State v. Snyder , 2012 Ohio 3069 ( 2012 )

[Cite as State v. Snyder, 2012-Ohio-3069.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-11-37
v.
STEVEN R. SNYDER, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. 11 CR 0083
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: July 2, 2012
APPEARANCES:
Gene P. Murray for Appellant
Derek W. DeVine and Rhonda L. Best for Appellee
Case No. 13-11-37
WILLAMOWSKI, J.
{¶1} Defendant-Appellant, Steven R. Snyder (“Snyder”), appeals the
judgment entry of the Seneca Court County Court of Common Pleas, sentencing
him to three consecutive, near-maximum sentences after he pled guilty to child-
pornography related charges. On appeal, Snyder contends that the trial court erred
in sentencing him because (1) the offenses were allied offenses of similar import
and should have merged, (2) the trial court should have sentenced him under the
new H.B. 86 sentencing guidelines, and (3) the trial court should not have
sentenced him to more than the minimum sentences based upon his record. For
the reasons set forth below, the judgment is affirmed in part and reversed in part.
{¶2} On June 16, 2011, the Seneca County Grand Jury returned a three-
count indictment alleging Snyder committed the following offenses: Court One,
illegal use of a minor in nudity oriented material in violation of R.C.
2907.323(A)(1),(B), a felony of the second degree; Count Two, pandering
obscenity involving a minor in violation of R.C. 2907.321(A)(5),(C), a felony of
the fourth degree; and, Count Three, tampering with evidence in violation of
2921.12(A)(1),(B), a felony of the third degree.
{¶3} The indictment stems from an incident that occurred in April 2011,
when Snyder was staying with his cousin’s family in Tiffin while waiting to attend
his National Guard drill. The cousin asked Snyder to watch his two young
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children for 5-10 minutes while he ran an errand. Sometime thereafter, the
cousin’s wife noticed Snyder’s cell phone and began to scroll through the
photographs looking for pictures of Snyder’s family and young son. The cousin’s
wife was shocked and upset when she came across five or six nude pictures of
their two-year old daughter, focused directly on the vaginal area. The wife shared
the pictures with her husband (Snyder’s cousin), who was also upset and in
disbelief. Just before they were about to ask Snyder about the pictures, they saw
him doing something with his phone. When they confronted him about the
photos, he denied taking them, and when they checked the phone, the photos were
gone.
{¶4} During the hours following the discovery of the photographs, the
parents of the young child and other family members had conversations with
Snyder and he eventually admitted that he had taken the photographs of the child,
supposedly while changing her diaper. He admitted that he had been addicted to
adult pornography and that it had evolved to an interest in child pornography. The
authorities were notified and a search warrant was obtained to search Snyder’s
residence, his cell phone, and his computer. The search of the computer indicated
that it had been “cleaned up.” However, 26 images of child pornography were
found on the computer.
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{¶5} Snyder originally entered a plea of not guilty and filed a motion to
suppress. However, after plea negotiations, he agreed to enter guilty pleas to
Count Two, pandering, and Count Three, tampering with evidence. He also
agreed to plead guilty to the lesser included charge of attempted illegal use of a
minor in nudity-oriented material, R.C. 2907.323(A)(1),(B), a felony of the third
degree. On October 5, 2011, he appeared at a change of plea hearing and entered
guilty pleas as agreed, along with a written plea agreement.1 The written plea
agreement stated that there was no sentencing recommendation and that Snyder
was entering the pleas with the understanding that “the Parties have no agreed
sentence recommendation and will argue the appropriate punishment at the time of
sentencing.” (Oct. 7, 2011 Plea of Guilty, p. 3) The plea document stated that, for
Counts One and Three, the maximum penalty could be a prison term of 5 years
(with 0 years mandatory), and that the maximum penalty for Count Two could be
18 months (with 0 years mandatory). No other information concerning the
potential range of prison terms was provided. He also acknowledged he was
subject to fines, restitution and postrelease control, and he agreed to the voluntary
forfeiture of the laptop computer. A pre-sentence investigative report was ordered
and a sentencing date was set for November 8, 2011.
1
No transcript of the plea hearing was ordered.
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{¶6} At the sentencing hearing, the State requested that Snyder be
sentenced to three consecutive prison terms of 5 years, 17 months, and 3 years, for
a total prison term of 9 years and 5 months. (Sent. Tr., p. 16) The State argued
that these sentences were appropriate because the child and her parents had been
greatly affected by this; because of the potential mental injury and future
psychological harm to the victim if she should become aware of what happened to
her; because the offender’s relationship facilitated the offense; and because the
public needs to be protected from the “continued progression” of his behavior,
starting with his admitted addiction to adult pornography, escalating to child
pornography, and then the progression to actually taking the photographs himself.
