State v. Bonness , 2012 Ohio 474 ( 2012 )


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  • [Cite as State v. Bonness, 
    2012-Ohio-474
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 96557
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    ROBERT BONNESS
    DEFENDANT-APPELLANT
    JUDGMENT:
    REVERSED AND REMANDED
    FOR RESENTENCING
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-543662
    BEFORE: Stewart, J., Kilbane, P.J., and E. Gallagher, J.
    RELEASED AND JOURNALIZED: February 9, 2012
    ATTORNEY FOR APPELLANT
    Edward R. LaRue
    75 Public Square
    Suite 800
    Cleveland, OH 44113
    ATTORNEYS FOR APPELLEE
    William D. Mason
    Cuyahoga County Prosecutor
    BY: Jesse W. Canonico
    Assistant County Prosecutor
    The Justice Center
    1200 Ontario Street, 9th Floor
    Cleveland, OH 44113
    MELODY J. STEWART, J.:
    {¶ 1} Defendant-appellant, Robert Bonness, pleaded guilty to one count
    of attempted rape; eight counts of pandering sexually-oriented matter
    involving a minor in violation of R.C. 2907.322(A)(1); six counts of pandering
    sexually-oriented matter involving a minor in violation of R.C. 2907.322(A)(5);
    eight counts of the illegal use of a minor in nudity-oriented material or
    performance in violation of R.C. 2907.323(A)(3); and two counts of possession
    of criminal tools. As relevant here, the court imposed consecutive five-year
    terms on the eight illegal use of a minor in nudity-oriented material or
    performance counts.    When added to the sentences imposed on the other
    counts, including an eight-year term for attempted rape, Bonness received a
    total prison term of 52 years and six months.
    {¶ 2} In this appeal, Bonness asserts two assignments of error:      (1)
    that the court abused its discretion by ordering the maximum sentence on the
    attempted rape count, and (2) that the court abused its discretion by ordering
    him to serve the eight counts of illegal use of a minor in nudity-oriented
    material or performance (we will refer to these as the “child pornography”
    counts) consecutively because the sentence constituted a de facto life
    sentence. We find that the court did not abuse its discretion by ordering a
    maximum sentence for the attempted rape count, but agree that consecutive
    sentences in this case were disproportionate to those rendered in similar
    cases, so we reverse and remand for resentencing.
    I
    {¶ 3} Bonness was a 53-year-old retired police officer with no prior
    criminal record. He was caught in a police sting that involved his answering
    an anonymous internet posting from a fictitious father and daughter who
    were “looking for the right person in the Cleveland area” to do things “that
    may interest that special person.” Bonness was undeterred when he learned
    from the poster that the daughter was only 12 years old, and even asked the
    poster, “does she swallow?” He exchanged several emails with the poster,
    each growing more graphic in its description of the sex acts that he hoped he
    and the daughter might mutually perform.       These exchanges went on for
    several months and Bonness, satisfying himself that the 12-year-old would be
    a willing participant, actually spoke on the telephone with an undercover
    officer pretending to be the fictitious 12-year-old. Bonness finally arranged
    to meet the father and daughter at a hotel and, when he arrived, was
    arrested.
    {¶ 4} Upon arrest, Bonness waived his right to remain silent.       He
    confessed that had there been a young girl present in the hotel room, he
    would have engaged in sexual activity with her, but allowed that he would
    only have done so after satisfying himself that she was not being forced to
    submit. The police searched Bonness’s car and found condoms, lubricants,
    and vibrators. Bonness told the police that he had a sexual addiction and
    kept child pornography at his house. A search of his computer uncovered 94
    pornographic files, some of which were videos showing children under the age
    of 13 engaging in deviant sexual acts. The court described one of the videos
    as showing a child being digitally and anally penetrated, forced to perform
    oral sex, defecated upon, handcuffed, and restrained in a dog kennel.
    {¶ 5} As previously noted, the court imposed an eight-year sentence on
    the attempted rape count and consecutive five-year terms on the eight illegal
    use   of   a   minor   in   nudity-oriented material or performance (child
    pornography) counts. It also imposed concurrent 18-month terms on the six
    pandering sexually-oriented matter involving a minor counts; concurrent
    12-month terms on the eight pandering sexually-oriented matter involving a
    minor counts; and consecutive 12-month terms on the two criminal tools
    counts.
    II
    A
    {¶ 6} At one time, Ohio law created presumptions that offenders be
    given minimum, concurrent terms of incarceration.           See former R.C.
    2929.14(B), 2929.14(E)(4), 2919.19(B)(2), and 2929.41. These presumptions
    could be overcome if the court made specific factual findings regarding the
    nature of the offense and the need to protect the public.       This judicial
    fact-finding was called into question by Apprendi v. New Jersey, 
    530 U.S. 466
    ,
    
