State v. Goff , 2023 Ohio 4823 ( 2023 )

[Cite as State v. Goff, 2023-Ohio-4823.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 22CA13
:
v. :
: DECISION AND
NICHOLAS W. GOFF, : JUDGMENT ENTRY
AKA: NICHOLAS A. GOFF, :
: RELEASED 12/26/2023
Defendant-Appellant. :
APPEARANCES:
April F. Campbell, Campbell Law, LLC, Dublin, Ohio, for Appellant.
Judy C. Wolford, Pickaway County Prosecutor, and Heather MJ Carter, Assistant
Pickaway County Prosecutor, Circleville, Ohio, for Appellee.
Smith, P.J.
{¶1} Appellant, Nicholas Goff, appeals the judgment of the Pickaway
County Court of Common Pleas convicting him of 20 counts of pandering sexually
oriented matter involving a minor, all third-degree felonies in violation of R.C.
2907.322(A)(5), and sentencing him to consecutive 12-month prison terms on each
count resulting in an aggregate prison sentence of 240 months. On appeal, Goff
raises five assignments of error contending: 1) that his sentences should be
reversed and that the trial court’s decision to impose consecutive sentences should
be vacated; 2) that there is clear and convincing evidence that the trial court’s
Pickaway App. No. 22CA13 2
imposition of Goff’s sentences was contrary to law; 3) that the trial court erred in
failing to merge Goff’s offenses because he had one animus and engaged in one
course of conduct; 4) that his sentences should be reversed because trial counsel
was ineffective for failure to file a waiver of his fines despite a reasonable
probability that the trial court would have waived them; and 5) that his sentences
should be reversed because they were grossly disproportionate to similarly situated
offenders. However, finding no merit in any of the assignments of error set forth
for review, we affirm the judgment of the trial court.
FACTS
{¶2} We initially note that Goff has failed to provide hearing transcripts to
this Court.1 Although his appellate brief cites to various different hearing
transcripts, they are not part of the appellate record. Further, because this matter
ultimately resulted in the entry of no contest pleas, the facts forming the basis of
the charges herein are somewhat scant. However, it appears from the record that
1
The record indicates that Goff filed a request for transcripts and sought an order from the common pleas court
directing that they be prepared at the State’s expense. Goff claimed that although his family had retained counsel
for him, he himself was indigent. The trial court denied the request, citing the fact that there was no affidavit of
indigency in the record. The record was thereafter transmitted to this Court on July 26, 2022, without transcripts. A
notation on the online docket indicates that a transcript was later filed in the clerk’s office on October 13, 2022,
however, only the cover page of the transcript was scanned into the online docket. There is a notation on the docket
that a copy of the first page of the transcript was placed into a folder and the original transcript was placed in the
“depo drawer.” There is no indication from the paper record on appeal nor the online docket maintained by the
Pickaway County Clerk of Court that Goff ever filed a motion to supplement the record with the transcript.
Moreover, it appears from the record that at least three hearings were held that may be pertinent to this appeal: 1) a
motions hearing; 2) a change of plea hearing; and 3) a sentencing hearing. There is no indication from the online
docket which hearing transcript was filed on October 13th. Thus, none of the hearing transcripts have been properly
made part of the record on appeal.
Pickaway App. No. 22CA13 3
on May 6, 2021, Goff was indicted on 39 third-degree felony counts of pandering
sexually oriented matter involving a minor in violation of R.C. 2907.322(A)(5).
He was also indicted on two fourth-degree felony counts of illegal use of a minor
in nudity-oriented material or performance in violation of R.C. 2907.323(A)(3).2
Counts 1 through 16 were alleged to have occurred on March 23, 2020, while
counts 17 through 41 were alleged to have occurred on February 12, 2021. These
charges stemmed from an investigation that began after Dropbox notified law
enforcement that it had identified images containing child pornography in its
database. The images were ultimately traced to Goff, which led to a further
investigation including a search of Goff’s residence and his eventual arrest.
{¶3} Goff initially pled not guilty to the charges but later entered into plea
negotiations with the State which led to him entering “pleas of no contest, with a
stipulated finding of guilt” to 20 of the counts charging him with pandering
sexually oriented matter involving a minor, in exchange for the dismissal of the
remaining pandering counts and the two counts of illegal use of a minor in nudity-
oriented material. Ten of the counts to which Goff pled no contest appear to have
been related to images and videos located within Goff’s Dropbox account. The
other ten counts appear to have been related to images and videos that were
2
The degrees of these offenses were elevated because Goff had a previous conviction on May 15, 2014 for
attempted pandering sexually oriented matter involving a juvenile.
Pickaway App. No. 22CA13 4
subsequently found on Goff’s cell phone that was located in his house after the
execution of a search warrant.
{¶4} Both Goff and the State filed sentencing memorandums prior to
sentencing and Goff also filed a pleading entitled “Fifth Amendment/Merger of
Counts.” In the latter pleading, Goff argued that his offenses should merge for
purposes of sentencing because his “multiple offenses were similar, they were not
committed separately, and they had one animus.” He also argued that his conduct
“did not victimize more than one person.” His arguments were grounded in his
claims that: 1) on March 23, 2020 “with one click of a mouse,” he “downloaded
one cache of suspected child porn and placed it into [his] drop box and viewed it
four times;” and 2) that on February 15, 2015 “on [his] cell phone with one click,”
he “downloaded one cache of suspected child porn which remained on [his]
phone.” He further claimed that at the time of the downloads, “it was not possible
to determine the number of photographs or the exact nature of the photographs.”
