[Cite as State v. Blair-Walker, 2013-Ohio-4118.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT 

PORTAGE COUNTY, OHIO 

STATE OF OHIO, : O P I N I O N 

 Plaintiff-Appellee, :

CASE NO. 2012-P-0125

 - vs - :

JOSEPH BLAIR-WALKER, :

 Defendant-Appellant. :

Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2012 CR 

0116. 

Judgment: Affirmed. 

Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, Assistant 

Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee). 

Leonard J. Breiding, II, 4825 Almond Way, Ravenna, OH 44266 (For DefendantAppellant). 

COLLEEN MARY O’TOOLE, J. 

{¶1} Joseph Blair-Walker appeals from the August 28, 2012 judgment entry of 

the Portage County Court of Common Pleas, sentencing him to prison for one count of 

rape and multiple counts of gross sexual imposition, and finding him to be a sexually 

violent predator. Mr. Blair-Walker asserts the trial court failed to consider the 

appropriate statutes in sentencing him, and that the finding he is a sexually violent 

predator is supported by insufficient evidence. Finding no error, we affirm. 
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{¶2} February 23, 2012, the Portage County Grand Jury returned an indictment 

in ten counts against Mr. Blair-Walker: two counts of rape, in violation of R.C. 

2907.02(A)(1)(b) and (B), felonies of the first degree; three counts of gross sexual 

imposition, in violation of R.C. 2907.05(A)(4), felonies of the third degree; three counts 

of gross sexual imposition, in violation of R.C. 2907.05(B), felonies of the third degree; 

and two counts of disseminating matter harmful to juveniles, in violation of R.C. 

2907.31(A), felonies of the fourth degree. All of the rape and gross sexual imposition 

counts included sexually violent predator specifications, R.C. 2941.148. The indictment 

stemmed from conduct occurring over a lengthy period with the daughter of Mr. BlairWalker’s girlfriend, with whom he lived. The child was 11 years old at the time of 

indictment. February 24, 2012, Mr. Blair-Walker pleaded not guilty to each count. 

{¶3} Jury trial commenced July 17, 2012. July 20, 2012, the jury returned its 

verdict, finding Mr. Blair-Walker guilty on one count of rape, and all of the counts of 

gross sexual imposition.1

 The jury failed to enter a verdict on the second count of rape, 

whereby the trial court declared a mistrial on that count, later entering nolle prosequi on 

it at the state’s motion. 

{¶4} July 31, 2012, bench trial was held regarding the sexually violent predator 

specifications. The state introduced evidence that Mr. Blair-Walker had pleaded guilty 

to three counts of gross sexual imposition in 2004, in Summit County, Ohio. Those 

crimes were remarkably similar to those presently before the court: Mr. Blair-Walker 

molested girls aged six, seven, and eleven, one being the daughter of the girlfriend with 

 

1. The trial court dismissed the disseminating counts on defense motion prior to submitting the case to the 

jury. 
 3

whom he then lived, the others being her friends. The trial court found Mr. Blair-Walker 

to be a sexually violent predator from the bench. 

{¶5} Sentencing hearing went forward August 27, 2012; the trial court held a 

resentencing hearing the next day. By its judgment entry filed August 28, 2012, the trial 

court sentenced Mr. Blair-Walker to serve 25 years to life on the rape. One count of 

gross sexual imposition merged with the rape for sentencing purposes. The trial court 

further sentenced Mr. Blair-Walker to 5 years to life on each remaining count of gross 

sexual imposition, the terms to be served concurrently with each other, but consecutive 

to that for rape. 

{¶6} This appeal timely ensued, Mr. Blair-Walker assigning two errors. The 

first reads: “The trial court erred in sentencing the appellant by imposing more than the 

minimum sentence and by imposing an improper consecutive sentence.” The issue 

presented for review is, “Whether the trial court erred to the appellant’s prejudice by 

imposing more than the minimum sentence and by imposing an improper consecutive 

sentence?” Mr. Blair-Walker makes three assertions in support of this assignment of 

error: (1) the trial court failed to consider the purposes of felony sentencing, R.C. 

2929.11; (2) the trial court failed to make the findings required to impose consecutive 

sentences, R.C. 2929.14(C)(4); and (3) the trial court failed to consider the seriousness 

and recidivism factors, R.C. 2929.12. 