    120 S.Ct. 2348
    , 
    147 L.Ed.2d 435
     (2000), and Blakely v. Washington, 
    542 U.S. 296
    , 
    124 S.Ct. 2531
    , 
    159 L.Ed.2d 403
     (2004), in which the United States
    Supreme Court held that judicial fact-finding could infringe upon a
    defendant’s Sixth Amendment right to a jury trial because it invaded the
    fact-finding function of the jury.    In State v. Foster, 
    109 Ohio St.3d 1
    ,
    
    2006-Ohio-856
    , 
    845 N.E.2d 470
    , the Ohio Supreme Court held that under
    Apprendi and Blakely, Ohio’s sentencing statutes that required a judge to
    make factual findings in order to increase a sentence beyond presumptive
    minimum or concurrent terms unconstitutionally infringed upon the jury’s
    fact-finding function in violation of the Sixth Amendment.                      It, therefore,
    severed those sections and held that courts have full discretion to sentence
    within the applicable statutory range and likewise have discretion to order
    sentences to be served consecutively. Id. at ¶ 99-100.
    {¶ 7} Foster was partially called into question by Oregon v. Ice, 
    555 U.S. 160
    , 
    129 S.Ct. 711
    , 
    172 L.Ed.2d 517
     (2009), in which the United States
    Supreme Court later ruled that neither Apprendi nor Blakely implicated a
    sentencing judge’s long-understood authority to order sentences to be served
    consecutively.       The Ohio Supreme Court later acknowledged that Foster
    erroneously applied Apprendi and Blakely to ban judicial fact-finding in
    support of consecutive sentences, but ruled that Ice could not revive that
    which had previously been severed as unconstitutional in Foster. See State
    v. Hodge, 
    128 Ohio St.3d 1
    , 
    2010-Ohio-6320
    , 
    941 N.E.2d 768
    , paragraph two
    of the syllabus. In other words, R.C. 2929.14(E)(4), which had been declared
    unconstitutional and severed in Foster, remained severed.1 Thus, Ice had no
    The General Assembly reenacted the consecutive sentencing provisions formerly contained in
    1
    R.C. 2929.14(E)(4) in R.C. 2929.14(C)(4), effective September 30, 2011. The court sentenced
    practical effect on Foster, meaning that the court still has “the discretion and
    inherent authority to determine whether a prison sentence within the
    statutory range shall run consecutively or concurrently * * *.” State v. Bates,
    
    118 Ohio St.3d 174
    , 
    2008-Ohio-1983
    , 
    887 N.E.2d 328
    , ¶ 19.
    B
    {¶ 8} Even though there are no longer any express factors for the court
    to consider before imposing sentences consecutively, the sentencing judge’s
    discretion must nonetheless be guided by a consideration of the statutory
    policies that apply to every felony offense, including those set forth in R.C.
    2929.11 and 2929.12. State v. Mathis, 
    109 Ohio St.3d 54
    , 
    2006-Ohio-855
    , 
    846 N.E.2d 1
    , at ¶ 37.          The sentencing factors apply to decisions to impose
    sentences consecutively.            See State v. Freeman, 8th Dist. No. 95608,
    
