State v. Mannarino ( 2013 )

[Cite as State v. Mannarino, 2013-Ohio-1795.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98727
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CHRISTOPHER MANNARINO
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-555729
BEFORE: Boyle, P.J., S. Gallagher, J., and Keough, J.
RELEASED AND JOURNALIZED: May 2, 2013
ATTORNEYS FOR APPELLANT
Larry W. Zukerman
Paul B. Daiker
S. Michael Lear
Brian A. Murray
Zukerman, Daiker & Lear
3912 Prospect Avenue, East
Cleveland, Ohio 44115
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brett Kyker
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{¶1} Defendant-appellant, Christopher Mannarino, appeals from his sentencing
judgment. He raises six assignments of error for our review:
1. The sentence imposed by the trial court is contrary to law as the trial
court imposed consecutive sentences on appellant prior to making any of
the findings required by R.C. 2929.14(C)(4) and/or by failing to make all
the findings required by R.C. 2929.14(C)(4).
2. The record does not support the sentencing court’s findings under
division (C)(4) of R.C. 2929.14 and, as such, the sentence herein is contrary
to law.
3. The trial court erred to the prejudice of appellant by failing to explain to
appellant the effect of his guilty pleas pursuant to Crim.R. 11(C)(2)(b).
4. The trial court erred to the prejudice of appellant by imposing individual
and consecutive sentences for counts eleven (11) and twenty-six (26)
without obtaining a specific stipulation to a separate animus or separate acts
to said counts and/or without engaging in a factual inquiry to determine
whether counts 11 and 26 were allied offenses of similar import, in
violation of appellant’s right to be free from multiple punishments for the
same crime, as guaranteed by the Eighth Amendment to the United States
Constitution and Article I, Section 9 of the Ohio Constitution and
appellant’s right to be free from double jeopardy, as guaranteed by the Fifth
Amendment to the United States Constitution and Article I, Section 10 of
the Ohio Constitution.
5. The performance of appellant’s trial counsel was deficient and prejudiced
appellant in such a way as to violate appellant’s state and federal
constitutional rights to effective assistance of counsel, as guaranteed by the
Sixth and Fourteenth Amendments to the United States Constitution and
Article I, Section 10 of the Ohio Constitution.
6. The trial court abused its discretion and/or committed plain error by
sentencing appellant to fifteen (15) years in prison, because the sentence
was grossly disproportionate to that imposed for other, similar offenders.
{¶2} Finding no merit to his appeal, we affirm.
Procedural History and Factual Background
{¶3} In November 2011, Mannarino was indicted on 139 counts involving child
pornography, including 14 counts of pandering sexually-oriented matter involving a
minor in violation of R.C. 2907.322(A)(2); 101 counts of pandering sexually-oriented
matter involving a minor in violation of R.C. 2907.322(A)(1); 23 counts of illegal use of
minor in nudity-oriented material or performance in violation of R.C. 2907.323(A)(1);
and one count of possessing criminal tools in violation of R.C. 2923.24(A). All counts
carried a forfeiture specification.
{¶4} In May 2012, Mannarino withdrew his former plea of not guilty and
pleaded guilty to a total of 117 counts: 14 counts of pandering sexually-oriented matter
involving a minor in violation of R.C. 2907.322(A)(2); 101 counts of pandering
sexually-oriented matter involving a minor in violation of R.C. 2907.322(A)(1); one
count of illegal use of minor in nudity-oriented material or performance in violation of
R.C. 2907.323(A)(1); and one count of possessing criminal tools in violation of R.C.
2923.24(A). As part of his plea, Mannarino agreed that the 117 offenses to which he
was pleading guilty to were not allied offenses of similar import. Mannarino also agreed
to forfeit his computer, CDs, DVDs, thumb drive, and cell phone. The remaining 22
counts of illegal use of minor in nudity-oriented material or performance were dismissed.
{¶5} The trial court sentenced Mannarino to 5 years for each of the 14 counts of
pandering sexually-oriented matter involving a minor in violation of R.C. 2907.322(A)(2)
(Counts 11 to 24); 5 years for each of the 101 counts of pandering sexually-oriented
matter involving a minor in violation of R.C. 2907.322(A)(1) (Counts 26 to 126); 5 years
for the one count of illegal use of minor in nudity-oriented material or performance in
violation of R.C. 2907.323(A)(1) (Count 25), and one year for possessing criminal tools
in violation of R.C. 2923.24(A) (Count 149). The trial court ordered that Counts 11, 17,
and 25 be served consecutive to each other, but concurrent to all other counts, for an
aggregate prison term of 15 years in prison. The trial court also ordered that Mannarino
forfeit the items as specified in his plea agreement, and further notified Mannarino that he
would be subject to a mandatory term of five years of postrelease control and be labeled a
Tier II sex offender.
