[Cite as State v. Gessel, 2020-Ohio-403.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                     WILLIAMS COUNTY


State of Ohio                                   Court of Appeals No. WM-19-004

        Appellee                                Trial Court No. 19CR000027

v.

Steve A. Gessel                                 DECISION AND JUDGMENT

        Appellant                               Decided: February 7, 2020

                                            *****

        Katherine J. Zartman, Williams County Prosecuting Attorney, and
        Stacey S. Stiriz, Assistant Prosecuting Attorney, for appellee.

        Karin L. Coble, for appellant.

                                            *****

        MAYLE, J.

        {¶ 1} Appellant, Steve A. Gessel, appeals the April 11, 2019 judgment of the

Williams County Court of Common Pleas, sentencing him to an aggregate prison term of

96 months and ordering him to pay costs and appointed counsel fees following his
conviction on two counts of unlawful sexual conduct with a minor. For the reasons that

follow, we reverse the trial court judgment.

                                     I. Background

       {¶ 2} 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 third-

degree felony (Count 4); and kidnapping in violation of R.C. 2905.01(A)(4)(C)(1), a

first-degree felony (Count 5). Gessel was appointed counsel and appeared before the trial

court on January 17, 2019 for his arraignment. He entered a not guilty plea to all counts.

       {¶ 3} On March 11, 2019, Gessel appeared for a change of plea hearing. Prior to

entering his new plea, the state amended Count 2 of the indictment from rape to unlawful

sexual conduct with a minor, a third-degree felony. Gessel then entered a guilty plea to

the amended Count 2 and to Count 3. On April 10, 2019, the trial court sentenced him to

48 months in prison with five years of mandatory postrelease control 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 also ordered Gessel to pay all costs of

prosecution, costs for court-appointed counsel, and all permitted supervision fees. The

trial court dismissed the remaining counts at the state’s request and its judgment entry

was journalized the following day.




2.
       {¶ 4} Gessel timely appeals and asserts the following errors for our review:

              1. The imposition of consecutive sentences is not supported by the

       record.

              2. The trial court’s order to pay attorney fees and costs must be

       reversed for failure to find Gessel had the ability to pay.

                                   II. Law and Analysis

       {¶ 5} 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). Because Gessel’s arguments all relate

to the sentence imposed by the trial court, we utilize this standard in reviewing each of

Gessel’s assignments of error.

                              a. Assignment of Error No. 1

       {¶ 6} In his first assignment of error, Gessel argues that the trial court’s order to

serve his sentences consecutively is contrary to law because the trial court failed to make

the necessary findings under R.C. 2929.14(C)(4). A trial court’s failure to make the

necessary findings under R.C. 2929.14(C)(4) does indeed render the imposition of

consecutive sentences contrary to law. See State v. Bonnell, 140 Ohio St.3d 209,




3.
2014-Ohio-3177, 16 N.E.3d 659, ¶ 37; State v. Kubat, 6th Dist. Sandusky No. S-13-046,

2015-Ohio-4062, ¶ 35.

      {¶ 7} R.C. 2929.14(C)(4) provides as follows:

             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.

             (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.




4.
              (c) The offender’s history of criminal conduct demonstrates that

       consecutive sentences are necessary to protect the public from future crime

       by the offender.

{¶ 8} 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.

                  i. The trial court engaged in the appropriate analysis to
                 determine consecutive sentences were not disproportionate
                        to the danger appellant poses to the public.

       {¶ 9} Gessel first argues his sentence was contrary to law because the trial court

failed to find that the imposition of consecutive sentences are not disproportionate to the

danger he poses to the public. In order to impose consecutive sentences, the trial court

must determine that consecutive sentences are “not disproportionate to the seriousness of




5.
the offender’s conduct and to the danger the offender poses to the public.” R.C.

2929.14(C)(4). (Emphasis added). Gessel acknowledges the trial court properly found

consecutive sentences were not disproportionate to his conduct both at the sentencing

hearing and in its judgment entry. He argues, however, that the imposition of

consecutive sentences is defective because the trial court failed to also find that

consecutive sentences were not disproportionate to the danger he posed to the public.

       {¶ 10} At the sentencing hearing, the trial court did not recite the precise language

from R.C. 2929.14(C)(4) regarding the proportionality of consecutive sentences.

However, “the trial court is ‘not required to cite any “magic” or “talismanic” words when

imposing consecutive sentences provided it is ‘clear from the record that the trial court

engaged in the appropriate analysis.’” State v. Long, 6th Dist. Wood Nos. WD-14-042,

WD-14-043, 2015-Ohio-920, ¶ 7, citing State v. Wright, 6th Dist. Lucas Nos. L-13-1056,

L-13-1057, L-13-1058, 2013-Ohio-5903, ¶ 33. Through our review of the record, we

find the trial court did engage in the appropriate analysis regarding the imposition of

consecutive sentences and Gessel’s danger to the public.

