State v. Hites

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State v. Hites

State: Ohio

Court: Ohio Southern District Court

Docket No: 2012-Ohio-1892

Case Date: 04/30/2012

Plaintiff: State

Defendant: Hites

Preview:[Cite as State v. Hites, 2012-Ohio-1892.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE,                                CASE NO.   6-11-07
v.
SANDRA D. HITES,                                   O P I N I O N
DEFENDANT-APPELLANT.
Appeal from Hardin County Common Pleas Court
Trial Court No. 20112162CRI
Judgment Affirmed
Date of Decision:    April 30, 2012
APPEARANCES:
David K. Goodin   for Appellant
Bradford W. Bailey and Ryan Zerby   for Appellee

Case No. 6-11-07
SHAW, P.J.
{¶1} Defendant-appellant, Sandra D. Hites (“Hites”), appeals the October
13, 2011 judgment of the Hardin County Court of Common Pleas sentencing her
to serve eight years in prison for her conviction on two counts of sexual battery.
{¶2} On  August  4,  2011,  the  Hardin  County Prosecutor  filed  a  bill  of
information alleging Hites committed two counts of sexual battery, in violation of
R.C. 2907.03(A)(7), both felonies of the third degree.   On the same day, Hites also
signed a waiver of indictment and pled guilty to both counts listed in the bill of
information.    The charges stemmed from two incidents during which Hites, a
teacher’s aide and a coach at a local school district, digitally penetrated the vagina
of a thirteen-year-old student on school premises.
{¶3} On  October                                                                          11,   2011,  Hites  appeared  for  sentencing.     At  the
sentencing hearing, the prosecution recommended a prison term of three years on
each count of sexual battery to run consecutively for a total six-year sentence.
After  considering  the  arguments  from  the  prosecution,  the  defendant  and  her
counsel,  the  pre-sentence  investigative  report  and  a  statement  written  by  the
victim’s parents, in addition to the evidence contained in the record, the trial court
sentenced Hites to serve four years in prison on each count of sexual battery with
the prison terms to run consecutively for a total of eight years in prison.   Hites was
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also classified as a Tier III sexual offender.   Hites’ sentence was journalized in the
trial court’s October 13, 2011 judgment entry of conviction and sentence.
{¶4} Hites now appeals, asserting the following assignments of error.
ASSIGNMENT OF ERROR NO. I
DEFENDANT’S EIGHT YEAR SENTENCE IS CONTRARY
TO   LAW   BECAUSE   IT   IS   INCONSISTENT   WITH
SENTENCES     IMPOSED     FOR     SIMILAR     CRIMES
COMMITTED BY SIMILAR OFFENDERS.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
WHEN  IT  RELIED  ON  NEW  MATERIAL  FACTS  IN
SENTENCING THE DEFENDANT WITHOUT CONTINUING
THE   HEARING   OR   TAKING   OTHER   APPROPRIATE
ACTIONS TO ALLOW THE DEFENDANT AN ADEQUATE
OPPORTUNITY  TO  RESPOND,  AS  REQUIRED  BY  [R.C.]
2930.14(B).
ASSIGNMENT OF ERROR NO. III
THE DEFENDANT’S SENTENCES ARE VOID AND MUST
BE  VACATED  BECAUSE  THE  TRIAL  COURT  RELIED
                                                                                                UPON      UNCONSTITUTIONAL      STATUTES,                       [R.C.]
2929.14(E)(4)                                                                             AND   [R.C.]                                      2929.14(E)(4)(b),   WHEN
SENTENCING THE DEFENDANT.
ASSIGNMENT OF ERROR NO. IV
DEFENDANT’S  EIGHT  YEAR  SENTENCE  IS  UNDULY
HARSH  AND NOT  SUPPORTED BY THE RECORD,  AND
THEREFORE CONSTITUTES AN ABUSE OF THE TRIAL
COURT’S DISCRETION.
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ASSIGNMENT OF ERROR NO. V
DEFENDANT’S   SENTENCE   IS   CONTRARY   TO   LAW
BECAUSE   THE    TRIAL    COURT    EMPLOYED   THE
“SENTENCING PACKAGE” DOCTRINE.
{¶5} For  ease  of  discussion,  we  elect  to  discuss  some  of  Hites’
assignments of error together and out of order.
First, Fourth and Fifth Assignments of Error
{¶6} In her first, fourth and fifth assignments of error, Hites argues that the
trial court abused its discretion in imposing the eight-year prison term and asserts
that the prison term imposed by the trial court is contrary to law.   Specifically,
Hites claims that the eight-year prison term imposed by the trial court is unduly
harsh and was not supported by the record.   Hites also argues that the sentence
imposed  by  the  trial  court  is  contrary  to  law  because  it  is  inconsistent  with
sentences imposed for similar crimes committed by similar offenders and because
the  trial  court  erroneously  employed  the                                                “sentencing  package”  doctrine  in
imposing Hites’ sentence.
{¶7} An  appellate  court  must  conduct  a  meaningful  review  of  the  trial