{¶6} It is from this judgment that Mannarino appeals. We will address his
assignments of error out of order for ease of discussion.
Effect of Guilty Plea
{¶7} In his third assignment of error, Mannarino argues that the trial court failed
to explain to him the effect of his guilty plea as required by Crim.R. 11(C)(2)(b). He
further argues that he was not required to show that he was prejudiced by the trial court’s
failure because it was a “complete failure,” rather than a partial one.
{¶8} This court recently addressed this exact issue in State v. Simonoski, 8th Dist.
No. 98496, 2013-Ohio-1031. We explained:
Informing a defendant of the effect of his or her plea is a
nonconstitutional right, and, therefore, is subject to review for substantial
compliance rather than strict compliance. State v. Griggs, 103 Ohio St.3d
85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 11-12. “Substantial compliance
means that under the totality of the circumstances the defendant subjectively
understands the implications of his plea and the rights he is waiving.”
State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
Furthermore, “failure to comply with nonconstitutional rights will not
invalidate a plea unless the defendant thereby suffered prejudice.” Griggs
at ¶ 12. The test for prejudice is “whether the plea would have otherwise
been made.” Nero at 108.
Simonoski at ¶ 9.
{¶9} To ensure that a plea to a felony charge is knowingly, intelligently, and
voluntarily entered into, a trial court must follow the dictates of Crim.R. 11(C)(2). This
provision provides that the court must address defendants personally and (1) determine
that they understand the nature of the charges against them and of the maximum penalty
involved, (2) inform them of and determine that they understand the effect of a plea of
guilty or no contest and that the court may proceed with judgment and sentence, and (3)
inform them of and determine that they understand the constitutional rights that they are
giving up by entering into their plea. Crim.R. 11(C)(2)(a) – (c).
{¶10} “Effect of guilty or no contest pleas” is defined in Crim.R. 11(B), which
states that a “plea of guilty is a complete admission of the defendant’s guilt.”
{¶11} At the plea hearing, the state informed the trial court of the negotiated plea
that was reached with Mannarino, stating each count that Mannarino agreed to plead
guilty to, as well as the maximum penalty involved with each count. The state further
told the court that as part of his plea, Mannarino agreed that the 117 offenses that he was
pleading guilty to were not allied offenses, and that Mannarino would forfeit the items as
specified in the indictment. Defense counsel stated that Mannarino understood “the
recitation” given by the state.
{¶12} The court asked Mannarino a series of questions. In response, Mannarino
said that he could read and write (in fact he said that he had obtained a bachelor’s
degree), he was not under the influence of drugs, alcohol, or medication, he did in fact
understand what was happening at the plea hearing, no promises or threats had been made
to induce him to change his plea, and that he was satisfied with the services of his defense
counsel. The court then informed Mannarino of his constitutional rights and determined
that he understood that he was waiving them by pleading guilty.
{¶13} Before asking Mannarino what his plea was to each of the 117 counts, the
trial court asked Mannarino if he understood that it could proceed to judgment and
sentence, which he replied he did. The trial court asked Mannarino if he understood that
his plea included his agreement that the offenses to which he was pleading guilty to were
not allied offenses of similar import; he stated that he did. The trial court then informed
Mannarino that it could sentence him two to eight years in prison on each of the 116
second-degree felony counts and six to twelve months for possessing criminal tools, for a
maximum penalty of 929 years. The trial court also informed Mannarino of the fines
and costs it could impose. Mannarino indicated that he understood the maximum
penalty he could receive. The trial court also informed Mannarino of postrelease control
and the consequences for violating it, and informed him of the requirements of being
labeled a Tier II sex offender.
{¶14} After reviewing the transcript of the plea hearing in this case, there is no
question that the trial court complied with Crim.R. 11(C)(2)(a) and (c). The trial court
also asked Mannarino if he understood that by his pleading guilty, it could proceed with
judgment and sentence, which is part of Crim.R. 11(C)(2)(b). But Mannarino is correct
that the trial court failed to inform him of the effect of his plea under Crim.R.
11(C)(2)(b), i.e., it did not ask him if he understood that a “plea of guilty is a complete
admission of [his] guilt.”