(Sent. Tr., pp. 14-15) The State was also concerned about the well-being of
Snyder’s own child (a 2-year old son), and the fact that, because Snyder was a
pilot, “numerous children throughout his travels could potentially be harmed by
his behavior should it continue to progress.” (Sent. Tr., p. 16) The trial court also
heard from the victim’s advocate, who spoke on behalf of the victim’s parents,
who stated that their main concern at this point “is the well-being of every other
kid in their community.” (Sent. Tr., p. 17)
{¶7} Defense counsel spoke on behalf of Snyder, requesting leniency,
stating how Snyder felt genuine remorse and was sorry for the victim and the
victim’s family, and the hurt he had caused to his own family. His counsel
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explained that Snyder recognized that he had a problem and has sought help in
counseling and was willing to continue with counseling. Snyder, who was 27, had
no juvenile or adult offenses whatsoever, other than one speeding ticket. He
graduated from Bowling Green State University with a 3.6 average, had been a
member of the Ohio National Guard for 9 years, was honorably discharged from
the U.S. Air Force where he had served admirably in two tours of duty in
Afghanistan, and he earned the Air Force Achievement Medal for exceptional
performance. He had comported himself in an exemplary fashion while on bond,
had no contact with the victim’s family, and had met all appointments, even
though he was traveling around the country for his job as a charter pilot. His
employer was willing to allow him to retain his employment if he was granted
community control. Snyder had the support of his family, who were in court with
him, and numerous others who wrote letters to the court on his behalf.
{¶8} Snyder also spoke and expressed great remorse, apologized to all
concerned, accepted responsibility for his actions, and indicated that he would
continue to get help for his problem. (Sent. Tr., pp. 25-26) He stated that with
continued therapy, he was sure nothing like this would ever happen again, and that
he would never do anything to harm a child. (Id.)
{¶9} The trial court acknowledged that Snyder had “a lot going for [him]”
based upon what was said in the letters, his education, and his military service.
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(Sent. Tr., p. 34) The trial court also noted that his ORAS (Ohio Risk Assessment
System) Score was one of the lowest that the court had ever seen.2 (Id.) However,
the trial court stated that the crimes committed were “heinous” and he must be
punished for what he did. (Id.) The trial court sentenced Snyder to 4 years in
prison for the attempted illegal use of a minor in nudity-oriented material, to 17
months in prison on the pandering obscenity count, and to one year in prison on
the tampering with evidence count. The trial court ordered that the sentences be
served consecutively, for a total of 6 years, 5 months in prison, and further ordered
that Snyder should not be considered for IPP placement. Defendant was also
required to register as a Tier II sex offender every 180 days, for 25 years, and
would be subject to community control upon his release.
{¶10} It is from this judgment that Snyder now appeals, raising the
following three assignments of error for our review.
First Assignment of Error
In an abuse of its discretion, the trial court erred by imposing
three consecutive sentences for the three counts, as said three
offenses (counts) were allied offenses of similar import, and thus
should have been merged into one offense for purposes of
sentencing.
2
Based on the offender’s offense level, ORAS score, questionnaire, and available collateral information,
the recommendation in the pre-sentence investigation report was for 6 months in jail, with 3 months
suspended; five years of community control with no contact with the victim or victim’s family; and
assessment for sex offender treatment plus following any all treatment recommendations. (Pre-Sent. Inv.,
p. 22) The report also found that none of the recidivism factors under R.C. 2929.12(D) were applicable, and
that three of the five factors under R.C. 2929.12(E) indicating that recidivism was unlikely were applicable.
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Second Assignment of Error
In an abuse of its discretion, the trial court erred by imposing a
four (4) years prison term on Count One, a felony of the third
degree, when the court should have sentenced [Snyder] under
the recently-enacted House Bill 86, and thus, under R.C.
2929.14(A)(3)(b), about which the trial court’s disregard of same
is respectfully submitted as not being an option, and therefore
not within the discretion of the trial court.
Third Assignment of Error
In an abuse of its discretion, the trial court erred by imposing
greater than the minimum sentences, and/or greater than the
minimum sentence ranges, on Counts One and Two, as [Snyder]
had no prior lifetime felonies whatsoever, and indeed had no
prior criminal history whatsoever, and was and is apologetic and
remorseful, and was obtaining appropriate counseling before the
time of sentencing.