Goff also argued against the imposition of consecutive sentences in his sentencing
memorandum. The State argued in its sentencing memorandum that the offenses
to which Goff pled no contest did not merge and it further recommended that the
trial court impose 12-month prison sentences on each of the 20 counts, to be served
consecutively. A joint stipulation was filed below stipulating that the State “cannot
Pickaway App. No. 22CA13 5
dispute” that the downloads into Dropbox and onto Goff’s phone were each
accomplished with “one click.”
{¶5} After considering both sentencing memorandums and a psychological
evaluation performed on Goff, the trial court sentenced Goff to 12-month prison
terms on each of the counts and ordered that the prison terms be served
consecutively to one another, resulting in an aggregate prison sentence of 240
months. The trial court further imposed a fine of $10,000, determined that Goff
would be classified as a Tier III sexually oriented offender pursuant to R.C.
2950.01, and notified Goff that upon release from prison he would be subject to a
mandatory period of post-release control for five years. The trial court issued a
judgment entry of sentence on May 23, 2022, and it is from that order that Goff
now appeals, setting forth five assignments of error for our review.
ASSIGNMENTS OF ERROR
I. GOFF’S SENTENCES SHOULD BE REVERSED,
BECAUSE THE TRIAL COURT DECISION TO
IMPOSE CONSECUTIVE SENTENCES SHOULD BE
VACATED.
II. THERE IS CLEAR AND CONVINCING EVIDENCE
THAT THE TRIAL COURT’S IMPOSITION OF
GOFF’S SENTENCES WAS CONTRARY TO LAW.
III. THE TRIAL COURT ERRED IN FAILING TO MERGE
GOFF’S OFFENSES TOGETHER BECAUSE HE HAD
ONE ANIMUS AND ENGAGED IN ONE COURSE OF
CONDUCT.
Pickaway App. No. 22CA13 6
IV. GOFF’S SENTENCES SHOULD BE REVERSED,
BECAUSE TRIAL COUNSEL WAS INEFFECTIVE
FOR FAILURE TO FILE A WAIVER OF GOFF’S
FINES DESPITE A REASONABLE PROBABILITY
THAT THE TRIAL COURT WOULD HAVE WAIVED
IT.
V. GOFF’S SENTENCES SHOULD BE REVERSED
BECAUSE IT WAS [SIC] GROSSLY
DISPROPORTIONATE TO SIMILARLY SITUATED
OFFENDERS.
ASSIGNMENTS OF ERROR I AND II
{¶6} We address Goff’s first and second assignments of error in conjunction
with one another for ease of analysis. In his first assignment of error, Goff
contends that his sentences should be reversed and that the trial court’s decision to
impose consecutive sentences should be vacated. More specifically, relying on
statements made by the trial court during the sentencing hearing, Goff argues that
the trial court imposed consecutive sentences not for the specific course of conduct
that led to the commission of the offenses at issue in this case, but rather for the
general course of conduct of his life, which he claims included “fathering three
children through his wife, two of whom are autistic.” He further argues that his
conduct in committing the offenses at issue was “less serious than what normally
constitutes this offense” because he only possessed the images and videos at issue,
and did not produce or distribute them and because he did not “[reach] out to any
minors with sexual motivation.”
Pickaway App. No. 22CA13 7
{¶7} In his second assignment of error, Goff argues that the record contains
clear and convincing evidence that the trial court’s imposition of his sentences was
contrary to law. More specifically, Goff argues that the record does not support
“certain findings” made by the trial court during the sentencing hearing and thus,
his sentences were contrary to law. He contends that the trial court “considered his
marriage and his decision to father children as a sentencing factor[]” and that it
“admonished him for meeting his wife over the internet.” He argues that the trial
court considered factors related to his marriage and fatherhood “as a basis for
finding him not amenable to community control, and as a basis for sending [him]
to prison.”
{¶8} The State responds by arguing that the trial court considered the
required sentencing factors and made the necessary findings before imposing
consecutive sentences. The State further argues that aside from any statements
made by the trial court regarding Goff’s marriage and decision to have children,
the imposition of consecutive sentences was supported by the record for a number
of other reasons, including the facts that Goff pled guilty to 20 counts of child-
related sexual crimes, that he had already been previously convicted of a similar
offense and thus, had already demonstrated that he is a repeat offender.
Pickaway App. No. 22CA13 8
Standard of Review
{¶9} “When reviewing felony sentences appellate courts must apply the
standard of review set forth in R.C. 2953.08(G)(2).” State v. Johnson, 4th Dist.
Adams No. 19CA1082, 2019-Ohio-3479, ¶ 7, citing State v. Marcum, 146 Ohio
St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, 7. R.C. 2953.08(G)(2) states as
follows:
[A]n appellate court may increase, reduce, modify, or vacate and
remand a challenged felony sentence if the court clearly and
convincingly finds either:
(a) That the record does not support the sentencing court's
findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law. (Emphasis
added.)
State v. Jordan, 4th Dist. Adams No. 19CA1105, 2020-Ohio-3928, ¶ 7, quoting
R.C. 2953.08(G)(2).
{¶10} “Clear and convincing evidence is ‘that measure or degree of proof
which * * * will produce in the mind of the trier of facts a firm belief or conviction
as to the facts sought to be established.’ ” State ex rel. Husted v. Brunner, 123
Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 18, quoting Cross v.
Ledford, 161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the syllabus (1954).
This Court has explained as follows regarding the review of felony sentences:
Pickaway App. No. 22CA13 9
“ ‘[R.C. 2953.08(G)(2)] does not say that the trial judge must
have clear and convincing evidence to support its findings.
Instead, it is the court of appeals that must clearly and
convincingly find that the record does not support the court's
findings. In other words, the restriction is on the appellate court,
not the trial judge. This is an extremely deferential standard of
review.’ ”
State v. Spangler, 4th Dist. Athens No. 21CA17, 2023-Ohio-2003, ¶ 17, quoting
State v. Pierce, 4th Dist. Pickaway No. 18CA4, 2018-Ohio-4458, ¶ 8, in turn
quoting State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, 992
N.E.2d 453, ¶ 20-21.