{¶15} As this court recently explained in Simonoski, “even if the court failed to
substantially comply with explaining the effects of his plea,” the defendant still has to
prove that he was prejudiced by the court’s failure. Id. at ¶ 11. Simonoski raised the
exact argument that Mannarino does here, namely, “that the fact there was no compliance
absolves him of the duty to prove he was prejudiced.” Id. In support of his argument
that he did not have to show prejudice, Simonoski cited to cases dealing with
misdemeanors and postrelease control. Although we did not list these cases in
Simonoski, Mannarino also relies on cases dealing with misdemeanors and postrelease
control. See E. Cleveland v. Zapo, 8th Dist. No. 96718, 2011-Ohio-6757, and E.
Cleveland v. Brown, 8th Dist. No. 97878, 2012-Ohio-4722. Mannarino acknowledges
that these cases deal with pleas involving misdemeanors, but he argues that “failure to
explain the effect of guilty pleas” in felony cases is even more egregious than it is in
misdemeanor cases.
{¶16} Mannarino’s argument is without merit. As we explained in Simonoski:
[A]lthough that may be the law as to misdemeanors and postrelease control,
the Ohio Supreme Court has consistently held that the court’s failure to tell
the defendant the effect of a plea to a felony, does not invalidate the plea
unless appellant shows that he was prejudiced by the court’s failure to
substantially comply with the rule. State v. Griggs, 103 Ohio St.2d 85,
2004-Ohio-4415, 814 N.E.2d 51, ¶ 12; State v. Jones, 116 Ohio St.3d 211,
2007-Ohio-6093, 877 N.E.2d 677, ¶ 53; State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, 897 N.E.2d 621, ¶ 14-17. See also State v. Petitto, 8th
Dist. No. 95276, 2011-Ohio-2391, ¶ 5-8 (court’s failure to advise the
defendant regarding the effect of the plea did not prejudice the defendant).
Id. at ¶ 11.
{¶17} We further explained in Simonoski that “[u]nlike in felony cases,
misdemeanor cases only require the court to advise the defendant of the effect of the
plea.” (Emphasis added.) Id. at ¶ 14. But in felony cases, the court is required to
advise the defendant pursuant to Crim.R. 11(C)(2), which ensures that the defendant
knowingly, intelligently, and voluntarily entered into his or her plea. Id.
{¶18} To show prejudice, Mannarino must demonstrate that he would not have
pleaded guilty to 117 counts had the trial court informed him of the effects of his plea.
Because Mannarino contends that he does not have to show prejudice, he offers nothing
in support of him being prejudiced. Thus, he has failed to establish that he would not
have pleaded guilty had the trial court informed him of the effect of his plea.
{¶19} Moreover, as the Supreme Court held in Griggs:
A defendant who has entered a guilty plea without asserting actual
innocence is presumed to understand that he has completely admitted his
guilt. In such circumstances, a court’s failure to inform the defendant of
the effect of his guilty plea as required by Crim.R. 11 is presumed not to be
prejudicial.
Griggs, 103 Ohio St.2d 85, 2004-Ohio-4415, 814 N.E.2d 51, at syllabus.
{¶20} Accordingly, Mannarino’s third assignment of error is overruled.
Consecutive Sentences
A. First Assignment of Error
{¶21} In his first assignment of error, Mannarino contends that the trial court
failed to make the appropriate findings under R.C. 2929.14(C)(4) before imposing
consecutive sentences. We disagree.
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 resentencing.” Id.State v. Lebron, 8th Dist. No. 97773, 2012-Ohio-4156, 976 N.E.2d 945, ¶ 5.
{¶22} R.C. 2929.14(C)(4), as revived, now requires that a trial court engage in a
three-step analysis before imposing 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.{¶23} 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, 715 N.E.2d 131 (1999).
{¶24} At the sentencing hearing, the trial court first heard from defense counsel
who spoke at length as to why Mannarino should receive community control sanctions
rather than prison. Defense counsel explained how Mannarino accepted responsibility
immediately and cooperated with investigators. Defense counsel argued that although
there were a significant amount of charges, many of them occurred on the same day,
which “mischaracterizes and perhaps overemphasizes the culpability of Mr. Mannarino.”
Defense counsel also argued that there was no evidence that Mannarino would “engage in
sexual activity with children in the future” or was a “risk to physically offend on a child
in the future.”
