COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71028 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION JOHN DOUGLAS THEIS : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: MAY 1, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Cuyahoga County Common Pleas Court Case No. CR-333708 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JEROME EMOFF, ESQ. Cuyahoga County Prosecutor 620 Terminal Tower Cleveland, Ohio 44113 DEBORAH NAIMAN, ESQ. Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Defendant-appellant John Theis appeals from his guilty plea conviction on two counts of gross sexual imposition with violence specifications and one count of use of a minor in nudity-oriented material involving his adopted thirteen year-old daughter. On February 7, 1996, defendant was indicted by the grand 1 jury on twenty-six counts in connection with this matter. The charges against defendant were as follows: (1) two counts of felonious sexual penetration, with mandatory life sentences upon conviction; (2) three counts of gross sexual imposition; (3) ten counts of using a minor in nudity-oriented material; (4) one count of disseminating material harmful to juveniles; (5) six counts of pandering obscenity; (6) one count of importuning; and (7) three counts of endangering children. The gross sexual imposition counts in the indictments did not have accompanying violence specifications. The trial court denied a motion to suppress evidence during the course of the proceedings and the parties ultimately reached a plea bargain. Defendant agreed to plead guilty to two counts of gross sexual imposition, which were each amended to include a violence specification, and one count of using a minor in nudity- oriented material. In return, the prosecution agreed to dismiss the remaining charges, including the two felonious sexual 1 Two charges, intimidation and child endangering, were also made against defendant's wife, but were dismissed as part of the plea bargain. - 3 - penetration counts with potential mandatory life sentences. The parties also agreed that prior to sentencing the judge would listen to an audiotape of an encounter with defendant secretly made by the victim. The trial court conducted the guilty plea hearing on May 30, 1996, and accepted defendant's guilty plea in compliance with Crim.R.11. (Tr. 3-15). The trial judge thereafter referred the matter for a presentence report and evaluation under a sex offender program. Defendant filed a sentencing memorandum and various persons sent letters to the judge prior to sentencing. The matter ultimately proceeded to a sentencing hearing on July 2 1, 1996. Defendant, several members of his family, and counsel made statements at the hearing prior to statements by a police officer, the victim, one of her friends, a biological relative, and the prosecutor. (Tr. 16-71). The trial court ultimately sentenced defendant to the maximum indefinite sentences on his three guilty plea convictions to be served consecutively. Defendant was sentenced to four to ten years on each gross sexual imposition conviction and five to fifteen years on the nudity-oriented material conviction, for a total sentence of thirteen to thirty-five years imprisonment. The trial court denied a post-judgment motion to modify his 2 Defendant made no claim in the trial court or on appeal that he should have been sentenced under the new criminal sentencing scheme effective on July 1, 1996. The record shows that he was sentenced under the sentencing statutes for offenses committed prior to that date. On appeal, we analyze defendant's claims consistent with the authority existing under the former sentencing statutes. - 4 - sentence. Defendant, through his retained trial counsel, timely appeals raising three assignments of error. Defendant's first assignment of error follows: THE TRIAL COURT ABUSED ITS DISCRETION IN IGNORING THE STATUTORY SENTENCING CRITERIA IN R.C. 2929.12. This assignment lacks merit. Defendant argues that the trial court based its sentencing judgment on improper information, did not give sufficient weight to mitigation information presented by him, and did not adequately consider the statutory felony sentencing criteria. The record does not support these claims. This court exhaustively considered similar arguments in State v. Hamann (1993), 90 Ohio App.3d 654. It is well established, contrary to defendant's argument, that a court is not required to state expressly on the record that it considered statutory sentencing criteria. Id. at 661, citing State v. Cyrus (1992), 63 Ohio St.3d 164; State v. Adams (1988), 37 Ohio St.3d 295. As in Hamann, the record in this case is not silent and reflects that the trial court, prior to imposing sentence, considered the presentence report, various letters, and oral statements. The fact that the presentence report is not included in the record on appeal does not establish reversible error. Id., citing State v. Koons (1984), 14 Ohio App.3d 289, 290. The record demonstrates that several of the people who submitted letters to the judge appeared in person at the sentencing hearing and read their letters aloud. The judge did not commit reversible error by considering these and any other letters - 5 - submitted to her by interested persons. As in every other case, none of the statements, whether oral or written, made in connection with sentencing on behalf of defendant or the victim was made under oath or subject to cross-examination. Finally, the record unambiguously shows that the parties agreed that prior to sentencing the trial judge would listen to the audiotapes the victim made. Defendant obtained the contents of the audiotape during the course of discovery, agreed to the judge listening to the tape prior to