[Cite as State v. Summers , 2014-Ohio-2441.]

IN THE COURT OF APPEALS FOR DARKE COUNTY, OHIO

STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 2013 CA 16

v. : T.C. NO. 13CR10 CHRISTOPHER A. SUMMERS : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

. . . . . . . . . . O P I N I O N

Rendered on the 6th day of June , 2014.

. . . . . . . . . . R. KELLY ORMSBY, III, Atty. Reg. No. 0020615, Prosecuting Attorney, Darke County Prosecutor’s Office, Courthouse, Th ird Floor, Greenville, Ohio 45331 Attorney for Plaintiff-Appellee J. ALLEN WILMES, Atty. Reg. No. 0012093, 7821 N. Dixie Drive, Dayton, Ohio 45414 Attorney for Defendant-Appellant

. . . . . . . . . . FROELICH, P.J. {¶ 1} Christopher Summers was found guilty on his guilty plea of one count of sexual battery, in viola tion of R.C. 2907.03(A)(7), in the Darke County Court of Common Pleas; Summers was sentenced to one year of imprisonment. Summers had been convicted of eight additional counts of se xual battery involving the same victim in Mercer County, and2 the trial court ordered that hi s sentence for the Darke County o ffense be served consecutively with the sentence imposed in the Mercer C ounty case. Summers appeals from the Darke County conviction, challenging his sentence. {¶ 2} The victim of the Darke and Mercer County offenses was an underage female high school student; Su mmers was her teacher and co ach, age 35. Summers claimed that he and the victim had a close, romantic relationship and that their sexual activity was consensual, although he acknowledged that it “cr ossed the line” and that, as an adult, “any contact was wrong.” The victim claimed that she felt coerced and manipulated into the sexual relationship and that she was not a w illing participant. The sexual conduct occurred over the course of more than two years. Su mmers and the victim lived in Mercer County, and most of the sexual activity occurred in Mercer County. The Da rke County offense was based on a night they spent in a Greenville hotel. The victim eventually told her mother

about the sexual conduct. {¶ 3} In November 2012, Summers was charge d with more than forty counts of rape, sexual battery, and gro ss sexual imposition in Mercer County. In January 2013, he

was indicted on one count of se xual battery in Darke County. He entered guilty pleas in both cases in August 2013. In Mercer County, Summers pled guilty to eight counts of sexual battery, in exchange for which the ot her charges were dismissed. On October 10, 2013, he was sentenced to thirty months on each count, to be served consecutively, for an aggregate term of twenty years. The next day, he was sentence in Darke County to a term of one year in prison, to be served consecu tively with the Mercer County sentence. {¶ 4} Summers raises two assignments of error on appeal from his Darke County3 conviction and sentence. The assignments of error state: The trial court committed prejudicial error by imposing consecutive service on Appellant which sentence was an abuse of discretion and was violative of the statutory purposes and principles of sentencing. Imposing a sentence consecutive to the sentence in Mercer County was not consistent with sentences imposed for similar cases committed by

similar offenders. {¶ 5} Summers contends that the trial court abused its discretion in imposing a consecutive sentence. His argument suggests that the trial court was not permitted to impose a consecutive sentence w ithout making “specific findi ngs which are tied to the overriding purpose of punishment” and examinin g whether the sentence is proportionate to his conduct and the danger he poses to the public. He claims th at the trial court “summarily” imposed a consecutive sentence that was “grossly unsound, unreasonable, and illegal” and that, because the “teacher/student” rela tionship “defines the offense” of which he was convicted (R.C. 2907.03(A)(7)), that fact should not be view ed as a factor making his offense “more serious” under R.C. 2929.12(B). Fi nally, he contends that his sentence was disproportionate to similarl y situated offenders. {¶ 6} R.C. 2929.41(A) requires that, except as provided in other sections of the Revised Code, including R.C. 2929.14(C), “a prison term, jail term , or sentence of imprisonment shall be served concurrently with any other prison term, jail term, or sentence of imprisonment imposed by a court of this state, another state, or the United States.” R.C.4 2929.14(C)(4) provides that a sentencing court must make certain findings when imposing consecutive sentences. Specifically, R.C. 2929.14(C)(4) allows for the imposition of

consecutive sentences if the trial court finds th at: (1) a “consecutive service is necessary to protect the public from future crime or to punish the offender”; (2) “consecutive sentences are not disproportionate to th e seriousness of the offender’s conduct and to the danger the offender poses to the public”; and (3) one or more of the following three findings are

satisfied: (a) The offender committed one or more of the multiple offenses while the offender was awaiting tria l 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 fo r 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 conduc t adequately reflect s the seriousness of the offender’s conduct.(c) The offe nder’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. R.C. 2929.14(C)(4)(a)-(c). An explanation of the rationale for a sentence (both case-specific and statutory) can only increase the public unde rstanding of a particular sanction and thus the perceived legitimacy of the criminal justice system. See, e.g. , O’Hear, Explaining Sentences , 36 Fla.St.U.L.Rev. 459 (Spring 2009); Lamparello, Social5 Psychology, Legitimacy, and the Ethical Foundations of Judgment: Importing the

Procedural Justice Model to Fe deral Sentencing Jurisprudence , 38 Colum.Hum.Rts.L.Rev. 115 (2006). {¶ 7} However, the text of R.C. 2929.14(C)(4 ) does not state that a sentencing court is required to express its consecutive-sentence findings in a sentencing entry, nor is there such a requirement in R.C. 2929.19(B)(2)(b ), which lists what information the trial court must include in a sentencing entry. See State v. Slaughter , 2d Dist. Montgomery No. 25215, 2014-Ohio-862, ¶ 25-27. {¶ 8} Moreover, we have recently held that Ohio law does not currently require a sentencing court to explicitly include consecutive-sentence findings in sentencing entries. Although the court must consider the record a nd other pertinent inform ation before imposing a sentence, “R.C. 2929.19(B)(2) provides that se ntencing entries must simply indicate whether multiple sentences are to be served consecutively.” Id. at ¶ 30. {¶ 9} At the sentencing hearing, the trial court noted that Summers was convicted the previous day of eight counts of sexual ba ttery in Mercer County and was sentenced to 20 years of imprisonment on those offenses. It also noted that the “Ohio Risk Assessment screening tool” indicated th at Summers was at low risk to reoffend. The court acknowledged factors indicating that Summers was unlikely to reoffend except for “periods of bad judgment” (such as the one in which Su mmers claimed that the relationship with the victim in this case began), but the court recognized that periods of bad judgment could recur.

{¶ 10} The judge made inconsistent st atements about Summers’s risk of6 recidivism, noting his lack of criminal history and other risk factors, and the judgment entry reiterated that recidivism was unlikely, but c oncluding that he may reoffend if he again

found himself in difficult circum stances. These conflicting stat ements do not appear to be the basis for the prison sentence. The court also noted Summers’s position of authority in relationship to the victim in discussing the seriousness of the offense. Summers’s position of authority was an element of the offenses of which he was convicted; 1 thus, although Summers’s conduct was serious, his position of authority was not entitled to significant weight, if any, in rendering the offense “m ore serious than conduct normally constituting the offense,” under R.C. 2929.12(B). See State v. Nichols , 195 Ohio App.3d 323, 2011-Ohio-4671, 959 N.E.2d 1082, ¶ 26 (2d Dist.)

1 R.C. 2907.03(A)(7) states that “No person shall engage in sexual conduct with another, not the spouse of the offender, when * * * [t]he offender is a teacher, administrator, coach, or other person in authority employed by or serving in a school f or which the state board of education prescribes minimum standards pursuant to division (D) of section 3301.07 of the Revised Code , the other person is enrolled in or attends that school, and the offender is not enrolled in and does not attend that school.” {¶ 11} Summers also points out that the court made several comments at the sentencing hearing about “why there is sin in the world.” Certain st atements may create the appearance that a court is improperly basing its sentence on the judge’s religious beliefs.

See State v. Arnett , 88 Ohio St.3d 208, 724 N.E.2d 793 (2000) (holding that a judge’s personal experiences and beliefs cannot be divorced from his or her exercise of personal discretion in sentencing, but recognizing that “a sentencing judge’s religious comments may violate an offender’s due proce ss rights when they reveal an ‘explicit intrusion of personal religious principles as the basi s of a sentencing decision.’” ( Id ., distinguishing United States7 v. Bakker , 925 F.2d 728 (C.A.4, 1991)). However, the court clearly described these

reflections as “anecdotal” and ha ving “nothing to do with th e sentence,” and we conclude

that these comments did not influence the sentence. {¶ 12} The court stated that the victim’s age, Summers’s relationship to the victim, including his position of authority, and the “ong oing series of conduct” made the offense a