{¶25} Defense counsel then explained to the court that Mannarino sought
immediate help from Candice Risen, a licensed social worker specializing in sexual
offenders. Mannarino saw Risen weekly for the ten months preceding the sentencing
hearing. Risen submitted a report for purposes of sentencing. In response to defense
counsel’s questions, Risen opined that (1) Mannarino was not a pedophile, (2) he did not
present a risk to children, and (2) there was a minimal risk that he would ever return to
viewing child pornography. Mannarino told Risen that he began looking at pornography
in 2000, while a student at John Carroll University. He had been viewing child
pornography for approximately four years.
{¶26} Defense counsel further explained that Mannarino had no prior criminal
history, either as a juvenile or an adult. Mannarino was an honor student at St. Peter
Chanel High School, and graduated with honors at John Carroll University. Mannarino
had been working as transportation director for Airgas Merchant Gases for four years.
Mannarino moved in with his parents after he was arrested as a “personal check on his
own lifestyle.” Further, Mannarino had been attending a 12-step program called “Sex
and Love Addicts Anonymous,” two to three times a week for ten months.
{¶27} Further, defense counsel attached 12 letters to Mannarino’s sentencing
memorandum in support of Mannarino, including letters from Risen, Mannarino’s former
pastor, a chaplain for the 12-step program, persons who met Mannarino through the
12-step program, neighbors, friends, and his family (brother, mother, and father).
{¶28} Mannarino’s father also spoke at the sentencing hearing, as did Mannarino
himself, accepting responsibility and apologizing for his actions.
{¶29} The state explained that Mannarino was arrested as part of “an operation
conducted by the Ohio Task Force,” called “Operation Fall Clean Sweep.” As part of
this sweep, the state told the court that 26 people were indicted, and that Mannarino was
“among the worst, if not the worse offender.” The reasons given by the state as to why
Mannarino was worse than other offenders were (1) the volume of child pornography
found on his computer, with each count pertaining to a specific file “where a child is
either shown in a state of nudity or where a child engages in sexual activity,” including
toddlers, (2) the forensic examiner found 50 videos and 593 images on Mannarino’s
computer, (3) many of the files were found “still within the file sharing program,” which
allows other individuals to download files from it, (4) “a number of files” were found in
folders within his email account, (5) Mannarino was not only storing child pornography
for himself, but moving them around and sharing them, (6) some of the charges in the
indictment to which Mannarino pleaded guilty were from images he sent via emails to his
codefendant, Wendy Campbell, and (7) the fact that Mannarino admitted to chatting
online with minors, talking about sex with them and the possibility of meeting in person
(although he denied actually meeting a child in person). The state also read some of
these “chat conversations” into the record.
{¶30} In the state’s sentencing memorandum, it indicated that each charge in the
indictment “was supported by a distinct and separate image or video of child sexual
abuse.” The state further informed the court that Counts 11 through 16 reflected files
that were being shared via the file sharing network, Counts 17 through 25 reflected files
that Mannarino emailed to Wendy Campbell, and the remaining counts reflected the files
that were found on Mannarino’s computer. Based upon all of these reasons, the state
recommended a significant prison term.
{¶31} The court explained that it reviewed Mannarino’s presentence investigation
report (“PSI”). In the report, it indicates that one of the files that Mannarino possessed
was a 26-minute video depicting child pornography. The court stated:
I can barely read that without being appalled, let alone I couldn’t
even imagine watching something like that.
So I find these types of charges to be extremely disturbing, and I do
find that while there is no physically, or you physically touching any of the
children, I do find that you looking at this and possessing it and exchanging
it and sharing it is a risk to children and our community.
I mean, children are the most vulnerable citizens in our community
next to the elderly.
So I find that this type of behavior is really appalling and, while you
may not have touched any of them physically, I find that those actions are
so harmful and harmful to our community as well.
***
As I indicated, it is overwhelming to me the amount of information
and files of children in the most vulnerable positions that I could even
imagine, and it is incomprehensible to me that you had so much on your
computer and engaged in such a sharing process that I feel really violates
children and is harmful to our community.
***
So in looking at what you did plead to, in considering all of the
statements made by your family, by you, by your counsel, from the state of
Ohio, and thoroughly examining and reading your [PSI], the sentencing
memorandum that was prepared on your behalf by your lawyer, all the
letters that were written on your behalf from your family, who seems to be
very supportive of you, and in considering the memorandum prepared by
the state of Ohio, it is this court’s position that in considering all the
relevant seriousness and recidivism factors, and in insuring that the public is
protected from future crime and that you are punished, you did plead to a
number of felonies of the second degree, where there is a presumption in
favor of prison, so I am going to impose a prison term on Counts [11
through 24] of a period of five years.