First Assignment of Error – Crimes of similar import
{¶11} In the first assignment of error, Snyder contends that he should not
have been convicted of the multiple counts because they were allied offenses of
similar import in that they were all related offenses involving nudity-oriented
material involving a minor. He argues that the three sentences must merge and he
should have only been subject to a single sentence.
{¶12} Ohio’s statute concerning multiple counts, RC 2941.25, provides the
following:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses,
but the defendant may be convicted of only one.
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(B) Where the defendant's conduct constitutes two or more offenses
of dissimilar import, or where his conduct results in two or more
offenses of the same or similar kind committed separately or with a
separate animus as to each, the indictment or information may
contain counts for all such offenses, and the defendant may be
convicted of all of them.
(Emphasis added.) R.C. 2941.25.
{¶13} The Ohio Supreme Court has recently clarified the application of
R.C. 2941.25 in determining whether offenses are allied offenses of similar import
in its decision in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314. In so
doing, the Supreme Court overruled State v. Rance, 85 Ohio St.3d 632, 1999–
Ohio–291, “to the extent that it calls for a comparison of statutory elements solely
in the abstract under R.C. 2941.25. [Now w]hen determining whether two
offenses are allied offenses of similar import subject to merger under R.C.
2941.25, the conduct of the accused must be considered.” Johnson at ¶ 44.
{¶14} The Ohio Supreme Court stated that, under R.C. 2941.25, a court
must determine prior to sentencing whether the offenses were committed by the
same conduct.
In determining whether offenses are allied offenses of similar import
under R.C. 2941.25(A), the question is whether it is possible to
commit one offense and commit the other offense with the same
conduct, not whether it is possible to commit one without
committing the other. * * * If the offenses correspond to such a
degree that the conduct of the defendant constituting commission of
one offense constitutes commission of the other, then the offenses
are of similar import.
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If the multiple offenses can be committed by the same conduct, then
the court must determine whether the offenses were committed by
the same conduct, i.e., ‘a single act committed with a single state of
mind.’
If the answer to both questions is yes, then the offenses are allied
offenses of similar import and will be merged.
Johnson, 2010–Ohio–6314, at ¶ 48–50 (citations omitted; emphasis in original).
{¶15} The three offenses in this case are not allied offenses of similar
import because Snyder’s conduct and animus in committing each of the offenses
was separate and distinct, and the offenses occurred at three different times and
locations. Snyder took photographs of a young child in a state of nudity with his
cell phone; he later removed those photographs of the child from his cell phone
when he realized that his actions had been discovered; and, he also possessed
images of child pornography on his laptop computer, which were not related to the
photographs of the child he took with his cell phone.
{¶16} Each of these actions was separate and distinct, involving a separate
animus, and each offense contained different elements required for conviction.
The first assignment of error is overruled.
Second Assignment of Error – Applicability of new sentencing guidelines
{¶17} Snyder submits that the trial court erred in sentencing him because
the ranges of imprisonment reflected in the penalties imposed reflect those that
were effective under the old statutory sentencing regulations. He asserts that
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House Bill 86 (or, “H.B. 86”) changed the sentences for many offenses and that he
should have been sentenced under the statutes that were currently in effect at the
time of his sentencing.
{¶18} The General Assembly expressly provided in Section 4 of H.B. 86
when the amendments were to be applicable: “The amendments * * * apply to a
person who commits an offense specified or penalized under those sections on or
after the effective date of this section and to a person to whom division (B) of
section 1.58(B) of the Revised Code makes the amendments applicable.”
(Emphasis added.) State v. Jones, 1st Dist. No. C-110603, 2012-Ohio-2075, ¶ 14.
R.C. 1.58(B) provides:
If the penalty, forfeiture, or punishment for any offense is reduced
by a reenactment or amendment of a statute, the penalty, forfeiture,
or punishment, if not already imposed, shall be imposed according to
the statute as amended.
R.C. 1.58(B).
{¶19} The statutory amendments providing new sentencing guidelines were
effective as of September 30, 2011. Snyder signed his plea agreement on October
7, 2011, the sentencing hearing was held on November 8, 2011, and the Judgment
Entry of Sentence was filed November 16, 2011. Therefore, under the clearly
stated requirements of the statute, Snyder should have been sentenced under the
new sentencing guidelines, and he should have received the benefit of any reduced
sentencing parameters in the amended statutes. The State’s argument that he
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should be sentenced under the terms of the statutes as they were when he
committed the offenses is contrary to the specified terms of the statute.
