State v. Warner ( 2014 )


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  • [Cite as State v. Warner, 
    2014-Ohio-1519
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 100197
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    ALLEN WARNER
    DEFENDANT-APPELLANT
    JUDGMENT:
    AFFIRMED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-12-568077
    BEFORE: S. Gallagher, J., Boyle, A.J., and Rocco, J.
    RELEASED AND JOURNALIZED: April 10, 2014
    ATTORNEY FOR APPELLANT
    Russell S. Bensing
    1350 Standard Building
    1370 Ontario Street
    Cleveland, OH 44113
    ATTORNEYS FOR APPELLEE
    Timothy J. McGinty
    Cuyahoga County Prosecutor
    By: Brett Kyker
    Assistant Prosecuting Attorney
    Justice Center, 8th Floor
    1200 Ontario Street
    Cleveland, OH 44113
    SEAN C. GALLAGHER, J.:
    {¶1} Defendant-appellant Allen Warner appeals from his conviction on 18 counts
    of pandering sexually oriented material involving a minor, five counts of illegal use of a
    minor in nudity-oriented material or performance, two counts of voyeurism, and one
    count of possessing criminal tools.    For the following reasons, we affirm Warner’s
    conviction.
    {¶2} On October 11, 2012, Warner posted on Craigslist.org, seeking
    surreptitiously produced pictures or videos of undressed or masturbating family members.
    Shortly after the posting, an investigator with the Ohio Internet Crimes Against Children
    Task Force responded to the advertisement. Warner revealed that he photographed his
    own minor daughter using sex toys, and bugged various household items to record those
    images. Warner also gave some of the bugged devices to children of other women and
    admitted that he received child pornography from a foreign individual.
    {¶3} Warner ultimately pleaded guilty to 18 counts of pandering sexually oriented
    material involving a minor in violation of R.C. 2907.322(A)(1) and (2), five counts of
    illegal use of a minor in nudity-oriented material or performance in violation of R.C.
    2907.323(A)(1), two counts of voyeurism in violation of R.C. 2907.08(B), and one count
    of possessing criminal tools in violation of R.C. 2923.24(A). The trial court sentenced
    Warner to concurrent terms of imprisonment of five years on the 17 violations of R.C.
    2907.322(A)(1), five years on the violation of R.C. 2907.322(A)(2), six years on the
    violations of R.C. 2907.323(A)(1), time served on the violations of R.C. 2907.08(B), and
    one year on the violation of R.C. 2923.24(A). The trial court ordered each group of
    violations to be served consecutive to the other types for an aggregate sentence of 17
    years (5+5+6+1). It is from this decision that Warner timely appeals, advancing two
    assignments of error.
    {¶4} In his first assignment of error, Warner claims the trial court’s imposition of
    consecutive sentences was contrary to law because the court failed to give reasons in
    support of its findings and failed to make all the required findings before imposing the
    consecutive sentences. We find no merit to Warner’s first assignment of error.
    {¶5} Pursuant to R.C. 2953.08(G)(2), an appellate court may overturn the
    imposition of a consecutive sentence if (1) the sentence is otherwise contrary to law or (2)
    the appellate court clearly and convincingly finds that the record does not support the
    sentencing court’s findings under R.C. 2929.14(C)(4). State v. Venes, 
    2013-Ohio-1891
    ,
    
    992 N.E.2d 453
    , ¶ 11; State v. Goins, 8th Dist. Cuyahoga No. 98256, 
    2013-Ohio-263
    , ¶ 6.
    Under the current version of R.C. 2929.14(C)(4), when imposing consecutive sentences,
    the trial court must find that the sentence is “necessary to protect the public from future
    crime or to punish the offender,” 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 find the existence of one of the three statutory factors set forth in
    R.C. 2929.14(C)(4)(a)-(c).      State   v.   Redd, 8th Dist. Cuyahoga No. 99624,
    
    2014-Ohio-491
    , ¶ 15. Specific to the current appeal, the last factor is that at “least two of
    the multiple offenses were committed as part of one or more courses of conduct, and the
    harm caused * * * was so great or unusual that no single prison term for any of the
    offenses * * * adequately reflect[ed] the seriousness of the offender’s conduct.” R.C.
    2929.14(C)(4)(b).
    {¶6} Contrary to Warner’s argument, the trial court made the required findings
    before imposing the consecutive sentences. The trial court specifically found that “a
    consecutive prison term is necessary to protect the community and to punish the offender
    in this case. It’s not disproportionate. And I find that the harm was so great or unusual
    that a single term does not adequately reflect the seriousness of this conduct.” Tr.
    131:7-13. Warner argues that the trial court’s mention of the word disproportionate was
    an insufficient finding that the consecutive sentences were not disproportionate to the
    seriousness of the offender’s conduct and the danger the offender poses to the public.
    This court has previously determined that the trial court’s identical finding was sufficient.
    State v. Wilson, 8th Dist. Cuyahoga No. 99331, 
    2013-Ohio-3915
    , ¶ 13; but see State v.
    Barnett, 8th Dist. Cuyahoga No. 99419, 
    2013-Ohio-4595
     (S. Gallagher, J., concurring in
    judgment only) (noting the diverging reference to the standard of review did not alter the
    analysis underlying the Wilson court’s decision to affirm).
    {¶7} Warner also argues that Crim.R. 32(A)(4) requires the trial court to give
    reasons for imposing consecutive sentences and, therefore, the trial court erred by only
    making the findings pursuant to R.C. 2929.14(C)(4). We simply note that the Tenth
    District has persuasively addressed this argument in State v. Wilson, 10th Dist. Franklin
    No. 12AP-551, 
    2013-Ohio-1520
    , ¶ 20-21. In that case, the court noted, in part relying on
    the Staff Notes to Crim.R. 32, that
    Criminal Rule 32(A) was amended to conform with the Supreme Court of
    Ohio’s decision in State v. Comer, 
    99 Ohio St.3d 463
    , 
    2003-Ohio-4165
    . The
    Comer decision mandates that a trial court must make specific statutory
    findings and the reasons supporting those findings when a trial court, in
    serious offenses, imposes consecutive sentences * * * pursuant to R.C.
    2929.14(B), R.C. 2929.14(E)(4) and 2929.19(B)(2). Crim.R. 32(A) was
    modified to ensure that there was no discrepancy in the criminal rules and
    the Court’s holding in Comer.
    