    2011-Ohio-5651
    , 
    2011 WL 5222669
    , ¶ 25.
    {¶ 9} One of the “overriding” purposes of felony sentencing is “to punish
    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). To achieve that overriding
    purpose, a felony sentence must be “commensurate with and not demeaning
    to the seriousness of the offender’s conduct and its impact upon the victim,
    Bonness on March 9, 2011, so the reenacted provisions do not apply to him.
    and consistent with sentences imposed for similar crimes committed by
    similar offenders.” R.C. 2929.11(B).
    {¶ 10} While the sentencing judge has discretion to determine the most
    effective way to comply with R.C. 2929.11, the sentencing judge may only
    exercise that discretion after considering the seriousness, recidivism, and
    mitigating factors set forth in R.C. 2929.12.    A separate finding on each
    statutory factor is not required — the duty is satisfied merely by noting that
    the sentencing factors were considered. State v. Payne, 
    114 Ohio St.3d 502
    ,
    
    2007-Ohio-4642
    , 
    873 N.E.2d 306
    , ¶ 18; State v. Wright, 8th Dist. No. 95096,
    
    2011-Ohio-733
    , 
    2011 WL 550095
    , ¶ 4.
    III
    {¶ 11} Bonness first argues that the court erred by imposing the
    maximum eight-year sentence on the attempted rape count. While conceding
    that a minimum sentence would not have been appropriate, he claims that
    the maximum term was inappropriate because he was a first-time offender
    who cooperated with the police, that there was no actual victim given that he
    was the subject of a police sting, and that even had there been an actual
    victim, there was still the potential that he could abandon the plan before
    committing any crime.
    {¶ 12} The court stated that it considered the relevant statutory factors,
    so that statement by itself was enough to fulfill its obligations under R.C.
    2929.11 and 2929.12.       See State v. Arnett, 
    88 Ohio St.3d 208
    , 215,
    