{¶20} Snyder pled guilty to two third-degree felonies, and one fourth-
degree felony. House Bill 86 amended R.C. 2929.14(A)(3) to change the range of
possible prison terms for certain third-degree felonies. R.C. 2929.14(A)(3)(b)
decreases the range of penalties for most felonies of the third degree to 9, 12, 18,
24, 30, or 36 months.3 For a felony of the fourth degree, the prison term shall be
six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen,
seventeen, or eighteen months. R.C. 2929.14(A)(4). The length of prison terms
for felonies of the fourth and fifth degree were not modified; however, the newly
enacted R.C. 2929.13(B)(1)(a) established a preference for, and in certain
conditions, a presumption of, community control sanctions for fourth and fifth
degree felonies, subject to certain parameters. See R.C. 2929.13(B)(1)(a).
{¶21} The trial court sentenced Snyder to four years in prison for the third
degree felony in Count One. This was outside of the maximum allowable penalty
of thirty-six months pursuant to R.C. 2929.14(A)(3). Because this sentence is
outside the permissible statutory range, it is clearly and convincingly contrary to
3
R.C. 2929.14(A)(3)(a) does maintain the maximum 60–month penalty for the following offenses:
aggravated vehicular homicide, aggravated vehicular assault, vehicular assault, sexual battery, or unlawful
sexual conduct with a minor (R.C. 2907.04), gross sexual imposition (R.C. 2907.05), or robbery or burglary
if the offender previously has been convicted of or pleaded guilty in two or more separate proceedings to
two or more aggravated-robbery, robbery, aggravated-burglary, or burglary offenses. The statute
specifically states what offenses are subject to the increased penalties, and only those offenses that are
listed fall under that section of the statute. The State’s argument that we should add additional offenses to
this section of the statute because they are somehow “related” to the listed offenses is without merit.
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law and cannot stand. Although the sentences for the other two counts are still
within the statutory ranges, this Court cannot determine whether or not they, too,
were imposed utilizing the old, rather than the new, applicable statutory scheme.
{¶22} Therefore, Snyder’s second assignment of error is sustained. His
sentence is contrary to law and is vacated. The matter is remanded to the trial
court for resentencing under the applicable statutes, as modified by House Bill 86,
that were in effect at the time of his sentencing.
Third Assignment of Error – Non-minimum, consecutive sentences not warranted
{¶23} In the final assignment of error, Snyder contends that the trial court
erred in imposing greater than the minimum sentences, and consecutive sentences,
considering that he had no prior criminal history, he was remorseful, and was
obtaining the appropriate counseling.
{¶24} One of the noteworthy changes to the felony sentencing laws
concerns the purposes of felony sentencing, as stated in R.C. 2929.11(A). The two
primary purposes of felony sentencing remain “to protect the public from future
crime by the offender and others and to punish the offender * * *.” Id. However,
these goals are to be effected “using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden
on state or local government resources.” Id. This mandate to utilize the
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minimum sanctions the court determines necessary is a new provision, added by
H.B. 86.
{¶25} As of September 30, 2011, the effective date of House Bill 86, a trial
court must engage in a three-step analysis in order to impose consecutive
sentences. R.C. 2929.14(C)(4). First, the trial court must find that consecutive
sentencing is necessary to protect the public from future crime or to punish the
offender. Id. Second, 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. Last, the trial court must find that one of the
following applies: (1) the offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to R.C. 2929.16, 2929.17, or 2929.18, or was under post-release 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
multiple offenses so committed 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
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{¶26} Because Snyder’s sentence has been vacated and this matter is being
remanded for resentencing under the new guidelines, this assignment of error is
currently moot. As instructed above, the trial court must resentence Snyder,
taking into account the appropriate factors as they are intended to be applied under
the new statutory requirements, and making certain that they are based upon actual
facts that are in the record, and not merely unsupported conjecture about future
possibilities.
{¶27} The third assignment of error has been rendered moot, and need not
be addressed.
{¶28} Having found no error prejudicial to the Appellant herein in the
particulars assigned and argued as to the first assignment of error, we affirm the
judgment of the trial court pertaining to the issue of allied offenses. However,
having found error in the trial court’s sentencing of Appellant, we vacate the trial
court’s sentence and remand the matter to the trial court for resentencing under the
correct guidelines as set forth in the statutes as they were modified by House Bill
86.
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
SHAW, P.J. and PRESTON, J., concur.
/jlr
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