[Cite as State v. Bulger , 2020-Ohio-4602.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY

State of Ohio Court of Appeals No. S-20-009 Appellee Trial Court No. 18 CR 1232

v. Michael E. Bulger DECISION AND JUDGMENT Appellant Decided: September 25, 2020

* * * * * Brett A. Klimkowsky, for appellant.

* * * * * ZMUDA, P.J.

I. Introduction {¶ 1} Appellant, Michael Bulger, appeals the judgment of the Sandusky County Court of Common Pleas, finding him guilty of one count of attem pted rape and one count of rape following a plea of no contest to said charges, and sen tencing him to a total of 19 years in prison. Finding no error in the trial court’s imposit ion of sentence, we affirm.2. A. Facts and Procedural Background {¶ 2} On December 13, 2018, appellant was indicted on six counts of r ape in violation of R.C. 2907.02(A)(2), felonies of the first degree, six counts of sexual battery in violation of R.C. 2907.03(A)(5), felonies of the third degre e, three counts of gross sexual imposition in violation of R.C. 2907.05(A)(4), felonies of the third degree, and two counts of gross sexual imposition in violation of R.C. 2907 .05(A)(1), felonies of the fourth degree. These charges followed allegations that appella nt sexually abused his two stepdaughters. The older stepdaughter gave birth to a child wh o was proven to be appellant’s child following DNA testing. This victim, who was 14 years old at the time she was impregnated, stated that appellant first sexually abuse d her when she was ten years old, and that the abuse continued for at least eight year s, most recently on August 20, 2018. {¶ 3} Appellant appeared before the trial court for arraignment on De cember 14, 2018, and entered pleas of not guilty to the aforementioned cha rges. Following pretrial discovery and motion practice, appellant reached a plea agreeme nt with the state, and a change of plea hearing was held on June 3, 2019. Pursuant to t he plea agreement, appellant entered pleas of no contest to one count of attempted rape in violation of R.C. 2907.02(A(2), a felony of the second degree, and one count of r ape in violation of R.C. 2907.02(A)(2), a felony of the first degree. In exchange, the state agreed to dismiss the remaining charges contained in the indictment.3. {¶ 4} The trial court engaged appellant in a Crim.R. 11 colloquy, aft er which the state articulated the basis for the plea. The trial court then accepted appellant’s no contest pleas and found appellant guilty of the charges of attempted ra pe and rape. {¶ 5} The court proceeded immediately to sentencing, ultimately order ing appellant to serve 8 years in prison for attempted rape and 11 years in prison for rape after recognizing appellant’s crimes as “particularly heinous.” The court went on to make the requisite findings under R.C. 2929.14(C)(4), and order ed appellant to serve the individual sentences consecutively, for a total prison term of 19 years. Specifically, the court found, both at the sentencing hearing and also in its sen tencing entry, that consecutive sentences were not disproportionate to the seriousn ess of appellant’s conduct and to the danger appellant poses to the public, were necessary to protect the public from future crime, that the offenses were committed as part of one o r more courses of conduct, and that the harm caused by the offenses was so great or unusua l that no single prison term adequately reflects the seriousness of appellant’s conduct

. {¶ 6} Following sentencing, appellant entered his timely notice of ap peal. B. Assignments of Error {¶ 7} On appeal, appellant asserts the following assignment of error: 1. The Trial Court’s sentence of Michael E. Bulger (“Appellant ”) is excessive and contrary to Ohio law.4. II. Analysis {¶ 8} In his sole assignment of error, appellant argues that his 19-y ear prison

sentence is excessive under R.C. 2929.11 because it was not the minimum sentence that the trial court could have imposed that would effectively rehab ilitate him given his lack of education and learning disability. {¶ 9} Our review of felony sentences is governed under R.C. 2953.08(G )(2), which allows an appellate court to increase, reduce, modify, or vacate and remand a sentence only if the record demonstrates, clearly and convincin gly, either of the following: (a) That the record does not support the sentencing court’s fin dings 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 Revi sed Code, whichever, if any, is relevant; or (b) That the sentence is otherwise contrary to law. {¶ 10} Relevant to appellant’s R.C. 2929.11 argument in this case, we have previously stated that a sentence is not clearly and convincing ly contrary to law where the trial court has considered the purposes and principles of sente ncing under R.C. 2929.11 and the seriousness and recidivism factors under R.C. 2929.12, properly applied postrelease control, and imposed a sentence within the statutor y range. State v.

