State v. Oliver , 2021 Ohio 1002 ( 2021 )

[Cite as State v. Oliver, 2021-Ohio-1002.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-20-23
v.
PAUL E. OLIVER, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 20-CR-0062
Judgment Affirmed
Date of Decision: March 29, 2021
APPEARANCES:
Alison Boggs for Appellant
David W. Phillips for Appellee
Case No. 14-20-23
SHAW, J.
{¶1} Defendant-appellant, Paul E. Oliver (“Oliver”), brings this appeal from
the October 9, 2020 judgment of the Union County Common Pleas Court sentencing
him to an aggregate, indefinite prison term with a minimum of 33 years, 10 months,
to a maximum of 34 years, 10 months. On appeal, Oliver argues his sentence was
clearly and convincingly contrary to law.
Background
{¶2} On April 16, 2020, Oliver was indicted for 17 counts of Illegal Use of
Minor in Nudity Oriented Material or Performance in violation of R.C.
2907.323(A)(1), all felonies of the second degree (Counts 1, 2, 5, 6, 11, 17-19, 22-
30), 13 counts of Pandering Sexually-Oriented Matter Involving a Minor in
violation of R.C. 2907.322(A)(1) (Counts 3, 4, 7-10, 12-16, 20-21), all felonies of
the second degree, and 2 counts of Voyeurism in violation of R.C. 2907.08(C)
(Counts 31, 32), both felonies of the fifth degree. It was alleged that, as part of an
investigation, Oliver’s electronic devices were searched and found to contain over
500 “images of interest” related to child pornography, the vast majority being
images of pre-pubescent females in various states of nudity. Over 100 of the images
of the pre-pubescent females in various states of nudity were edited/altered to have
the face of Oliver’s 10-year old step-daughter and/or her friends, all of whom were
under the age of 14.
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{¶3} Further, it was alleged that Oliver took a picture of his 10-year old
stepdaughter while she was naked and bent over in the bathroom by allegedly
putting his phone underneath the bathroom door. Oliver then altered those
photographs of his step-daughter. “Three pictures were located of [the step-
daughter] photoshopped from the bathroom photo, placing her bent over her own
bed. [Oliver] was photo[]shopped naked (one with clothes on but with his penis
out) and he is holding his penis in his hand. One picture has a rope around [step-
daughter’s] neck.” (Doc. No. 12). In sum, the indictment charged Oliver with being
in possession of, and/or creating, video and photographic files depicting minor
children in a state of nudity and/or engaging in sexual activity with other children
and with adults.
{¶4} Pursuant to a written, negotiated plea agreement, Oliver agreed to plead
guilty to 10 counts of Illegal Use of Minor in Nudity Oriented Material or
Performance in violation of R.C. 2907.323(A)(1) (Counts 1, 2, 6, 24-30), all felonies
of the second degree, 6 counts of Pandering Sexually-Oriented Matter Involving a
Minor in violation of R.C. 2907.322(A)(1) (Counts 3, 8, 9, 10, 13, 15), all felonies
of the second degree, and 2 counts of Voyeurism in violation of R.C. 2907.08(C)
(Counts 31, 32), both felonies of the fifth degree. Oliver also specifically agreed in
writing that none of the offenses were subject to merger. In exchange for Oliver’s
pleas the State agreed to dismiss the remaining charges against him.
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{¶5} A change-of-plea hearing was held wherein the plea agreement was
recited to the trial court. After the plea agreement was recited, the trial court
conducted a Crim.R. 11 hearing wherein Oliver knowingly, intelligently, and
voluntarily waived his rights and entered his pleas pursuant to the written
agreement. Further, Oliver acknowledged that the maximum, consecutive sentence
he could possibly receive was an indefinite prison term of 130 to 134 years.
{¶6} On October 8, 2020, the matter proceeded to sentencing. At sentencing
the State argued for an aggregate prison sentence of at least 15 years, and the defense
argued in mitigation for an aggregate prison sentence under 5 years. Ultimately the
trial court sentenced Oliver to 2 years in prison on each of the 16 second degree
felonies, and 11 months in prison on each of the fifth degree felonies. All the prison
terms were ordered to be served consecutive to each other, for an aggregate
indefinite prison term of 33 years, 10 months, to a maximum of 34 years, 10 months.
A judgment entry memorializing Oliver’s sentence was filed October 9, 2020. It is
from this judgment that Oliver appeals, asserting the following assignments of error
for our review.
Assignment of Error No. 1
The trial court erred when it imposed consecutive sentences as the
record does not support consecutive sentences and the sentence is
contrary to law.
Assignment of Error No. 2
Appellant was deprived effective assistance of counsel when
counsel was not prepared to fully argue consistency-in-sentencing
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when asking the court to consider a four year and eleven month
sentence.