Consecutive Sentences
{¶11} There is a statutory presumption in favor of concurrent sentences
pursuant to R.C. 2929.41(A). “In order to impose consecutive terms of
imprisonment, a trial court must make the findings mandated by R.C.
2929.14(C)(4) at the sentencing hearing and incorporate its findings into its
sentencing entry, but the court has no obligation to state reasons to support its
findings.” State v. Blair, 4th Dist. Athens No. 18CA24, 2019-Ohio-2768, ¶ 52,
citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659,
syllabus. This Court explained as follows in State v. Cottrill regarding the findings
required to support the imposition of consecutive sentences:
“Under the tripartite procedure set forth in R.C. 2929.14(C)(4),
prior to imposing consecutive sentences a trial court must find
that: (1) consecutive sentences are necessary to protect the public
from future crime or to punish the offender; (2) consecutive
Pickaway App. No. 22CA13 10
sentences are not disproportionate to the seriousness of the
offender's conduct and to the danger the offender poses to the
public; and (3) that one of three circumstances specified in the
statute applies.”
State v. Cottrill, 4th Dist. Ross No. 20CA3704, 2020-Ohio-7033, ¶ 14, quoting
State v. Baker, 4th Dist. Athens No. 13CA18, 2014-Ohio-1967, ¶ 35-36. Further,
as we explained in Cottrill, the three circumstances are as follows:
“(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.
Cottrill at ¶ 14, quoting R.C. 2929.14(C)(4)(a)-(c).
{¶12} Any findings required by the applicable statutory sentencing
provisions and made by the sentencing court, such as those contained in R.C.
2929.14(C)(4)(c), must still be supported by the record. State v. Gray, 4th Dist.
Scioto No. 18CA3857, 2019-Ohio-5317, ¶ 21.
Pickaway App. No. 22CA13 11
{¶13} In State v. Gwynne, -- Ohio St.3d --, 2022-Ohio-4607, -- N.E.3d --, ¶
1-2 (“Gwynne IV”), a majority of the Court held that “the findings required by
R.C. 2929.14(C)(4) to impose consecutive prison sentences on an offender ‘must
be made in consideration of the aggregate term to be imposed.’ ” State v. Gwynne,
-- Ohio St.3d --, 2023-Ohio-3851, -- N.E.3d --, ¶ 2 (“Gwynne V”), citing Gwynne
IV, supra. Additionally, in Gwynne IV, the Court concluded that
appellate review of consecutive sentences did not require
appellate courts to defer to the sentencing court’s findings;
rather, this court explained that “appellate courts * * * review the
record de novo and decide whether the record clearly and
convincingly does not support the consecutive-sentence
findings.”
Gwynne V at ¶ 2, quoting Gwynne IV at ¶ 1.
However, the Supreme Court of Ohio has since departed from its prior reasoning in
Gwynne IV and has now clearly held as follows:
The plain language of R.C. 2953.08(G)(2) requires an appellate
court to defer to a trial court’s consecutive-sentence findings, and
the trial court’s findings must be upheld unless those findings are
clearly and convincingly not supported by the record.
Gwynne V at ¶ 5.
{¶14} Thus, the Court has now clearly affirmed that an appellate court’s
application of a de novo standard of review to consecutive-sentence findings “is
contrary to the plain language of R.C. 2953.08(G)(2).” Gwynne V at ¶ 16. This is
because “[d]e novo review of a trial court’s consecutive-sentence findings is
Pickaway App. No. 22CA13 12
simply incongruous with the deference that the legislature stated an appellate court
must give those statutory findings in the statutory language of R.C.
2953.08(G)(2).” Id.
Legal Analysis
{¶15} Again, we must note that this Court has not been provided with copies
of any of the hearing transcripts and importantly, it does not have a copy of the
change of plea and sentencing transcripts. Despite his failure to properly file the
transcripts, Goff’s arguments primarily hinge on statements allegedly made by the
trial court during the sentencing hearing. Goff’s reliance on portions of these
transcripts in support of his arguments is improper in light of his failure to make
these transcripts part of the appellate record. In Knapp v. Edwards Lab., 61 Ohio
St.2d 197, 400 N.E.2d 384 (1980), the Supreme Court of Ohio held:
“[w]hen portions of the transcript necessary for resolution of
assigned errors are omitted from the record, the reviewing court
has nothing to pass upon and thus, as to those assigned errors, the
Court has no choice but to presume the validity of the lower
court's proceedings, and affirm.”
Knapp at 199.
{¶16} Based upon the authority of Knapp alone, we are authorized to simply
presume the regularity of the record and the trial court’s decision. However, we
will nevertheless endeavor to review these assignments of error to the extent
possible from the information that is properly before us.
Pickaway App. No. 22CA13 13
{¶17} It does not appear that Goff disputes that the trial court made the
findings required to impose consecutive sentences. However, he appears to argue
that his course of conduct in committing the offenses alone, eliminating any
consideration of his marriage and family situation, did not merit consecutive
sentences. As set forth above, the basis of his argument seems to be that the trial
court improperly admonished him for marrying and having children and used that
course of conduct as the basis for imposing consecutive sentences. Again, without
the benefit of the hearing transcripts, this portion of the argument cannot be
reviewed.
