[Cite as State v. Webster , 2022-Ohio-590.]

Atty. J. Kevin Flanagan , Belmont County Prosecutor, and Atty. Daniel P. Fry , Assistant Prosecuting Attorney, 147-A Wes t Main Street, St. Clairsville, Ohio 43950, for PlaintiffAppellee and Atty. Brian A. Smith, Brian A. Smith Law Firm, LLC, 123 South Miller Road, Suite 250, Fairlawn, Ohio 44333, for Defendant-Appellant. 

## IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT BELMONT COUNTY

STATE OF OHIO, Plaintiff-Appellee,

v. JOSHUA STEVEN WEBSTER, Defendant-Appellant.

OPINION AND JUDGMENT ENTRY Case No. 21 BE 0011

Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 20 CR 236
BEFORE: David A. D’Apolito, Gene Donofrio, Cher y l L. Waite, Jud g es.

JUDGMENT: Affirmed.– 2 –

Case No. 21 BE 0011 Dated: Februar y 22, 2022

D’Apolito, J. {¶1} Appellant, Joshua Webster, appeals from the February 17, 2021 j udgment of the Belmont County Court of Common Pleas sentencing him to an indefinite prison term of 11 years (mandatory minimum) to 16 and one-half years ( maximum) for the rape of a minor child under the age of 13 and designating him a Tier III Sex Offender following a guilty plea. On appeal, Appellant takes issue with his sente nce. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY {¶2} On November 5, 2020, Appellant was indicted by the Belmont Coun ty Grand Jury on one count of rape, a felony of the first degree, in violation of R.C. 2907.02(A)(1)(b) and (B), with a specification alleging that he had compelled the victim to submit to sexual conduct by force or threat of force. 1 Appellant was appointed counsel and pled not guilty at his arraignment. {¶3} Appellant subsequently entered into plea negotiations with Appe llee, the State of Ohio. A change of plea hearing was held on February 4, 2021. Appellant withdrew his former not guilty plea and entered a guilty plea t o an amended count of rape, a felony of the first degree, in violation of R.C. 2907.02(A)(2 ). 2 Appellant understood that he could be sentenced up to a maximum of 16 and one-half years in prison. The trial court accepted Appellant’s guilty plea after finding it was mad e in a knowing, intelligent, and voluntary manner pursuant to Crim.R. 11. The court ordered a PSI and deferred sentencing. Appellant filed a sentencing memorandum and attach ed correspondence from family and friends. {¶4} A sentencing hearing was held on February 16, 2021. After considering the record, the oral statements, Appellant’s sentencing memorandum with attached

1 The charge stems from Appellant’s involvement in which he enga ged in sexual conduct with his exgirlfriend’s minor daughter, J.M., d.o.b. 11/28/2007 (“the vict im”). At the age of 33, Appellant admitted to engaging in oral and vaginal sexual intercourse with the 12-yea r-old victim on at least two or three separate occasions. Apparently, the victim’s mother allegedly allowed t his to happen and even participated at times.

2 The amended count did not include the specification contained in the indictment.– 3 –

Case No. 21 BE 0011 testimonials, the testimony from the victim’s mother, the PSI with attached Risk Assessment (“High” Risk Level), the purposes and principles of sentencing under R.C. 2929.11, the seriousness and recidivism factors under R.C. 2929.12, and the guidelines contained in R.C. 2929.13 and 2929.14, the trial court sentenced Appellant to an indefinite term of 11 years (mandatory minimum) to 16 and one-half years ( maximum) in prison, with 27 days of credit for time served. The court labeled Appe llant a Tier III Sex Offender and subjected him to five years of mandatory post-release contr ol. {¶5} Appellant filed a timely appeal and raises two assignments of e rror.

ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT’S SENTENCE OF APPELLANT, WHICH DID NOT PROPERLY CONSIDER THE PRINCIPLES AND PURPOSES OF FELONY SENTENCING UNDER R.C. 2929.11 OR THE SERIOUSNESS AND RECIDIVISM FACTORS UNDER R.C. 2929.12, WAS CONTRARY TO LAW.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT’S SENTENCE OF APPELLANT WAS NOT SUPPORTED BY THE RECORD. {¶6} Because Appellant’s first and second assignments of error conce rn his sentence, we will consider them together for ease of discussion

. {¶7} This court utilizes R.C. 2953.08(G) as the standard of review i n all felony sentencing appeals. State v. Michaels , 7th Dist. Mahoning No. 17 MA 0122, 2019-Ohio497, ¶ 2, citing State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. {¶8} R.C. 2953.08(G) states in pertinent part: (2) The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.– 4 –

Case No. 21 BE 0011 The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appel late court’s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the fol lowing: (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 Revised Code , whichever, if any, is relevant; (b) That the sentence is otherwise contrary to law. R.C. 2953.08(G)(2)(a)-(b). {¶9} Although trial courts have full discretion to impose any term o f imprisonment within the statutory range, they must consider the sentencing p urposes in R.C. 2929.11 and the guidelines contained in R.C. 2929.12. {¶10} R.C. 2929.11(A) provides that the overriding purposes of felony sentencing are (1) “to protect the public from future crime by the offende r and others”; and (2) “to punish the offender * * * using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burde n on state or local government resources.” Further, the sentence imposed shall be “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 commit ted by similar offenders.” R.C. 2929.11(B). {¶11} R.C. 2929.12 provides a nonexhaustive list of sentencing factor s the trial court must consider when determining the seriousness of the off ense and the likelihood that the offender will commit future offenses. The court that imposes a felony sentence “has discretion to determine the most effective way to comply w ith the purposes and principles of sentencing.” R.C. 2929.12(A). The factors a tri al court may consider include the “more serious” factors, such as “[t]he physical or mental i njury suffered by the victim– 5 –

Case No. 21 BE 0011 of the offense due to the conduct of the offender was exacerbat ed because of the physical or mental condition or age of the victim” and “[t]he victim of the offense suffered serious physical, psychological, or economic harm as a result of the of fense.” R.C. 2929.12(B)(1) and (2). The court may also consider the “less serious” factor s, any recidivism factors, and any mitigating factors lis ted in R.C. 2929.12(C)-(F). R.C. 2929.11 does not require the trial court to make any speci fic findings as to the purposes and principles of sentencing. State v. Wilson , 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31. Similarly, R. C. 2929.12 does not require the trial court to “use specific language or m ake specific findings on the record in order to evince the requisite conside ration of the applicable seriousness and recidivism factors.” State v. Arnett , 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000).

State v. Shaw , 7th Dist. Belmont No. 15 BE 0065, 2017-Ohio-1259, ¶ 36. {¶12} “‘The trial court has full discretion to impose any sentence w ithin the authorized statutory range, and the court is not required to ma ke any findings or give its reasons for imposing maximum or more than minimum sentences.’ State v. King, 2013- Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.).” State v. Burkhart , 7th Dist. Belmont No. 18 BE 0020, 2019-Ohio-2711, ¶ 16. {¶13} In State v. Jones , 163 Ohio St.3d 242, 2020-Ohio-6729, the Supreme Court of Ohio indicated that the language in Marcum is dicta. Id. at ¶ 27 (“The statements in Marcum at ¶ 23 suggesting that it would be ‘fully consistent’ with R. C. 2953.08(G) for an appellate court to modify or vacate a sentence when the reco rd does not support the sentence under R.C. 2929.11 or 2929.12 were made only in passin g and were not essential to this court’s legal holding.”) In Jones, the Court held that “R.C. 2953.08(G)(2)(b) * * * does not provide a basis for an appellat e court to modify or vacate a sentence based on its view that the sentence is not supported by the record under R.C. 2929.11 and 2929.12.” Id. at ¶ 39. The Court explained that “an appellate court’s determination that the record does not support a sentence does not equate to a determination that the sentence is ‘otherwise contrary to law’ as that term is used in R.C. 2953.08(G)(2)(b).” Id. at ¶ 32. Thus, under Jones , an appellate court errs if it relies on– 6 –