       {¶ 11} When imposing the sentence, the trial court stated that it had to “consider

the general public” in determining Gessel’s sentence and to “protect the public from

future crime by [Gessel].” From these statements it is clear that the trial court considered

the danger Gessel posed to the public when determining his sentence. Therefore, the

record shows that the trial court engaged in the correct analysis when imposing




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consecutive sentences. Bonnell at ¶ 29. Gessel’s argument that the trial court’s failure to

explicitly state this finding is without merit.

       {¶ 12} Notably, Gessel’s argument has already been rejected by other Ohio courts.

In holding the trial court did not need to explicitly state its disproportionality findings, the

Second District Court of Appeals stated:

       [i]f we require the trial court to say more than was said in this case, we are

       effectively requiring courts to follow precisely the language of the statute

       or, worse yet, simply to read the statutory language into the record to

       merely satisfy the statutory consecutive-sentences requirement. The focus

       should be on whether the trial court performed the required analysis and

       made appropriate conclusions, not on whether it can read the statute into

       the record.

State v. Polhamus, 2d Dist. Miami No. 2013-CA-3, 2014-Ohio-145, ¶ 30. See also State

v. Hargrove, 10th Dist. Franklin No. 15AP-102, 2015-Ohio-3125; State v. Chaney, 2d

Dist. Clark No. 2015-CA-116, 2016-Ohio-5437.

       {¶ 13} We therefore find that the trial court completed the appropriate analysis and

its omission of specific statutory language does not warrant reversal.

             ii. The trial court failed to find appellant’s offenses were committed
                        as part of one or more courses of conduct.

       {¶ 14} Next, Gessel argues that the trial court failed to find that his two offenses

were committed as part of one or more courses of conduct. In imposing consecutive




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sentences, the trial court invoked R.C. 2929.14(C)(4)(b) which requires this finding.

While the trial court’s sentencing order reflects this finding, Gessel argues that the trial

court’s failure to address this issue at the sentencing hearing was error. We agree.

       {¶ 15} When imposing consecutive sentences at the hearing, the trial court stated:

       I do find that consecutive prison sentences are necessary to protect the

       public and to punish you for your conduct. Further, I am going to find that

       your harm was so great and unusual to this victim that concurrent sentences

       [d]o not adequately reflect the seriousness of your conduct and therefore,

       consecutive sentences are necessary.

Absent from this statement is any finding that Gessel’s offenses were committed as part

of one or more courses of conduct. We are unable to identify any part of the record that

suggests the court properly reached this conclusion and merely omitted its finding when

imposing a sentence. Therefore, we find the trial court’s imposition of consecutive

sentences was contrary to law for failing to reach this necessary finding.

     iii. The record supports the trial court’s finding of great or unusual harm.

       {¶ 16} The trial court found the harm arising from Gessel’s conduct was so great

that no single prison sentence adequately reflected the seriousness of his conduct. This

finding was made at both the sentencing hearing and in the trial court’s judgment entry.

Gessel argues that no evidence of “great or unusual harm” was presented at the

sentencing hearing and, therefore, the trial court’s finding was not supported by the

record. We disagree.




8.
        {¶ 17} A trial court’s finding of great or unusual harm must be supported by actual

evidence, not just the potential for such harm. State v. Williams, 6th Dist. Lucas Nos.

L-15-1259, L-15-1260, 2016-Ohio-4905, ¶ 27. Nonetheless, we may reverse only if we

find by clear and convincing evidence that the finding of great or unusual harm is not

supported by the record. Goings, 6th Dist. Lucas No. L-13-1103, 2014-Ohio-2322, at

¶ 20.

        {¶ 18} Here, at the time of his guilty plea, the state informed the trial court that

“through conversations with the victim, the victim would prefer to remain anonymous

and has asked the court (sic), the state to try and resolve such so that she does not have to

testify or re-live these offenses[.]” At sentencing, Gessel was asked whether he

considered the impact of his conduct on his victim. He stated, “I worry about her. I

mean I don’t know what kind of impact it caused. I’m hoping it didn’t disturb her in any

horrible way but I mean I’m not sure to be honest.”

        {¶ 19} The state’s representation that the victim did not wish to relive Gessel’s

offenses shows that she suffered great harm from his conduct. Gessel is unable to refute

this concern, either at the sentencing or in this appeal, by pointing to clear and

convincing evidence demonstrating that the trial court erred in making that conclusion.

Goings at ¶ 20, R.C. 2953.08(G)(2). We therefore find that the record supports the trial

court’s finding that the victim suffered great or unusual harm. See State v. Eager, 3d

Dist. Henry No. 7-15-02, 2015-Ohio-3525 (holding appellant’s acknowledgement of

victim’s emotional distress as a result of his offenses was sufficient to show great and




9.
unusual harm); Williams at ¶ 28 (holding the state’s representations at the plea hearing

regarding the intimidation of witnesses as a result of appellant’s gang affiliation was

sufficient to support a finding of great or unusual harm).

                  iv. The trial court’s failure to make all necessary findings
                         at the sentencing hearing requires remand.