court’s sentencing decision.    State v. Daughenbaugh,  3d Dist. No.  16-07-07,
2007-Ohio-5774, ¶ 8, citing State v. Carter, 11th Dist. No. 2003-P-0007, 2004-
Ohio-1181.   In particular, R.C. 2953.08(G)(2) provides the following regarding an
appellate court’s review of a sentence on appeal.
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The  court  hearing  an  appeal  *  *  *  shall  review  the  record,
including the findings underlying the sentence or modification
given by the sentencing court.
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:
(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;
(b)  That the sentence is otherwise contrary to law.
{¶8} In  addition,  a  sentence  imposed  for  a  felony  shall  be  reasonably
calculated to achieve the two overriding purposes of felony sentencing, which are
to protect the public from future crimes by the offender and others and to punish
the  offender,  and  shall  be  commensurate  with  and  not  demeaning  to  the
seriousness  of  the  offender’s  conduct  and  its  impact  upon  the  victim,  and
consistent  with  sentences  imposed  for  similar  crimes  committed  by  similar
offenders.”   See R.C. 2929.11(A),(B).
{¶9} Hites pled guilty to two counts of sexual battery in violation of R.C.
2907.03(A)(7),  both  felonies  of  the  third  degree.     Revised  Code  Section
2907.03(A)(7) provides, in pertinent part.
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(A)  No person shall engage in sexual conduct with another, not
the spouse of the offender, when any of the following apply:
(7)    The offender is a teacher, administrator, coach, or other
person in authority employed by or serving in a school for 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.
{¶10} Pursuant to R.C. 2929.14(A)(3)(a), “[f]or a felony of the third degree
that is a violation of section * * * 2907.03 * * * of the Revised Code, * * * the
prison term shall be twelve, eighteen, twenty-four, thirty, thirty-six, forty-two,
forty-eight, fifty-four, or sixty months.”   Here, the trial court sentenced Hites to
four years, or forty-eight months, on each count of sexual battery, which is within
the statutory range and not the maximum sentence the trial court was authorized to
impose.    The trial court also determined that the facts of this case warranted
imposing the two, four-year prison terms to run consecutively.
{¶11} The revisions to the felony sentencing statutes under H.B. 86 now
require  a  trial  court  to  make  specific  findings  when  imposing  consecutive
sentences.1   In particular, R.C. 2929.14(C)(4) provides, in relevant part:
(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 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
1 We note that because H.B. 86 took effect on September 30, 2011, and Hites was sentenced on October 13,
2011, the trial court was required to sentence Hites according to the revisions implemented in H.B. 86.
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Case No. 6-11-07
offender’s conduct and to the danger the offender poses to the
public, and if the court also finds any of the following:
(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.
(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.
(c)   The  offender’s  history  of  criminal  conduct  demonstrates
that consecutive sentences are necessary to protect the public
from future crimes by the offender.
Both  on  the  record  at  the  sentencing  hearing  and  in  the  judgment  entry  of
conviction  and  sentence,  the  trial  court  articulated  the  appropriate  findings
consistent with the directives of R.C. 2929.14(C)(4).   Specifically, the trial court
made the following findings:
The  Court  finds  that  consecutive  sentences  are  necessary  to
protect the public from future crime and 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 further, that the two offenses
were committed as part of one or more courses of conduct and
the harm caused by the two 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  adequately  reflects  the
seriousness of the offender’s conduct.
(JE, Oct. 13, 2011 at p.4); (see, also, Trans. Oct. 11, 2011 Hrg. at p. 19).
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Case No. 6-11-07
{¶12} In addition, the trial court also stated the following on the record at
the sentencing hearing regarding its rationale for imposing Hites’ sentence.
I went back, Ms. Hites, and checked my records, and there have
been people who committed sexual offenses in this county who
have  been  put  on  community  control.    Those  offenses  were
entirely different than this offense.   The Court is very troubled
by the fact that you used a position of trust with this child, but
more  importantly,  that  you  used  your  position  in  the  public
schools to facilitate one or more of these offenses.   That causes