Case No. 21 BE 0011 the dicta in Marcum and modifies or vacates a sentence “based on the lack of suppo rt in the record for the trial court’ s findings under R.C. 2929.11 an d 2929.12.” Id. at ¶ 29; see also State v. Dorsey , 2nd Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 17. {¶14} Pursuant to Jones , when reviewing felony sentences that are imposed solely after considering the factors in R.C. 2929.11 and R.C. 2 929.12, appellate courts shall no longer analyze whether those sentences are unsupported by the record. Rather, we simply must determine whether those sentences are contrary t o law. See Dorsey, supra, at ¶ 18. A sentence is considered to be contrary to law if it falls outs ide of the statutory range for the particular degree of offense; if the tr ial court failed to properly consider the purposes and principles of felony sentenc ing as enumerated in R.C. 2929.11 and the seriousness and recidivism f actors set forth in R.C. 2929.12; or if the trial court orders consecutive sentences and does not make the necessary consecutive sentence finding.

Burkhart , supra, at ¶ 12. {¶15} In this case, Appellant alleges his indefinite prison sentence of 11 years (mandatory minimum) to 16 and one-half years (maximum) is not s upported by the record and is contrary to law. Appellant stresses the trial court did not properly consider th e purposes and principles of felony sentencing under R.C. 2929.11 because it focused solely on punishment and gave no consideration to rehabilitatio n. Appellant also stresses the court did not consider several of the seriousness and recid ivism factors under R.C. 2929.12, including: (E)(4) its failure to consider that the off ense was committed under circumstances not likely to recur (because Appellant is no long er the boyfriend of the victim’s mother, and the victim was currently living in a foste r home and Appellant would have no contact with her); and (E)(5) its refusal to consider A ppellant’s remorse (because Appellant said he accepts responsibility for his actions). {¶16} Contrary to Appellant’s assertions, his prison sentence is supp orted by the record and is not contrary to law. The trial court gave due de liberation to the relevant statutory considerations and its findings were supported by the record. Appellant entered a guilty plea which the court accepted after finding it was mad e pursuant to Crim.R. 11.– 7 –

Case No. 21 BE 0011 At the sentencing hearing, the judge heard from the prosecutor on behalf of the State, from defense counsel on behalf of Appellant, and from the victim’s mother (Appellant’s ex-girlfriend). The victim’s mother spoke on behalf of Appella nt. Although Appellant admitted that he raped her daughter, the victim’s mother reques ted that Appellant receive “the lower end of the sentence” and indicated he has been “a gr eat friend” to her. (2/16/2021 Sentencing Hearing T.p., p. 6, 10). The judge asked Appellant if he wished to say anything. Appellant replied, “No, Your Honor.” ( Id. at p. 12). The judge concluded by stating the following: THE COURT: All right. And the Court just wants to make it clear that there were testimonial letters on behalf of Mr. Webster attached to t he sentencing memorandum filed on his behalf from some church pastors and som e individual people as well.

The Court has reviewed all of those. All right. The factors in this record that indicate that the co nduct is more serious and that recidivism is more likely include the followin g: As a juvenile, he has adjudication for rape as a first degree f elony, he was then 12 years old. He received a suspended DYS commitment.
He has admitted to engaging, at the least, in oral and vaginal sex with the 12-year old daughter of his former girlfriend * * * and I use “ former” based on simply what’s in the reports that I received, and that that has occurred two or three occasions at least. His relationship with the victim facilitated his offense.
He has a high risk assessment according to the probation depart ment, that is due to mental health issues, and critically for this Court, no desire to change. Although he claims to have been drunk for one of his rapes, and therefore asks the Court to excuse his conduct because of that, he does s eem to have– 8 –

Case No. 21 BE 0011 total recall of all of the details of that event and he also do es not mention alcohol use during his other rapes of this child.
His admissions and statements were relatively cavalierly made. They appeared to the Court to be very selfish with no mention of reg ret or sorry or contrition. And there has been no showing of any remorse on his part.
The factors that indicate less serious conduct, less likelihood of recidivism, as his attorney pointed out, he does appear to have led a law-a biding life since his first rape adjudication, which was in 1999. That’s th e one in juvenile court I was talking about. Again, the purposes of felony sentencing are to protect the pub lic from future crimes by you and others by teaching a lesson and to pun ish you using, however, the minimum sanctions that accomplish those pur poses without imposing an unnecessary burden on state or local govern ment

resources. To send a warning to others, and a message to your victim, Cour t believes that you must be severely punished, Mr. Webster. More than a mi nimum sentence is necessary, appropriate and reasonable. The shortest sentence will not adequately punish you and protec t the public from future crimes and would demean the seriousness of what you ’ve done to this young victim. The factors decreasing serious are greatly outweighed by those increasing seriousness. There is more likelihood of recidivism if you rece ive the shortest sentence. All of my findings I believe are in accordance with the statuto ry and case law of the State of Ohio. Therefore, Mr. Webster, you will be sentenced as follows: You w ill be sentenced to serve a minimum mandatory term of 11 years in the– 9 –