On Counts [26 through 126], I am imposing a prison term of five
years.
On Count 148, I am imposing a prison term of one year.
Counts 11, 17, and 26 are all going to run consecutive to one
another, for a total prison term of 15 years.
And I find that consecutive prison terms are necessary to protect the
community and punish the offender, it is not disproportionate, and I find
that the harm was so great or unusual that a single term would not
adequately reflect the seriousness of your conduct.
I find that a consecutive prison term is necessary to protect our
public from you, Mr. Mannarino.
All other counts are going to run concurrent to one another.
{¶32} After reviewing the transcript of the sentencing hearing in its entirety, we
find that the trial court fully met the statutory requirements of R.C. 2929.14(C)(4) to
impose consecutive sentences.
{¶33} Mannarino argues that the trial court imposed consecutive sentences prior to
making its findings on the record. We disagree. Although the trial court technically
gave the sentences first, it stated its findings immediately after it gave the sentence.
This is not the same, as Mannarino argues, as adding the findings in a journal entry “after
the fact” when it did not state them at the sentencing hearing.
{¶34} Mannarino further argues that the trial court’s findings were not complete
because the trial court did not use the exact words of the statute. For example, he claims
that because the trial court found that consecutive sentences were “not disproportionate,”
but did not specify that they were “not disproportionate to the seriousness of the
offender’s conduct and to the danger the offender poses to the public.” But as we have
repeatedly stated, the trial court is not required to use “talismanic words to comply with
the guidelines and factors for sentencing.”
{¶35} Mannarino also argues that this case is analogous to Lebron, 8th Dist. No.
97773, 2012-Ohio-4156, 976 N.E.2d 945, where we found that the trial court failed to
make the required findings before imposing consecutive sentences. We disagree. In
Lebron, the trial court only discussed the defendant’s criminal history before imposing
consecutive sentences. We found that was not enough under R.C. 2929.14(C)(4).
{¶36} Finally, Mannarino cites to State v. Comer, 99 Ohio St.3d 463,
2003-Ohio-4165, 793 N.E.2d 473, contending that the trial court should have also given
its reasons for each of its findings before imposing consecutive sentences. Mannarino
argues this while also acknowledging that the legislature did not revive the language in
R.C. 2929.19(B)(2)(c) that Comer had relied on when it held that courts must also give its
reasons. As we have stated:
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.
State v. Goins, 8th Dist. No. 98256, 2013-Ohio-263, ¶ 11.
{¶37} While we agree that the Ohio Criminal Sentencing Commission’s
prediction, i.e., that the legislature’s decision to “remove the companion directing the
judges to give its reasons for consecutive sentences (striking [R.C.] 2929.19(B)(2)(c))”
limited “the value of the revived language” set forth in H.B. 86, this court cannot write
the law; we merely interpret it. The legislature’s choice to remove R.C.
2929.19(B)(2)(c) requiring judges to give their reasons is perplexing, given its overall
goal in H.B. 86. See State v. Johnson, 8th Dist. No. 98245, 2013-Ohio-575 (S.
Gallagher, J., concurring in part and dissenting in part) (“a main purpose behind H.B.
86 was to reduce Ohio’s prison population”). Nonetheless, this court cannot require trial
courts to give their reasons for imposing consecutive sentences when the legislature
intentionally did not.
{¶38} Accordingly, Mannarino’s first assignment of error is overruled.
B. Second Assignment of Error
{¶39} In his second assignment of error, Mannarino argues that the record does not
clearly and convincingly support the trial court’s findings for imposing consecutive
sentences. He claims that under R.C. 2929.11 and 2929.12, the record does not support
the trial court’s findings that he is likely to commit future crimes. Therefore, he
maintains that the trial court’s findings — that consecutive sentences were necessary to
protect the public and were not disproportionate to the danger he poses to the public —
were contrary to law.
{¶40} R.C. 2929.12 provides that “a court that imposes a sentence under this
chapter upon an offender for a felony has discretion to determine the most effective way
to comply with the purposes and principles of sentencing set forth in section 2929.11 of
the Revised Code.” R.C. 2929.12(B) and (C) set forth considerations relating to the
seriousness of the offender’s conduct (not at issue in Mannarino’s second assignment of
error). The relevant factors are set forth in R.C. 2929.12(D) and (E), and relate to the
likelihood of the offender’s recidivism.