Tammerine , 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 15-16. Moreo ver, in State v. Gwynne , 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, the Supre me Court of5. Ohio made it clear that appellate review of the propriety of an aggregate sentence comprised of individual sentences ordered to be served consecut ively is limited to a determination of whether the trial court’s findings under R.C. 2929.14(C)(4) were supported by the record. See State v. Tressler , 6th Dist. Williams No. WM-19-005, 2020-Ohio-1164, ¶ 13 (citing Gwynne and reviewing the defendant’s 18-year consecutive sentence under R.C. 2929.14(C)(4), where the defendant argued t hat the consecutive sentence was inconsistent with the principles and purposes of s entencing under R.C.

2929.11 and the seriousness and recidivism factors under R.C. 2 929.12); State v. Taylor , 6th Dist. Wood No. WD-19-009, 2020-Ohio-404, ¶ 14 (“Where the a ppellant challenges the trial court’s imposition of consecutive sentences, we are b ound to review the issue under R.C. 2953.08(G)(2)(a), and must affirm the trial court un less we clearly and convincingly find ‘[t]hat the record does not support the sente ncing court’s findings under division * * * (C)(4) of section 2929.14.’”). {¶ 11} Under R.C. 2929.11(A), the purposes of felony sentencing are “t o protect the public from future crime by the offender and others, to pun ish the offender, and to promote the effective rehabilitation of the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources.” To achieve these purpose s, the sentencing court must consider “the need for incapacitating the offender, deterr ing the offender and others from future crime, rehabilitating the offender, and making rest itution to the victim of the offense, the public, or both.” R.C. 2929.11(A). The sentence imposed shall be6. reasonably calculated to achieve the overriding purposes, “comm ensurate 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 commit ted by similar offenders.” R.C. 2929.11(B). {¶ 12} There is no dispute that the trial court’s sentence falls withi n the statutory range for the applicable felony degrees at issue in this case. See R.C. 2929.14(A). Further, appellant does not argue that the trial court failed t o consider the principles and purposes of sentencing under R.C. 2929.11 or the seriousness an d recidivism facts under R.C. 2929.12. Rather, appellant contends that the sentence imp osed by the trial court was excessive because the court imposed a consecutive sentence of i ncarceration. {¶ 13} In his brief, appellant relies exclusively upon the principles and purposes of sentencing under R.C. 2929.11(A) when he asserts that the trial court could have imposed a less punitive sentence. Instead of incarceration, appellant suggests that the trial court could have required him to complete sexual predator treatment a nd earn a G.E.D. Such arguments are inconsistent with the discretion trial courts hav e when imposing sentences and, more importantly, provide no legitimate basis for appeal. {¶ 14} Having reviewed the record in its entirety, we find that appell ant’s sentence was not contrary to law. It is clear from the sentencing heari ng transcript that the trial court considered appellant’s conduct “particularly heinous” and “beyond the pale for a civilized society,” findings that support incarceration and mil itate against appellant’s suggested sentence. The facts contained in the record support the court’s characterization7. of appellant’s conduct, which established that appellant repeat edly sexually abused his minor stepdaughters over a period of several years. The fact t hat appellant is uneducated or suffers from a learning disability does not excuse or explai n the severity of the conduct

at issue in this case. {¶ 15} In this appeal, appellant argues that the trial court erred in its sentence merely because it did not impose the minimum sentence to effect uate rehabilitation. Appellant’s conclusory contention is not only divorced from the focus of our appellate review under R.C. 2953.08(G)(2), but also fails to address the facts of this case, which do not support a minimum, non-prison sentence. {¶ 16} Moreover, we find that the trial court did not err in ordering appellant to serve his individual sentences consecutively under R.C. 2929.14 (C)(4). As noted above, the trial court found that consecutive sentences were necessary to protect the public from future crime and to punish appellant, were not disproportionate to the seriousness of appellant’s conduct or the danger appellant poses to the public , and that the offenses were committed as part of one or more courses of conduct and the har m caused by appellant was so great or unusual that no single prison term for any of t he offenses committed as part of a course of conduct adequately reflects the seriousness of appellant’s conduct. The record in this case establishes that appellant sexually abu sed his stepdaughters on numerous occasions over the course of eight years, beginning wh en the older stepdaughter was only ten years old. The facts of this case cl early support the trial court’s finding of a course of conduct. State v. Smith , 2d Dist. Montgomery No. 28265,8. 2019-Ohio-5015, ¶ 72 (“defendant’s repeated sexual abuse of the same minor victim amounted to a ‘course of conduct’ justifying consecutive senten ces”). {¶ 17} In sum, we cannot say that the trial court’s imposition of pris on sentences, and its direction that appellant serve those sentences consecut ively, was contrary to law. Accordingly, appellant’s sole assignment of error is not well-t aken.

III. Conclusion {¶ 18} In light of the foregoing, the judgment of the Sandusky County Court of Common Pleas is affirmed. The costs of this appeal are assesse d to appellant under App.R. 24. Judgment affirmed.

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. _______________________

________ JUDGE Christine E. Mayle, J.

_______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.