{¶18} However, considering Goff’s course of conduct alone in committing
the offenses at issue, we conclude the record supports the imposition of
consecutive sentences. As noted by the State, Goff pled guilty to 20 different
counts of pandering sexually oriented material involving a minor. It appears from
the record that each charge was based upon a different image or video and that the
20 counts stemmed from conduct that occurred on 2 different dates and on 2
different devices. The Seventh District Court of Appeals has determined that
multiple images and videos uploaded on the same day can constitute a “course of
conduct” justifying the imposition of consecutive sentences. See State v. Bosley,
7th Dist. Mahoning No. 16MA0100, 2017-Ohio-7643, ¶ 9-10 (which involved the
uploading of 97 files of child pornography on the same day that contained multiple
Pickaway App. No. 22CA13 14
images of 4 different child victims ranging in age from 2 to 12), citing State v.
Lucicosky, 2017-Ohio-2960, 91 N.E.3d 152.
{¶19} In reaching its decision, the Bosley court relied upon the reasoning set
forth in State v. Duhamel, 8th Dist. Cuyahoga No. 102346, 2015-Ohio-3145, which
stated: “ ‘[e]very video or image of child pornography on the internet constitutes a
permanent record of that particular child’s sexual abuse. The harm caused by these
videos is exacerbated by their circulation.’ ” Bosley at ¶ 11, quoting Duhamel at ¶
54. As observed in Bosley, “[i]mages depicting rape or abuse are far more harmful
than solitary photographs of nude children.” Bosley at ¶ 11, citing Duhamel at ¶
55. Further, in reaching its decision, the Bosley court rejected the appellant’s
argument that all 97 files were obtained “by means of a mass download” and thus
should merge for purposes of sentencing. Bosley at ¶ 12. The court reasoned that
“Appellant pleaded guilty to fifteen separate counts of pandering[,]” and
“[b]ecause he pleaded guilty to several separate counts, he cannot now argue that
his behavior did not give rise to those separate counts.” Id.{¶20} The 20 counts of the indictment to which Goff entered pleas of no
contest describe 20 different images and/or videos containing child pornography.
The 20 different images/videos depict children ranging in age from infancy to what
is described as “prepubescent.” The 20 different images/videos depict unspeakable
abuse, including both vaginal and anal rape, and involve both boys and girls,
Pickaway App. No. 22CA13 15
sometimes with one another, sometimes with an adult or multiple adults, and at
least one image depicted a female child bound and gagged while she was being
raped by a hooded figure. The descriptions alone of the images and videos found
on Goff’s devices are the stuff of nightmares. Based upon the record before us,
including the facts that Goff possessed multiple images on two different devices
that appear to have been downloaded on two different dates, as well as the fact that
it appears the images/videos involve different victims all of differing ages being
subjected to different types of physical and sexual abuse, we find Goff’s actions in
committing the offenses at issue constituted a course of conduct sufficient to
justify the imposition of consecutive sentences.
{¶21} Finally, we reject Goff’s argument that his conduct in committing
these offenses was “less serious” and thus did not constitute the worst form of the
offense. Although we do not have the benefit of the sentencing hearing transcript,
the sentencing entry states that the trial court considered the principles and
purposes of sentencing as required by R.C. 2929.11 and that it had balanced the
seriousness and recidivism factors as required by R.C. 2929.12. The entry further
states that the trial court determined consecutive sentences were necessary to
protect the public from future crime or to punish the offender, that consecutive
sentences were not disproportionate to the seriousness of the conduct or the danger
Goff poses to the public, and the court also found that at least two of the offenses
Pickaway App. No. 22CA13 16
were committed as part of one or more courses of conduct and that the harm
caused by the offenses was so great or unusual that no single prison term would
adequately reflect the seriousness of Goff’s conduct. The trial court also found
that consecutive sentences were necessary to protect the public from future crime
by Goff.
{¶22} Considering the description of the child sexual abuse material found
in Goff’s possession, the volume of the materials, as well as the fact that Goff had
been previously convicted of a similar offense causing the felony level of each of
his current crimes to be elevated as a result, we cannot clearly and convincingly
find that the record does not support the trial court’s findings it made pursuant to
R.C. 2929.14(C)(4)(b) and (c). Moreover, we believe the record supports the trial
court’s necessity and proportionality findings. Accordingly, we find no merit in
Goff’s first and second assignments of error and they are overruled.
ASSIGNMENT OF ERROR III
{¶23} In his third assignment of error, Goff contends that the trial court
erred in failing to merge his offenses because he had one animus and engaged in
one course of conduct. Goff argues that his offenses were “closely related offenses
arising from the same occurrence[]” that were not committed separately. He
argues that he was only involved in one course of conduct and that he “possessed
the images for which he was [convicted] with one click.” The State responds by
Pickaway App. No. 22CA13 17
arguing that each offense caused a separate and identifiable harm and therefore
merger was not required. In support of its argument, the State directs this Court’s
attention to the fact that “Ohio Courts have found that child sexual abuse material
(CSAM) offenses are offenses of dissimilar import when each offense involves a
separate file or image.” For the following reasons, we agree with the State.
Allied Offenses of Similar Import
{¶24} The Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution provides that no person shall “be subject for the same offence
to be twice put in jeopardy of life or limb.” “This protection applies to Ohio
citizens through the Fourteenth Amendment to the United States Constitution * * *
and is additionally guaranteed by the Ohio Constitution, Article I, Section 10.”
State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10.
“Regarding multiple punishments for the same offense, the Double Jeopardy
Clause prohibits ‘the sentencing court from prescribing greater punishment than
the legislature intended.’ ” State v. Pendleton, 163 Ohio St.3d 114, 2020-Ohio-
6833, 168 N.E.3d 458, ¶ 8, quoting Missouri v. Hunter, 459 U.S. 359, 366, 103
S.Ct. 673, 74 L.Ed.2d 535 (1983). “When determining whether multiple
punishments may be imposed for the same offense, our focus is on legislative
intent.” Id.Pickaway App. No. 22CA13 18
{¶25} “The General Assembly enacted R.C. 2941.25 to identify when a
court may impose multiple punishments[.]” State v. Fannon, 2018-Ohio-5242, 117
N.E.3d 10, ¶ 130 (4th Dist.). R.C. 2941.25 states:
(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.
