State v. Bauer, 8-08-21 (2-2-2009)

Citation: 2009 Ohio 406Docket: No. 8-08-21.

Court: Ohio Court of Appeals; February 1, 2009; Ohio; State Appellate Court

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Justin D. Bauer appeals a twelve-year sentence from the Logan County Court of Common Pleas following a guilty plea to burglary and felonious assault. The incident occurred on January 21, 2008, when Bauer attacked Brandi Wren after misleading her about his intentions, resulting in multiple injuries, including a broken jaw, and causing emotional trauma to her and her son. Initially indicted on aggravated burglary, felonious assault, and attempted murder, Bauer's aggravated burglary charge was reduced to a lesser charge of burglary, to which he pleaded guilty, leading to the dismissal of the attempted murder charge. At sentencing on April 11, 2008, the court imposed six years for each felony, to be served consecutively, along with a restitution order of $14,791.22. Bauer raises two assignments of error on appeal, asserting that the trial court lacked authority to impose consecutive sentences based on the Ohio Supreme Court's ruling in State v. Foster, which found certain sentencing statutes unconstitutional. However, the court maintains that despite the excision of provisions requiring judicial fact-finding, trial courts retain discretion to impose consecutive sentences while still considering the purposes of felony sentencing and the seriousness of the offender's conduct.

The Ohio Supreme Court reviewed the trial court's authority to impose consecutive sentences in light of its Foster decision, particularly in the case of State v. Bates. The Court determined that the Foster ruling did not establish a statutory presumption for either concurrent or consecutive sentences, thereby reinstating common-law presumptions. Consequently, trial courts now possess the discretion to decide whether sentences within the statutory range run consecutively or concurrently. Bauer contended that Bates is not applicable, as it pertained to consecutive sentences imposed by different trial courts, and argued that the reinstatement of common-law principles contradicts R.C. 2901.03, which prohibits common-law crimes in Ohio. The Court rejected Bauer's claims, asserting that Bates addresses the broader implications of a trial court's authority post-Foster, thus maintaining its relevance. Furthermore, prior rulings from this Court affirmed that trial courts retain the power to impose consecutive sentences following Foster. Bauer's assertion regarding R.C. 2901.03 was also dismissed, clarifying that the statute only eliminated common-law offenses, not all common-law doctrines, including those related to sentencing. The Court reiterated that there is a common-law presumption that multiple sentences run consecutively unless stated otherwise. Bauer's first assignment of error was overruled. In his second assignment of error, Bauer argued that the trial court abused its discretion by imposing consecutive sentences for two felonies committed with a single intent and claimed insufficient record support for the sentence.

The State contends that burglary and felonious assault are distinct offenses with different elements and intents, justifying consecutive sentencing for Bauer. The twelve-year sentence, though deemed "tough," is argued to be proportionate to the violent nature of the crime and aligns with similar cases from other jurisdictions involving violent home invasions. Bauer's claim that the two crimes are allied offenses of similar import is rejected based on R.C. 2941.25, which delineates when offenses can be considered allied. The Ohio Supreme Court's two-step analysis involves first comparing the elements of the offenses in the abstract; if they sufficiently overlap such that one crime entails the other, they are allied. If not, the second step involves assessing the defendant’s conduct to determine if separate convictions are justified. Bauer pleaded guilty to both burglary and felonious assault. Burglary, defined under R.C. 2911.12(A)(1), involves trespassing in an occupied structure with intent to commit a crime, while felonious assault, under R.C. 2903.11(A)(1), involves knowingly causing serious physical harm to another. The court concludes that the two offenses do not constitute allied offenses, as burglary does not inherently result in the commission of felonious assault.

The crimes of burglary and felonious assault committed by Bauer were determined to be separate offenses under R.C. 2941.25(B). The burglary occurred when Bauer deceived the victim to gain entry into her home, while the felonious assault transpired when he physically harmed her. Despite Bauer's singular intent to harm, the two offenses were completed independently, justifying the trial court's imposition of consecutive sentences. The court's decision to sentence Bauer to a total of twelve years—six years for each offense—was not subject to challenge on appeal unless there was clear and convincing evidence that the sentence was unsupported, procedurally improper, or contrary to law. The appellate standard of review requires a firm belief in the established facts, without substituting the trial court's judgment regarding recidivism and victim impact. Following the Foster decision, trial courts have discretion in sentencing within statutory ranges but must still consider the purposes of felony sentencing and the offender's conduct. In Bauer's case, the trial court took into account the complete record, victim statements, and the need for deterrence and public safety, concluding that the twelve-year sentence was necessary and appropriate given the circumstances.

The trial court determined that Bauer's offenses were part of a broader pattern of conduct, with the harm caused being so severe that a single prison term could not adequately reflect the seriousness of his actions. Bauer pled guilty to two second-degree felony counts, for which the court had discretion to impose a sentence between two and eight years for each count. Instead of the maximum, the court sentenced him to a total of twelve years, which was deemed appropriate given the circumstances.

Bauer claimed his sentence was disproportionate due to his lack of prior felony convictions and absence of psychological disorders. However, the court noted the violent nature of his actions on January 21, 2008, when he attacked Brandi Wren after confronting her about an alleged affair with his wife. The assault resulted in significant injuries to Brandi, including a broken jaw requiring surgery, and had emotional repercussions for her young son, who witnessed the attack.

During the pre-sentence investigation (PSI), Bauer initially denied involvement but later admitted to the confrontation and a physical altercation, denying the extent of his violence. Despite his subsequent apology, he showed a lack of acknowledgment regarding the impact of his actions and did not mention restitution or the consequences faced by Brandi. These aggravating factors contributed to the court's decision to impose a twelve-year sentence.

The appellate review, including the PSI, victim impact statements, and sentencing transcripts, found no error in the trial court's decision. The judgment was affirmed, with the court indicating that even under the recent Kalish decision's two-part test for sentencing review, the outcome would remain unchanged. The victim's name was consistently spelled as "Brandi Wren" in the official report, despite variations in other documents.