State v. Worden
Citation2022 Ohio 4648
Date Filed2022-12-21
DocketCT2022-0030
JudgeGwin
Cited6 times
StatusPublished
Syllabus
Consecutive sentences
Full Opinion (html_with_citations)
[Cite as State v. Worden,2022-Ohio-4648
.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. CT2022-0030
MARC F. WORDEN :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from Muskingum County
Court of Common Pleas, Case No.
CR2022-0021
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 21, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD L. WELCH CHRIS BRIGDON
Prosecutig Attorney 8138 Somerset Road
BY TAYLOR P. BENNINGTON Thornville, OH 43076
Assistant Prosecutor
27 North Fifth St., Box 189
Zanesville, OH 43701
[Cite as State v. Worden, 2022-Ohio-4648.]
Gwin, P.J.
{¶1} Defendant-appellant Marc F. Worden [âWordenâ] appeals from the
imposition of consecutive sentences after a negotiated guilty plea in the Muskingum
County Court of Common Pleas.
Facts and Procedural History
{¶2} On January 26, 2022, Worden was indicted on one count of Illegal Use of
Minor in Nudity-Oriented Material or Performance, a felony of the second degree, and two
counts of Rape, felonies of the first degree.
{¶3} Worden was alleged to have invited two teenage minor boys to his home to
view a gun collection and pornographic magazines. After supplying alcohol to at least
one of the minors, the minor became drunk. It was then alleged that Worden followed
him into a bathroom where he performed oral sex on the minor.
{¶4} Further, relating to Count 3, after executing a search warrant for Worden's
phone, he admitted a photo of another minor's genitalia existed on his phone.
Investigators then tracked down that minor and, after interviewing him, learned that a
similar situation to that described above had taken place on June 11, 2022.
{¶5} On April 4, 2022, Worden entered guilty pleas to the amended counts of
Illegal Use of Minor in Nudity-Oriented Material or Performance, a felony of the fifth
degree, and two counts of Gross Sexual Imposition, felonies of the fourth degree.
{¶6} On May 9, 2022, Worden was sentenced in the Muskingum County Court of
Common Pleas to the maximum allowable 12 months on Count 1, and the maximum
allowable on Counts 2 and 3, 18 months, on each count. Further, all counts were ordered
to run consecutive for an aggregate sentence of 48 months.
Muskingum County, Case No. CT2022-0030 3
Assignment of Error
{¶7} Worden raises one Assignment of Error,
{¶8} âI. DID THE TRIAL COURT VIOLATE WORDEN'S RIGHTS TO DUE
PROCESS, GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO
CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION?â
Law and analyses
Standard of Appellate Review
{¶9} A court reviewing a criminal sentence is required by R.C. 2953.08(F) to
review the entire trial court record, including any oral or written statements and
presentence-investigation reports. R.C. 2953.08(F)(1) through (4).
{¶10} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Marcum, 146 Ohio St.3d 516,2016-Ohio-1002
,59 N.E.3d 1231
, ¶22; State v. Howell, 5th Dist. Stark No. 2015CA00004,2015-Ohio-4049, ¶31
. R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence and remand for resentencing where we clearly and convincingly find that either the record does not support the sentencing courtâs findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law. See, also, State v. Bonnell,140 Ohio St.3d 209
,2014-Ohio-3177
,16 N.E.3d 659, ¶28
.
{¶11} R.C. 2953.08(G)(2)(b) does not provide a basis for an appellate 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. State v. Jones, 163 Ohio St.3d 242, 2020-Ohio- 6729,169 N.E.3d 649, ¶39
. The Ohio Supreme Court further elucidated in State v. Toles, Muskingum County, Case No. CT2022-0030 4166 Ohio St.3d 397
,2021-Ohio-3531
,186 N.E.3d 784, ¶10
, âR.C. 2953.08, as amended,
precludes second-guessing a sentence imposed by the trial court based on its weighing
of the considerations in R.C. 2929.11 and 2929.12.â
{¶12} In State v. Bryant, the Court recently clarified the holding in State v. Jones,
163 Ohio St.3d 242,2020-Ohio-6729
,169 N.E.3d 649
,
The narrow holding in Jones is that R.C. 2953.08(G)(2) does not
allow an appellate 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. See Jones at ¶ 31, 39. Nothing about that holding should be
construed as prohibiting appellate review of a sentence when the claim is
that the sentence was improperly imposed based on impermissible
considerationsâi.e., considerations that fall outside those that are
contained in R.C. 2929.11 and 2929.12. Indeed, in Jones, this court made
clear that R.C. 2953.08(G)(2)(b) permits appellate courts to reverse or
modify sentencing decisions that are ââotherwise contrary to law.ââ Jones at
¶ 32, quoting R.C. 2953.08(G)(2)(b). This court also recognized that
âotherwise contrary to lawâ means ââin violation of statute or legal regulations
at a given time.ââ Id. at ¶34 quoting Blackâs Law Dictionary 328 (6th
Ed.1990). Accordingly, when a trial court imposes a sentence based on
factors or considerations that are extraneous to those that are permitted by
R.C. 2929.11 and 2929.12, that sentence is contrary to law. Claims that
raise these types of issues are therefore reviewable.