    2000-Ohio-302
    , 
    724 N.E.2d 793
    ; State v. Woodward, 8th Dist. Nos. 94672 and
    94673, 
    2011-Ohio-104
    , 
    2011 WL 198594
    , ¶ 6. Nevertheless, a rote statement
    that the statutory factors have been considered should not be examined in a
    vacuum — it must be considered in the context of facts brought out during
    sentencing as applied to the relevant sentencing factors. The court had a
    presentence   investigation   report,   along   with     sentencing      memoranda
    submitted by the parties. It also heard from Bonness, his attorney, and the
    assistant prosecuting attorney.
    {¶ 13} Cooperation   with   authorities   is    not   a   stated   factor   for
    consideration under R.C. 2929.12.         In capital cases, “[a] defendant’s
    confession and cooperation with law enforcement are mitigating factors.”
    State v. Bethel, 
    110 Ohio St.3d 416
    , 
    2006-Ohio-4853
    , 
    854 N.E.2d 150
    , ¶191.
    However, the Supreme Court has made it clear that in capital cases,
    mitigation applies only to sentencing and does not necessarily excuse a
    defendant’s culpability.   State v. Holloway, 
    38 Ohio St.3d 239
    , 
    527 N.E.2d 831
     (1988), paragraph one of the syllabus.           R.C. 2929.12(C)(4) takes the
    opposite approach — it allows the sentencing judge to consider whether there
    were “substantial grounds to mitigate the offender’s conduct, although the
    grounds are not enough to constitute a defense.”
    {¶ 14} While it is true that Bonness immediately confessed his
    involvement in seeking a sexual liaison with a 12-year-old girl, that
    confession did not mitigate his conduct leading up to his arrest. Perhaps his
    quick confession, cooperation with the investigation, and guilty plea made the
    case easier to prosecute, but there is little doubt on the record before us that
    the state possessed overwhelming evidence of Bonness’s guilt and would not
    likely have encountered difficulty in presenting and winning its case at trial.
    The court rationally could have found that the cooperation of a defendant who
    was caught in the act of committing a crime was entitled to little, if any,
    weight.
    {¶ 15} Bonness’s claim that he was entitled to favorable treatment
    because he might still have abandoned the crime before committing it is not
    supported by the record. He admitted to the police upon his arrest that had
    there been an actual and willing father and child available for a liaison, he
    would have engaged in sexual activity with the child. He pursued a sexual
    liaison for several months, sending graphic email messages. He even spoke
    with an undercover police officer, posing as the fictitious 12-year-old, in order
    to satisfy himself that the child would be a willing participant. Finally, the
    police found sex paraphernalia and female stimulant gel in Bonness’s car.
    Bonness was fully prepared to go forward with an illicit liaison.            His
    suggestion that he might have backed out of the liaison had the police not
    intervened is not worthy of serious consideration.
    {¶ 16} Finally, while it is true that there was no actual victim of the
    attempted rape, we fail to see how this mitigates the seriousness of Bonness’s
    actions.   He was ready and willing to have sex with a 12-year-old,
    demonstrated by his arrival at the hotel with a car trunk containing sex toys.
    Although there was no actual victim, Bonness thought there would be, as
    demonstrated by his insistence that he first speak to the child to ensure her
    willingness to have sex with him. He had taken substantial, concrete steps
    to consummate an encounter with a 12-year-old and was stopped from doing
    so by his arrest.
    {¶ 17} We thus see nothing in the record that would mitigate Bonness’s
    conduct leading up to his arrest.      On the other hand, the court could
    rationally consider the seriousness of the attempted rape of a 12-year-old and
    the very substantial steps Bonness took to make that rape happen.         The
    court did not abuse its discretion by finding that Bonness’s conduct went so
    far beyond mere “curiosity” that it was deserving of the most severe penalty
    allowed by law.
    IV
    {¶ 18} The next issue raised by Bonness is whether the court abused its
    discretion by running the eight child pornography counts consecutively. He
    argues that the court erroneously gave weight to the fact that Bonness was a
    police officer despite knowing that Bonness had been retired from the police
    force at the time of his offenses; that the court neglected to consider that
    Bonness was a first-time offender who cooperated with the police and showed
    great    remorse   for   his   actions;   and   that   the   total   sentence   was
    disproportionate to his conduct and inconsistent with those given to similar
    offenders.
    A
    {¶ 19} R.C. 2929.12(B)(1) and (2) require the court to consider the
    “physical and mental injury” suffered by the victim of the offense and
    whether that injury was “exacerbated” because of the victim’s physical or
    mental condition or age. The court found that the victims were the children
    used to make the child pornography Bonness had in his possession. It found
    that every viewing of the images and films constituting the child pornography
    constituted a revictimization of the children.         It noted that many of the
    children depicted in the pornography had been identified and that the abuses
    perpetrated upon them were essentially a “life sentence” because they know
    that “as they get older and start to understand the breadth and scope * * * of
    their abuse, their victimization continues.”
    {¶ 20} While Bonness disagrees with the court’s conclusion about the
    continued revictimization of children shown in child pornography, that
    conclusion is within the mainstream of legal opinion. For example, when
    amending 18 U.S.C. 2252, the United States Congress found that “[c]hild
    pornography is a permanent record of a child’s abuse and the distribution of
    child pornography images revictimizes the child each time the image is
    viewed.” See Effective Child Pornography Prosecution Act of 2007, Pub. L.
    No. 110-358, Section 102(3), 
    122 Stat. 4001
     (2008).          See also Leary,
    Self-Produced Child Pornography:       The Appropriate Societal Response to
    Juvenile Self-Sexual Exploitation, 15 Va.J.Soc.Policy&L. 1, 9-11 (2007)
    (arguing that an image of child pornography is a permanent record that
    “uniquely affects victims far into the future” and that “creates a continual
    cycle of abuse”).    It follows that the court did not abuse its discretion by
    relying on the revictimization of the children shown in the pornography as a
    sentencing factor.
    {¶ 21} R.C. 2929.14(B)(3)-(5) focus on the offender’s occupation, whether
    he held a position of trust in the community, whether the offender’s
    occupation or profession obliged him to prevent the offense and bring others
    to justice, and whether the offender used his profession or occupation to
    facilitate the offense.   The court found that Bonness was a retired police
    officer whose former position “aggravates the situation” and noted that
    Bonness used his skills in counter surveillance to avoid being watched by the
    police as he arrived at the hotel.    The court stated that “your duty, the
    integrity you are supposed to espouse was certainly lacking.”
    {¶ 22} Bonness argues that he was no longer a police officer and should
    not be held to the same standard as a currently-serving police officer. This is
    a valid point. Had Bonness been an active member of the police department,
    the court could rationally conclude that he violated a position of trust or
    authority within the community.      But there is no question that he had
    retired as a police officer well before he committed these offenses. Therefore,
    he held no position of trust or authority at the time he committed the crimes.
    The oath of service he swore to uphold as a police officer no longer applied to
    him, making him no different than any other member of the public. The
    court should not have considered Bonness’s prior service as a police officer as
    a factor for imposing sentences consecutively. See State v. Bradford, 11th
    Dist. No. 2001-L-175, 
    2003-Ohio-3495
    , 
    2003 WL 21511159
    , ¶ 30.
    {¶ 23} R.C. 2929.14(C) contains factors indicating that the offender’s
    conduct is less serious than conduct normally constituting the offense. These
    include whether the victim induced or facilitated the offense, whether the
    offender acted under strong provocation, whether the offender did not cause
    or expect to cause physical harm, and whether there are grounds for
    mitigation.
    {¶ 24} In mitigation, Bonness again claims that he was a first-time
    offender and, given the length of sentence, unlikely to reoffend.       He also
    argues that his acts of possessing child pornography did not constitute the
    worst form of the offense.
    {¶ 25} The argument that his lack of a prior record and the lengthy
    sentence given to him act as insurance that he is unlikely to reoffend is
    questionable. Given the pervasiveness of the internet, it would be naive to
    assume that Bonness will be completely insulated from child pornography
    while in prison.    Bonness’s long-term pursuit of a sexual liaison with a
    12-year-old was indicative of a deeper pathology.       According to his email
    correspondences, he appeared to believe, or at least engaged in the fantasy,
    that a prepubescent girl would be sexually gratified by him.        He tried to
    explain this by saying that his “rotten curiosity” got the better of him, but the
    court was unconvinced, noting that Bonness’s attitude “is the terrible fallacy
    of these crimes, and that is the disconnect, the problem in your personality
    with respect to taking those steps to make this happen.” The court could
    rationally find that Bonness’s curiosity had moved far beyond being a person
    who merely looked at images of children to being a person who physically
    assaulted those children.
    B
    {¶ 26} Finally, we must determine whether, under R.C. 2929.11(A), the
    sentence achieved the overriding purpose of punishing Bonness by using “the
    minimum sanctions that the court determines accomplish those purposes
    without imposing an unnecessary burden on state or local government
    resources” and whether, under R.C. 2929.11(B), Bonness’s sentence was
    “consistent with sentences imposed for similar crimes committed by similar
    offenders.”
    {¶ 27} The goal of “consistency” in sentencing as stated in R.C.
    2929.11(B) does not mean uniformity.       State v. Klepatzki, 8th Dist. No.
    81676, 
    2003-Ohio-1529
    , 
    2003 WL 1564323
    , ¶ 32. Each case stands on its
    own unique facts, so we have concluded that “[a] list of child pornography
    cases is of questionable value in determining whether the sentences imposed
    are consistent for similar crimes committed by similar offenders since it does
    not take into account all the unique factors that may distinguish one case
    from another.” State v. Siber, 8th Dist. No. 94882, 
    2011-Ohio-109
    , 
    2011 WL 198670
    , ¶ 15.
    {¶ 28} Nevertheless, the comparison of one sentence against other
    sentences given for similar crimes is a useful guide for determining if the
    court abused its discretion in a particular case. Obviously, a survey of cases
    issued from this appellate district will tend to show only the worst sentences
    — we presume that defendants who are given much shorter sentences are not
    appealing on that basis so any list of opinions from this court will necessarily
    be skewed to longer sentences. With this caveat in mind, we note that the
    most recent cases from this appellate district have affirmed lengthy sentences
    for possession of child pornography, but none that were as remotely lengthy
    as the sentence given to appellant. In State v. Geddes, 8th Dist. No. 88186,
    
    2007-Ohio-2626
    , 
    2007 WL 1559544
    , we reversed a 30-year sentence on six
    counts of pandering sexually oriented materials when Geddes pleaded guilty
    to printing images of child pornography from a public library while on parole.
    While     acknowledging   that   Geddes’s   actions   were   reproachable,   we
    nonetheless concluded that the lengthy sentence was disproportionate to his
    conduct.      On remand for resentencing, Geddes was given an 18-year
    sentence, which was affirmed on appeal.           That sentence was broadly
    consistent with those given to similar offenders. See, e.g., State v. Mahan,
    8th Dist. No. 95696, 
    2011-Ohio-5154
    , 
    2011 WL 4600044
     (16 years consecutive
    on 81 counts); State v. Corrao, 8th Dist. No. 95167, 
    2011-Ohio-2517
    , 
    2011 WL 2112721
     (ten years on 23 counts); State v. Carney, 8th Dist. No. 95343,
    
    2011-Ohio-2280
    , 
    2011 WL 1842257
     (24 years on 21 counts); Siber, 8th Dist.
    No. 94882, 
    2011-Ohio-109
    , 
    2011 WL 198670
     (three years, nine months on 14
    fourth and fifth degree felony counts); State v. Moon, 8th Dist. No. 93673,
    
    2010-Ohio-4483
    , 
    2010 WL 3721872
     (20 years on 49 counts).
    {¶ 29} Given these cases, we conclude that the 40-year sentence imposed
    on Bonness for eight child pornography counts was inconsistent with
    sentences imposed for similar crimes committed by similar offenders. The
    inconsistency arises because the court ran the child pornography counts
    consecutive to one another.              While there is no question that Bonness
    committed very serious crimes that deserve punishment, we find it difficult
    on this record to justify 40 consecutive years in prison for the nonviolent
    crime of possessing child pornography.                 This is a de facto life sentence
    because it extends well beyond Bonness’s current life expectancy.                             The
    sentence would thus place an undue burden on the state’s resources as the
    prison system would be forced to pay for all of Bonness’s medical care as he
    enters the final stages of his life.            The court plainly intended to punish
    Bonness because he was a police officer, but as we explained, that is not a
    valid consideration because he was retired from the police force at the time he
    committed       his    crimes.        The    court’s     need     to   punish      Bonness      is
    understandable.         But ordering consecutive sentences on the eight child
    pornography counts went beyond punishment, especially when similar
    offenders have been given significantly lower sentences.2
    We note with some interest that the child pornography laws in other countries are far less
    2
    severe than in the United States. For example, a Canadian man in possession of the largest stash of
    child pornography ever found in that country — more than 4.5 million pornographic images — was
    sentenced to concurrent prison terms of five years for distribution, four and one half years
    {¶ 30} This cause is reversed and remanded for resentencing.
    It is ordered that appellant recover of   appellee his costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate be sent to the Cuyahoga County Court of Common
    Pleas to carry this judgment into execution.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
    Rules of Appellate Procedure.
    MELODY J. STEWART, JUDGE
    MARY EILEEN KILBANE, P.J., and
    EILEEN A. GALLAGHER, J., CONCUR
    for accessing, and four and one half years for possession. Interesting, the Crown had only
    sought a prison      term       of         five       to        seven    years.              See
    http://www.cbc.ca/news/canada/new-brunswick/story/2011/11/14/nb-douglas-stewart-child-pornograp
    hy-sentencing-612.html?cmp=rss (last visited January 30, 2012).