State v. Corrao , 2011 Ohio 2517 ( 2011 )

[Cite as State v. Corrao, 2011-Ohio-2517.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95167
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RONALD CORRAO, JR.
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART; REVERSED IN PART
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-527400
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BEFORE: Cooney, P.J., S. Gallagher, J., and Keough, J.
RELEASED AND JOURNALIZED: May 26, 2011
ATTORNEY FOR APPELLANT
Susan J. Moran
55 Public Square
Suite 1616
Cleveland, Ohio 44113-1901
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Kristen L. Sobieski
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, J.:
{¶ 1} Defendant-appellant, Ronald Corrao, Jr. (“Corrao”), appeals the
trial court’s judgment sentencing him to a ten-year prison term
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following his guilty plea to 26 sexually oriented offenses. We find some
merit to the appeal and reverse in part.
{¶ 2} Corrao was charged in a 35-count indictment for crimes alleged to
have occurred between January 1, 2006 and January 31, 2009.
Pursuant to a plea agreement, Corrao pled guilty to seven counts of
pandering sexually oriented material involving a minor, 16 counts of
illegal use of a minor in nudity-oriented material, one count of sexual
battery, one count of corrupting another with drugs, and one count of
possession of criminal tools. The remaining nine counts were nolled.
{¶ 3} At the sentencing hearing, the court sentenced Corrao to three
years in prison on Counts 5-8, 18, 26, and 27, the seven pandering
charges. The court also sentenced him to three years in prison on
Counts 9-17 and 19-25, the 16 counts of illegal use of minor in
nudity-oriented material. Finally, the court sentenced him to two
years on the sexual battery charge, one year for corrupting another
with drugs, and one year for possession of criminal tools. At the
conclusion of the sentencing, the court explained:
“Now, the 3 years, with the 3 years, the 2 year, the 1 year and the 1 year are
all to be served consecutively for a term of 10 years in prison.”
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{¶ 4} Corrao now appeals his sentence, raising four assignments of
error.
Allied Offenses
{¶ 5} In his first assignment of error, Corrao argues the trial court
erred by imposing consecutive sentences for the pandering and illegal
use of a minor in nude material convictions. He contends these are
allied offenses of similar import that should have merged for
sentencing.
{¶ 6} Corrao failed to object to the court’s imposition of multiple sentences and has
therefore waived all but plain error. Under Crim.R. 52(B), “[p]lain errors or defects
affecting substantial rights may be noticed although they were not brought to the
attention of the court.” The Ohio Supreme Court has expressly held that the
imposition of multiple sentences for allied offenses of similar import is plain error.
State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶31; State v.
Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845, ¶96-102.
{¶ 7} R.C. 2941.25, which governs allied offenses, provides:
“(A) Where the same conduct by defendant can be construed to constitute two or more allied
offenses of similar import, the indictment or information may contain counts for all
such offenses, but the defendant may be convicted of only one.
“(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar import, or
where his conduct results in two or more offenses of the same or similar kind
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committed separately or with a separate animus as to each, the indictment or
information may contain counts for all such offenses, and the defendant may be
convicted of all of them.”
{¶ 8} The Ohio Supreme Court recently redefined the test for determining whether
two offenses are allied offenses of similar import subject to merger under R.C. 2941.25
in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. The
Johnson court expressly overruled State v. Rance (1999), 85 Ohio St.3d 632, 710
N.E.2d 699, which required a “comparison of the statutory elements in the abstract” to
determine whether the statutory elements of the crimes correspond to such a degree that
the commission of one crime will result in the commission of the other. The Johnson
court held that rather than compare the elements of the crimes in the abstract, courts
must consider the defendant’s conduct. Johnson at syllabus. “If multiple offenses
can be committed by the same conduct, then the court must determine whether the
offenses were committed by the same conduct, i.e., ‘a single act, committed with a
single state of mind.’” Id., quoting State v. Brown, 119 Ohio St.3d 447,
2008-Ohio-4569, 895 N.E.2d 149, ¶50, (Lanzinger, J., dissenting).
{¶ 9} R.C. 2907.322(A)(1) prohibits pandering sexually oriented matter involving a
minor, and states: “No person, with knowledge of the character of the material or
performance involved, shall * * * [c]reate, record, photograph, film, develop,
reproduce, or publish any material that shows a minor participating or engaging in
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sexual activity, masturbation, or bestiality.” R.C. 2907.323(A)(1) prohibits illegal use
of a minor in nudity-oriented material or performance, and provides that “No person
shall photograph any minor who is not the person’s child or ward in the state of nudity,
or create, direct, produce, or transfer any material or performance that shows the minor
in a state of nudity.” R.C. 2907.322(A)(1) prohibits one from photographing a minor
engaged in sexual activity including masturbation. Photographs of minors engaged in
sexual activity and masturbation could involve a child “in the state of nudity”
prohibited by R.C. 2907.323(A)(1). Thus, it is possible for the same conduct to
violate both R.C. 2907.322(A)(1) and 2907.323(A)(1).