{¶41} We agree that most of the factors under R.C. 2929.12(D) and (E) are in
Mannarino’s favor. He had no prior convictions as a juvenile or adult, he led a
law-abiding life for a significant number of years (he was 30 at the time of the sentencing
hearing), and he showed genuine remorse for the offenses. But we do not agree that
R.C. 2929.12(E)(4) (“the offense was committed under circumstances not likely to
recur”) is in Mannarino’s favor.
{¶42} Mannarino’s sexual addiction counselor opined that the risk of him viewing
child pornography in the future was minimal if he continued his treatment, but she did not
say that there was no risk. Moreover, the trial court had other substantial information
before it to determine whether Mannarino would likely reoffend in the future.
{¶43} At the sentencing hearing, the trial court considered the report summarizing
the offenses in the PSI, where Mannarino admitted to everything when the investigators
arrived. He told officers that he had been downloading child pornography for many
years from peer-to-peer networks. He indicated that he had “files in the range of
hundreds.” He had videos and images of children ranging from three years old to
teenagers. He told investigators that he would search “young, pre-teen, PTHC, and
PTSC to find child pornography.” He admitted “that he has a problem and continuously
stated that he was sick.” He kept saying “that his life was over, he was going to prison,
and he would die in prison because of the amount of child pornography he had on his
computer.” He further admitted to chatting with minors on Yahoo about sex, knowing
they were minors. He further admitted to sharing child pornography and emailing it.
{¶44} Further, according to Mannarino’s sexual addiction counselor, Mannarino
began using pornography in 2000. When his relationship with his girlfriend ended, “a
year out of college,” he began looking at pornography excessively. Eventually, “when
the conventional adult pornography became boring, he increasingly turned to more
deviant and bizarre imagery,” including child pornography. The counselor concluded
that Mannarino’s “sexual addiction became his escape and substitution for real life.”
{¶45} Finally, after he was arrested, Mannarino sold his condominium and moved
back in with his parents as a check on his “lifestyle.” This was an extreme move. But
it is not likely that a 30-year-old adult will live with his parents forever. He would most
likely obtain separate housing in the future, having unrestricted and unlimited access to
the Internet. Based on the pervasiveness of the Internet and the difficulty in overcoming
addiction, the trial court’s findings that consecutive sentences were necessary to protect
the public and were not disproportionate to the danger he poses to the public were not
clearly and convincingly contrary to law.
{¶46} Accordingly, Mannarino’s second assignment of error is overruled.
Allied Offenses
{¶47} In his fourth assignment of error, Mannarino argues that the trial court erred
by not determining if Counts 11 and 26 were allied offenses of similar import. We
disagree.
{¶48} Mannarino asserts that this court should review this issue for plain error.
But as part of his plea bargain, Mannarino stipulated that the offenses to which he was
pleading guilty were not allied offenses of similar import. Thus, the trial court had no
obligation to determine if Counts 11 and 26 were allied offenses. As the Ohio Supreme
Court explained in State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d
923, ¶ 29:
With respect to the argument that the merger of allied offenses will
allow defendants to manipulate plea agreements for a more beneficial result
than they bargained for, we note that nothing in this decision precludes the
state and a defendant from stipulating in the plea agreement 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.)
{¶49} Because the plea agreement here was not silent, the trial court was not
obligated under R.C. 2941.25 to determine whether the offenses were allied offenses.
{¶50} Mannarino also cites to State v. Baker, 8th Dist. No. 97139,
2012-Ohio-1833, claiming that the facts of his case are analogous to the facts in that case.
We disagree. In Baker, we found that the “record [was] nearly devoid of any facts.”
That is not the case here.
{¶51} Count 11 charged pandering sexually-oriented matter involving a minor
under R.C. 2907.322(A)(2), which provides that
No person, with knowledge of the character of the material or performance
involved, shall * * * [a]dvertise for sale or dissemination, sell, distribute,
transport, disseminate, exhibit, or display any material that shows a minor
participating or engaging in sexual activity, masturbation, or bestiality.
The state explained that this count referred to files that were being actively shared on
Mannarino’s computer.
{¶52} Count 26 charged pandering sexually-oriented matter involving a minor
under R.C. 2907.322(A)(1), which provides that
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
sexual activity, masturbation, or bestiality[.]
The state explained that this count referred to a file that was saved on Mannarino’s
computer.
