Lawsuits Continued

FOURTH CAUSE OF ACTION

Negligent Hiring, Retention, and Supervision against MyEducation, ASSE International and DOES 1 through 100

43. Plaintiff hereby re-alleges and incorporates by reference each and every allegation herein above as if fully set forth in detail therein.

44. MyEducation, ASSE, and DOES 1 through 100, and each of them, owed, among other duties, duties to exercise reasonable care and diligence in the hiring, retention and supervision of competent, properly trained personnel to work as Area Coordinators and host families. As alleged herein MyEducation, ASSE, and DOES 1 through 100, and each of them, owed duties to Plaintiff to take reasonable steps to ensure the safety of Plaintiff and prevent her from being exposed to harm, including the harm caused by John Jackson's criminal sexual actions toward Plaintiff. These breaches included, but are not limited to, failing to provide properly trained and vetted Area Coordinators and host families to students in their care, including Plaintiff.

45. Plaintiff is informed and believes and herein alleges that MyEducation, ASSE, and DOES 1 through 100, and each of them, breached their duty owed to Plaintiff, to exercise reasonable care and diligence in the hiring, retention and supervision of competent, properly trained personnel to work as Area Coordinators and host families. For example, and without limitation, Plaintiff is informed and believes and based thereon alleges that MyEducation, ASSE and DOES 1 through 100, and each of them, failed to compile the requisite background information on John Jackson, the Area Coordinator and host parent with whom Plaintiff was placed. On information and belief, had said Defendants performed a background check on John Jackson, Defendants would have discovered that John Jackson was convicted of the felony crime of embezzlement on or about October 27, 2011, and as such was unfit to perform the duties of Area Coordinator and/or host parent.

46. Plaintiff is informed and believes and based thereon alleges that MyEducation, ASSE, and DOES 1 through 100, and each of them, screened, hired, employed, retained, supervised and otherwise controlled various Area Coordinators and host families, including but not limited to on the date of the subject incident, and that all such Defendants knew or should have known that such Area Coordinators and host families were unfit and/or incompetent to perform their duties, and this unfitness and/or incompetence created a particular risk of harm to students in their care, including Plaintiff.

47. As a direct and proximate result of the foregoing acts and omissions, in breach of the duties of MyEducation, ASSE, and DOES 1 through 100, and each of them, to hire, retain and supervise properly trained personnel to act as Area Coordinators and/or host families, Plaintiff was harmed and suffered severe emotional and psychological injuries.

48. As a legal, direct and proximate result of the aforementioned conduct of Defendants, and each of them, Plaintiff has sustained and will continue to sustain resulting damages. Said damages combine to a sum in excess of the jurisdictional minimum of this Court, which will be stated according to proof, pursuant to California Code of Civil Procedure, section 425.10.

FIFTH CAUSE OF ACTION

Negligence against MyEducation

49. Plaintiff hereby re-alleges and incorporates by reference each and every allegation herein above as if fully set forth in detail therein.

50. At all times mentioned herein, and otherwise, MyEducation owed, among other duties, duties to take reasonable steps to ensure the safety and well-being of Plaintiff, a minor under their care, and prevent her from being exposed to harm, such as the aforementioned sexual predation by John Jackson.

51. Plaintiff is informed and believes and herein alleges that MyEducation breached their duty owed to Plaintiff, to exercise reasonable care and diligence in the screening, hiring, employing, retaining, supervising and/or otherwise engaging or contracting with ASSE in connection with the selection of host families for exchange students, including those host families such as Defendants John Jackson and Rayleen Jackson. For example, and without limitation, Plaintiff is informed and believes and based thereon alleges that MyEducation, failed to perform basic background research on ASSE an/or the ASSE host parents with whom Plaintiff was placed.

52. On information and belief, had MyEducation performed a reasonable inquiry into ASSE, Defendant MyEducation would have discovered, and thus been on notice, that ASSE has been accused of, and sued in connection with, prior incidents wherein a male member of an ASSE host family engaged in an improper sexual relationship with a female foreign exchange student.

53. Moreover, on information and belief, had M yEducation performed a reasonable inquiry into ASSE, Defendant MyEducation would have discovered, and thus been on notice, that ASSE has been accused of, and sued in connection with, violations of Federal regulations in connection with the allegedly inadequate training of ASSE's employees.

54. Plaintiff is informed and believes and based thereon alleges that MyEducation screened, hired, employed, retained, supervised and otherwise engaged or contracted with ASSE in connection with selecting and providing host families for exchange students, including but not limited to on the date of the subject incident, and Defendant MyEducation knew or should have known that ASSE and ASSE's host families were unfit and/or incompetent to perform their duties, and this unfitness and/or incompetence created a particular risk of harm to students in their care, including Plaintiff.

55. As a direct and proximate result of the foregoing acts and omissions, in breach of the duties of MyEducation to exercise reasonable care in the screening, hiring, employing, retaining, supervising and/or otherwise engaging or contracting with ASSE in connection with the selection of host families for exchange students, Plaintiff was harmed and suffered severe emotional and psychological injuries.