“more serious” one. The court fu rther stated that it was “considering this to be a course of conduct case,” because it “wouldn’t make sense” not to consider the events that occurred in Mercer County. The court asserted that the sentence had “a component of punishing and protecting the public.” Further, the sentencing entry stated that this was the worst form of the offense, that the court sought to deter ot hers in positions of authority from engaging in such behavior, that a non-consecutive sentence would demean the seve rity of the conduct,

and that the sentence did not place an unnecessary burden on governmental resources. {¶ 13} The trial court considered and addressed the issues pertinent to determining an appropriate sentence, as set fort h in R.C. 2929.11, R.C. 2929.12, and R.C. 2929.14. When imposing the consecutive sentence, the tria l court made the findi ngs required by R.C. 2929.14(C)(4), including that the offense was co mmitted as part of a c ourse of conduct and that the court was “protecting the public.” We do not clearly and convincingly find either that the record does not support the trial c ourt’s findings under R.C. 2929.14(C)(4) or that the sentence is otherwise contrary to law. R.C. 2953.08(G)(2). See State v. Rodeffer , 2d Dist. Montgomery Nos. 25574, 25575, 25576, 2013-Ohio-5759. Further, considering the abuse of discretion standard, wh ich Summers references in hi s appellate brie f, we cannot

conclude that the consecutive sentence was unreasonable. See id. at ¶ 48-50 (Froelich, J.,8 concurring in judgment). {¶ 14} Summers takes issue with the court’ s finding that a “course of conduct” was involved, where only one charge occurred in Darke County. The term “course of conduct” is not defined in R.C. 2929.14, but ot her sources provide some guidance. The supreme court has held that, for purposes of a death specification in a case involving multiple murders, a course of conduct may be esta blished by factual links, including time, location, weapon, cause of d eath, or similar motivation. State v. Short , 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 144. Ohio Jury Instructions has included this

definition in at least one of its instructions . See 2 Ohio Jury Instructions 513.49(E)(6). Similarly, “some connection, comm on scheme, or some pattern or psychological thread that ties” offenses together can estab lish a single cour se of conduct. State v. Sapp , 105 Ohio St.3d 104, 2004-Ohio-7008, 822 N.E.2d 1239, syllabus . The trial court reasonably considered the motivation, conn ection, and scope of Summers’s offenses against the victim in weighing the seriousness of the Darke Count y offense and other sentencing factors. {¶ 15} Moreover, it is well established that the court may consider information beyond that strictly related to the offense( s) of which a defendant is convicted, even including criminal charges and supporting fact s that are dismissed under a plea agreement and charges of which the offender is ultimately acquitted. See State v. Bowser , 186 Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714 (2d Dist.), citing State v. Blake , 2d Dist. Montgomery No. 17355, 1999 WL 375576 (June 11, 1999) and State v. Wiles , 59 Ohio St.3d 71, 78, 571 N.E.2d 97 (1991). {¶ 16} Summers also argues that his sentence was inconsistent with sentences9 imposed in other Ohio cases for similar crimes committed by similar offenders. The consistency of sentences is one of the mandates of R.C. 2929.11(B). Summers cites several cases in which a shorter sentence was imposed than he received, including State v. Schuler , Warren C.P. No. 11 CR 27196 (where a female teacher committed sexual ba ttery on several

male students after “cultivatin g” them with alcohol); State v. Valentine , Lake C.P. No. 09 CR 0311 (involving 16 counts of sexual battery); and State v. Ralston , Clermont C.P. No. 2008 CR 1054 (sexual battery involving three juvenile victims). He has also attached to his reply brief a chart of cases involving sexual battery and the sentences imposed. Summers acknowledges that “full details of said offenses are not available,” but he asserts that they establish that the sent ence in this case was unduly harsh. {¶ 17} The sentence imposed in the Darke County case involved only one count, for which Summers received a one-year sentence to be served consecutively with the sentences imposed in Mercer County. Summers’s consis tency argument appears to be focused on the twenty year sentence he received in Mercer C ounty, as the cases to which he compares his own sentence imposed sentences substantially greater than one year, but less than twenty years. We recognize the difficulty in establishing such a claim, especially if a record is not made at the trial court level, but the facts of the other cases on which Summers relies and the

individuals involved in those cas es are not before us. Simila rly, Summers’s Mercer County sentence is not before us, and we have no authority to review it. {¶ 18} The assignments of error are overruled. {¶ 19} The judgment of the trial court will be affirmed.

. . . . . . . . . .10 HALL, J. and WELBAUM, J., concur. Copies mailed to: R. Kelly Ormsby, III J. Allen Wilmes Hon. Jonathan P. Hein