Case No. 21 BE 0011 penitentiary. The maximum term is therefore 16 and a half years. * * * You have credit for 27 days served through and including today’ s date. You will be classified as a Tier 3 se x offender requiring lifetime reporting every 90 days and you will be placed on post-release control after yo u finish your sentence, and that will be for five years. Now, again, so the sentencing laws in the [S]tate of Ohio chang ed almost two years ago. We now have, for a crime like this, what is call ed indefinite sentencing. So the Court sentences you to the minimum, in this case 11 year s; automatically the maximum then is 16 and a half years.

* * * The Court was very negatively impressed, Mr. Webster, by the fa ct that you just appeared - - it almost appears as if you feel you didn’t d o anything wrong, and now we have a 12-year-old young girl who is going [t o] live with this now for some time.

* * * Mr. Webster, you have the right to appeal the decisions of this Court. (2/16/2021 Sentencing Hearing T.p., p. 12-15, 20-21). {¶17} The trial court made a similar pronouncement in its February 17 , 2021 judgment, stating: * * * Defendant was afforded all rights pursuant to Criminal Ru le 32. The Court has considered the record, oral statements, Defendant’s S entencing Memorandum with attached testimonials, the testimony from * * * the mother of the victim, and the Presentence Investigation Report with at tached Risk– 10 –

Case No. 21 BE 0011 Assessment, as overrided, as High, as well as the principles an d purposes of sentencing in Revised Code 2929.11 and has balanced the seri ousness and recidivism factors under Revised Code 2929.12.

* * * The Court finds that on February 4, 2021, Defendant was found g uilty by plea of Rape, in violation of O.R.C. 2907.02(A)(2), a felony of the first degree. The Court, in sentencing, may, in its discretion to determine t he most effective way to comply with the principles and purposes of sen tencing set forth in Revised Code 2929.11, consider the factors contained i n Ohio Revised Code 2929.12(B), (C), (D), and (E), and any other facto rs relevant to achieving those purposes and principles. In light of that guidance, the Court finds that the factors con tained in Ohio Revised Code 2929.12(B) and (D) which indicate more serious con duct and more likelihood of recidivism include the following: 1. As a juvenile, Defendant has an adjudication for Rape as a f irst degree felony (Defendant was then 12 years old). He received a suspend ed DYS commitment; 2. Defendant has admitted to engaging, at the least, in oral an d vaginal sex with the twelve year old daughter of his former girlfriend, on at least two (2) or three (3) occasions; 3. Defendant’s relationship with the victim facilitated his off ense; 4. The Presentence Investigator found Defendant to have a High risk assessment due to mental health issues/no desire to change; 5. Although Defendant claims to have been drunk for one (1) of the Rapes, he seems to have total recall of all of the details. He does no t mention– 11 –

Case No. 21 BE 0011 alcohol use during the other rapes; 6. Defendant’s admissions were cavalierly made, selfishly, and with no mention of regret, sorrow, or contrition; and 7. Defendant has not shown genuine remorse. In accordance with Ohio Revised Code 2929.12(C) and (E), the fa ctors which suggest that Defendant’s conduct is less serious and that recidivism is less likely, including the following: 1. Defendant appears to have abided by the law since his Rape a djudication in 1999.