me great concern.                                                                       [Your attorney] says you understand you
caused harm.   I’m not sure how much harm you realize you’ve
caused, because it’s more than just this child.   It’s a whole school
system, it’s a whole way of thinking about people and how they
interact with children.   For someone who is dedicated to young
people, the Court doesn’t see that.   Maybe there’s a lot of things
I wasn’t apprised of today, but this is not dedication to young
people, this is taking advantage of one young person.   The Court
certainly,  I  would  believe  had  this  not  come  on  a  bill  of
information,  that  you  probably  would  be  looking  at  a  life
sentence in prison for these offenses at this point in time.   So
anything the Court does, I would think would be something a
whole lot less than that, because I don’t have that ability * * *
the  Court  finds  that  you  are  not  amenable  to  an  available
combination of community control sanctions.                                             [I] [f]ind that to
not send you to prison would be seriously ignoring the harm that
you have caused in this particular manner * * *[and] that only
prison can, in fact, justify punishment in this case.
(Trans. Oct. 11, 2011 Hrg. at pp. 16-18).
{¶13} Initially,  we  note  that  on  appeal  Hites  claims  the  trial  court
improperly used the “sentencing package” doctrine when it imposed consecutive
sentences.   Specifically, Hites contends that the trial court attempted to achieve a
particular aggregate sentence and considered the two offenses as one group in
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order  to  impose  an  omnibus  sentence,  a  sentencing  concept  which  has  been
rejected by the Supreme Court of Ohio.   See State v. Saxon, 109 Ohio St.3d 176,
2006-Ohio-1245.   In support of her argument, Hites points to a comment made by
the trial court during the sentencing hearing, in which the trial court stated the
following:
The Court certainly, I would believe had this not come on a bill
of information, that you probably would be looking at a life
sentence in prison for these offenses at this point in time.
(Trans. Oct.  11,  2011 Hrg. at pp.  17-18).    Hites maintains that this comment
demonstrates that by imposing consecutive sentences, the trial court attempted to
impose a sentence more appropriate for the charge of rape rather than imposing a
sentence appropriate for the lesser charges of sexual battery for which Hites was
convicted.   However, when this comment is taken out of isolation and viewed in
the  context  of  the  entire  rationale  stated  by  the  trial  court  for  imposing  the
sentence, it is evident that the trial court relied on specific aggravating facts and
circumstances in the record when it imposed consecutive sentences for Hites’
conviction for two counts of sexual battery.   There is no evidence in the record
that the trial court ignored the statutory provisions of sentencing in order to obtain
the result of a lengthy sentence.   Thus, we find Hites’ claim that the trial court
improperly applied the “sentencing package” doctrine to her case to be meritless.
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{¶14} On appeal, Hites also argues that the sentence imposed by the trial
court is contrary to law because it is inconsistent with sentences imposed for
similar crimes committed by similar offenders.   Hites further maintains that her
sentence is unduly harsh and not supported by the record.   Initially, we note that
other appellate districts have stated the following regarding this issue:
R.C.  2929.11(B) imposes a duty upon the trial court to insure
consistency among the sentences it imposes.  *  *  *  [It is] also
recognized, however, that trial courts are limited in their ability
to address the consistency mandate, and appellate courts are
hampered in their review of this issue, by the lack of a reliable
body of data upon which they can rely.  *  *  *  “[A]lthough a
defendant  cannot  be  expected  to  produce  his  or  her  own
database  to  demonstrate  the  alleged  inconsistency,  the  issue
must at least be raised in the trial court and some evidence,
however minimal, must be presented to the trial court to provide
a  starting  point  for  analysis  and  to  preserve  the  issue  for
appeal.”  Having  failed  to  raise  this  issue  at  sentencing,                       [the
defendant] cannot now argue that the sentence imposed by the
trial  court  was  inconsistent  with  those  imposed  on  similar
offenders.
State v. Bell, 2d Dist. No. 2004-CA-5, 2005-Ohio-655, at ¶ 140, quoting State v.
Roberts, 8th Dist. No. 84070, 2005-Ohio-28, at ¶ 60, internal citations omitted;
see, also, State v. McClendon, 7th Dist. No. 11 MA 15, 2012-Ohio-1410, ¶ 15.