       {¶ 20} The trial court properly found that the imposition of consecutive sentences

was not disproportionate to the danger Gessel poses to the public. Further, the record

supports the trial court’s finding that Gessel’s victim suffered great or unusual harm

resulting from his conduct. But, the trial court failed to make a finding that Gessel’s

offenses were part of one or more courses of conduct before imposing consecutive

sentences as required by R.C. 2929.14(C)(4)(b). This failure requires us to reverse the

trial court’s judgment and remand for a new sentencing hearing. See Kubat, 6th Dist.

Sandusky No. S-13-046, 2015-Ohio-4062, at ¶ 38, quoting State v. Corker, 10th Dist.

Franklin Nos. 13AP-264, 13AP- 265 and 13AP-266, 2013-Ohio-5446, ¶ 38 (“‘[W]hen

the trial court fails to articulate the appropriate findings required by R.C. 2929.14(C)(4),

the case is to be remanded for the trial judge to consider whether consecutive sentences

are appropriate under [R.C. 2929.14(C)(4)] and, if so, to enter the proper findings on the

record.’”).

       {¶ 21} Accordingly, we find Gessel’s first assignment of error well-taken.




10.
                              b. Assignment of Error No. 2

       {¶ 22} In his second assignment of error, Gessel argues that the trial court erred in

ordering him to pay court-appointed attorney’s fees and costs without first determining

whether he has, or reasonably may be expected to have, the means to pay those costs.

We agree.

       {¶ 23} At the sentencing hearing, the trial court notified Gessel that it was

imposing “attorney’s fees and costs” against him. The trial court did not specify which

costs it was imposing at the hearing but in its sentencing entry stated “[d]efendant is

ordered to pay all costs of prosecution, any court-appointed counsel costs, and any

supervision fees permitted, pursuant to R.C. 2929.18(A)(4)[.]” Gessel requests that the

discretionary costs be vacated due to the trial court’s failure to determine his ability to

pay.

       {¶ 24} We must first determine which costs are mandatory and which are

“discretionary.” We previously held that prosecution costs and fees permitted pursuant to

R.C. 2929.18(A)(4) are mandatory costs not conditioned on an offender’s ability to pay.

State v. Lantz, 6th Dist. Fulton No. F-18-011, 2019-Ohio-3307, ¶ 12, 18. The trial court

properly imposed these mandatory costs against Gessel.

       {¶ 25} The costs of supervision and assigned counsel, however, are not mandatory

and “must be conditioned on appellant’s ability to pay.” State v. Wymer, 6th Dist. Lucas

No. L-18-1108, 2019-Ohio-1563, ¶ 14. To impose these costs, the trial court must

affirmatively find that the defendant has, or reasonably may be expected to have, the




11.
ability to pay. Id.; State v. Grey, 6th Dist. Lucas No. L-15-1072, 2015-Ohio-5021, ¶ 21.

While the court need not conduct a formal hearing as to the defendant’s ability to pay

these costs, a finding of his ability to pay must be supported by clear and convincing

evidence in the record. Id. When the record on appeal contains no evidence reflecting

the trial court’s consideration of present or future ability to pay these costs—such as

consideration of defendant’s age, health, employment history, or level of education—the

imposition of these costs is improper and must be vacated. State v. Stovall, 6th Dist.

Lucas No. L-18-1048, 2019-Ohio-4287, ¶ 37.

       {¶ 26} Here, the trial court failed to make any finding regarding Gessel’s ability to

pay the discretionary costs at either his sentencing hearing or in its judgment entry. The

trial court failed to address any evidence of Gessel’s ability to pay these costs during the

underlying proceedings. Thus, Gessel’s second assignment of error is found well-taken.

We, therefore, vacate the award of costs of supervision and assigned counsel.

                                      III. Conclusion

       {¶ 27} We find both of Gessel’s assignments of error well-taken. The trial court

failed to properly consider whether Gessel’s offenses were part of one or more courses of

conduct under R.C. 2929.14(C)(4)(b) before imposing consecutive sentences. We,

therefore, reverse and remand this matter to the trial court for resentencing in accordance

with this decision.




12.
       {¶ 28} Additionally, because the trial court failed to determine Gessel’s ability to

pay costs of supervision and appointed counsel fees before imposing such costs, we

vacate the trial court’s award of these non-mandatory costs. All costs of prosecution and

fees permitted pursuant to R.C. 2929.18(A)(4) were properly imposed and are not

vacated by this decision.

       {¶ 29} The costs of this appeal are assessed to the state pursuant to App.R.24.


                                                                         Judgment reversed
                                                                            and remanded.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Arlene Singer, J.
                                                _______________________________
Christine E. Mayle, J.                                      JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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