{¶7} Initially, we must determine the standard of review applicable to alleged 

sentencing errors. Prior to 2006, Ohio sentencing law created presumptions that 

offenders be given minimum, concurrent terms of incarceration. See former R.C. 

2929.14(B), 2929.14(E)(4), 2919.19(B)(2), and 2929.41. These presumptions could be 
 4

overcome if the court made specific factual findings regarding the nature of the offense 

and the need to protect the public. This judicial fact-finding was later called into 

question by Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 

542 U.S. 296 (2004), where the United States Supreme Court held that judicial factfinding could infringe upon a defendant’s Sixth Amendment right to a jury trial because it 

invaded the fact-finding function of the jury. 

{¶8} In 2006, the Ohio Supreme Court held that under Apprendi and Blakely, 

Ohio’s sentencing statutes that required a judge to make factual findings in order to 

increase a sentence beyond presumptive minimum or concurrent terms 

unconstitutionally infringed on the jury’s function in violation of the Sixth Amendment. 

State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. As a result, the Court severed those 

sections and held that courts have full discretion to sentence within the applicable 

statutory range and to order sentences to be served consecutively. Id. at ¶99-100. 

{¶9} In applying Foster, the Ohio Supreme Court later held in 2008 that 

appellate courts must apply a two-step procedure for review of a felony sentence. State 

v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. In the first step, the Kalish Court held 

that appellate courts shall examine the sentencing court’s compliance with “all 

applicable rules and statutes in imposing the sentence” to determine whether the 

sentence is clearly and convincingly contrary to law, the standard found in R.C. 

2953.08(G). Id. at ¶26. If this first step is satisfied, the Court held that the trial court’s 

decision shall be reviewed under an abuse-of-discretion standard. Id. 
 5

{¶10} We note that Kalish, an appeal from this court, State v. Kalish, 11th Dist. 

Lake No. 2006-L-093, 2007-Ohio-3850 (O’Toole, J., concurring in part, dissenting in 

part) is a plurality opinion. Therefore, it is merely persuasive. See State v. Azbill, 11th 

Dist. Lake No. 2007-L-092, 2008-Ohio-6875, ¶9, fn. 2, citing State v. Bassett, 8th Dist. 

Cuyahoga No. 90887, 2008-Ohio-5597, ¶24, fn.2. Although the plurality in Kalish 

indicated that this court did not review the sentence to ensure that the trial court clearly 

and convincingly complied with the pertinent laws, it nevertheless affirmed this court’s 

judgment, albeit on different grounds. 

{¶11} Thereafter, in 2009, the reasoning in Foster was partially called into 

question by Oregon v. Ice, 555 U.S. 160 (2009), where the United States Supreme 

Court held that a state could require judicial findings of fact to impose consecutive 

rather than concurrent sentences without infringing on a defendant’s Sixth Amendment 

rights. In 2010, the Ohio Supreme Court subsequently determined that Foster remained 

valid after Ice and the judiciary was not required to make findings of fact prior to 

imposing maximum or consecutive sentences in State v. Hodge, 128 Ohio St.3d 1, 

2010-Ohio-6320. However, a trial court was still required to consider the sentencing 

purposes in R.C. 2929.11 and the guidelines contained in R.C. 2929.12. See Foster, 

supra, at ¶36-42. 

{¶12} On September 30, 2011, Ohio’s sentencing statutes were revised 

pursuant to H.B. 86. The Ohio General Assembly enacted a new, but slightly different, 

requirement of judicial fact-finding under H.B. 86, containing many amendments to 

criminal sentencing provisions. For example, H.B. 86 revived the language provided in 

former R.C. 2929.14(E) and moved it to R.C. 2929.14(C)(4), requiring a trial court to 
 6

make specific findings when imposing consecutive sentences. As a result, we no longer 

apply the two-step analysis contained in the 2008 Kalish case to defendants sentenced 

after H.B. 86’s enactment. Rather, we apply R.C. 2953.08(G) and the clear and 

convincing standard to determine whether the sentence is contrary to law. See e.g. 

State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶10; State v. Drobny, 

8th Dist. Cuyahoga No. 98404, 2013-Ohio-937, ¶5, fn.2; State v. Kinstle, 3rd Dist. Allen 

No. 1-11-45, 2012-Ohio-5952, ¶47; State v. Cochran, 10th Dist. Franklin No. 11AP-408, 

2012-Ohio-5899, ¶52. 