The record demonstrates that Hites failed to object to the sentence imposed by the
trial court at the sentencing hearing or to otherwise raise the issue challenging the
consistency of her sentence with sentences imposed for similar crimes committed
by similar offenders.
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{¶15} Moreover, Hites cites to a variety of other appellate decisions in
support  of  her  arguments  that  the  sentence  imposed  by  the  trial  court  is
inconsistent  with  sentences  imposed  for  similar  crimes  committed  by  similar
offenders and is unduly harsh and not supported by the record.   However, there are
several distinguishing factors present when comparing this case to the ones cited
by Hites.   We note that “there is no grid under Ohio law under which identical
sentences  must be imposed for various classifications of  offenders.”    State v.
Allsup, 3d Dist. No. 6-10-09, 2011-Ohio-404, ¶ 56, citing State v. Dawson, 8th
Dist. No.  86417,  2006-Ohio-1083,  ¶  31.    But rather, an appellate court must
examine the record not to decide whether the trial court “imposed a sentence that
is in lockstep with others, but whether the sentence is so unusual as to be outside
the mainstream of local judicial practice.   Although the offense[s] may be similar,
distinguishing factors may justify dissimilar treatment.”   Dawson at ¶ 31.
{¶16} Consequently, a consistent sentence is not achieved from a case-by-
case  comparison,  but  by  the  trial  court’s  proper  application  of  the  statutory
sentencing guidelines.   State v. Hall, 179 Ohio App.3d 727, 2008-Ohio-6228, ¶ 10.
Thus, a sentencing court is not required to make a comparison of the current case
to previous cases, but is required to appropriately apply the statutory sentencing
guidelines in order to maintain consistency.   State v. Saur, 10th Dist. No. 10AP-
1195, 2011-Ohio-6662, ¶ 37, citing State v. Holloman, 10th Dist. No. 07AP-875,
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Case No. 6-11-07
2008-Ohio-2650.    Therefore, an offender cannot simply present other cases in
which an individual convicted of the same offense received a lesser sentence to
demonstrate that his sentence is disproportionate.   State v. Hayes, 10th Dist. No.
08AP-233, 2009-Ohio-1100, ¶ 10.
{¶17} In the instant case, the record demonstrates that Hites was placed in a
position of trust at the victim’s school as a teacher’s aide, a coach and a mentor.
Hites began to take an interest in the thirteen-year-old victim and helped her
practice  volleyball  and  basketball after  school.    The  record  indicates  that  the
incidents in question occurred in the school locker room and bathroom during and
after school hours.   Some of these incidents occurred in the presence of a special
needs child, of whom Hites was placed in charge during the school day.   There is
evidence in the record that Hites used this special needs child as an excuse to leave
her classroom during the school day so that she could see the victim.   Hites was
able to get permission to take the victim out of her classroom to assist with the
child, and then took both the victim and the child to the locker room, where she
kissed, fondled, and digitally penetrated the victim in the presence of the child.
Even though Hites was charged with two counts of sexual battery, the record
indicates that Hites sexually abused the victim on several occasions.
{¶18} In imposing Hites’ sentence, the trial court specifically recited the
relevant facts and circumstances in the record to support the particular sentence
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Case No. 6-11-07
imposed.   The trial court also explicitly stated in its judgment entry of conviction
and sentencing that it considered the overriding purposes of the felony sentencing
statutes  stated  in  R.C.                                                              2929.11,  and  balanced  the  seriousness  and  recidivism
factors in R.C. 2929.12.   In addition, the sentences imposed by the trial court did
not exceed the permissible statutory range for the offenses for which Hites was
convicted.   Based on our review of the record, we conclude that the trial court
considered the necessary statutory provisions and appropriately applied them to
the particular facts and circumstances of this case.   Therefore, we are unpersuaded
by Hites’ contentions that her sentence is disproportionate to sentences imposed
for similar crimes committed by similar offenders and that her sentence is unduly
harsh and not supported by the record.
{¶19} Based  on  the  foregoing  discussion,  Hites’  first,  fourth  and  fifth
assignments of error are overruled.
Second Assignment of Error
{¶20} In  her  second  assignment  of  error,  Hites  claims  the  trial  court
committed prejudicial error when it relied on new material facts introduced at the