56. As a legal, direct and proximate result of the aforementioned conduct of Defendant, MyEducation, Plaintiff has sustained and will continue to sustain resulting damages. Said damages combine to a sum in excess of the jurisdictional minimum of this Court, which will be stated according to proof, pursuant to California Code of Civil Procedure, section 425.10.

PRAYER

WHEREFORE, Plaintiff, Millie Abilgaard Soerensen, a Minor by and through her guardian, Lone Abildgaard, prays for judgment against Defendants, and each of them, as follows:

1. For general damages to be proven at trial;

2. For special damages to be proven at trial;

3. For punitive damages, as to the Second Cause of Action, Intentional Infliction of Emotional Distress against John Jackson, only;

4. For costs of suit incurred herein, according to proof; and,

5. For such other and further relief as this Court may deem just and proper.

DATED: May _____, 2017 SCHUMANN | ROSENBERG

By: _______________________________________

Kim Schumann, Esq.
Eric Arevalo, Esq.
Attorneys for MILLIE ABILGAARD
SOERENSEN, a Minor by and through
her guardian, LONE ABILDGAARD

_________

On March 6, 2017, 47-year-old Thomas Cousino was indicted on three counts of rape, one count of sexual battery, and one count of gross sexual imposition. These charges arose from Cousino's sexual abuse of 17-year-old foreign exchange student, Y.D., whom he and his wife hosted from Ukraine. Y.D., was an ASSE International, Inc., exchange student.

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

SANDUSKY COUNTY

State of Ohio Court of Appeals No. S-17-033

Appellee Trial Court No. 17 CR. 157

Thomas A. Cousino DECISION AND JUDGMENT

Appellant Decided: June 29, 2018

* * * * *

Timothy Braun, Sandusky County Prosecuting Attorney, and
Mark E. Mulligan, Assistant Prosecuting Attorney, for appellee.
Jon M. Ickes, for appellant.

* * * * *

MAYLE, P.J.

{¶ 1} Defendant-appellant, Thomas A. Cousino, appeals the August 28, 2017
judgment of the Sandusky County Court of Common Pleas, convicting him of numerous
sexual offenses and sentencing him to an aggregate prison term of 13 years. For the
reasons that follow, we reverse the trial court judgment. 2.

I. Background

{¶ 2} On March 6, 2017, 47-year-old Thomas Cousino was indicted on three counts of
rape, violations of R.C. 2907.02(A)(1)(a); one count of sexual battery, a violation of R.C.
2907.03(A)(5); and one count of gross sexual imposition, a violation of R.C. 2907.05(A)(1).

These charges arose from Cousino’s sexual abuse of 17-year-old foreign exchange
student, Y.D., whom he and his wife hosted from Ukraine. While Y.D.’s allegations of sexual
abuse were being investigated, Cousino was found to be in possession of a number of
pornographic videos and images of children, leading to his indictment on 20 counts of
pandering sexually-oriented material involving a minor, violations of R.C. 2907.322(A)(1).
{¶ 3} On July 14, 2017, Cousino entered a plea of guilty to sexual battery (Count 4),
gross sexual imposition (Count 5), and two counts of pandering sexually oriented material
involving a minor (Counts 6 and 7). On August 22, 2017, the trial court sentenced him to
60 months in prison and a fine of $1,500 on Count 4; 18 months in prison and a fine of
$1,000 on Count 5; eight years in prison and a fine of $1,500 on Count 6; and eight years
in prison and a fine of $1,500 on Count 7. The court ordered that the sentences imposed
for Counts 4 and 5 be served concurrently to each other, that the sentences imposed for
Counts 6 and 7 be served concurrently to each other, and that the sentences imposed for
Counts 4 and 5 be served consecutively to the sentences imposed for Counts 6 and 7. This
resulted in an aggregate prison term of 13 years. This sentence was memorialized in a
judgment entry journalized on August 28, 2017.

{¶ 4} Cousino appealed and assigns a single error for our review: The trial court failed
to make the requisite findings under Ohio Revised Code Section 2929.14(C)(4) justifying
the imposition of consecutive sentences on the Appellant.

II. Law and Analysis

{¶ 5} Cousino challenges the trial court’s decision to impose consecutive sentences. He
argues that the court failed to make the findings required by R.C. 2929.14(C)(4) to justify
the imposition of consecutive sentences.

{¶ 6} 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:

________________________________

1 Although not acknowledged by either Cousino or the state, Cousino failed to raise this objection in the trial court. He has, therefore, waived all but plain error. See State v. Ross, 2017-Ohio-675, 85 N.E.3d 398, ¶ 29 (6th Dist.). Ohio courts have recognized, however, that “when the record demonstrates that the trial court failed to make the findings required by R.C. 2929.14(C)(4) before imposing consecutive sentences on multiple offenses, appellant’s
sentence is contrary to law and constitutes plain error.” (Internal quotations and citations
omitted.) State v. Adams, 10th Dist. Franklin No. 13AP-783, 2014-Ohio-1809, ¶ 7. 4.

(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 crime by the offender.