sentencing, and did not raise any objection at the sentencing hearing. Under the circumstances, the trial judge did not err by considering this material. Defendant has likewise failed to show the trial court ignored any statutory mitigating factors. State v. Hamann, supra 3 at 664. The record unambiguously reveals with certainty at least two statutory aggravating factors: the victim was both under the age of eighteen at the time of the offenses and suffered harm as a result of the gross sexual imposition offenses. R.C. 2929.12(B)(2, 3). Defendant pled guilty to offenses with precisely these elements. Mitigation factors defendant presented, on the other hand, were much less certain, and the trial court was not required to give them any particular weight. Reviewing courts are not free to reweigh the statutory 3 The sentencing statutes for offenses committed prior to July 1, 1996, contained no precise guidelines to establish the standards for imposing sentences. - 6 - factors and substitute their judgment for that of the sentencing court. Id. at 662. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error follows: THE TRIAL COURT ERRED IN IMPOSING AN INDEFINITE SENTENCE FOR A THIRD DEGREE FELONY FOLLOWING A GUILTY PLEA WHEN THE RECORD CONTAINS NO AFFIRMATIVE WAIVER BY APPELLANT OF HIS RIGHT TO HAVE THE ADDED SPECIFICATION OF HARM PRESENTED TO THE GRAND JURY. This assignment lacks merit. Defendant contends the trial court improperly amended the two gross sexual imposition charges to add violence specifications, pursuant to a joint agreement under the plea bargain, without presenting the matter to the grand jury. Defendant argues that his agreement to add the specifications as part of the plea bargain was insufficient and that he must affirmatively, expressly, and separately waive presenting the violence specifications to the grand jury. Defendant's precise argument has already been rejected in two published opinions from other districts: State v. Childress (1993), 91 Ohio App.3d 258; State v. Fryling (1992), 85 Ohio App.3d 557. As in Childress and Fryling, defendant in this case waived presentment to the grand jury of the violence specifications by agreeing to the amendment on the record in open court as part of a plea bargain. The transcript of defendant's guilty plea reveals that this matter was discussed at length; defendant stated that he was fully informed as to the terms of - 7 - the amendment and both understood and voluntarily agreed to it. Consistent with this authority, we find that defendant sufficiently waived presentment of the violence specifications to the grand jury in this case. Accordingly, defendant's second assignment of error is overruled. Defendant's third assignment of error follows: APPELLANT WAS SUBJECTED TO CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE OHIO AND UNITED STATES CONSTITUTIONS WHEN THE TRIAL COURT FAILED TO CONSIDER THE SENTENCING CRITERIA SET FORTH IN R.C. 2929.12. This assignment lacks merit. Defendant contends that the maximum indefinite consecutive sentences imposed by the trial court are excessive and not proportional to the sentences imposed in similar cases. Defendant contends that his thirteen to thirty-five-year maximum consecutive indefinite sentences for his three guilty plea convictions constitute cruel and unusual punishment. We note initially, however, that defendant waived these constitutional claims by failing to raise them in his post- judgment motion to modify his sentence filed in the trial court. State v. Hamann, supra at 671. Moreover, even if these arguments had been properly raised, they lack merit. Sentences do not violate the constitutional guarantees against cruel and unusual punishment unless the sentences are so grossly disproportionate to the offenses as to shock the sense of justice in the community. Id. at 672, citing State v. Chaffin (1972), 30 Ohio St.2d 13; State v. Jarrells (1991), 72 Ohio App.3d 730. - 8 - Defendant was sentenced to indefinite terms of four to ten years on each gross sexual imposition conviction and five to fifteen years for his conviction based on using a minor in nudity-oriented material. Neither the individual sentences nor the order to serve them consecutively renders defendant's sentence so grossly disproportionate to his offenses so as to shock the sense of justice in the community. Defendant admittedly committed a series of sex crimes against his adopted thirteen year-old-daughter and specifically admitted that he caused physical harm to her during the course of committing gross sexual imposition offenses against her. The particularized sentence imposed by the trial court was commensurate with the seriousness of these crimes. Defendant has not cited a single case involving a sentence imposed against a repeat sex offender who has abused the public trust by committing such crimes against a vulnerable young child placed in his care through adoption. Under the sentencing statutes governing offenses committed prior to July 1, 1996, it is the defendant who bears the burden of providing authority that proportionality review is required as well as data of actual sentences imposed in other cases. Defendant has not met this burden. Moreover, it is almost inconceivable that the sentence imposed in such a case, if one were found, would depart substantially from the maximum permitted by law. Under the circumstances, defendant has failed to show any error. - 9 - Accordingly, defendant's third assignment of error is overruled. Judgment affirmed. - 10 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, P.J., and O'NEILL*, J., CONCUR. DIANE KARPINSKI JUDGE *Judge Joseph E. O'Neill, of the Seventh District Court of Appeals, sitting by assignment. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .