State of Ohio v. Steve A. Gessel

Toledo, Ohio - Criminal defense attorney represented Steve A. Gessel with a abduction charge.

On January 15, 2019, Steve A. Gessel was indicted on one count of

abduction in violation of R.C. 2905.02(A)(2), a third-degree felony (Count 1); two counts

of rape in violation of R.C. 2907.02(A)(2), both first-degree felonies (Counts 2 and 3);

unlawful sexual conduct with a minor in violation of R.C. 2907.04(A)(B)(3), a thirddegree felony (Count 4); and kidnapping in violation of R.C. 2905.01(A)(4)(C)(1), a firstdegree felony (Count 5). On March 11, 2019, pursuant to a plea agreement, Gessel

entered a guilty plea to an amended Count 2—amended from rape to unlawful sexual

conduct with a minor—and Count 3. On April 10, 2019, the trial court sentenced Gessel

to a 48-month prison term on each count. The trial court ordered the sentences to be

served consecutively for an aggregate prison term of 96 months. The remaining counts

were dismissed at the state's request.

{¶ 3} Gessel appealed his convictions to this court. On February 7, 2020, we

reversed Gessel's convictions and remanded for resentencing because the trial court

failed to make all of the findings that are necessary to impose consecutive sentences

under R.C. 2929.14(C)(4). State v. Gessel, 6th Dist. Williams No. WM-19-004, 2020-

Ohio-403, ¶ 15.

{¶ 4} On July 9, 2020, the trial court held a new sentencing hearing. No witnesses

testified at the hearing. According to the state, the victim was "scared” and afraid to

testify. The state argued that consecutive sentences are warranted because the victim

suffered two distinct forms of rape—i.e., digital and penile penetration. The state also 3.

argued that the victim's fear of testifying demonstrated that she had suffered great or

unusual harm which warranted consecutive sentences. In response, Gessel submitted a

letter that the victim wrote to him shortly after his arrest. He claimed that the letter

showed that the victim still supported him and, therefore, she did not suffer great or

unusual harm. Gessel maintained that there was no evidence that "anything's changed”

since the victim wrote that letter.

{¶ 5} Following the parties' arguments, the trial court again sentenced Gessel to

48 months in prison on each count. The trial court ordered the sentences imposed to be

served consecutively for an aggregate prison sentence of 96 months. The trial court's

decision was memorialized in its July 17, 2020 judgment entry. Gessel timely appeals

and asserts the following error for our review:

1. The record does not support great or unusual harm to the victim

warranting consecutive sentences.

II. Law and Analysis

{¶ 6} We review felony sentences under R.C. 2953.08(G)(2). State v. Goings, 6th

Dist. Lucas No. L-13-1103, 2014-Ohio-2322, ¶ 20. We may increase, modify, or vacate

and remand a trial court's imposition of consecutive sentences only if we clearly and

convincingly find that: (1) "the record does not support the sentencing court's findings

under division * * * (C)(4) of section 2929.14, * * *” or (2) "the sentence is otherwise

contrary to law.” Id., citing R.C. 2953.08(G)(2). The "clear and convincing evidence”

standard is defined as "that measure or degree of proof which is more than a mere 4.

'preponderance of the evidence,' but not to the extent of such certainty as is required

'beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.” State v.

Mitten, 6th Dist. Sandusky No. S-19-056, 2021-Ohio-89, ¶ 4, quoting Cross v. Ledford,

161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.

{¶ 7} In his sole assignment of error, Gessel argues that the trial court's imposition

of consecutive sentences is contrary to law because the record does not support the trial

court's finding that the victim suffered great or unusual harm.

{¶ 8} As provided in R.C. 2929.14(C)(4), a trial court must make certain findings

to impose consecutive sentences:

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 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. 5.

(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 crime

by the offender.