{¶ 10} However, under Johnson, we must consider the defendant’s conduct in
determining whether the offenses are allied offenses that should merge. The record of
Corrao’s plea does not contain the necessary details as to the timing and circumstances
of the various criminal acts from which we can make such a determination. In
Underwood, the supreme court explained that the trial court’s duty to merge allied
offenses “is mandatory, not discretionary.” Underwood at ¶ 26. Corrao was
1
convicted of seven counts of pandering sexually oriented matter involving a minor and
16 counts of illegal use of a minor in nudity-oriented material. These crimes were
The Underwood court noted that the prosecutor and defense counsel could have stipulated in
1
the plea agreement that the offenses were committed with a separate animus. Id. at ¶29.
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committed between January 1, 2006 and January 31, 2009. It is impossible to
determine whether any of the pandering and illegal use of a minor in nudity-oriented
material offenses were committed in “a single act with a single state of mind.” The
trial court’s failure to make the necessary inquiry constitutes plain error necessitating a
remand. State v. Miller, 11th Dist. No. 2009-P-0090, 2011-Ohio-1161, ¶56, 58.
{¶ 11} Accordingly, we sustain the first assignment of error and vacate the sentences
for pandering and illegal use of a minor in nudity-oriented material. However,
because Ohio sentencing laws do not recognize the sentencing-package doctrine, our
decision to vacate the sentences for pandering and illegal use of a minor in
nudity-oriented material does not affect Corrao’s other sentences. See State v. Saxon,
109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824. Therefore, we now turn to
Corrao’s other assigned errors as they apply to the remaining sentences.
Oregon v. Ice
{¶ 12} In his second assignment of error, Corrao argues the trial court erred in
sentencing him to consecutive sentences without making findings under R.C.
2929.14(E)(4). Corrao contends that the United States Supreme Court’s decision in
Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, retroactively
reinstates the consecutive-sentencing statutes requiring fact-finding that were excised in
State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.
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{¶ 13} The Ohio Supreme Court rejected these arguments in State v. Hodge, 128 Ohio
St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768. In Hodge, the Supreme Court held that
Oregon v. Ice does not revive Ohio’s former consecutive-sentencing statutory
provisions, R.C. 2929.14(E)(4) and 2929.41(A), which were held unconstitutional in
Foster. “Because the statutory provisions are not revived, trial judges are not obligated
to engage in judicial fact-finding prior to imposing consecutive sentences unless the
General Assembly enacts new legislation requiring that findings be made.” Hodge at
¶39. See, also, State v. Torres, Cuyahoga App. No. 95646, 2011-Ohio-350.
{¶ 14} Therefore, the second assignment of error is overruled.
Proportionality
{¶ 15} In his third assignment of error, Corrao argues the trial court abused its
discretion by imposing a sentence that was contrary to the sentencing guidelines.
Corrao contends his sentence is more severe than other similarly situated defendants.
{¶ 16} To support a claim that a “sentence is disproportionate to sentences imposed
upon other offenders, a defendant must raise this issue before the trial court and present
some evidence, however minimal, in order to provide a starting point for analysis and
to preserve the issue for appeal.” State v. Edwards, Cuyahoga App. No. 89191,
2007-Ohio-6068, ¶ 11. Corrao raised the issue of proportionality both in his
sentencing brief and at the sentencing hearing.
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{¶ 17} R.C. 2929.14(E)(4) previously required a sentencing court to find “that the
consecutive sentences are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public” before imposing
consecutive sentences. The court also had to state its reasons for such finding under
R.C. 2929.19(B)(2)(c). However, Foster severed these provisions so that a sentencing
court no longer has to provide findings or reasons. Foster at ¶97, 99 (severed R.C.
2929.14(E)(4) and R.C. 2929.19(B)(2) and their requirements).
{¶ 18} In a post-Foster plurality decision, the Ohio Supreme Court held that appellate
courts must apply a two-step approach when reviewing felony sentences. State v.
Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. Under Kalish, an
appellate court must first determine whether the sentence is contrary to law. If the
sentence is not contrary to law, the appellate court must then consider the sentencing
court’s post-Foster application of R.C. 2929.11 and 2929.12. R.C. 2929.11 and
2929.12 are not fact-finding statutes. They serve as an “overarching guide” for a trial
judge to consider in imposing an appropriate sentence. Kalish at ¶ 17.
Consequently, Foster provided trial courts with “full discretion to determine whether
the sentence satisfies the overriding purpose of Ohio’s sentencing structure.” Kalish
at ¶17.
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{¶ 19} It is undisputed that Corrao’s sentence is not contrary to law. As to
proportionality, Corrao’s trial counsel noted that Corrao had no prior criminal history,
had received sex offender treatment, and had been determined by an expert to pose a
12-13% risk of reoffending. Corrao’s trial counsel also submitted a chart showing
sentences other offenders received for similar offenses and noted that while one
offender received a 17-year sentence, the other offenders received sentences ranging
from ten months in one case to two years in several others. According to the chart, 85
percent of similar cases resulted in a sentence of 5 years or less.
{¶ 20} Although the chart lists numerous cases and sentences, it does not include any
details or specifics as to the identity of the offenses or their impact on the victims. In
Corrao’s case, he not only possessed obscene materials but was convicted of sexual
battery and corrupting another with drugs. The prosecutor noted that as a jailer in the
Independence jail, he violated the public trust by inviting children into his home, where
their parents thought they were safe, and assaulted them. Based on the facts in the
record, which establish that there were numerous victims as a result of on-going
criminal activity, we cannot say that the trial court abused its discretion in the sentence
it imposed.
{¶ 21} Accordingly, the third assignment of error is overruled.
Consecutive Sentences
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{¶ 22} In the fourth assignment of error, Corrao argues the trial court erred by
altering his sentence to run consecutively instead of concurrently in a nunc pro tunc
entry. He contends the trial court violated his constitutional right to be present in the
courtroom at every stage of the proceedings.
{¶ 23} In the journal entry dated May 5, 2010, the court indicated that the pandering
counts were to run concurrently with each other but consecutive to all other counts.
However, it failed to state that any of the other counts were to be served consecutively
to the other counts. This entry was revised twice in two separate nunc pro tunc
entries dated May 12 and May 18, 2010. In the entry dated May 18, the court
added the words “to run consecutive” to counts 29, 31, and 35 and indicated that the
total sentence would be 10 years. Corrao contends that the trial court erred by
altering his sentence outside his presence.
{¶ 24} Corrao contends the May 18 nunc pro tunc entry altered his sentence by
imposing consecutive prison terms where the court had previously imposed concurrent
terms at the sentencing hearing. In support of this argument, Corrao relies on a
passage in the transcript from the sentencing hearing in which the court stated:
“It’s therefore ordered that the defendant shall serve a stated term of 3 years in prison on
counts five, six, seven, eight, 18, 26, and 27; 3 years in prison on counts 21, 22, 23, 24,
and 25; 3 years on counts five, six, seven, eight, 18, 26 and 27 which can be served
currently [sic] with the 3 years on the counts previously mentioned, nine, 10, 11, 12,
13, 14, 15, 16, 17, 19, 20, 21, 22, 23, 24, 25, can be served currently [sic].”
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{¶ 25} However, the court went on to explain:
“The defendant is to serve 2 years on the sexual battery charge, 1 year for corrupting another
with drugs. The sexual battery charge is count 29, 2 years, corrupting another with
drugs 20, one year, and possession of criminal tools, count 35, the defendant is
sentenced to 1 year.
“Now, the 3 years, with 3 years, the 2 year, the 1 year and the 1 year are all to be served
consecutively for a term of 10 years in prison.”
{¶ 26} When the transcript of the sentencing hearing is read in its entirety, it becomes
clear that the court sentenced Corrao to an aggregate ten-year prison term. Corrao’s
trial counsel even acknowledged the consecutive prison terms by objecting to the
imposition of consecutive sentences at the end of the hearing. Therefore, the nunc pro
entry, which states the prison terms are to be served consecutively, did not alter
Corrao’s sentence. It corrected the sentencing entry to reflect what actually happened
in open court in accordance with Crim.R. 36.
{¶ 27} Accordingly, the fourth assignment of error is overruled.
Affirmed in part; reversed in part and remanded for further proceedings on merger of
allied offenses and resentencing.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
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It is ordered that a special mandate issue out of this court directing the
common pleas court 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.
___________________________________________________
COLLEEN CONWAY COONEY, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
KATHLEEN ANN KEOUGH, J., CONCUR