about what it's like to be raped by you, to have to relive those 

horrors and explain that to numerous strangers sitting about the 

courtroom, specifically those in the jury box. So I do grant you some credit 

for that. But, I have to find that the harm caused by you is so great that a 

single term of imprisonment cannot adequately punish you for these 

offenses. In consideration of the criteria established in sections 2929.12, 

13, 14, and all other matters pertinent, including the content and 

recommendation of the pre-sentence investigation and report, it is the 

judgment and sentence of this court as follows: For the offense of rape, in 

violation of Revised Code Section 2907.02(A)(2), a felony of the fifth 

degree, the defendant, James E. Baker Jr., is hereby sentenced to serve 

five years’ incarceration in a state penal institution. 

 For the offense of rape, in violation of Revised Code Section 

2907.02(A)(2), a felony of the first degree, as set forth in Count 3 of the 

indictment, the defendant, James E. Baker Jr., is hereby sentenced to 

serve five years' incarceration in a state penal institution. 
Coshocton County, Case No. 2013CA0001 8 

 For the offense of rape, in violation of Revised Code Section 

2907.02(A) (2), a felony of the first degree, as set forth in Count 4 of the 

indictment, the defendant, James E. Baker Jr., is hereby sentenced to 

serve five years’ incarceration in a state penal institution. The sentences 

for counts 2, 3, and 4 will be served consecutively with each other. And 

consecutively with the sentence imposed in Count 1. 

 In sentencing the defendant to consecutive prison terms, the court 

finds that the consecutive service is necessary to protect the public from 

future crime and 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 at least two of the 

offenses were committed as part -- I should say, those offenses noted in 

counts 1 through 4 were committed as part of a course of conduct and the 

harm caused by the multiple offenses 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. 

 Now, that's a lot of legal terminology for you, Mr. Baker. What I 

have just said in terms that you might understand is that when you raped a 

little girl, you stole from her, you took from her her innocence. You took 

from her something that she can never regain, and you placed upon her a 

burden that she will carry around for the rest of her life. The harm caused 

by you is absolutely immeasurable, I can't even begin to explain it. And 
Coshocton County, Case No. 2013CA0001 9 

therefore, you will serve those sentences that I just pointed out 

consecutively so that, in effect, it's a life sentence and you will be in prison 

for the rest of your life. 

* * * 

Sent. T. at 7-11. 

{¶15} Upon review of the sentencing entries and the pertinent transcripts, we 

find the trial court properly considered the purposes and principles of felony sentencing, 

the factors of seriousness and recidivism and the R.C. 2929.14(C) factors when it resentenced Baker. We further hold the trial court's consecutive sentences in this matter 

are not unreasonable, arbitrary or unconscionable, and they are not contrary to law. 

{¶16} Baker’s sole assignment of error is overruled and the judgment of the 

Coshocton County Court of Common Pleas is affirmed. 

By Gwin, P.J., 

Wise, J., and 

Baldwin, J., concur 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. JOHN W. WISE 

 _________________________________ 

 HON. CRAIG R. BALDWIN 

WSG:clw 0618 
[Cite as State v. Baker, 2013-Ohio-2891.]

IN THE COURT OF APPEALS FOR COSHOCTON COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

JAMES E. BAKER, JR. : 

 : 

 : 

 Defendant-Appellant : CASE NO. 2013CA0001 

For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Coshocton County Court of Common Pleas is affirmed. Costs to 

appellant. 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. JOHN W. WISE 

 _________________________________ 

 HON. CRAIG R. BALDWIN