[Cite as State v. Dean, 2014-Ohio-2171.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsBRADFORD DEAN 

 Defendant-Appellant 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. John W. Wise, J. 

Hon. Craig R. Baldwin, J. 

Case No. 2013CA00198 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of 

Common Pleas, Case No. 2013CR0395 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: May 19, 2014 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JOHN D. FERRERO FREDRICK PITINII 

Prosecuting Attorney 101 Central Plaza South, Ste. 1000 

Stark County, Ohio Canton, Ohio 44702 

By: KATHLEEN O. TATARSKY 

Assistant Prosecuting Attorney 

Appellate Section 

110 Central Plaza, South - Suite 510 

Canton, Ohio 44702-1413 
Stark County, Case No. 2013CA00198 2

Hoffman, P.J. 

{¶1} Defendant-appellant Bradford Dean appeals his sentence on one count of 

sexual battery entered by the Stark County Court of Common Pleas. Plaintiff-appellee 

is the state of Ohio. 

STATEMENT OF THE CASE 

{¶2} On April 25, 2013, Appellant was indicted on one count of sexual battery, 

a felony of the third degree. Prior to the commencement of trial, the trial court agreed to 

a plea deal including a two year sentence of incarceration. The offer was memorialized 

on the record at a hearing before the trial court on July 5, 2013. Appellant indicated to 

the trial court he understood the potential prison term for sexual battery as a one, two, 

three, four or five year prison sentence with the potential of a Tier III sex offender 

designation. The trial court stated on the record she was in no way indicating what her 

sentence might be once she heard the facts of the case, but he certainly had the right to 

a jury trial. Appellant rejected the plea offer. 

{¶3} The matter proceeded to a jury trial on July 8, 2013. The jury trial ended 

in a mistrial after the jury was unable to reach a verdict. 

{¶4} Prior to the commencement of a second trial, the State entered into plea 

negotiations with Appellant. During plea negotiations, the State offered to amend the 

charge of sexual battery to a third degree felony of gross sexual imposition. The State 

would then recommend a sentence of six months, and a Tier I sexual offender 

classification. The trial court did not endorse the plea offer. 
Stark County, Case No. 2013CA00198 3

{¶5} Appellant again rejected the State's plea bargain. The trial court inquired 

of Appellant if he understood the offer and the maximum penalty for sexual battery, to 

which Appellant indicated he did understand the charges and potential penalties. 

{¶6} A second jury trial commenced on September 11, 2013, with essentially 

the same evidence as the first trial. Appellant was convicted of the sole count of sexual 

battery. Following a sentencing hearing, the trial court sentenced Appellant to the 

maximum prison term of five years incarceration. 

{¶7} Appellant appeals, assigning as error: 

{¶8} "I. THE TRIAL COURT DENIED THE APPELLANT DUE PROCESS 

WHEN IT IMPOSED A SENTENCE PUNISHING HIM FOR EXERCISING HIS RIGHT 

TO A JURY TRIAL. 

{¶9} "II. THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO 

THE MAXIMUM PRISON TERM." 

I. 

{¶10} Appellant maintains the trial court imposed a sentence punishing him for 

exercising his right to a jury trial. 

{¶11} A trial court may not punish a defendant who exercises his or her right to a 

trial. State v. O'Dell (1989), 45 Ohio St.3d 140. A trial court must avoid creating the 

appearance it enhanced a defendant's sentence because he elected to go to trial. State 

v. Morris, 159 Ohio App.3d 775, 2005-Ohio-962. Impropriety will not be presumed by 

the mere fact the sentence imposed after trial is greater than the sentence offered by 

the state at plea negotiations. State v. Mayles, 7th Dist. No. 04CA808, 2005-Ohio-1346. 

{¶12} At sentencing herein, the trial court stated: 
Stark County, Case No. 2013CA00198 4

{¶13} "I. THE COURT: Very well. The Court has sat through the trial twice. I'm 

going to say preliminarily for purposes of the record based upon recent court of appeals 

decisions that although I sat through those trials and I am aware of what the plea 

negotiations were in advance of trial that the Court's sentence in this matter is in no way 

reflective of a punishment of the Defendant because he elected to go to trial. That is 

not what this is about. 