sentencing hearing without continuing the hearing or allowing her an adequate
opportunity to respond.    Hites’ argument under this assignment of error stems
from the written statement of the victim’s parents which was read into the record
at sentencing by the court-appointed Victim’s Advocate.   In this statement, the
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Case No. 6-11-07
victim’s  parents  refer  to  allegations  that  Hites’  not  only  sexual  abused  their
daughter, but physically abused her as well by punching her on four occasions and
shoving her, causing her to fall down and injure her knee.   Hites relies on R.C.
2930.14(B) in support of her argument, which states that
The  court  shall  consider  a  victim’s  statement  made  under
division (A) of this section along with other factors that the court
is required to consider in imposing sentence or in determining
the order of disposition.   If the statement includes new material
facts, the court shall not rely on the new material facts unless it
continues  the  sentencing  or  dispositional  proceeding  or  takes
other  appropriate  action  to  allow  the  defendant  or  alleged
juvenile offender an adequate opportunity to respond to the new
material facts.
{¶21} Initially,  we  note  that  R.C.                                                      2930.14  only  addresses  a  victim’s
statement.    However,  R.C.                                                                2929.19(A)  permits  the  offender,  the  prosecuting
attorney,  the  victim or  the  victim’s  representative  in  accordance  with  section
2930.14 of the Revised Code, and, with the approval of the court, any other person
to present information relevant to the imposition of sentence in the case at the
sentencing hearing.   Regardless of who made the statement, the issue on appeal is
the same—specifically, whether the record indicates that the trial court relied on
new material facts when it imposed Hites’ sentence without allowing Hites an
adequate opportunity to respond to the new material facts.
{¶22} The record demonstrates that immediately after the statement of the
victim’s parents was read, the trial court gave Hites’ an opportunity to respond to
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the statement prior to imposing her sentence.    At this time, Hites admitted to
sexually  abusing  the  victim,  but  denied  physically  abusing  the  victim  in  the
manner alleged in the statement.   Moreover, there is no indication in the record
that the trial court took these allegations of physical abuse into consideration when
rendering  Hites’  sentence.     Rather,  as  previously  discussed,  the  trial  court
specifically stated the relevant facts it relied upon in imposing Hites’ sentence,
which pertained to Hites’ repeated and systematic sexual abuse of the victim and
not the additional allegations of physical abuse.   Accordingly, we do not find that
the trial court committed any prejudicial error to the defendant on this basis.
Hites’ second assignment of error is overruled.
Third Assignment of Error
{¶23} In her third assignment of error, Hites alleges that the trial court
relied on unconstitutional provisions of the felony sentencing statutes when it
imposed her sentence.   Hites bases her argument on the decision of the Supreme
Court of Ohio in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, in which the
Supreme  Court  severed  and  declared  unconstitutional  portions  of  the  felony
sentencing statute in effect at that time.   However, we note that the Supreme Court
in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320 has since acknowledged that
the  severed  portions  of  the  felony  sentencing  statute  would  be  considered
constitutional under the decision of the United States Supreme Court of Oregon v.
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Ice, 555 U.S. 160 (2009) and concluded that given the holding and reasoning of
the United States Supreme Court in Ice,  “the General Assembly is no longer
constrained   by   Foster’s   holdings   regarding   the   constitutionality   of   the
consecutive-sentencing provisions invalidated in Foster and may, if it chooses to
do so, respond with enactment of a statutory provision in light of Ice’s holding.”
Hodge at ¶ 6.   The General Assembly recently addressed this precise issue and
superseded the Supreme Court of Ohio’s holding in Foster by enacting the recent
revisions to the felony sentencing statute in H.B. 86.   Accordingly, Hites’ reliance
on Foster is obsolete and her arguments on this point have no merit.   Hites’ third
assignment of error is overruled.
{¶24} For all these reasons, the judgment is affirmed.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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