State v. Bonness , 2013 Ohio 2699 ( 2013 )

[Cite as State v. Bonness, 2013-Ohio-2699.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99129
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ROBERT BONNESS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-543662
BEFORE: Rocco, J., Boyle, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: June 27, 2013
-i-
ATTORNEYS FOR APPELLANT
Eric C. Nemecek
Kristina W. Supler
Friedman & Frey, L.L.C.
1304 West 6th Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Jesse W. Canonico
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶1} Defendant-appellant Robert Bonness appeals from the sentences the trial
court imposed for his convictions for illegal use of a minor in nudity-oriented material or
performance (hereinafter referred to as “child pornography”) after this court reversed the
original sentences imposed and remanded his case for a resentencing hearing in State v.
Bonness, 8th Dist. No. 96557, 2012-Ohio-474 (“Bonness I”).
{¶2} Bonness presents a single assignment of error. He argues the trial court
acted improperly in sentencing him to a total of 20 years for his child pornography
convictions, because the court: (1) did not consider the statutory sentencing factors, (2)
utilized the “sentencing package” doctrine, and (3) again imposed disproportionately long
terms in contravention of this court’s directive in Bonness I.
{¶3} Upon a review of the record, however, this court does not find his arguments
persuasive. Consequently, his assignment of error is overruled and his sentences are
affirmed.
{¶4} The background surrounding Bonness’s convictions was set forth in
Bonness I, at ¶ 3-4 as follows:
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 * * *
[.] 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. * *
* . Bonness finally arranged to meet the father and daughter at a hotel and, when he
arrived, was arrested.
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} The ensuing indictment against Bonness contained 97 counts. He eventually pleaded
guilty to one count of attempted rape; eight counts of pandering sexually-oriented matter involving a
minor, R.C. 2907.322(A)(1); six counts of pandering sexually-oriented matter involving a minor, R.C.
2907.322(A)(5); eight child pornography counts; and two counts of possession of criminal tools.
In Bonness I, at ¶ 5, this court summarized Bonness’s original sentences:
* * * [T]he 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.
{¶6} After reviewing the recent evolution of Ohio sentencing laws in Bonness I, this court then
addressed Bonness’s arguments. In pertinent part, this court stated at ¶ 18-29:
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
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.
* * * 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.”
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. * * * 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.
***
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.”
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, ¶ 32, 2003 WL
1564323. 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, ¶ 15, 2011 WL 198670.
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).
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’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. [Footnote omitted.]
{¶7} Based upon the foregoing analysis, Bonness’s sentences were reversed and the matter was
remanded to the trial court.
{¶8} The trial court conducted Bonness’s resentencing hearing on
October 2, 2012. By this time, H.B. 86, which contained the new version of R.C.
2929.14, had come into effect; the trial court was aware that Bonness deserved the benefit
of the new sentencing law. After listening to the arguments presented by the prosecutor
and defense counsel, the court imposed consecutive five-year prison terms on the child
pornography counts according to the dates Bonness downloaded the videos. Because
Bonness downloaded the child pornography on four separate days, he received a sentence
totaling 20 years for those convictions. On all of Bonness’s other convictions, the court
imposed the same terms as it had previously. Bonness thus received a prison sentence
that totaled 32 and one-half years.
{¶9} Bonness presents the following as his sole assignment of error.
I. The trial court erred and imposed a sentence contrary to law
by failing to consider all statutory sentencing factors.
{¶10} This court has set forth the current law relating to consecutive sentences in
State v. Goins, 8th Dist. No. 98256, 2013-Ohio-263, ¶ 9-11, as follows:
R.C. 2929.14(C)(4), as revived, now requires that a trial court
engage in a three-step analysis in order to impose consecutive sentences.
First, the trial court must find that “consecutive service is necessary to
protect the public from future crime or to punish the offender.” Id. Next,
the trial court must find that “consecutive sentences are not disproportionate
to the seriousness of the offender’s conduct and to the danger the offender
poses to the public.” Id. Finally, the trial court must find that at least one
of the following applies: (1) the offender committed one or more of the
multiple offenses while awaiting trial or sentencing, while under a sanction,
or while under postrelease control for a prior offense; (2) 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 offenses was so great
or unusual that no single prison term for any of the offenses committed as
part of any of the courses of conduct adequately reflects the seriousness of
the offender’s conduct; or (3) the offender’s history of criminal conduct
demonstrates that consecutive sentences are necessary to protect the public
from future crime by the offender. Id.