{¶13} In reviewing a felony sentence, R.C. 2953.08(G) provides: 

{¶14} “(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. 

{¶15} “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 appellate 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 following: 

{¶16} “(a) That the record does not support the sentencing court’s findings 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; 

{¶17} “(b) That the sentence is otherwise contrary to law.” 

{¶18} The Eighth District recently stated in Venes, supra, at ¶20-21: 
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{¶19} “It is important to understand that the ‘clear and convincing’ standard 

applied in R.C. 2953.08(G)(2) is not discretionary. In fact, R.C. 2953.08(G)(2) makes it 

clear that ‘(t)he appellate court’s standard for review is not whether the sentencing court 

abused its discretion.’ As a practical consideration, this means that appellate courts are 

prohibited from substituting their judgment for that of the trial judge. 

{¶20} “It is also important to understand that the clear and convincing standard

used by R.C. 2953.08(G)(2) is written in the negative. It does not say that the trial judge 

must have clear and convincing evidence to support its findings. Instead, it is the court 

of appeals that must clearly and convincingly find that the record does not support the 

court’s findings. In other words, the restriction is on the appellate court, not the trial 

judge. This is an extremely deferential standard of review.” 

{¶21} Mr. Blair-Walker contends the trial court failed to consider the purposes of 

felony sentencing. H.B. 86 revised R.C. 2929.11, which now provides, in relevant part: 

{¶22} “(A) A court that sentences an offender for a felony shall be guided by the 

overriding purposes of felony sentencing. The overriding purposes of felony sentencing 

are to protect the public from future crime by the offender and others and to punish 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 those purposes, the sentencing court shall consider the need for 

incapacitating the offender, deterring the offender and others from future crime, 

rehabilitating the offender, and making restitution to the victim of the offense, the public, 

or both.” 
 8

{¶23} In its judgment entry of sentence, the trial court stated: 

{¶24} “The Court considered the purpose of felony sentencing which is to protect 

the public from future crimes by the Defendant and to punish the Defendant using the 

minimum sanctions that the Court determines to accomplish those purposes without 

imposing an unnecessary burden on state or local government resources. 

{¶25} “The Court also considered the need for incapacitating the Defendant, 

deterring the defendant and others from future crime, rehabilitating the Defendant, 

making restitution to the victim of the offense, the public or both. 

{¶26} “The Court also considered the evidence presented by counsel, oral 

statements, any victim impact statements, the Pre-Sentence Report and the defendant’s 

statement.” 

{¶27} This language generally adheres to that set forth at R.C. 2929.11(A). 

While useful for appellate review, trial courts are not required to make factual findings 

under R.C. 2929.11. State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio150, ¶49. “Rather, the trial court still has discretion to determine whether the sentence 

satisfies the overriding purpose of Ohio’s sentencing structure.” Id. 

{¶28} Consequently, we find no error relating to the trial court’s consideration of 

the purposes of felony sentencing. 

{¶29} Mr. Blair-Walker also contends the trial court failed to make the findings 

required to impose consecutive sentences. These are now set forth at R.C. 2929.14(C), 

which provides, in relevant part: 

{¶30} “(4) If multiple prison terms are imposed on an offender for convictions of 

multiple offenses, the court may require the offender to serve the prison terms 
 9

consecutively if the court finds that the consecutive service is necessary to protect the 

public from future crime or to punish the offender and that consecutive sentences are 

not disproportionate to the seriousness of the offender’s conduct and to the danger the 

offender poses to the public, and if the court also finds any of the following: 

{¶31} “(a) The offender committed one or more of the multiple offenses while the 

offender was awaiting trial 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 for a prior offense. 

{¶32} “(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 conduct adequately reflects the seriousness 

of the offender’s conduct. 

{¶33} “(c) The offender’s history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from future crime by the 

offender.” 

{¶34} In its judgment entry of sentence, the trial court stated: 

{¶35} “The Court further finds that the consecutive sentence is necessary to 

protect the public from future crime or to punish the Defendant; that consecutive 

sentences are not disproportionate to the seriousness of the Defendant’s conduct and 

to the danger the defendant poses to the public. Further, at least two of the multiple 

offenses were committed as a part of one or more courses of conduct, and the harm 

caused by two or more of the multiple offenses committed was so great or unusual that 
 10

no single prison term for any of the offenses committed as a part of any of the courses 

of conduct adequately reflects the seriousness of the Defendant’s conduct and the 

Defendant’s history of criminal conduct demonstrates that consecutive sentences are 

necessary to protect the public from future crime by the Defendant.” 