168 Ohio St.3d 250,2022-Ohio-1878
,198 N.E.3d 68, ¶22
.
Muskingum County, Case No. CT2022-0030 5
Issue for appellate review: Whether the trial court properly imposed consecutive
sentences in Wordenâs case.
R.C. 2929.13(B)
{¶13} R.C. 2929.13(B) applies to one convicted of a fourth- or fifth-degree felony.
Worden pled guilty to two felonies of the fourth degree and one felony of the fifth degree.
In relevant part the statute provides,
(B)(1)(a) Except as provided in division (B)(1)(b) of this section, if an
offender is convicted of or pleads guilty to a felony of the fourth or fifth
degree that is not an offense of violence or that is a qualifying assault
offense, the court shall sentence the offender to a community control
sanction or combination of community control sanctions if all of the following
apply:
(i) The offender previously has not been convicted of or pleaded
guilty to a felony offense.
(ii) The most serious charge against the offender at the time of
sentencing is a felony of the fourth or fifth degree.
(iii) If the court made a request of the department of rehabilitation and
correction pursuant to division (B)(1)(c) of this section, the department,
within the forty-five-day period specified in that division, provided the court
with the names of, contact information for, and program details of one or
more community control sanctions that are available for persons sentenced
by the court.
{¶14} R.C. 2929.13(B)(1)(b) further provides,
Muskingum County, Case No. CT2022-0030 6
(b) The court has discretion to impose a prison term upon an offender
who is convicted of or pleads guilty to a felony of the fourth or fifth degree
that is not an offense of violence or that is a qualifying assault offense if any
of the following apply:
(i) The offender committed the offense while having a firearm on or
about the offenderâs person or under the offenderâs control.
(ii) If the offense is a qualifying assault offense, the offender caused
serious physical harm to another person while committing the offense, and,
if the offense is not a qualifying assault offense, the offender caused
physical harm to another person while committing the offense.
(iii) The offender violated a term of the conditions of bond as set by
the court.
(iv) The court made a request of the department of rehabilitation and
correction pursuant to division (B)(1)(c) of this section, and the department,
within the forty-five-day period specified in that division, did not provide the
court with the name of, contact information for, and program details of any
community control sanction that is available for persons sentenced by the
court.
(v) The offense is a sex offense that is a fourth- or fifth-degree felony
violation of any provision of Chapter 2907. of the Revised Code.
(vi) In committing the offense, the offender attempted to cause or
made an actual threat of physical harm to a person with a deadly weapon.
Muskingum County, Case No. CT2022-0030 7
(vii) In committing the offense, the offender attempted to cause or
made an actual threat of physical harm to a person, and the offender
previously was convicted of an offense that caused physical harm to a
person.
(viii) The offender held a public office or position of trust, and the
offense related to that office or position; the offenderâs position obliged the
offender to prevent the offense or to bring those committing it to justice; or
the offenderâs professional reputation or position facilitated the offense or
was likely to influence the future conduct of others.
(ix) The offender committed the offense for hire or as part of an
organized criminal activity.
(x) The offender at the time of the offense was serving, or the
offender previously had served, a prison term.
(xi) The offender committed the offense while under a community
control sanction, while on probation, or while released from custody on a
bond or personal recognizance.
Emphasis added. Wordenâs offenses were sex offenses that are a fourth- or fifth-degree
felony violations of provisions of Chapter 2907. of the Revised Code. Accordingly, the
court had discretion to impose a prison term for the fourth- and fifth-degree felonies.
R.C. 2929.14 (C)(4) Consecutive Sentences
{¶15} In order for a trial court to impose consecutive sentences the court must find
that consecutive sentences are necessary to protect the public from future crime or to
punish the offender. The court must also find that consecutive sentences are not
Muskingum County, Case No. CT2022-0030 8
disproportionate to the offenderâs conduct and to the danger the offender poses to the
public. Finally, the court must make at least one of three additional findings, which include
that (a) the offender committed one or more of the offenses while awaiting trial or
sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18,
or while under post release control for 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 offenses 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 would adequately
reflect the seriousness of the offenderâs conduct; or (c) the offenderâs criminal history
demonstrates that consecutive sentences are necessary to protect the public from future
crime by the offender.
{¶16} âIn order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry[.]â State v. Bonnell, 140 Ohio St.3d
209,2014-Ohio-3177, ¶37
. Otherwise, the imposition of consecutive sentences is contrary to law. SeeId.
The trial court is not required âto give a talismanic incantation of the words of the statute, provided that the necessary findings can be found in the record and are incorporated into the sentencing entry.âId.
{¶17} In this case, the record does support a conclusion that the trial court made
all of the findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive
sentences.
R.C. 2929.14(C)(4): [T]he court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is necessary to
Muskingum County, Case No. CT2022-0030 9
protect the public from future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the offenderâs conduct
and to the danger the offender poses to the public.