{¶ 9} In other words, this statute requires the trial court to make three statutory

findings before imposing consecutive sentences. State v. Beasley, 153 Ohio St.3d 497,

2018-Ohio-493, 108 N.E.3d 1028, ¶ 252; State v. Bonnell, 140 Ohio St.3d 209, 2014-

Ohio-3177, 16 N.E.3d 659, ¶ 26. It must find (1) that consecutive sentences are

necessary to protect the public or to punish the offender; (2) that consecutive sentences

are not disproportionate to the seriousness of the offender's conduct and to the danger

that the offender poses to the public; and (3) that R.C. 2929.14(C)(4)(a), (b), or (c) is

applicable. Beasley at ¶ 252. "[T]he trial court must make the requisite findings both at

the sentencing hearing and in the sentencing entry.” (Emphasis in original.) Id. at ¶ 253,

citing Bonnell at ¶ 37. While "a word-for-word recitation of the language of the statute is

not required,” a reviewing court must be able to discern that the trial court engaged in the

correct analysis and the record must contain evidence to support the trial court's findings.

Bonnell at ¶ 29. 6.

{¶ 10} Here, Gessel does not argue that the trial court failed to make the necessary

findings under R.C. 2929.14(C)(4) at both his sentencing hearing and in the judgment

entry. Instead, he argues only that the record does not support the trial court's finding

that the victim suffered great or unusual harm. Accordingly, Gessel has the burden to

identify clear and convincing evidence in the record that his sentence was erroneously

imposed. State v. Torres, 6th Dist. Ottawa No. OT-18-008, 2019-Ohio-434, ¶ 6.

{¶ 11} At the sentencing hearing, the state described the victim—who was not

called to testify—as "a young fourteen year old” who "fell prey to [Gessel].” The state

noted that the plea agreement was entered into, in part, because the victim "didn't want to

testify” and that "she was scared.” As this court has found, the state's presentation of the

victim's fear of testifying provides a basis on which the trial court could conclude that

she suffered great or unusual harm as a result of Gessel's conduct. See State v. Williams,

6th Dist. Lucas Nos. L-15-1259, L-15-1260, 2016-Ohio-4905, ¶ 27 (holding that the

state's presentation of facts at sentencing regarding a victim's fear of testifying supported

a finding of great or unusual harm).

{¶ 12} Gessel, however, points to a letter that he received from the victim shortly

after his arrest—which was nearly 18 months before his resentencing hearing. In that

letter, which was introduced into evidence at the hearing, the victim apologized to Gessel

and stated that she "didn't want [Gessel] to go to jail.” She also stated that she loved

Gessel and encouraged him to write back. On appeal, Gessel argues that the support the

victim expressed in the letter "certainly does not point to any great or unusual harm” and 7.

that the trial court erred in reaching that conclusion. We disagree. As the trial court

recognized, the victim's letter and her hope to keep Gessel out of jail demonstrate that

she is "immature and unable to make good adult decisions.” The letter does not diminish

the evidence put forth by the state that the victim was afraid to testify—which supports

the trial court's finding that the victim suffered great or unusual harm under R.C.

2929.14(C)(4)(b). Williams at ¶ 27.

{¶ 13} Accordingly, we find Gessel's sole assignment of error not well-taken.

{¶ 14} Finally, although not raised by Gessel on appeal, we note that the trial court

did not incorporate all of its R.C. 2929.14(C)(4) findings into its judgment entry.

Specifically, the trial court did not expressly state in its judgment entry that consecutive

sentences are necessary to protect the public from future crime based on Gessel's

criminal history as described in R.C. 2929.14(C)(4)(c)—even though the trial court did

make this finding at the resentencing hearing. "A trial court's inadvertent failure to

incorporate the statutory findings in the sentencing entry after properly making those

findings at the sentencing hearing does not render the sentence contrary to law; rather,

such a clerical mistake may be corrected by the court through a nunc pro tunc entry to

reflect what actually occurred in open court.” Bonnell, 140 Ohio St.3d 209, 2014-Ohio3177, 16 N.E.3d 659 at ¶ 30, citing State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111,

967 N.E.2d 718. Because the trial court's judgment entry omits this finding, we remand

this matter to the trial court for a nunc pro tunc entry to correct that omission.

We find Gessel’s assignment of error not well-taken. Therefore, we affirm

the July 17, 2020 judgment of the Williams County Court of Common Pleas. We remand

this matter to the trial court for the limited purpose of issuing a nunc pro tunc entry to incorporate its finding under R.C. 2929.14(C)(4)(c) into its judgment. Gessel is ordered to pay the costs of this appeal pursuant to App.R. 24.