State v. Case ( 2023 )


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  • [Cite as State v. Case, 
    2023-Ohio-4365
    .]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    SHELBY COUNTY
    STATE OF OHIO,                                            CASE NO. 17-23-04
    PLAINTIFF-APPELLEE,
    v.
    ZACHARY T. CASE,                                          OPINION
    DEFENDANT-APPELLANT.
    Appeal from Shelby County Common Pleas Court
    Trial Court No. 22CR000276
    Judgment Affirmed
    Date of Decision: December 4, 2023
    APPEARANCES:
    Michael J. Scarpelli for Appellant
    Timothy S. Sell for Appellee
    Case No. 17-23-04
    MILLER, P.J.
    {¶1} Defendant-appellant, Zachary T. Case (“Case”) appeals the March 9,
    2023 judgment entry of sentence of the Shelby County Court of Common Pleas.
    For the reasons that follow, we affirm.
    Background
    {¶2} On December 8, 2022, the Shelby County Grand Jury indicted Case on
    18 counts: Counts One through Six of pandering sexually oriented material
    involving a minor in violation of R.C. 2907.322(A)(2), second-degree felonies; and
    Counts Seven through Eighteen of pandering obscenity involving a minor in
    violation of R.C. 2907.321(A)(5), fourth-degree felonies. Additionally, each of the
    counts included a criminal forfeiture specification of two cell phones, two laptop
    computers, and a desktop computer. Case appeared for arraignment on December
    14, 2022 where he entered a not guilty plea to the charges in the indictment.
    {¶3} Pursuant to a negotiated-plea agreement, on January 30, 2023, Case
    appeared for a change-of-plea hearing where he entered guilty pleas to Counts One
    and Two. In exchange, the State agreed to dismiss the remaining counts. The trial
    court accepted Case’s guilty pleas, found him guilty of the two counts, and, at the
    request of the State, dismissed the remaining counts. The trial court ordered a
    presentence investigation. (“PSI”)
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    Case No. 17-23-04
    {¶4} At the sentencing hearing held on March 9, 2023, the trial court
    sentenced Case to an indefinite prison term of seven to ten and one-half years on
    Count One and a definite prison term of seven years on Count Two. The trial court
    ordered the sentences to be served consecutively for an aggregate term of 14 to 17
    1/2 years in prison. The trial court filed its judgment entry that same day.
    {¶5} Case filed a notice of appeal on April 17, 2023.             He raises one
    assignment of error for our review.
    Assignment of Error
    The trial court’s decision to impose consecutive sentences is
    clearly and convincingly unsupported by the record.
    {¶6} Case argues that the trial court erred by sentencing him to consecutive
    sentences because the consecutive sentences are not supported by the record. For
    the reasons that follow, we disagree.
    Standard of Review
    {¶7} Under R.C. 2953.08(G)(2), an appellate court may reverse a sentence
    “only if it determines by clear and convincing evidence that the record does not
    support the trial court’s findings under relevant statutes or that the sentence is
    otherwise contrary to law.” State v. Marcum, 
    146 Ohio St.3d 516
    , 
    2016-Ohio-1002
    ,
    ¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the
    trier of facts a firm belief or conviction as to the facts sought to be established.’” 
    Id.
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    Case No. 17-23-04
    at ¶ 22, quoting Cross v. Ledford, 
    161 Ohio St. 469
     (1954), paragraph three of the
    syllabus.
    Relevant Authority
    {¶8} In his assignment of error, Case argues that the trial court erred by
    imposing consecutive sentences. “Except as provided in * * * division (C) of
    section 2929.14, * * * a prison term, jail term, or sentence of imprisonment shall be
    served concurrently with any other prison term, jail term, or sentence of
    imprisonment imposed by a court of this state, another state, or the United States.”
    R.C. 2929.41(A). R.C. 2929.14(C) provides:
    (4) * * * [T]he court may require the offender to serve the prison terms
    consecutively if the court finds that the consecutive service is
    necessary to protect the public from future crime or to punish the
    offender and that consecutive sentences are not disproportionate to the
    seriousness of the offender’s conduct and to the danger the offender
    poses to the public, and if the court also finds any of the following:
    (a) 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 section 2929.16, 2929.17, or 2929.18 of the
    Revised Code, or was under post-release control for a prior offense.
    (b) 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.
    (c) The offender’s history of criminal conduct demonstrates that
    consecutive sentences are necessary to protect the public from future
    crime by the offender.
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    Case No. 17-23-04
    {¶9} R.C. 2929.14(C)(4) requires a trial court to make specific findings on
    the record when imposing consecutive sentences. State v. Hites, 3d Dist. Hardin
    No. 6-11-07, 
    2012-Ohio-1892
    , ¶ 11. Specifically, the trial court must find: (1)
    consecutive sentences are necessary to either protect the public or punish the
    offender; (2) the sentences would not be disproportionate to the offense committed;
    and (3) one of the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. 
    Id.
    {¶10} The trial court must state the required findings at the sentencing