In each step of this analysis, the statutory language directs that the trial court must
“find” the relevant sentencing factors before imposing consecutive sentences. R.C.
2929.14(C)(4). In making these findings, a trial court is not required to use “talismanic
words to comply with the guidelines and factors for sentencing.” State v. Brewer, 1st
Dist. No. C-000148, 2000 Ohio App. LEXIS 5455, *10 (Nov. 24, 2000). But it must be
clear from the record that the trial court actually made the findings required by statute.
See State v. Pierson, 1st Dist. No. C-970935, 1998 Ohio App. LEXIS 3812 (Aug. 21,
1998). A trial court satisfies this statutory requirement when the record reflects that the
court has engaged in the required analysis and has selected the appropriate statutory
criteria. See State v. Edmonson, 86 Ohio St. 3d 324, 326, 1999 Ohio 110, 715 N.E.2d 131
(1999).
Notably, however, the General Assembly deleted R.C. 2929.19(B)(2)(c) in H.B.
86. This was the provision in S.B. 2 that had required sentencing courts to state their
reasons for imposing consecutive sentences on the record. Accordingly, a trial court is
not required to articulate and justify its findings at the sentencing hearing. A trial court
is free to do so, of course. But where, as here, there is no statutory requirement that the
trial court articulate its reasons, it does not commit reversible error if it fails to do so, as
long as it has made the required findings.
{¶11} This court in Goins also set forth the applicable standard of appellate review at ¶ 6:
An appellate court must conduct a meaningful review of the trial court’s
sentencing decision. State v. Johnson, 8th Dist. No. 97579, 2012 Ohio 2508, ¶ 6, citing
State v. Hites, 3d Dist. No. 6-11-07, 2012 Ohio 1892, ¶ 7. Specifically, R.C.
2953.08(G)(2) provides that our review of consecutive sentences is not an abuse of
discretion. An appellate court must “review the record, including the findings underlying
the sentence or modification given by the sentencing court.” Id. If an appellate court
clearly and convincingly finds either that (1) “the record does not support the sentencing
court’s findings under [R.C. 2929.14(C)(4)]” or (2) “the sentence is otherwise contrary to
law,” then “the appellate court may increase, reduce, or otherwise modify a sentence * * *
or may vacate the sentence and remand the matter to the sentencing court for
re-sentencing.” Id.
{¶12} Although Bonness concedes that the sentences he received on the child pornography
counts were within the statutory range of punishment, he essentially argues that the trial court’s
decision to impose a 20-year sentence for those eight convictions was contrary to law because the trial
court failed to fully consider R.C. 2929.11 and 2929.12, employed a “sentencing package” approach,
and gave him a total term that was disproportionately severe compared to similar crimes committed by
similar offenders. This court disagrees.
{¶13} R.C. 2929.11(A) provides that when a trial court sentences an offender for a felony
conviction, the court must be guided by the “overriding purposes of felony sentencing.” Those
purposes are “to protect the public from future crime by the offender and others and to punish the
offender.” R.C. 2929.11(B) requires a felony sentence to be reasonably calculated to achieve the
purposes set forth under R.C. 2929.11(A), commensurate with and not demeaning to the seriousness of
the crime and its impact on the victim, and consistent with sentences imposed for similar crimes
committed by similar offenders.
{¶14} R.C. 2929.12 provides a nonexhaustive list of factors a trial court must
consider when determining the seriousness of the offense and the likelihood that the
offender will commit future offenses.
{¶15} In this case, the trial court stated in relevant part as follows:
The Court has * * * incorporat[ed] all the exhibits that were admitted
at the last sentencing hearing, incorporating the presentence investigation
report that I have reviewed. Also the information provided by the State
and defense counsel with respect to all the counts in the lengthy indictment.
Also, I have carefully considered the principles and purposes of
felony sentencing, the appropriate recidivism and seriousness factors, all the
statutory requirements with respect to the issues in this matter.
I have reviewed the Court of Appeals opinion as well, and I respect
their opinion and will endeavor to follow their wishes.