First Assignment of Error
{¶7} In his first assignment of error, Oliver argues that even though the trial
court indicated it had considered R.C. 2929.11 and R.C. 2929.12 when sentencing
him, the trial court did not expressly state how it had balanced certain mitigating
factors that Oliver contends weighed in his favor. Further, Oliver argues that the
trial court’s decision to impose consecutive sentences was “purely arbitrary” and
was not supported by the record. (Appt.’s Br. at 8).
Standard of Review
{¶8} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
¶ 1. Clear and convincing evidence is that “ ‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’ ”
Id. at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of
the syllabus.
Prison Terms
{¶9} “ ‘The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give
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its reasons for imposing maximum or more than [a] minimum sentence[ ].’ ” State
v. Castle, 2d Dist. Clark No. 2016-CA-16, 2016-Ohio-4974, ¶ 26, quoting State v.
King, 2d Dist. Clark No. 2012-CA-25, 2013-Ohio-2021, ¶ 45; State v. White, 3d
Dist. Marion No. 9-19-32, 2020-Ohio-717, ¶ 8. Nevertheless, when exercising its
sentencing discretion, a trial court must consider the statutory policies that apply to
every felony offense, including those set out in R.C. 2929.11 and R.C. 2929.12.
State v. Kerns, 3d Dist. Logan No. 8-18-05, 2018-Ohio-3838, ¶ 8, citing State v.
Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶ 38.
{¶10} Revised Code 2929.11 provides that sentences for a felony shall be
guided by the overriding purposes of felony sentencing: “to protect the public from
future crime by the offender and others, to punish the offender, and to promote the
effective rehabilitation of the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden on
state or local government resources.” R.C. 2929.11(A). In order to comply with
those purposes and principles, R.C. 2929.12 instructs a trial court to consider
various factors set forth in the statute relating to the seriousness of the offender’s
conduct and to the likelihood of the offender’s recidivism. R.C. 2929.12(A)-(E).
{¶11} In this case, Oliver was convicted of 16 second degree felonies.
Pursuant to R.C. 2929.14(A)(2)(a), the prison term for a second degree felony “shall
be an indefinite prison term with a stated minimum term selected by the court of
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two, three, four, five, six, seven, or eight years and a maximum term that is
determined pursuant to section 2929.144 of the Revised Code[.]” Under R.C.
2929.144(B)(1), the maximum prison term for a qualifying felony of the second
degree shall be equal to the “minimum term imposed * * * plus fifty per cent of that
term.” For each of the 16 felonies of the second degree in this case Oliver was
sentenced to a stated minimum 2 year prison term, with a maximum prison term of
3 years. Those prison terms were compliant with the appropriate statutes. For each
of the felonies of the fifth degree, Oliver was sentenced to 11 month prison terms,
less than the maximum-possible 12 month prison terms for a fifth degree felony
pursuant to R.C. 2929.14(A)(5).1 Thus all of Oliver’s prison terms were compliant
with the appropriate statutes and are presumptively valid. State v. Maggette, 3d
Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 31.
{¶12} Moreover, at the sentencing hearing, the trial court referenced the
requisite sentencing statutes, specifically indicating that it had considered the
principles and purposes of sentencing in R.C. 2929.11 and stating that it had
balanced the seriousness and recidivism factors under R.C. 2929.12. The trial
court’s findings were incorporated into its judgment entry, further indicating it had
considered R.C. 2929.11 and 2929.12. Importantly, “[a] trial court’s statement that
it considered the required statutory factors, without more, is sufficient to fulfill its
1
“For a felony of the fifth degree, the prison term shall be a definite term of six, seven, eight, nine, ten,
eleven, or twelve months.” R.C. 2929.14(A)(5).
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obligations under the sentencing statutes.” Maggette, 2016-Ohio-5554, at ¶ 32,
citing State v. Abrams, 8th Dist. Cuyahoga No. 103786, 2016-Ohio-4570, citing
State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 18. Therefore not only was
the sentence in this case presumptively valid, the trial court also indicated that it
considered the appropriate statutes, which establishes that the prison terms are not
clearly and convincingly contrary to law for purposes of appeal.
{¶13} Furthermore, to the extent that Oliver seeks to have this Court modify
his prison terms, we emphasize that the Supreme Court of Ohio recently clarified
an appellate court’s review of a felony sentence under R.C. 2953.08(G)(2). State v.
Jones, --- Ohio St.3d ---, 2020-Ohio-6729, ¶ 39. The Supreme Court of Ohio
determined that R.C. 2953.08(G)(2)(a) “clearly does not provide a basis for an
appellate court to modify or vacate a sentence if it concludes that the record does
not support the sentence under R.C. 2929.11 and R.C. 2929.12 because * * * R.C.