(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.
{¶26} “In determining whether offenses are allied offenses of similar import
within the meaning of R.C. 2941.25, courts must evaluate three separate factors—
the conduct, the animus, and the import.” Ruff, supra, at paragraph one of the
syllabus. “Under R.C. 2941.25(B), a defendant whose conduct supports multiple
offenses may be convicted of all the offenses if any one of the following is true:
(1) the conduct constitutes offenses of dissimilar import, (2) the conduct shows that
the offenses were committed separately, or (3) the conduct shows that the offenses
were committed with separate animus.” Id. at paragraph three of the syllabus.
Thus, “an affirmative answer to any of the above will permit separate convictions.”
State v. Stapleton, 4th Dist. Pickaway No. 19CA7, 2020-Ohio-4479, ¶ 51.
Pickaway App. No. 22CA13 19
{¶27} Offenses are of dissimilar import “if they are not alike in their
significance and their resulting harm.” Ruff at ¶ 21. Additionally, “a defendant's
conduct that constitutes two or more offenses against a single victim can support
multiple convictions if the harm that results from each offense is separate and
identifiable from the harm of the other offense.” Id. at ¶ 26. Thus, “two or more
offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when
the defendant's conduct constitutes offenses involving separate victims or if the
harm that results from each offense is separate and identifiable.” Id. at ¶ 23. We
further note that the defendant bears the burden to establish that R.C. 2941.25
prohibits multiple punishments. See State v. Washington, 137 Ohio St.3d 427,
2013-Ohio-4982, 999 N.E.2d 661, ¶ 18, citing State v. Mughni, 33 Ohio St.3d 65,
67, 514 N.E.2d 870 (1987).
Standard of Review
{¶28} The sentencing court has a mandatory duty to merge allied offenses of
similar import. See State v. Stapleton at ¶ 50. However, as set forth above, the
defendant has the burden to establish that R.C. 2941.25 prohibits multiple
punishments. Id. at ¶ 52. “We apply a de novo standard to review a trial court's
determination of whether offenses constitute allied offenses of similar import
requiring merger under R.C. 2941.25.” Fannon at ¶ 131, citing State v. Williams,
134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.
Pickaway App. No. 22CA13 20
Legal Analysis
{¶29} Here, based upon our review of the record, we cannot conclude that
the trial court legally erred in imposing multiple punishments for 20 counts of
pandering sexually oriented materials involving a minor. This Court explained in
State v. Stapleton, supra, as follows:
Ohio courts have found that child pornography offenses are
offenses of dissimilar import when each offense involves a
separate file or image. “Each child pornography file or image
that is downloaded is ‘a new and distinct crime.’ ” State v.
Mannarino, 8th Dist. Cuyahoga No. 98727, 2013-Ohio-1795,
2013 WL 1859026, ¶ 53, quoting State v. Eal, 10th Dist. No.
11AP-460, 2012-Ohio-1373, ¶ 93; accord State v. Davis, 8th
Dist. Cuyahoga No. 105523, 2017-Ohio-9169, 2017 WL
6539300, ¶ 42. “[M]ultiple 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.
Mannarino, 8th Dist. Cuyahoga No. 98727, 2013-Ohio-1795,
2013 WL 1859026, ¶ 53, quoting 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; accord State v. Hipps, 7th
Dist. No. 16 MA 0098, 2017-Ohio-7707, 96 N.E.3d 1265, 2017
WL 4174827; State v. Pippin, 1st Dist. No. C-160380, 2017-
Ohio-6970, 94 N.E.3d 1186, 2017 WL 3169055, ¶ 50; State v.
Starcher, 5th Dist. No. 2015CA00058, 2015-Ohio-5250, 2015
WL 9078463.
Stapleton at ¶ 54.
{¶30} State v. Stapleton involved the sending and receiving of multiple
photos through text messages between the offender and one minor victim that all
occurred on the same date. Id. at ¶ 44. Stapleton argued that all of the pandering
Pickaway App. No. 22CA13 21
offenses “were committed with one animus, involved the same victim, the same act
and occurred on the same date[,]” and therefore that they should have merged for
purposes of sentencing. Id. This Court rejected that argument, reasoning that
“[e]ach separate text message, photograph, and video resulted in a separate and
identifiable harm.” Id. at ¶ 59.
{¶31} Although the facts in Stapleton are admittedly different in terms of
how the images were obtained and the volume of images, the facts sub judice lend
themselves to multiple punishments in a way that the facts in Stapleton did not and
are more egregious than the facts in Stapleton in some ways. For instance,
Stapleton involved similar acts in each image/video and involved a single victim.
Id. at 44. Here, the images/videos depict multiple different abusive acts against
multiple different children. Further, Goff obtained these sets of images on two
different dates and obtained them on two different devices.