    Id.
     Therefore, because “neither R.C. 2929.14 nor 2929.19, as revised by H.B. No. 86,
    require[s] the trial court to give its reasons for imposing consecutive sentences,” the
    revisions of H.B. No. 86 must logically supersede the rationale of Comer, which was the
    original impetus for the amendment to Crim.R. 32(A)(4).        
    Id.
       The Tenth District
    accordingly rejected the defendant’s attempt to interweave the Crim.R. 32(A) reasons
    requirement into consecutive sentencing post-H.B. No. 86, which is especially compelling
    because Crim.R. 32(A)(4) only requires reasons to support findings “if appropriate.”
    Thus, Warner’s reliance on Crim.R. 32(A)(4) is misplaced.        In light of the above
    reasoning, Warner’s first assignment of error is overruled.
    {¶8} In his second assignment of error, Warner claims the trial court erred by
    imposing a sentence that was not clearly and convincingly supported by the record. We
    find no merit to Warner’s argument.
    {¶9} Warner’s sole argument with regard to his second assignment of error is that
    the trial court should have considered Warner’s age (60 years old), the fact that Warner
    made “substantial progress” in his eight months of treatment, and the fact that Warner had
    no prior criminal history. Warner’s argument is misplaced.
    {¶10} As we previously noted, pursuant to R.C. 2953.08(G)(2), an appellate court
    may overturn the imposition of a consecutive sentence if the appellate court clearly and
    convincingly finds that the record does not support the sentencing court’s findings under
    R.C. 2929.14(C)(4). Venes, 
    2013-Ohio-1891
    , 
    992 N.E.2d 453
    , at ¶ 11; Goins, 8th Dist.
    Cuyahoga No. 98256, 
    2013-Ohio-263
    , at ¶ 6. Our review is limited. Warner essentially
    seeks a determination that the trial court abused its discretion in giving greater weight to
    the nature of the offense and the impact on the victims, rather than elevating Warner’s
    remorse, progress in treatment, age, and lack of a criminal history to a greater degree, for
    the purposes of considering the appropriate sentence, in Warner’s eyes as being one of a
    lesser term of imprisonment.
    {¶11} The trial court expressly considered his age, lack of a criminal record, and
    treatment but discounted those factors in favor of the harm caused to the victims because
    of Warner’s conduct and the harm posed to the public. Warner made those factors clear
    during his sentencing hearing. Tr. 62:13-21 and 79:1-16. The trial court, therefore, was
    acting within its discretion in weighing the competing sentencing factors, and absent a
    demonstration that the record does not clearly and convincingly support the findings, we
    are bound to affirm consecutive sentences. Warner has made no such showing, and the
    trial court found that the longer term of imprisonment was warranted because of the
    impact to the victims and the harm posed to the public by Warner’s conduct, and that the
    sentence was not disproportionate to Warner’s conduct, especially pertinent in light of the
    fact he surreptitiously recorded minors engaging in sexual conduct with bugged
    household items.
    {¶12} Further, inasmuch as Warner’s arguments could be considered as one
    claiming his sentence is contrary to law pursuant to R.C. 2953.08(G)(2), because the trial
    court failed to consider certain sentencing factors, nothing in the record clearly and
    convincingly demonstrates that Warner’s sentence is contrary to law. Warner concedes
    the trial court appropriately considered the type and degree of harm caused by his
    conduct. His sole contention is that the trial court should have also considered his age,
    lack of a prior criminal record, and progress in eight months of treatment.
    {¶13} An appellate court cannot “increase, reduce, or otherwise modify a
    sentence” on appeal unless “that the sentence is otherwise contrary to law.”
    R.C. 2953.08(G)(2). The trial court expressly considered all the factors including those
    advanced by Warner on appeal; it simply discounted factors that Warner considered to be
    favorable to a lesser term of imprisonment. Discounting some factors, even if considered
    to mitigate against a longer term of imprisonment, against other factors that weigh in
    favor of a longer prison sentence, does not render a prison sentence as one being imposed
    contrary to law. Again, trial courts have discretion to consider all sentencing factors.
    Warner simply disagrees with how the trial court weighed what he considered to be
    mitigating factors against a longer term of imprisonment. The legislature limited our
    review to whether the sentence is contrary to law, expressly rejecting any abuse of
    discretion review. R.C. 2953.08(G)(2).
    {¶14} Even if we combed the record for the trial court’s rationale, we still would
    find the record supports the sentence, and therefore, the sentence is not contrary to law.
    The fact that the trial court’s decision to discount the factors Warner thinks most
    important is unpalatable to him and others does not render the sentence entered contrary
    to law under Ohio’s sentencing review process. Alas, it is not in the province of an
    appellate court to create a new standard of review solely because the legislature arguably
    prohibited any “meaningful” review over an offender’s final sentence. The trial court
    simply placed emphasis on factors less favorable to Warner.                    The trial court had
    discretion to weigh all sentencing factors under the statutory scheme, not just those
    thought important by Warner himself.1
    1
    More than once this writer called into question the fallout from Ohio’s sentencing statutes
    brought on by the changes created by S.B. No. 2 and pointed to the need to review felony sentencing
    or relegate the sentencing changes to the “ash heap of history.” State v. Nash, 
    2012-Ohio-3246
    , 
    973 N.E.2d 353
    , ¶ 28 (S. Gallagher, J., dissenting); State v. Hunt, 8th Dist. Cuyahoga No. 97925,
    
    2012-Ohio-3578
    , ¶ 13. The sentencing ranges imposed by the statutory scheme are broad.
    Rather than relying on appellate courts with limited review of final felony
    sentences, a soft sentencing grid would be preferable to bridge the proportionality
    and consistency gaps caused by the unbridled discretion provided to felony trial
    court judges in sentencing. To date, these soft grid approaches have been
    universally condemned as compromising judicial discretion. Judicial discretion
    and consistency in sentencing share a decidedly inverse relationship. State v.
    Moore, 8th Dist. Cuyahoga No. 99788, 
    2014-Ohio-819
    , ¶ 22.
    {¶15} Warner’s sentence is not contrary to law, and he did not clearly and
    convincingly demonstrate that the consecutive sentencing findings are not supported by
    the record. His second assignment of error, therefore, must be overruled.
    {¶16} Finding no merit to either of Warner’s assigned errors, we affirm Warner’s
    conviction and the decision of the trial court.
    {¶17} Judgment affirmed.
    It is ordered that appellee recover from appellant costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this court directing the common
    pleas court to carry this judgment into execution. The defendant’s conviction having
    been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
    for execution of sentence.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
    the Rules of Appellate Procedure.
    SEAN C. GALLAGHER, JUDGE
    MARY J. BOYLE, A.J., and
    KENNETH A. ROCCO, J., CONCUR