State v. Recob , 2014 Ohio 929 ( 2014 )

[Cite as State v. Recob, 2014-Ohio-929.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100012
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JARED RECOB
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR–12-568960
BEFORE: Keough, P.J., Kilbane, J., and McCormack, J.
RELEASED AND JOURNALIZED: March 13, 2014
ATTORNEY FOR APPELLANT
Rick Ferrara
2077 East 4th Street
Second Floor
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Brett Kyker
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:
{¶1} Defendant-appellant, Jared Recob, appeals his sentences for pandering
sexually-oriented matter involving a minor and possessing criminal tools. Finding no
merit to the appeal, we affirm.
I. Background
{¶2} In November 2012, the Cuyahoga County Grand Jury returned a 31-count
indictment against Recob. The indictment stemmed from Recob’s use of his computer to
share videos of child pornography with other individuals. Counts 1 through 7 charged
pandering sexually-oriented matter involving a minor in violation of R.C.
2907.322(A)(2); Counts 8 through 30 charged pandering sexually-oriented matter
involving a minor in violation of R.C. 2907.322(A)(1); and Count 31 charged possessing
criminal tools in violation of R.C. 2923.24(A). All counts carried a forfeiture of property
specification pursuant to R.C. 2941.1417(A). The counts asserted various dates of the
offenses ranging from July 13, 2012 to August 30, 2012; as relevant to this appeal,
Counts 1 through 4 charged that the offenses occurred on July 13, 2012, and Counts 5
through 7 charged that the offenses occurred on July 23, 2012.
{¶3} On March 14, 2013, Recob appeared in court with defense counsel to enter
a guilty plea pursuant to a plea agreement with the state. The prosecutor outlined the
plea agreement and informed the court that Recob “agrees that these are not allied
offenses of similar import” and that the court could impose consecutive sentences.
Defense counsel then informed the court that she had explained to Recob the rights he
was waiving by pleading guilty and the potential penalties that could be imposed, and that
he understood those rights and penalties.
{¶4} After questioning Recob regarding his understanding of the rights he would
be waiving and the potential penalties associated with the offenses to which he would be
pleading guilty, the trial court specifically inquired of defense counsel regarding whether
she had considered each count to verify that the offenses were not allied offenses of
similar import. Defense counsel stated that she had done so but then informed the court
that the state had just provided to defense counsel that morning a computer forensic
analysis report that could affect the determination of whether the offenses were allied.
The trial court continued the plea hearing to allow defense counsel time to review the
report and make an allied offenses determination.
{¶5} On April 23, 2013, Recob again appeared with defense counsel to enter a
guilty plea pursuant to a plea agreement with the state. The state again outlined the
proposed plea agreement for the court. The prosecutor indicated that Recob would plead
guilty to Counts 1 through 16 and Count 31 of the indictment, and the other counts would
be nolled. The prosecutor informed the court that “as part and parcel of the plea
agreement in this matter, it’s the state’s understanding defendant will agree and stipulate
that the offenses to which he’s about to enter a plea of guilty are non-allied offenses.”
{¶6} Following the state’s recitation of the plea agreement, defense counsel
informed the court that there was “no longer an issue” regarding allied offenses and that
“the applicable law and case law support the state’s position” that the offenses to which
Recob would be pleading guilty were not allied offenses of similar import. She stated
further that she had discussed with Recob his rights and the potential penalties associated
with the offenses to which he would be pleading guilty. The trial court then re-advised
Recob of the rights he would be waiving by pleading guilty and the potential penalties
associated with the offenses included in the plea agreement. The trial court specifically
advised Recob that Counts 1 through 16 regarding pandering sexually-oriented material
were second-degree felonies, each punishable by terms of between two and eight years
incarceration and fines up to $15,000. Recob then pleaded guilty to Counts 1 through 16
and Count 31 of the indictment.
{¶7} The trial court subsequently sentenced Recob to four years incarceration
on each of Counts 8 through 16, concurrent, and to ten months incarceration on Count 31,
to be served consecutive to the four-year sentence on Counts 8 through 16. The trial
court also ordered Recob to serve five years of community control sanctions on Counts 1
through 7, consecutive to and commencing after the completion of the prison term.
Recob appeals from this judgment.
II. Analysis
{¶8} In his single assignment of error, Recob asserts that the trial court erred in
not merging allied offenses of similar import at sentencing. Specifically, he contends
that the court should have merged Counts 1 through 4, which occurred on July 13, 2012,
and Counts 5 through 7, which occurred on July 23, 2012.
{¶9} These counts alleged pandering sexually-oriented material under R.C.
2907.322(A)(2), which provides that “[n]o person, with knowledge of the character of the
material or performance involved, shall * * * advertise for sale or dissemination, sell,
distribute, exhibit, or display any material that shows a minor participating or engaging in
sexual activity, masturbation, or bestiality.” Recob contends that advertising electronic
files as available for download from one’s IP address, even if multiple files are included,
is one act committed with a single animus because an individual merely clicks the mouse
to highlight the selected files and then posts the advertised files as available for sharing.
Accordingly, he contends, the trial court erred in not merging Counts 1 through 4 and
Counts 5 through 7 as allied offenses. We disagree.
{¶10} As the Ohio Supreme Court observed in State v. Underwood, 124 Ohio
St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, it is well established that there may be only one
conviction for allied offenses of similar import and, therefore, allied offenses must be
merged at sentencing. Id. at ¶ 26. Because a trial court is prohibited from imposing
individual sentences for counts that constitute allied offenses of similar import, a
defendant’s plea to multiple counts does not affect the court’s duty to merge those counts
at sentencing. Id. Nevertheless, the Ohio Supreme Court observed in Underwood that
nothing in this decision precludes the state and a defendant from stipulating
that the offenses were committed with separate animus, thus subjecting the
defendant to more than one conviction and sentence. When the plea
agreement is silent on the issue of allied offenses of similar import,
however, the trial court is obligated under R.C. 2941.25 to determine
whether the offenses are allied, and if they are, to convict the defendant of
only one offense.
(Emphasis added.)
{¶11} Here, the record of the plea agreement is not “silent” as to the issue of allied
offenses. It clearly reflects that as part of his plea bargain, the state and Recob stipulated
that the offenses to which he was pleading guilty were not allied offenses of similar
import, and, further, that Recob understood that he could be sentenced to separate terms
on each of Counts 1 through 4 and 5 through 7. Because of the stipulation, the trial court
was not obligated to determine whether the offenses were allied and did not err in not
merging the offenses at sentencing. See, e.g., State v. Mannarino, 8th Dist. Cuyahoga
No. 98727, 2013-Ohio-1795, ¶ 48-49; State v. Ward, 8th Dist. Cuyahoga No. 97219,
2012-Ohio-1199, ¶ 17-20; State v. Donaldson, 2d Dist. Montgomery No. 24911,
2012-Ohio-5792, ¶ 25. The assignment of error is overruled.
{¶12} 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.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
MARY EILEEN KILBANE, J., and
TIM McCORMACK, J., CONCUR