    hearing prior to imposing consecutive sentences and incorporate those findings into
    its sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-
    4140, ¶ 50, citing State v. Bonnell, 
    140 Ohio St. 209
    , 
    2014-Ohio-3177
    , ¶ 29. A trial
    court “has no obligation to state reasons to support its findings” and is not “required
    to give a talismanic incantation of the words of the statute, provided that the
    necessary findings can be found in the record and are incorporated into the
    sentencing entry.” Bonnell at ¶ 37.
    Analysis
    {¶11} Case does not argue that the trial court failed to make the requisite
    consecutive-sentencing findings under R.C. 2929.14(C)(4). Rather, he contends
    that the record does not support the trial court’s findings.
    {¶12} At the sentencing hearing, the trial court stated:
    And the Court finds that consecutive sentencing is necessary to
    protect the public from future crime or to punish you; and that
    consecutive sentencing is not disproportionate to the seriousness of
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    Case No. 17-23-04
    your conduct and to the danger you pose to the public. And the Court
    also finds that * * * the multiple offenses so committed as part of the
    course of conduct * * * [are] so great or so unusual that no single
    prison term for any of the offenses committed as part of the courses
    of conduct would adequately reflect the seriousness of * * * your
    conduct.
    (Mar. 9, 2023 Tr. at 7). The court memorialized those findings in its sentencing
    entry. (Doc. No. 67). Accordingly, the record reflects that the trial court made the
    appropriate R.C. 2929.14(C)(4) findings before imposing consecutive sentences and
    incorporated those findings into its sentencing entry.
    {¶13} Yet, Case argues that the trial court erred by failing to conduct its
    analysis in accordance with the Supreme Court of Ohio’s decision in State v.
    Gwynne, ____ Ohio St.3d _____, 
    2022-Ohio-4607
     (“Gwynne IV”). However, in
    State v. Gwynne, ___Ohio St.3d _____, 
    2023-Ohio-3851
     (“Gwynne V”), which was
    decided while Case’s appeal was pending, the Supreme Court of Ohio reconsidered
    and vacated its prior decision in Gwynne IV and reiterated that “[a]ppellate review
    turns on whether the trial court’s findings are clearly and convincingly not supported
    by the record, and if the evidence supports the trial court’s consecutive-sentence
    findings, the analysis ends there.” Gwynne V at ¶ 24.
    {¶14} Nevertheless, Case argues that the trial court’s finding that
    consecutive sentences are necessary to protect the public from him is clearly and
    convincingly not supported by the record because his prior criminal record consists
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    Case No. 17-23-04
    only of two non-violent misdemeanors and that he was “gainfully employed up until
    the time he was sent to prison.” (Appellant’s Brief at 6). We disagree.
    {¶15} First, we note that, at the sentencing hearing, the trial court
    acknowledged that Case “[has] something of a minimal record.” (Mar. 9, 2023 Tr.
    at 6). However, the trial court also noted that Case was originally indicted on 18
    felony counts and that the evidence demonstrates “this was not an * * * occasional
    incident on [Case’s] part but that as a regular course of conduct * * * involving
    extremely graphic and disturbing images and videos” and that Case “actually sought
    out those * * * materials.” (Id.).
    {¶16} Additionally, the PSI, which the trial court stated that it considered
    when fashioning Case’s sentence, contained a plethora of information supporting
    the trial court’s findings. Specifically, the PSI stated that Case possessed 112 videos
    on his phone, 92 of which were “extreme juvenile porn” depicting “disturbing and
    graphic pre-pubescent and young teenage females engaged in all kinds of sexual
    activity (oral, vaginal, anal, and bondage) with adult males” with some of the
    victims as young as seven-years-old. (PSI). Furthermore, the PSI indicates that
    Case completely failed to acknowledge responsibility for the underlying conduct,
    instead telling the PSI author that he has “no memory” of the instant offenses due
    to side effects from a gas leak at his residence during the time of the offenses. (Id.).
    Yet, Case simultaneously acknowledged that he was the only person with access to
    his cellular phone during the relevant time period. (Id.).
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    Case No. 17-23-04
    {¶17} Accordingly, after reviewing the record, we find that the trial court’s
    consecutive-sentence findings were amply supported by the record and we reject
    Case’s argument to the contrary. We conclude that the record reflects that the trial
    court made the appropriate R.C. 2929.14(C)(4) findings before imposing
    consecutive sentences and incorporated those findings into its sentencing entry and
    that those findings are not clearly and convincingly unsupported by the record.
    Gwynne V, 
    2023-Ohio-3851
    , at ¶ 24.
    {¶18} Case’s assignment of error is overruled.
    Conclusion
    {¶19} For the foregoing reasons, Case’s assignment of error is overruled.
    Having found no error prejudicial to the appellant herein in the particulars assigned
    and argued, we affirm the judgment of the Shelby County Court of Common Pleas.
    Judgment Affirmed
    WILLAMOWSKI and WALDICK, J.J., concur
    /eks
    -8-
    

Document Info

Docket Number: 17-23-04

Judges: Miller

Filed Date: 12/4/2023

Precedential Status: Precedential

Modified Date: 12/6/2023