{¶18} The trial court considered this factor. Sent. T. at 17-18.
R.C. 2929.14(C)(4)(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.
{¶19} This provision does not apply to Wordenâs case.
R.C. 2929.14(C)(4)(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 offenderâs conduct.
{¶20} The trial court considered this factor. Sent. T. at 16-17.
R.C. 2929.14(C)(4)(c): The offenderâs history of criminal conduct
demonstrates that consecutive sentences are necessary to protect the public from
future crime by the offender.
{¶21} The trial court made no finding with respect to this factor.
{¶22} Worden contends that the trial court did not consider the mitigating evidence
presented that he had been a volunteer firefighter for 20 years, had established a
business and has no prior felony convictions. Sent. T. at 9.
Muskingum County, Case No. CT2022-0030 10
{¶23} R.C. 2929.12 sets forth the seriousness and recidivism factors for the
sentencing court to consider in determining the most effective way to comply with the
purposes and principles of sentencing set forth in R.C. 2929.11. R.C. 2929.12 is a
guidance statute that sets forth the seriousness and recidivism criteria that a trial court
âshall considerâ in fashioning a felony sentence. Subsections (B) and (C) establish the
factors indicating whether the offenderâs conduct is more serious or less serious than
conduct normally constituting the offense. These factors include the physical or mental
injury suffered by the victim due to the age of the victim; the physical, psychological, or
economic harm suffered by the victim; whether the offenderâs relationship with the victim
facilitated the offense; the defendantâs prior criminal record; whether the defendant was
under a court sanction at the time of the offense; whether the defendant shows any
remorse; and any other relevant factors. R.C. 2929.12(B). The court must also consider
any factors indicating the offenderâs conduct is less serious than conduct normally
constituting the offense, including any mitigating factors. R.C. 2929.12(C). Subsections
(D) and (E) contain the factors bearing on whether the offender is likely or not likely to
commit future crimes.
{¶24} Although a court imposing a felony sentence must consider the purposes of
felony sentencing under R.C. 2929.11 and the sentencing factors under R.C. 2929.12,
âneither R.C. 2929.11 nor 2929.12 requires [the] court to make any specific factual
findings on the record.â State v. Jones, 163 Ohio St.3d 242,2020-Ohio-6729
,169 N.E.3d 649, ¶ 20
, citing State v. Wilson,129 Ohio St.3d 214
,2011-Ohio-2669
,951 N.E.2d 381
, ¶ 31, and State v. Arnett,88 Ohio St.3d 208, 215
,724 N.E.2d 793
(2000).
Muskingum County, Case No. CT2022-0030 11
{¶25} In the case at bar, the mitigating factors were discussed in open court. Upon
review of the record it is obvious that the trial court found the mitigating factors were
substantially outweighed by Wordenâs lack of responsibility and remorse for his actions,
the age of his victims, the psychological harm caused said victims, and that his position
facilitated the offenses. Sent. T. at 11-16.
Whether the trial courtâs decision to impose consecutive sentences in Wordenâs
case is supported by the record.
{¶26} According to the Ohio Supreme Court, âthe record must contain a basis upon
which a reviewing court can determine that the trial court made the findings required by
R.C. 2929.14(C)(4) before it imposed consecutive sentences.â Bonnell, ¶28. â[A]s long
as the reviewing court can discern that the trial court engaged in the correct analysis and
can determine that the record contains evidence to support the findings, consecutive
sentences should be upheld.â Id. at ¶29.
{¶27} R.C. 2953.08(G)(2)(b) does not provide a basis for an appellate 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. State v. Jones, 163 Ohio St.3d 242, 2020-Ohio- 6729,169 N.E.3d 649, ¶39
. The Ohio Supreme Court further elucidated in State v. Toles,166 Ohio St.3d 397
,2021-Ohio-3531
,186 N.E.3d 784, ¶10
, âR.C. 2953.08, as amended,
precludes second-guessing a sentence imposed by the trial court based on its weighing
of the considerations in R.C. 2929.11 and 2929.12.â
{¶28} Upon review, we find that the trial courtâs sentencing on the charges
complies with applicable rules and sentencing statutes. The sentence was within the
statutory sentencing range. Worden has not shown that the trial court imposed the
Muskingum County, Case No. CT2022-0030 12
sentence based on impermissible considerationsâi.e., considerations that fall outside
those that are contained in R.C. 2929.11 and R.C. 2929.12. Further, the record contains
evidence supporting the trial courtâs findings under R.C. 2929.14(C)(4). Therefore, we
have no basis for concluding that it is contrary to law.
{¶29} Wordenâs sole assignment of error is overruled.
{¶30} The judgment of the Muskingum County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Delaney, J., concur
[Cite as State v. Worden, 2022-Ohio-4648.]
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
MARC WORDEN :
:
:
Defendant-Appellant : CASE NO. CT2022-0030
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Muskingum County Court of Common Pleas is affirmed. Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. PATRICIA A. DELANEY