2929.11 and R.C. 2929.12 are not among the statutes listed in the provision.” Id. at
¶ 31. Thus, the Supreme Court of Ohio concluded that an appellate court may not
modify or vacate a felony sentence based upon a finding by clear and convincing
evidence that the record does not support the trial court’s “findings” under R.C.
2929.11 and R.C. 2929.12. Id. at ¶ 42 (“Nothing in R.C. 2953.08(G)(2) permits an
appellate court to independently weigh the evidence in the record and substitute its
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judgment for that of the trial court concerning the sentence that best reflects
compliance with R.C. 2929.11 and 2929.12.”).
{¶14} In Jones, the Supreme Court of Ohio also confirmed that R.C.
2953.08(G)(2)(b) does not provide a mechanism for an appellate court to modify or
vacate a felony sentence based upon a finding that the sentence is “contrary to law”
because it clearly and convincingly is not supported by the record under R.C.
2929.11 and R.C. 2929.12. Id. at ¶ 32-39. “As a result of the Supreme Court’s
holding in Jones, when reviewing felony sentences that are imposed solely after
considering the factors in R.C. 2929.11 and R.C. 2929.12, we shall no longer
analyze whether those sentences are unsupported by the record. We simply must
determine whether those sentences are contrary to law.” State v. Dorsey, 2d Dist.
Montgomery No. 28747, 2021-Ohio-76, ¶ 18. “A sentence is contrary to law when
it does not fall within the statutory range for the offense or if the trial court fails to
consider the purposes and principles of felony sentencing set forth in R.C. 2929.11
and the sentencing factors set forth in R.C. 2929.12.” Id. citing State v. Brown, 2d
Dist. No. 2016-CA-53, 2017-Ohio-8416, ¶ 74; see State v. D-Bey, 8th Dist.
Cuyahoga No. 109000, 2021-Ohio-60, ¶ 65.
{¶15} In sum, the record demonstrates that the prison terms imposed by the
trial court in this case are within the statutory range and that the trial court
considered the requisite statutory factors in R.C. 2929.11 and 2929.12 when it
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fashioned Oliver’s aggregate sentence. Thus, Oliver cannot demonstrate that his
sentence is clearly and convincingly contrary to law, and his sentences must
therefore be affirmed. See Burks, 2d Dist. Clark No. 2019-CA-70, 2021-Ohio-224,
¶ 9, (“Under Jones, this ends the inquiry regarding the individual sentences. Thus,
there is no basis upon which to modify or vacate either individual sentence.”); see
also, D-Bey, supra, ¶ 75, citing Jones at ¶ 39 (concluding that “this court cannot
review D-Bey’s sentences to determine whether they are ‘excessive’ or otherwise
not ‘supported by the record under R.C. 2929.11 and 2929.12.’ ”).
Consecutive Sentences
{¶16} Oliver next argues that the trial court’s decision to implement
consecutive sentences was “purely arbitrary.” Pursuant to R.C. 2929.14(C)(4), in
order to impose consecutive sentences, a trial court must find on the record that
consecutive sentences are “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.” State v. Grate, --- Ohio St.3d ---, 2020-Ohio-5584, ¶ 205. A trial court
must then also find that at least one or more of the aggravating factors in
R.C. 2929.14(C)(4)(a) through (c) are present.
{¶17} In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 37, the
Supreme Court of Ohio held that a trial court must make the requisite statutory
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findings before imposing consecutive sentences “at the sentencing hearing and
incorporate its findings into its sentencing entry, but it has no obligation to state
reasons to support its findings.”
{¶18} In this case, the trial court made the appropriate consecutive
sentencing findings at the sentencing hearing and in its final judgment entry of
sentence. On appeal, Oliver does not even attempt to argue that the trial court failed
to make any of the appropriate findings; rather, he contends that the trial court’s
consecutive sentence findings were unsupported by the record. Importantly, and
contrary to Oliver’s argument, a trial court has no obligation to state reasons to
support its findings. Bonnell at ¶ 37. For this reason alone we could overrule
Oliver’s assignment of error.
{¶19} Nevertheless, the record reflects that Oliver had hundreds of images
of child pornography on his electronic devices. Oliver also altered photos that he
had obtained, placing himself in them with the children engaged in child
pornography. Oliver then went even further, taking nude photographs of his 10-
year old step daughter, then altering the photograph so that it looked like she was in
a bedroom with Oliver preparing to penetrate her. He created numerous other
photographs of his step-daughter as well.
{¶20} Moreover, Oliver used vacation photos of his step-daughter’s friends,
aged 9-11, and placed their faces onto photographs of other children engaged in
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child pornography. He created in excess of 100 photographs of his step-daughter
and six of her friends. In total, Oliver possessed 595 images relating to child
pornography and 10 videos. Some depicted children as young as 8 years old.