{¶32} Moreover, even assuming Goff did obtain each and every
image/video with a single click of the mouse, we find that the offenses were
committed separately and involved separate victims and thus, the trial court did not
err in refusing to merge them. See State v. Mannarino, supra, at ¶ 53 (finding that
“[e]ach child pornography file or image that is downloaded is ‘a new and distinct
crime’ ” and that “ ‘multiple convictions are allowed for each individual image
because a separate animus exists every time a separate image file is downloaded
Pickaway App. No. 22CA13 22
and saved’ ”), quoting State v. Eal, supra, at ¶ 93 and State v. Hendricks, supra, at
¶ 35; State v. Campbell, 12th Dist. Butler No. CA2014-06-137, 2015-Ohio-1409(rejecting argument that 20 different child pornography images downloaded on two
separate dates should merge where each charge was “specific to different images”
and reasoning that “the mere fact that the images were obtained or possessed on
the same day, even in rapid succession, does not prove that the actions were done
with the same animus”); State v. Bosley, supra, (rejecting argument for merger in
case involving the mass download of 97 images of child pornography in light of
the fact that the appellant had pled guilty to 15 separate counts of pandering); State
v. Hipps, supra, (holding offenses did not merge and finding that “each
downloaded file was a crime against a separate victim or victims”).
{¶33} Further, the Seventh District Court of Appeals observed in State v.
Hipps:
“As observed in Duhamel, the children depicted in the images or
videos are the victims of the pandering offenses. Id., 2015-Ohio-
3145 [2015 WL 4656547], ¶ 61, citing State v. Meadows, 28
Ohio St.3d 43, 49, 503 N.E.2d 697 (1986). Further, [e]ach video
and image presents a different child or group of children.
Individuals who view or circulate child pornography harm the
child in several ways (1) by perpetuating the abuse initiated by
the creator of the material, (2) by invading the child's privacy,
and (3) by providing an economic motive for producers of child
pornography. U.S. v. Norris, 159 F.3d 926 (5th Cir. 1998). As
previously stated, the dissemination of child pornography
exacerbates and continues the exploitation and victimization of
the individual child. [New York v.] Ferber, 458 U.S. 747 at 759,
102 S.Ct. 3348, 73 L.Ed.2d 1113 [ (1982) ]; See also U.S. v.
Pickaway App. No. 22CA13 23
Sherman, 268 F.3d 539, 545 (7th Cir. 2001) (even a “passive
consumer who merely receives or possesses the images directly
contributes to this continuing victimization.”). State v. Duhamel,
8th Dist. Cuyahoga No. 102346, 2015-Ohio-3145 [2015 WL
4656547], ¶ 61.”
Hipps, supra, at ¶ 15, quoting State v. Starcher, supra, at ¶ 35-37.
{¶34} In light of the foregoing, we conclude that the offenses at issue are not
allied offenses of similar import despite the fact they may have been obtained with
one click of the mouse. On two separate dates on two different devices, each
image/video possessed by Goff was a crime against a separate victim or victims
and each image/video was possessed with a separate animus. Thus, we find no
error on the part of the trial court in imposing multiple punishments upon Goff for
these offenses. Accordingly, Goff’s third assignment of error is overruled.
ASSIGNMENT OF ERROR IV
{¶35} In his fourth assignment of error, Goff contends that his sentences
should be reversed because his trial counsel was ineffective for failing to file a
waiver of his fines, despite a reasonable probability that the trial court would have
waived them. More specifically, Goff argues that his trial counsel was ineffective
for failing to file an affidavit of indigency on his behalf prior to sentencing and for
failing to file a motion to address the fine that was imposed. He further argues that
he suffered prejudice as a result. He cites to the transcript in support of an
Pickaway App. No. 22CA13 24
argument that the trial court stated that it would consider a waiver of the fine, but
again, the transcripts have not been made part of the appellate record.
{¶36} The State responds by arguing that even if we find the trial court
would have waived Goff’s fine had trial counsel requested the court to do so, such
a determination would not result in the reversal of Goff’s sentences. The State
notes that although Goff claims he is now indigent and was indigent at the time of
sentencing, an affidavit of indigency was never filed. The State further points out
that Goff had retained counsel during the pendency of his case, has retained
counsel on appeal, and that he posted a considerable appeal bond. Additionally,
the State notes that although Goff requested that a transcript be provided to this
Court at State’s expense, that the request was denied for failure to file an affidavit
of indigency. The State contends that Goff cannot now argue that a motion to
waive the fine would have been granted at sentencing when his indigency has yet
to be determined.
Standard of Review
{¶37} “To demonstrate ineffective assistance of counsel, a defendant ‘must
show (1) deficient performance by counsel, i.e., performance falling below an
objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable
probability that, but for counsel's errors, the proceeding's result would have been
different.’ ” State v. Holdren, 4th Dist. Pickaway No. 20CA3, 2021-Ohio-810, ¶
Pickaway App. No. 22CA13 25
32, quoting State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121,
¶ 113, in turn citing Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.
Ct. 2052 (1984). Failure to demonstrate either prong of this test “is fatal to the
claim.” See State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968, ¶ 14,
citing Strickland, supra.{¶38} “A defendant ‘has the burden of proof because in Ohio, a properly
licensed attorney is presumed competent.’ ” Holdren, supra, at ¶ 33, quoting State
v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62, citing State
v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999), in turn citing Vaughn
v. Maxwell, 2 Ohio St.2d 299, 209 N.E.2d 164 (1965). “In order to overcome this
presumption, the petitioner must submit sufficient operative facts or evidentiary
documents that demonstrate that the petitioner was prejudiced by the ineffective
assistance.” Holdren at ¶ 33, citing State v. Davis, 133 Ohio App.3d 511, 728
N.E.2d 1111 (8th Dist.1999). To demonstrate prejudice, a defendant “must show
that there is a reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.” Strickland at
694.
Pickaway App. No. 22CA13 26
Legal Analysis
{¶39} Goff contends that his trial counsel was ineffective for failing to move
the trial court to waive the imposition of a fine. Underlying this contention is his
argument that his retained trial counsel was also ineffective for failing to file an
affidavit of indigency on his behalf. He asserts that there was a reasonable
probability that if trial counsel had done both of these things, the trial court would
have waived imposition of the fine.