The Court further finds in accordan ce with Ohio Revised Code 29 29.11(A), that the overriding purposes of felony sentencing are to protec t the public from future crime by the offender and others and to punish the offender, using the minimum sanctions that the Court determines accomplis hes these purposes, without imposing an unnecessary burden on State or lo cal government resources. This Court finds that Defendant must be s everely punished as a message to his victim and a warning to others. In light of that guidance, the Court finds that more than the m inimum sentence is deemed necessary and is otherwise appropriate and reasonable. Therefore, in accordance with Ohio Revised Code 292 9.13(D) the Court finds that a short sentence will not adequately punis h Defendant and protect the public from future crimes and will demean the s eriousness of the offense and that factors decreasing seriousness are grea tly outweighed by those increasing seriousness and that there is mo re likelihood of recidivism if Defendant is given a short sentence

. The Court makes all findings based upon the sentencing factors contained in Ohio Revised Code 2929.11, 2929.12, 2929.13 and 2929.14, as such have been amended and/or modified by State v. Foster, 109 Ohio St.3d 1,– 12 –

Case No. 21 BE 0011 and in accordance with House Bill 86, effective September 30, 2 011, and Senate Bill 160, effective March 22, 2013. (2/17/2021 Sentencing Entry, p. 2-4). {¶18} The record in this case reflects the trial court gave due delib eration to the relevant statutory considerations. The court considered the pu rposes and principles of felony sentencing under R.C. 2929.11 and balanced the seriousne ss and recidivism factors under R.C. 2929.12. The court also considered the fact ors under R.C. 2929.13 and 2929.14. {¶19} In addition, Appellant was sentenced to an indefinite prison te rm of 11 years (mandatory minimum) to 16 and one-half years (maximum) following a guilty plea for rape, a felony of the first degree, in violation of R.C. 2907.02(A)(2 ). Thus, Appellant’s sentence is within the statutory range for the first-degree felony offen se, which was committed on or about April 1, 2019 through February 14, 2020. See (2/16/2021 Sentencing Hearing T.p., p. 2); (2/17/2021 Sentencing Entry, p. 1); R.C. 2929.14(A )(1)(a) (“For a felony of the first degree committed on or after the effective date of this a mendment [rape – R.C. 2907.02 - March 22, 2019], the prison term shall be an indefini te prison term with a stated minimum term selected by the court of three, four, five, six, s even, eight, nine, ten, or eleven years and a maximum term that is determined pursuant to section 2929.144 of the Revised Code[.]”); R.C. 2929.144(B)(1), “Determining maximum pr ison term,” effective March 22, 2019 (“The court imposing a prison term on an offende r under division (A)(1)(a) * * * of section 2929.14 of the Revised Code for a qualifying f elony of the first * * * degree shall determine the maximum prison term that is part of the sen tence * * * [i]f the offender is being sentenced for one felony and the felony is a qualifyin g felony of the first * * * degree, the maximum prison term shall be equal to the minimum t erm imposed on the offender under division (A)(1)(a) * * * of section 2929.14 of t he Revised Code plus fifty per cent of that term.”) Also, the record reveals the trial co urt properly advised Appellant regarding post-release control. {¶20} Accordingly, because the trial court considered the purposes an d principles of felony sentencing under R.C. 2929.11 and balanced the seriou sness and recidivism factors under R.C. 2929.12, and because Appellant’s indefinite prison sentence of 11– 13 –

Case No. 21 BE 0011 years (mandatory minimum) to 16 and one-half years (maximum) is supported by the record and within the authorized statutory range for a first-de gree felony, his sentence is not contrary to law. {¶21} Appellant’s first and second assignments of error are without m erit.

CONCLUSION {¶22} For the foregoing reasons, Appellant’s assignments of error are not welltaken. The February 17, 2021 judgment of the Belmont County Court of C ommon Pleas sentencing Appellant to an indefinite term of 11 years (mandato ry minimum) to 16 and one-half years (maximum) in prison for rape and designating him a Tier III Sex Offender following a guilty plea is affirmed.

Donofrio, P.J., concurs. Waite, J., concurs.– 14 –

Case No. 21 BE 0011 For the reasons stated in the Opinion rendered herein, the assi gnments of error are overruled and it is the final judgment and order of this Co urt that the judgment of the Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs to be waived. A certified copy of this opinion and judgment entry shall const itute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Proc edure. It is ordered that a certified copy be sent by the clerk to the trial court to car ry this judgment into execution.

NOTICE TO COUNSEL This document constitutes a final judgment entry.