[Cite as State v. Hilbert , 2013-Ohio-4728.]
IN THE COURT OF APPEALS FOR MIAMI COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 2013 CA 2

v. : T.C. NO. 10CR154 CHARLES HILBERT : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

. . . . . . . . . . O P I N I O N Rendered on the 25th day of October , 2013.

. . . . . . . . . . EMILY E. SLUK, Atty. Reg. No. 0082621, Assistant Prosecuting Attorney, 201 West Main Street, Troy, Ohio 45373 Attorney for Plaintiff-Appellee DANIEL F. GETTY, Atty. Reg. No. 0074341, 46 E. Franklin Street, Centerville, Ohio 45459 Attorney for Defendant-Appellant

. . . . . . . . . . FROELICH, J. {¶ 1} Charles D. Hilbert was found gu ilty upon his no contest pleas to eleven counts of rape (R.C. 2907.02(A)(2)), two counts of illegal use of a minor in nudity-oriented material or performance (R.C. 2907.323(A)(1)), si x counts of illegal use of a minor in nudity-oriented material or pe rformance (R.C. 2907.323(A)(2 )), three counts of pandering sexually-oriented matter involving a minor (R.C . 2907.322(A)(1)), and one count2 of sexual battery (R.C. 2907.03(A)(5)). In exch ange for the pleas, th e State dismissed six additional charges against him. The trial court merged several charges, sentenced him to an aggregate term of 61 years in prison, and orde red him to pay court costs of $813. Hilbert was designated a Tier III sex offender. {¶ 2} Hilbert appeals from his conviction, ra ising two assignments of error. For the following reasons, the trial court’s judgment will be affirmed. I. Excessive Sentence {¶ 3} In his first assignment of error, Hilbert claims that the trial court “committed reversible error and otherwise abused its discretion on all sent ences imposed in both cases in violation of defendant’s U.S. and Ohio constitutional right to be free from cruel and unusual punishment.” 1 Hilbert argues that his sentence was excessive and an abuse of discretion. He emphasizes that he was a first-time offender and likely had mental health issues.

1 This court has only one case before it, Miami C.P. No. 2010 CR 154, which involves a 29-count indictment. We do not understand Hilbert’s reference to “both cases.” {¶ 4} Hilbert was found guilty of numerous c ounts of rape, a first-degree felony; illegal use of a minor in nudity-oriented mate rial or performance, a second-degree felony; pandering sexually-oriented ma tter involving a minor, a sec ond-degree felony, and sexual battery, a third-degree felony. At sentencing, the trial court imposed five years for each count of rape, to be served consecutively for a total of 55 years. The trial court merged Count 13 into Count 12, leaving one violati on of R.C. 2907.323(A)(1). The court also merged Count 19 into Count 18, Count 21 in to Count 20, and Count 23 into Count 22, leaving three violations of R.C. 2907.323(A)(2 ), and Count 27 into Count 26, leaving two3 violations of R.C. 2907.322(A)(1). The court sentenced Hilbert to three years for Counts 12, 19, 20, 22, 25, and 26 (illegal use of a minor and pandering), to be served concurrently with each other, but consecutively to the rape convictions. The court imposed three years for the count of sexual battery, to be serv ed consecutively to the other convictions. Hilbert’s total sentence was 61 years in prison. {¶ 5} “As a general rule, a sentence that falls within the terms of a valid statute cannot amount to a cruel and unusua l punishment.” (C itations omitted.) McDougle v. Maxwell , 1 Ohio St.2d 68, 69, 203 N.E.2d 334 (1964), quoted by State v. Coffman , 2d Dist. Champaign No. 2010-CA-20, 2010-Ohio-4284, ¶ 9. Hilbert’s sentences were within the statutory ranges for his offenses. {¶ 6} Hilbert was sentenced on Septembe r 27, 2010, a year before the effective date of H.B. 86, which revised Oh io’s sentencing statutes. At that time, the trial court was not required to make any findings or give its reasons before imposing a maximum, consecutive, or non-minimum sentence within the statutory range. State v. Foster , 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, pa ragraph seven of the syllabus. Nevertheless, the trial court was required to comply with the sentencing laws unaffected by
Foster , such as R.C. 2929.11 and 2929.12, which require consideration of the purposes and principles of felony sentencing and th e seriousness and recidivism factors. State v. Mathis , 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1. {¶ 7} The trial court does not have to make any specifi c findings to demonstrate its consideration of those statutes. State v. Ramey , 2d Dist. Clark No. 2010 CA 19, 2011-Ohio-1288, ¶ 47; Foster at ¶ 42. “Where the record is silent, a presumption exits that4 the trial court has considered the factors. Further, where a criminal sentence is within statutory limits, an appellate c ourt should accord the trial court the presumption that it considered the statutory mitigating factors. Consequently, the appellant has an affirmative duty to show otherwise.” (Citations omitted.) Ramey at ¶ 47. {¶ 8} At sentencing, the trial court hear d statements from Hilbert’s counsel, Hilbert, the prosecutor, and S.D., the victim of most of the offenses. Hilbert’s counsel emphasized that the present charges were Hilber t’s “first offense of any kind” and that he had entered a plea in large part due to his decision not to cause more harm to the victims. Hilbert expressed remorse and apologized to his family, S.D., and S.D.’s mother. He indicated that he had come to realize that his behavior was relate d to events that had happened to him in the past and that he “never realized how much he lp I should have gotten back then and didn’t.” {¶ 9} The prosecutor acknowledged that Hilbert had no prior record, but he argued that Hilbert’s behavior demonstrated that he posed a danger to the community and to children, in particular. S.D. told the court that she did not “want to see [Hilbert] get out of jail or prison because I’m afra id that he would do somethin g to hurt somebody else.” A presentence investigation report had also been prepared, which describe d in detail the police officers’ investigation of the offenses, including their interviews with Hilbert, Hilbert’s wife, the individuals who reported Hilbert to the police, and the minor victims. {¶ 10} Prior to imposing its sentence, the trial court told Hilbert that it had reviewed the presentence investigation report and considered his statement, the statements of his attorney, the prosecutor, and S.D., as well as “t he purposes and principles of the sentencing5 statutes, all the factors of record, * * * speci fically the narrative of the police investigation report, statements that you made to the police officers, the victim impact statements that I have received and the emotional trauma that you inflicted upon this young lady for years, from age 13 through almost 18.” The court fu rther stated: “* * * To me words can’t describe how terrible your be havior has been. It’s bey ond illegal. To me it’s beyond immoral. It’s just despicable. I can’t belie ve that for all the times that, you know, this went on on a constant basis th rough parts of her life when she was trying to grow up.” {¶ 11} The court found that several charge s had mandatory prison terms, that Hilbert was not amenable to community cont rol for the charges without mandatory prison terms, and that “a prison sentence is consiste nt with the purposes and principles of the sentencing statutes.” The court stated: “I have reached this after weighing your recidivism factors and the seriousness factors, specifically the age of the victim and your relationship to her and the length of time that it went on and everything that she went through.” The court then imposed the aggregate 61-year prison term. The trial court specifically stated that the rape charges should run consecutively due to “the nature of these offenses, length of time and how they consisten tly happened and the impact it had on the child.” {¶ 12} Upon review of the record, we find th at the trial court properly considered and applied the relevant sentenci ng statutes in imposing its se ntence. Given the nature of the offenses, the statements to the court at sentencing, and the presentence investigation report, the trial court did not abuse its discretion in imposin g an aggregate 61-year prison