{¶40} R.C. 2947.23 provides for costs to be included in a criminal sentence.
In all criminal cases a judge must include in the sentence the costs of prosecution
and render a judgment against the defendant for such costs, even if the defendant is
indigent. R.C. 2947.23(A)(1)(a). However, a trial court retains jurisdiction to
waive, suspend, or modify the payment of the costs “at the time of sentencing or at
any time thereafter.” R.C. 2947.23(C). A trial court may waive court costs, but it
is not required, if a defendant is indigent. (Citations omitted). See State v. Hale,
5th Dist. Perry No. 19CA14, 2020-Ohio-1399, ¶ 16.
{¶41} In State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309, 146 N.E.3d 560,
the Supreme Court of Ohio held that when an indigent defendant makes an
ineffective assistance of counsel claim based upon counsel's failure to request a
waiver of court costs, a court must objectively consider the facts and circumstances
to determine whether the defendant established the necessary prejudice sufficient
Pickaway App. No. 22CA13 27
to support that claim (i.e., but for counsel's deficient performance, a reasonable
probability exists that the result of the proceeding would have been different). See
Hale, supra, at ¶ 18. The Court also pointed out that a determination of indigency
alone does not rise to the level of creating a reasonable probability that the trial
court would have waived costs had defense counsel requested the court to do so.
For example, if a court finds that a defendant has the ability to work and pay court
costs in the future, the court may decide to not waive court costs. In Hale it was
observed that a court must look at all the circumstances that the defendant sets
forth in attempting to demonstrate prejudice and determine whether there is a
reasonable probability that the trial court would have granted a motion to waive
costs had one been made. Id. at ¶ 19. See Davis, supra, at ¶ 15.
{¶42} Here, however, we are faced with an argument regarding the waiver
of fines, not costs. In State v. Webb, the Fifth District Court of Appeals observed
as follows:
* * * Ohio law does not prohibit a court from imposing a fine on
an “indigent” defendant. That is, the filing of an affidavit of
indigency does not automatically entitle a defendant to a waiver
of a mandatory fine. State v. Knox, 8th Dist. Cuyahoga Nos.
98713 and 98805, 2013-Ohio-1662, [2013 WL 1791391], ¶ 36.
Under Ohio law, a trial court must impose a mandatory fine
unless (1) the offender files an affidavit of indigency prior to
sentencing, and (2) “the trial court finds that the offender is an
indigent person and is unable to pay the mandatory fines.” State
v. Gipson, 80 Ohio St.3d 626, 634, 687 N.E.2d 750 (1998). In
making its indigency determination, the court must consider both
Pickaway App. No. 22CA13 28
the offender's present and future ability to pay the fine. R.C. §
2929.19(B)(5).
Additionally, the trial court need not make an “affirmative
finding that an offender is able to pay a mandatory fine.” Id. at
635 [687 N.E.2d 750]. Instead, “the burden is upon the offender
to affirmatively demonstrate that he or she is indigent and is
unable to pay the mandatory fine.” Id. We review the trial
court's decision to impose a fine on an indigent defendant for an
abuse of discretion. State v. Ficklin, 8th Dist. Cuyahoga No.
99191, 2013-Ohio-3002, [2013 WL 3583030], ¶ 5.
State v. Webb, 5th Dist. Richland No. 14-CA-85, 2015-Ohio-3318, ¶ 23-24. See
also State v. Warren, 5th Dist. Fairfield No. 18-CA-42, 2019-Ohio-2927, ¶ 93.
{¶43} R.C. 2929.19 states in section (B)(5) that “[b]efore imposing a
financial sanction under section 2929.18 of the Revised Code or a fine under
section 2929.32 of the Revised Code, the court shall consider the offender's present
and future ability to pay the amount of the sanction or fine.” As further noted in
Warren, supra, “[t]he Ohio Supreme Court, however, has held that even if an
affidavit of indigency is timely and properly filed, a defendant ‘is not automatically
entitled to waiver of that fine.’ ” Warren at ¶ 96, quoting State v. Gipson, 80 Ohio
St.3d 626, 634, 1998-Ohio-659, 687 N.E.2d 750. Instead, “[t]here must be a
showing that a defendant is unable to pay the fines, and there is no affirmative duty
on the trial court to make a finding that a defendant is able to pay.” Gipson at
syllabus.
Pickaway App. No. 22CA13 29
{¶44} Warren also explained that although ineffective assistance may be
found if the record reveals a probability that a trial court would have found the
defendant indigent and unable to pay the fine had trial counsel filed an affidavit of
indigency, “[b]ecause information regarding an appellant’s finances would most
often lie outside the record on direct appeal, the appropriate place to pursue this
question will generally be in a hearing for post-conviction relief under R.C.
2953.21.” Warren at ¶ 99, citing State v. Williams, 105 Ohio App.3d 471, 482, 664
N.E.2d 576 (8th Dist, 1995); State v. Stearns, 8th Dist. Cuyahoga No. 71851, 1997
WL 626024, *3 (Oct. 9, 1997), and State v. Booker, 63 Ohio App.3d 459, 466, 579
N.E.2d 264 (2d Dist.1989).
{¶45} Here, as noted by the State, the record before us reveals that Goff had
retained counsel at the trial court level and also has retained counsel at the
appellate court level. Further, he successfully moved for a stay of his sentence and
in doing so was able to satisfy the requirements of a $250,000.00 appeal bond.
Based upon the information that is in the record before us, we cannot conclude that
there was a reasonable probability that trial court would have granted a motion to
waive the fine had such a motion been made. Further, because Goff’s income and
financial information lies outside of the record on appeal, we have no information
from which to conclude that trial counsel was ineffective for failing to file an
affidavit of indigency. Thus, we reject Goff’s argument that his trial counsel was
Pickaway App. No. 22CA13 30
ineffective for failing to request waiver of his fine and, for lack of information in
the record, we cannot address his argument that trial counsel was ineffective for
failing to file an affidavit of indigency. Accordingly, Goff’s fourth assignment of
error is overruled.