{¶14} "The Court's sentence is based upon the evidence and the facts that were 

presented at trial. What I observed in terms of witnesses, also based upon the 

Defendant's criminal history in this matter, and the Court takes note that Mr. Dean has 

abused his position and role with a child, one of the most precious things that as a 

parent or a community that we are entrusted with to protect and to keep safe. 

{¶15} "And it's reprehensible to the Court that you would abuse this position 

where parents and children have trusted you with that. And for that reason, it will be the 

sentence of this Court that you serve five years in an appropriate state correctional 

facility." 

{¶16} Tr. at 78-79. 

{¶17} Upon review, we find the trial court articulated its rationale for the five year 

sentence. The trial court did not endorse the State's second offer following the first trial. 

The court's first endorsed offer occurred prior to hearing the witnesses and evidence 

presented at the first trial. The trial court had discretion to impose a greater sentence 

after hearing the testimony and evidence. Accordingly, we find the trial court did not 

punish Appellant for exercising his right to a jury trial. 

{¶18} The first assignment of error is overruled. 
Stark County, Case No. 2013CA00198 5

II. 

{¶19} In the second assignment of error, Appellant argues the trial court erred in 

sentencing him to the maximum prison sentence herein. 

{¶20} In State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124, 

the Ohio Supreme Court reviewed its decision in State v. Foster, 109 Ohio St.3d 1, 

2006–Ohio–856, 845 N.E.2d 470, as it relates to the remaining sentencing statutes and 

appellate review of felony sentencing. The Court stated that, in Foster, the Ohio 

Supreme Court severed the judicial fact-finding portions of R.C. 2929.14 holding that 

“trial courts have full discretion to impose a prison sentence within the statutory range 

and are no longer required to make findings or give their reasons for imposing 

maximum, consecutive, or more than the minimum sentences. Kalish, 120 Ohio St.3d at 

123. “Thus a record after Foster may be silent as to the judicial findings that appellate 

courts were originally meant to review under 2953.08(G)(2) .” Id. However, although 

Foster eliminated mandatory judicial fact-finding, it left intact R.C. 2929.11 and R.C. 

2929.12 and the trial court must still consider these statutes. Id. Accordingly, “an 

appellate court remains precluded from using an abuse-of-discretion standard of review 

when initially reviewing a defendant's sentence” and must instead “ensure that the trial 

court has adhered to all applicable rules and statutes in imposing the sentence. As a 

purely legal question, this is subject to review only to determine whether it is clearly and 

convincingly contrary to law, the standard found in R.C. 2953.08(G).” Id.

{¶21} When reviewing a felony sentence, an appellate court must first review the 

sentence to ensure the sentencing court clearly and convincingly complied with the 

applicable laws. Id. A trial court's sentence would be contrary to law if, for example, it 
Stark County, Case No. 2013CA00198 6

were outside the statutory range, in contravention to a statute, or decided pursuant to 

an unconstitutional statute. Id. In Kalish, the Supreme Court held the trial court's 

decision was not contrary to law when the trial court expressly stated it considered the 

purposes and principles of R.C. 2929.11, the factors listed in R.C. 2929.12, properly 

applied post-release control, and the sentence was within the permissible range. Kalish

at ¶ 18. 

{¶22} If this inquiry is satisfied, an appellate court then reviews the trial court's 

sentencing decision for abuse of discretion. Id. In order to find an abuse of discretion, 

we must determine the trial court's decision was unreasonable, arbitrary, or 

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 

Ohio St.3d 217, 450 N.E.2d 1140 (1983). 

{¶23} Here, Appellant's sentence is within the statutory range for a third degree 

felony. We find the trial court did not abuse its discretion in sentencing Appellant to the 

maximum prison term based upon his criminal history and the facts demonstrated in the 

record. 

{¶24} The second assignment of error is overruled. 
Stark County, Case No. 2013CA00198 7

{¶25} Appellant's sentence in the Stark County Court of Common Pleas is 

affirmed. 

By: Hoffman, P.J. 

Wise, J. and 

Baldwin, J. concur