{¶21} Based on the record, the trial court found that consecutive sentences
were necessary to protect the public from future crime and to punish Oliver. The
trial court found that consecutive sentences were not disproportionate to the
seriousness of Oliver’s conduct and the danger he posed to the public. Further, the
trial court determined that “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 *
* * adequately reflects the seriousness of the offender’s conduct.”
{¶22} After reviewing the record we cannot find that Oliver has
demonstrated that consecutive sentences were clearly and convincingly contrary to
law, particularly where the trial court made the appropriate findings under R.C.
2929.14(C)(4). Therefore, Oliver’s first assignment of error is overruled.
Second Assignment of Error
{¶23} In his second assignment of error, Oliver argues that he received
ineffective assistance of counsel. Specifically, he contends that his counsel was
unprepared at sentencing to argue that a 4 year and 11 month sentence was more
consistent with sentences given to similarly situated offenders.
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Standard of Review
{¶24} “To establish a claim for ineffective assistance of counsel, a defendant
must show that counsel’s performance was deficient and that counsel's deficient
performance prejudiced him.” State v. Hernandez, 3d Dist. Defiance Nos. 4-16-27,
28, 2017-Ohio-2797, ¶ 12, citing State v. Phillips, 3d Dist. Allen No. 1-15-43, 2016-
Ohio-3105, ¶ 11, citing State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, ¶
133, citing Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure to make
either showing defeats a claim of ineffective assistance of counsel. State v. Bradley,
42 Ohio St.3d 136, 143 (1989), quoting Strickland at 697. (“[T]here is no reason for
a court deciding an ineffective assistance of counsel claim to approach the inquiry
in the same order or even to address both components of the inquiry if the defendant
makes an insufficient showing on one.”).
Analysis
{¶25} In arguing that his counsel was ineffective at sentencing, Oliver
contends that his counsel failed to preserve the issue of inconsistent sentencing in
this matter by failing to raise it at the trial court level. Oliver argues that when his
trial counsel argued for an aggregate prison term of under 5 years, he did not present
any prior cases from Union County or surrounding courts to support his assertion
for that type of sentence. Further, Oliver argues that his sentence is disproportionate
to other sentencing in similar cases. Importantly, however, Oliver does not cite a
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single case on appeal wherein an offender similarly situated was given a lesser
sentence to establish some type of disproportionate sentencing. For this reason
alone we could overrule his assignment of error as he cannot establish that his trial
counsel was ineffective.2
{¶26} Finally, the goal of felony sentencing pursuant to R.C. 2929.11(B) is
to achieve ‘consistency’ not ‘uniformity.’ State v. Benvenuto, 3d Dist. Allen No. 1-
17-39, 2018-Ohio-2242, ¶ 52, citing State v. Simpson, 11th Dist. Lake No. 2016–L–
014, 2016–Ohio–7746, ¶ 28. As the court in Simpson noted, “ ‘[a]
consistent sentence is not derived from a case-by-case comparison.’ ” Id. quoting
State v. Swiderski, 11th Dist. Lake No.2004–L–112, 2005–Ohio–6705, ¶ 58. “To
the contrary, it is well established that consistency in sentencing is accomplished by
the trial court’s application of the statutory sentencing guidelines to each individual
case.” Id. “Thus, in order to show a sentence is inconsistent
with sentences imposed on other offenders, a defendant [Appellant] must show the
trial court failed to properly consider the statutory purposes and factors of
felony sentencing.” Id.2
Notwithstanding this point, this Court has actually affirmed a conviction and an aggregate prison sentence
of 40 years that dealt with charges under, inter alia, R.C. 2907.323(A)(1), and in that case there were only
two girls involved in the photographs that were taken. See State v. Workman, 3d Dist. Auglaize No. 2-15-
05, 2015-Ohio-5049. Further, in a sentencing brief filed by the State, the State pointed to a Union County
case of Lauren Thomas who was ordered to serve an aggregate 40-year prison term for five felonies of the
second degree. Thus we do not find any indication of disproportionate sentencing.
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{¶27} As shown in the discussion of the previous assignment of error, the
trial court’s sentences were within the statutory range and the aggregate term was
far less than the maximum sentence that could have been imposed (130-134 years).
Moreover, the record establishes that the trial court properly considered the
appropriate sentencing statutes. For all of these reasons, Oliver’s second assignment
of error is overruled.
Conclusion
{¶28} For the foregoing reasons Oliver’s assignments of error are overruled
and the judgment and sentence of the Union County Common Pleas Court is
affirmed.
Judgment Affirmed
ZIMMERMAN and MILLER, J.J., concur.
/jlr
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