***
The Court is specifically wanting to first of all adequately punish this
defendant in a way that’s not disproportionate, considering the danger to the
public.
And also these consecutive sentences I believe are necessary to
protect the community from these specific things.
This defendant, over a period of time, took many different steps,
different acts, * * * every time he downloaded a separate act.
* * * [E]ach one of those criminal acts led to the attempted rape.
And the fact that concerns this Court, the fact that shows the dangerousness of this
offender and the danger to the community is the fact that when he arrived at the scene,
that he recognized * * * police in the area, he left and then came back * * * . So not
even [that] stopped him from going to have sex with a 12 year old girl.
One would have to wonder what would stop this defendant other than being
separated from society where he can’t get his hands on little girls. And that’s the only
conclusion the Court can make at this point, that consecutive sentences are necessary to
protect our public, to punish this offender based on the history of that criminal conduct,
where it is multiple offenses.
And certainly the harm is so great to those children depicted * * * that it is a life
sentence for them that they will never forget, that they are revictimized every time
someone else downloads that film * * * for their own prurient reasons. * * *
* * * I am considering * * * the harm to those victims. * * *
So I am going to sentence the defendant accordingly.
{¶16} From the foregoing, it is clear that the record belies Bonness’s contention that, in
imposing sentence, the trial court so focused on the burden to the state that the other relevant statutory
considerations were ignored. Rather, the trial court’s comments indicated that its focus was on the
relevant sentencing statutes in conjunction with this court’s opinion in Bonness I, the danger to the
community that Bonness presented, and the specific facts of his case.
{¶17} Similarly, nothing in the record supports Bonness’s claim that the trial court
devised a “sentencing package” in contravention of State v. Saxon, 109 Ohio St. 3d 176,
2006-Ohio-1245, 846 N.E.2d 824, paragraph two of the syllabus. Instead, the court
decided to impose five-year consecutive terms for the child pornography convictions
based upon the days on which Bonness downloaded the pornographic images. Because
Bonness engaged in this act on four separate days, the trial court imposed a 20-year
sentence for these counts. State v. Harder, 8th Dist. No. 98409, 2013-Ohio-580, ¶ 10.
The trial court’s analysis of the appropriate sentence to impose under these circumstances
can be considered neither an improper “package” nor unsupported by the record. Id. at ¶
9 (“* * * a judge sentencing a defendant pursuant to Ohio law must consider each offense
individually and impose a separate sentence for each offense”). See also, e.g., State v.
Thomas, 197 Ohio App. 3d 176, 2011-Ohio-6073, 966 N.E.2d 939.
{¶18} Finally, this court has upheld similar terms for similar offenders. See, e.g.,
State v. Geddes, 8th Dist. No. 91042, 2008-Ohio-6489 (affirmed an 18-year sentence for
six separate convictions of pandering sexually-oriented material involving a minor); State
v. Carney, 8th Dist. No. 95343, 2011-Ohio-2280 (affirmed a 24-year sentence for 20
counts of pandering sexually-oriented material involving a minor); State v. Phillips, 8th
Dist. No. 92560, 2009-Ohio-5564 (affirmed a 24-year sentence for 30 counts of
pandering sexually-oriented matter involving a minor when convictions arose from
defendant’s use of a home computer to download and trade child pornography and
defendant’s contacting someone he believed to be a 12-year-old girl).
{¶19} “The Eighth Amendment does not require strict proportionality between
crime and sentence. Rather, it forbids only extreme sentences that are grossly
disproportionate” to the crime. State v. Weitbrecht, 86 Ohio St. 3d 368, 373,
1999-Ohio-113, 715 N.E.2d 167 (1999), quoting Harmelin v. Michigan, 501 U.S. 957,
1001, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991), (Kennedy, J., concurring in part and in
judgment).
{¶20} Because his sentences are not grossly disproportionate to the crimes with
which he was charged, Bonness’s assertion based upon this ground, therefore, remains
unsupported.
{¶21} This court cannot find that the trial court’s sentence is “clearly and
convincingly” unsupported in the record. Accordingly, Bonness’s assignment of error is
overruled.
{¶22} 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. 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.
_________________________________________
KENNETH A. ROCCO, JUDGE
MARY J. BOYLE, P.J., and
EILEEN T. GALLAGHER, J., CONCUR