{¶36} These findings, again, closely adhere to the language set forth at R.C. 

2929.14(C)(4). As the Eighth District noted in Venes, supra, at ¶16, a sentencing court 

is not required by R.C. 2929.14(C)(4) to “justify its findings by giving reasons for making 

those findings.” The trial court had before it the testimony of Mr. Blair-Walker’s young 

victim, who appeared on behalf of the state at trial to recount the horrors to which she 

had been subjected, repeatedly. 

{¶37} We find no error in the trial court’s findings in support of consecutive 

sentences. 

{¶38} Mr. Blair-Walker also asserts the trial court erred in failing to consider the 

seriousness and recidivism factors enumerated in R.C. 2929.12. 

{¶39} “A sentencing court must consider * * * the seriousness and recidivism 

factors in R.C. 2929.12. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶38, * * *. 

The sentencing court need not make findings regarding these statutes in order to 

impose the maximum prison term. We have held that a silent record raises the 

rebuttable presumption that the sentencing court considered the statutory sentencing 

criteria. State v. James, 7th Dist. No. 07CO47, 2009-Ohio-4392, ¶50. Only if the record 

affirmatively shows that the trial court failed to consider the principles and purposes of 

sentencing will a sentence be reversed on this basis, unless the sentence is strikingly 
 11

inconsistent with relevant considerations. Id.” (Parallel citation omitted.) State v. 

Parsons, 7th Dist. Belmont No. 12 BE 11, 2013-Ohio-1281, ¶12. 

{¶40} In this case, the trial court did not include any findings regarding the 

seriousness and recidivism factors. Again, such findings, even if not required, are 

useful for appellate review. However, the record in this case contains obvious factors 

indicating that Mr. Blair-Walker’s conduct was more serious than normal. The injuries, 

mental and physical, suffered by his victim are exacerbated by her youth. R.C. 

2929.12(B)(1). He used his relationship with the victim and her mother to facilitate the 

crimes. R.C. 2929.12(B)(6). The record clearly establishes that Mr. Blair-Walker is a 

recidivist: he was previously convicted of gross sexual imposition regarding 

prepubescent girls, one of whom was the daughter of his then girlfriend. R.C. 

2929.12(D)(2) and (3). Mr. Blair-Walker showed no remorse for his crimes, merely 

making a brief and bland denial of guilt when sentenced. R.C. 2929.12(D)(5). 

{¶41} We find no error in the trial court’s consideration of the seriousness and 

recidivism factors. 

{¶42} The trial court did not err in sentencing Mr. Blair-Walker to more than 

minimum terms of imprisonment, or to consecutive terms. The first assignment of error 

lacks merit. 

{¶43} The second assignment or error is, “The trial court committed plain error 

when it found the appellant to be a violent sexual predator under O.R.C. 2971.01.” The 

issue presented is, “Whether there was sufficient evidence for the trial court to find that 

appellant was a violent sexual predator.” 

{¶44} Regarding a challenge to the sufficiency of evidence, this court has held: 
 12

{¶45} “‘Sufficiency’ challenges whether the prosecution has presented evidence 

on each element of the offense to allow the matter to go to the jury, * * *. 

{¶46} “‘“(* * *) The test (for sufficiency of the evidence) is whether after viewing 

the probative evidence and the inference drawn therefrom in the light most favorable to 

the prosecution, any rational trier of fact could have found all of the elements of the 

offense beyond a reasonable doubt. The claim of insufficient evidence invokes an 

inquiry about due process. It raises a question of law, the resolution of which does not 

allow the court to weigh the evidence. (Emphasis added.)’ 

{¶47} “In other words, the standard to be applied on a question concerning 

sufficiency is: when viewing the evidence ‘in a light most favorable to the prosecution,’ 

‘(a) reviewing court (should) not reverse a jury verdict where there is substantial 

evidence upon which the jury could reasonably conclude that all of the elements of an 

offense have been proven beyond a reasonable doubt.’” (Citations omitted.) State v. 

