State v. Bonness , 2012 Ohio 474 ( 2012 )

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