{¶ 7} The Ohio Supreme Court recently reiterated that this statute requires the trial
court to make three statutory findings before imposing consecutive sentences. State v.
Beasley, Slip Opinion No. 2018-Ohio-493, ¶ 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, 5.
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.

{¶ 8} At the sentencing hearing, the trial court explained its reasons for imposing
consecutive sentences:

I’m going to impose the maximum sentence, and in line with the
principles of sentencing, I am going to make that consecutive to the eight years that the
Court imposed for the charge of pandering involving a juvenile. The Court does find that
it’s necessary. It’s not disproportionate. It’s necessary to protect the public. It is necessary
to send a message that this will not be tolerated, not just in this County, but in this
country. The offenses were so different, even though they were, perhaps, committed at or
about the same time, that the Court feels that it would de – demean the conviction for
sexual battery to run at the same time as a conviction for pandering sexually oriented
material involving this. The Court just feels that it does not have a choice but to make the
sentences consecutive and maximum.

{¶ 9} Its August 28, 2017 sentencing entry includes the following explanation for its
decision to impose consecutive sentences:

The Court finds in order to adequately punish the defendant and to protect the
public and after considering the harm caused by the commission of the offenses in
COUNTS 4 & 5 was so great that no single prison term for any of the offenses committed
adequately reflects the seriousness of the defendant’s conduct that the sentences
imposed in COUNTS 4 & 5 shall be served CONSECUTIVELY to the sentences imposed in
COUNTS 6 & 7 for an AGGREGATE TERMS of 13 YEARS. (Emphasis in original.)
{¶ 10} 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 judgment 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
imposition of consecutive sentences without the requisite findings renders the sentence
contrary to law. See Bonnell at ¶ 37; State v. Kubat, 6th Dist. Sandusky No. S-13-046, 2015-
Ohio-4062, ¶ 35. We, therefore, review the record to ensure that the trial court considered
each factor under R.C. 2929.14(C)(4) before sentencing Cousino to consecutive prison terms.

{¶ 11} As to the first statutory factor—that consecutive sentences are necessary to
protect the public or to punish the offender—the trial court found at the sentencing
hearing that consecutive sentences were “necessary to protect the public.” This was also 7.
included in its sentencing entry. We find that the first factor was properly considered by the trial court.

{¶ 12} As to the second statutory factor—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—the trial court found at the sentencing hearing that the
sentences were “not disproportionate.” To satisfy R.C. 2929.14(C)(4), the consecutive
sentences must not be disproportionate “to the seriousness of the offender’s conduct and
to the danger the offender poses to the public.” It is not clear from the record that these
were the factors weighed by the trial court. Moreover, this finding is not reflected in the
sentencing entry. We cannot say, therefore, that the trial court properly considered the
second R.C. 2929.14(C)(4) factor.

{¶ 13} And as to the third statutory factor—a finding that either R.C. 2929.14(C)(4)(a),
(b), or (c) is applicable—it appears that the trial court found (b) to apply, however, the court
never explicitly cited this provision of the statute. Under (b), the court must find, first, that
at least two of the multiple offenses were committed as part of one or more courses of
conduct, and, second, that the harm caused was so great or unusual that no single prison
term adequately reflects the seriousness of the offender’s conduct. The trial court found
at the hearing that “[t]he offenses were so different, even though they were, perhaps,
committed at or about the same time.” We cannot say that this constituted a finding that
“at least two of the multiple offenses were committed as part of one or more courses of
conduct.” What’s more, this finding is not incorporated 8. into the court’s sentencing entry.

As to the second finding required under (b)—that the harm caused was so great or
unusual that no single prison term adequately reflects the seriousness of the offender’s
conduct—the court made this finding in its sentencing entry, but did not do so at the
sentencing hearing. We cannot say, therefore, that the third R.C. 2929.14(C)(4) factor was properly considered.

{¶ 14} “[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-Ohio-3177, 16 N.E.3d 659, at ¶ 30. In other words, if
the appropriate findings were made at the sentencing hearing but were not incorporated
into the sentencing entry, we could remand this matter for a nunc pro tunc entry to rectify
the mistake.

{¶ 15} Here, however, there were some findings made at the sentencing hearing that
were not incorporated into the judgment entry, but there were also findings that were not
made at all at the sentencing hearing. These errors cannot be corrected by a nunc pro
tunc entry. Rather, we must reverse the trial court 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 13AP266, 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 9. consider
whether consecutive sentences are appropriate under [R.C. 2929.14(C)(4)] and, if so, to
enter the proper findings on the record.’”).

{¶ 16} Accordingly, we find Cousino’s sole assignment of error well-taken.

III Conclusion

{¶ 17} We find Cousino’s sole assignment of error well-taken. The trial court
failed to properly consider the second and third factors required under R.C. 2929.14(C)(4)
before imposing consecutive sentences. We, therefore, reverse the August 28, 2017
judgment of the Sandusky County Court of Common Pleas and remand for resentencing.
Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment reversed.

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. _______________________________
JUDGE

Christine E. Mayle, P.J. _______________________________
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/.

____________

Lawsuits Continued

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