{¶53} The state placed evidence on the record at the sentencing hearing, through
its sentencing memorandum, that each charge in the indictment “was supported by a
distinct and separate image or video of child sexual abuse.” Each child pornography file
or image that is downloaded is “a new and distinct crime.” State v. Eal, 10th Dist. No.
11AP-460, 2012-Ohio-1373, ¶ 93. Further, this court has previously held that “multiple
convictions are allowed for each individual image because a separate animus exists every
time a separate image or file is downloaded and saved.” State v. Hendricks, 8th Dist.
No. 92213, 2009-Ohio-5556, ¶ 35, citing State v. Stone, 1st Dist. No. C-040323,
2005-Ohio-5206; State v. Yodice, 11th Dist. No. 2001-L-155, 2002-Ohio-7344. Thus,
there is no question in this case that the pandering child pornography offenses that
Mannarino was convicted of are not allied offenses of similar import.
{¶54} Accordingly, Mannarino’s fourth assignment of error is overruled.
Disproportionate Sentence
{¶55} Mannarino asserts in his sixth assignment of error that his sentence was
grossly disproportionate to other sentences imposed for similarly situated offenders.
{¶56} Mannarino acknowledges that he did not raise the issue of proportionality at
his sentencing hearing. Thus, he has waived all but plain error.
{¶57} R.C. 2929.11(B) provides: “A sentence imposed for a felony shall be * * *
consistent with sentences imposed for similar crimes committed by similar offenders.”
But there is a distinction between consistent and identical sentences, which was noted by
this court in State v. Georgakopoulos, 8th Dist. No. 81934, 2003-Ohio-4341, ¶ 26:
The legislature’s purpose for inserting the consistency language
contained in R.C. 2929.11(B) is to make consistency rather than uniformity
the aim of the sentencing structure. See Griffin and Katz, Ohio Felony
Sentencing Law (2001), 59. Uniformity is produced by a sentencing grid,
where all persons convicted of the same offense with the same number of
prior convictions receive identical sentences. Id. Consistency, on the
other hand, requires a trial court to weigh the same factors for each
defendant, which will ultimately result in an outcome that is rational and
predictable. Under this meaning of “consistency,” two defendants
convicted of the same offense with a similar or identical history of
recidivism could properly be sentenced to different terms of imprisonment.
Id., quoting State v. Quine, 9th Dist. No. 20968, 2002-Ohio-6987.
{¶58} When sentencing an offender, each case stands on its own unique facts.
Thus, this court has 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.
{¶59} Mannarino argues that his sentence is disproportionate to similarly situated
offenders because he received a 15-year sentence compared to lesser sentences received
by 18 other defendants charged with similar child pornography offenses in Cuyahoga
County. He sets forth these 18 cases, including the name of the case, the case number,
the statutory offense each offender was convicted of and the number of counts, and the
sentence the offender received.
{¶60} Recently, in State v. Stein, 8th Dist. No. 97395, 2012-Ohio-2502, this court
was faced with the same issue regarding a defendant who had been convicted of one
count of pandering sexually oriented matter involving a minor under R.C.
2907.322(A)(2), 54 counts of pandering sexually-oriented matter involving a minor under
R.C. 2907.322(A)(1), 24 counts of illegal use of a minor in nude material or performance
under R.C. 2907.323(A)(1), and one count of possessing criminal tools under R.C.
2923.24(A). In Stein, the defendant received a ten-year prison sentence. Stein argued
on appeal that his sentence was disproportionate to similarly situated offenders, citing to a
list of 70 cases from Cuyahoga County involving child pornography. In each case,
Stein gave the same basic information that Mannarino sets forth here. In overruling his
argument, we explained:
A review of the list * * * does not tell any facts about the individual
case. Thus, we do not know whether the offenders in those cases were
similar to Stein. As this court recently stated in [State v. Mahan, 8th Dist.
No. 95696, 2011-Ohio-5154], in upholding a 16-year sentence on an
offender who pleaded no contest to 95 counts of various child pornography
charges, “these journal entries tell us little, if anything, of the offender
characteristics and provide no information beyond the convictions and
terms of the sentences.” Id., 2011-Ohio-5154, at ¶ 60.
{¶61} Just as in Stein, the cases that Mannarino lists do not tell us anything about
the individual case, and thus, are of no use to this court.