term. {¶ 13} Hilbert further states that the trial court “imposed a Tier III sex offender6 status without a proper hearing.” At the beginning of the senten cing hearing, the trial court notified Hilbert that Counts 1 through 11 (rape ) and Count 28 (sexual battery) were defined by statute as Tier III offenses and that if he were released from prison any time in the future, he would have to register in person with the sheriff every 90 days for life. Due to Hilbert’s offenses, the trial court wa s required by R.C. Chapter 2950 to designate him a Tier III sex offender at sentencing and to notify him of the accompanying requirement to register every 90 days for life. {¶ 14} Hilbert’s first assignment of error is overruled. II. Ineffective Assistance of Counsel {¶ 15} In his second assignment of error, Hilbert claims that his trial counsel rendered ineffective assistance “because counsel failed to make a record regarding counts one through eleven as to allied offenses of similar import.” {¶ 16} We review alleged instances of ine ffective assistance of trial counsel under the two prong analysis set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Pursuant to those cases, trial counsel is entitled to a strong presumption that his or her conduct falls within the wide range of reasonable assistance. Strickland at 688. To reverse a conviction ba sed on ineffective assistance of counsel, it must be demonstrated that trial counsel’s conduct fe ll below an objective standard of reasonableness and that his or her errors were serious enough to create a reasonable probability that, but for the errors, the result of the trial would have been different. Id. {¶ 17} Pursuant to State v. Johnson , 128 Ohio St.3d 153, 2010-Ohio-6314, 9427 N.E.2d 1061, “[w]hen determining whether two offenses are allied offenses of similar import subject to merger under R.C. 2941.25, the conduct of the accused must be considered.” Johnson at ¶ 44. * * * [T]he question is whether it is possible to commit one offense and commit the other with the same c onduct, not whether it is possible to commit one without committing the other. * * * If the offenses correspond to such a degree that the conduct of the defendant constituting commission of one offense constitutes commission of the other, then the offenses are of similar import. If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., “a single act, committed w ith a single state of mind.” * * * If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged. Conversely, if the court deter mines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to R.C. 2941.25(B), the offenses will not merge. (Citations and quotations omitted.) Johnson at ¶ 48-51. {¶ 18} In Hilbert’s case, each of the eleven counts of rape concerned a different time period: (1) 2006 through August 2009; (2) August 2009; (3) September 2009; (4) October 2009; (5) November 2009; (6) Decem ber 2009; (7) January 2010; (8) February8 2010; (9) March 2010; (10) April 2010; a nd (11) May 27, 2010. Because each count concerned separate and distinct acts, Hilbert’s trial counsel had no reasonable basis to argue that the counts should have been merged into a single conviction for rape. {¶ 19} In his reply brief, Hilbert raises that his counsel should have moved to dismiss because the indictment failed to identif y the victim of the offenses. Hilbert did not include this argument or assign it as error in his appellant’s brief. Nevertheless, even assuming that it has been properly raised, we would find that it l acks merit. “[T]he name of the victim is not required in the indictment when the identity of the victim is not an essential element of the crime.” E.g., State v. Williams , 8th Dist. Cuyahoga No. 84894, 2005-Ohio-1866, ¶ 18. Hilbert’s indi ctment tracked the statutor y language, and the identity of the victim was not an essential element of the charged offenses. See State v. Skatzes , 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 27. Further, there is no indication, or even allegation, that Hilbert did not know the identities of the victims and that the indictment’s failure to include the names of the victims hindered his defense of the charges. Accordingly, trial counsel did not act unr easonably in failing to challenge Hilbert’s indictment on this basis. {¶ 20} Hilbert’s second assignme nt of error is overruled. III. Conclusion {¶ 21} The trial court’s judgment will be affirmed.

. . . . . . . . . . HALL, J. and WELBAUM, J., concur.9

Copies mailed to: Emily E. Sluk Daniel F. Getty Hon. Robert J. Lindeman