Schlee, 11th Dist. Lake No. 93-L-082, 1994 Ohio App. LEXIS 5862, *13-14 (Dec. 23, 

1994). 

{¶48} The term “sexually violent predator” is defined at R.C. 2971.01(H), which 

provides: 

{¶49} “(H)(1) ‘Sexually violent predator’ means a person who, on or after 

January 1, 1997, commits a sexually violent offense and is likely to engage in the future 

in one or more sexually violent offenses. 

{¶50} “(2) For purposes of division (H)(1) of this section, any of the following 

factors may be considered as evidence tending to indicate that there is a likelihood that 

the person will engage in the future in one or more sexually violent offenses: 
 13

{¶51} “(a) The person has been convicted two or more times, in separate 

criminal actions, of a sexually oriented offense or a child-victim oriented offense. For 

purposes of this division, convictions that result from or are connected with the same act 

or result from offenses committed at the same time are one conviction, and a conviction 

set aside pursuant to law is not a conviction. 

{¶52} “(b) The person has a documented history from childhood, into the juvenile 

developmental years, that exhibits sexually deviant behavior. 

{¶53} “(c) Available information or evidence suggests that the person chronically 

commits offenses with a sexual motivation. 

{¶54} “(d) The person has committed one or more offenses in which the person 

has tortured or engaged in ritualistic acts with one or more victims. 

{¶55} “(e) The person has committed one or more offenses in which one or more 

victims were physically harmed to the degree that the particular victim’s life was in 

jeopardy. 

{¶56} “(f) Any other relevant evidence.” 

{¶57} Essentially, Mr. Blair-Walker relies on R.C. 2971.01(H)(2)(a), providing 

that a person who has been convicted at least twice, in separate criminal actions, of 

sexually oriented offenses may be deemed a sexually violent predator. Mr. Blair-Walker 

correctly notes that the trial court relied on his prior conviction in 2004 for gross sexual 

imposition in determining that he had committed two or more sexually oriented offenses. 

The trial court further relied, of course, on the convictions subject of this case. Mr. BlairWalker further notes that the 2004 conviction resulted from offenses committed at the 

same time, and argues that it is a single conviction for purposes of R.C. 2971.01(H). 
 14

And then, he cites to the decision in State v. Smith, 104 Ohio St.3d 106, 2004-Ohio6238, ¶1, where the court held: “R.C. 2971.01(H)(1) requires that only a conviction that 

existed prior to the indictment of the underlying offense can be used to support the 

(sexually violent predator) specification.” Pursuant to Smith, Mr. Blair-Walker contends 

the trial court could not rely on his present conviction to establish that he has been 

convicted twice or more times of sexually oriented offenses. Thus, he reasons that he 

has only been convicted for one sexually oriented offense, and cannot be deemed a 

sexually violent predator. 

{¶58} We disagree. As several appellate courts have noted, the decision in 

Smith was premised on a former version of R.C. 2971.01(H)(1), which defined a 

sexually violent predator as, “‘[A] person who has been convicted of or pleaded guilty to 

committing * * * a sexually violent offense and is likely to engage in the future in one or 

more sexually violent offenses.’” (Emphasis sic.) State v. Austin, 1st Dist. Hamilton No. 

C-110804, 2012-Ohio-4232, ¶17. See also State v. Wagers, 12th Dist. Preble No. 

CA2009-06-018, 2010-Ohio-2311, ¶28-33. As the Austin court found: 

{¶59} “In response to Smith, the legislature amended R.C. 2971.01(H)(1) to its 

current version, which defines a [sexually violent predator] as a ‘person who, * * * 

commits a sexually violent offense and is likely to engage in the future in one or more 

sexually violent offenses.’ (Emphasis added.) Thus, the statute now provides that a 

sexually violent offense in the current indictment can be the basis for the [sexually 

violent predator] specification.” Austin at ¶18. 
 15

{¶60} Consequently, the trial court in this case was entirely justified on relying on 

the crimes and specifications contained in the current indictment in determining that Mr. 

Blair-Walker is a sexually violent predator. The second assignment of error lacks merit. 

{¶61} The judgment of the Portage County Court of Common Pleas is affirmed. 

{¶62} It appearing from the record that appellant is indigent, costs are waived. 

{¶63} The court finds there were reasonable grounds for this appeal. 

TIMOTHY P. CANNON, P.J., 

DIANE V. GRENDELL, J., 

concur.