{¶62} In support of his argument that his sentence is disproportionate, Mannarino
also cites to State v. Bonness, 8th Dist. No. 96557, 2012-Ohio-474, where this court
reversed a 40-year consecutive sentence in a child pornography case. 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, in violation of
R.C. 2923.24(A). We determined that his sentence was inconsistent with other cases
that we had previously affirmed on appeal, acknowledging that “a survey of cases issued
from this appellate district will tend to show only the worst sentences,” because
“defendants who are given much shorter sentences are not appealing on that basis.” Id.
at ¶ 28, referencing State v. Mahan, 8th Dist. No. 95696, 2011-Ohio-5154 (16 years
consecutive on 81 counts); State v. Corrao, 8th Dist. No. 95167, 2011-Ohio-2517 (10
years on 23 counts); State v. Carney, 8th Dist. No. 95343, 2011-Ohio-2280 (24 years on
21 counts); State v. Siber, 8th Dist. No. 94882, 2011-Ohio-109 (3 years, 9 months on 14
fourth and fifth degree felony counts); State v. Moon, 8th Dist. No. 93673,
2010-Ohio-4483 (20 years on 49 counts).
{¶63} But Mannarino’s sentence of 15 years is not similar to Bonness’s 40-year
sentence, which we determined was more like a “de facto life sentence.” Bonness at ¶
29. Mannarino’s sentence is more similar to Mahan, where the defendant was a
first-time offender, as Mannarino is here, and received a 16-year sentence. And similar
to Mannarino, Mahan also had the support of family and friends, was gainfully employed,
and had attended 100 meetings for sexual addicts. We stated in Mahan:
We acknowledge that a 16-year prison term imposed on a first-time
offender who has, by all accounts, led an otherwise productive, law abiding
life is a harsh sentence and is perhaps not one that we may have imposed.
Nonetheless, the sentence was significantly less than what the court could
have imposed based on defendant’s 95 convictions. There was ample
testimony in the record of the harm that has been, and continues to be,
inflicted upon the victims who are the subjects of the material being viewed
in these types of cases. The images, once uploaded, continue to circulate
on the internet where individuals, like defendant, view them and make them
available for viewing by others. The wide range of sentences that have
been apparently imposed on defendants convicted of similar offenses is the
result of the discretion vested in the trial court. Defendant’s sentence was
within the statutory range, lawful, and supported by the record, thus we
cannot say it was unconscionable or otherwise an abuse of the trial court’s
discretion.
Id. at ¶ 63.
{¶64} Further, we note that in State v. Geddes, 8th Dist. No. 88186,
2007-Ohio-2626, 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, however, Geddes was given an 18-year
sentence, which this court affirmed on appeal. See State v. Geddes, 8th Dist. No. 91042,
2008-Ohio-6489.
{¶65} Moreover, the record here reflects that the trial court properly considered the
statutory factors and guidelines in R.C. 2929.11 and 2929.12 before imposing defendant’s
sentence. 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. Although
Mannarino had no prior criminal history and had otherwise led a law-abiding life, the trial
court balanced those factors with the fact that the children in the images and videos were
the victims of Mannarino’s crimes. As this court has stated before,
“[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.
Bonness, 8th Dist. No. 96557, 2012-Ohio-474, ¶ 14.
{¶66} Accordingly, we find no error, plain or otherwise, in the porportionality of
Mannarino’s sentence.
Ineffective Assistance of Counsel
{¶67} In his fifth assignment of error, Mannarino argues that his trial counsel was
ineffective for advising him to accept a plea agreement where he agreed that the offenses
were not allied offenses and for failing to raise the issue of proportionality.
{¶68} To demonstrate ineffective assistance of counsel, defendants must satisfy
both parts of a two-prong test. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). Defendants must first show that their trial counsel’s
performance was so deficient that the attorney was not functioning as the counsel
guaranteed by the Sixth Amendment to the United States Constitution. Id. Second,
defendants must establish that counsel’s “deficient performance prejudiced the defense.”
Id. The failure to prove either prong of the Strickland test is fatal to a claim of
ineffective assistance. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000),
citing Strickland, supra.{¶69} We have already determined that the offenses to which Mannarino pleaded
guilty to were not allied offenses of similar import. Thus, his counsel was not deficient
for advising him to plea when the state’s deal turned on whether Mannarino agreed that
the offenses were not allied offenses.
{¶70} And because we have determined that Mannarino’s sentence was not
disproportionate to similarly situated offenders, his counsel was also not ineffective for
failing to raise the issue of proportionality.
{¶71} Mannarino’s fifth assignment of error is overruled.
{¶72} Judgment affirmed.
It is ordered that appellee recover of 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.
MARY J. BOYLE, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
KATHLEEN ANN KEOUGH, J., CONCUR