ASSIGNMENT OF ERROR V
{¶46} In his fifth and final assignment of error, Goff contends that his
sentences should be reversed because they are grossly disproportionate to similarly
situated offenders. Goff argues that “the record demonstrated that the trial court
failed to consider Goff in comparison to similarly situated offenders, despite trial
counsel offering those comparisons to the Court.” Goff cites to a transcript which
has not been provided to this Court in support of this statement. The State
contends that the trial court considered the required sentencing factors and made
the requisite findings in imposing the sentences and it rejects Goff’s assertions that
the trial court failed to consider the sentences imposed upon similarly situated
offenders in light of the fact that both Goff and the State provided the court with
sentencing memorandums prior to sentencing.
Standard of Review
{¶47} We have already set forth the standard of review to be employed
when reviewing felony sentences. Building upon that, R.C. 2929.11(B) states that
a felony sentence should be “consistent with sentences imposed for similar crimes
Pickaway App. No. 22CA13 31
committed by similar offenders.” This Court has observed that “ ‘ “[a]
consistency-in-sentencing determination * * * is a fact-intensive inquiry that does
not lend itself to being initially reviewed at the appellate level.” ’ ” State v. Taylor,
2017-Ohio-4395, 9 N.E.3d 1, ¶ 29 (4th Dist.), quoting State v. Adams, 2016-Ohio-
7772, 84 N.E.3d 155, ¶ 46 (4th Dist.), in turn quoting State v. Montanez-Roldon,
8th Dist. Cuyahoga No. 103509, 2016-Ohio-3062, ¶ 14. We have further stated
that
“ ‘[A]ny review must begin with the defendant producing a
record for the trial court's consideration before the final sentence
is imposed. As courts have long concluded, a “defendant must
raise [the consistency-in-sentencing] issue before the trial court
and present some evidence, however minimal, in order to provide
a starting point for analysis and to preserve the issue for appeal.’
”
(Citations omitted.) Taylor at ¶ 29, quoting Adams at ¶ 46, quoting Montanez-
Roldon at ¶ 14.
{¶48} Moreover, another 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. Starcher, supra, at ¶ 39, quoting State v. Siber, 8th Dist.
Cuyahoga No. 94882, 2011-Ohio-109, ¶ 15. As in Starcher, one such unique
factor in the case sub judice is that Goff has a prior conviction for a similar
offense. Starcher at ¶ 39.
Pickaway App. No. 22CA13 32
Legal Analysis
{¶49} Although we do not have any hearing transcripts and in particular, the
sentencing hearing transcript, Goff filed a sentencing memorandum prior to
sentencing which described himself as “a closet pedophile who likes to watch[]”
who “now understands these images depict real persons and his viewing of them
perpetuates the continued cycle of victimization of children.” Goff’s sentencing
memorandum requested that he be sentenced to an inpatient program, arguing in
part that his conduct was less serious than that normally constituting the offense
and because he was not likely to recidivate. Goff relied on the results of a
psychological report that was performed on him, as well as statistics demonstrating
that “[t]he sexual recidivism rate for all non-production child pornography
offenders was only 4.3%.”
{¶50} Goff also provided the trial court with information related to two
similarly situated offenders. The first example provided by Goff involved a
defendant convicted for two second-degree felony counts of pandering and one
fourth-degree felony count of pandering who was ultimately sentenced to four
years, four to six years, and one year, respectively, to be served consecutively. The
second example involved a defendant who was convicted of one second-degree
felony count of pandering and 16 fourth-degree felony counts of pandering. That
defendant was sentenced to 8 to 12 years on the first count and 12 month sentences
Pickaway App. No. 22CA13 33
each on the other 16 counts, which were ordered to be served concurrently to each
other and concurrently to the 8 to 12 year sentence, for a total sentence of 8 to 12
years for 17 counts. Goff argued that “he is guilty of two counts of Pandering, one
possession for his drop box and one possession for his cell phone and that all other
counts should merge as one animus to possess on two different occasions existed.
One click, one cache, one drop box then viewed.”
{¶51} The State’s sentencing memorandum noted Goff’s prior conviction as
well as the fact that each of the current charges were enhanced felonies in light of
that prior conviction. The State further noted that the sentencing range for each
offense to which Goff had pled was 12 months to 60 months, and it recommended
that Goff be sentenced to minimum prison terms of 12 months on each of the 20
counts, to be served consecutively. The State directed the trial court’s attention to
four different cases from four different appellate districts, all of which determined
that counts for pandering did not merge for purposes of sentencing because “each
file obtained constitutes a new and distinct crime” and that offenses should not be
merged where “each offense involves a separate file or image.”
{¶52} Here, we have already determined that the trial court made all of the
requisite findings to justify the imposition of consecutive sentences and that the
record supports the imposition of those sentences. We have also already
determined that based upon the facts and circumstances in the record, the trial
Pickaway App. No. 22CA13 34
court did not err in refusing to merge these offenses for purposes of sentencing.
Further, despite the fact that we do not have the benefit of a sentencing hearing
transcript, the record demonstrates that the trial court considered the record in
imposing sentence, and the record included sentencing memorandums from both
Goff and the State as detailed above. For all of these reasons, we cannot conclude
that the trial court failed to consider the sentences imposed on other similarly
situated offenders, or that the sentences imposed upon Goff were grossly
disproportionate to other similarly situated offenders. Accordingly, we find no
merit to arguments raised under Goff’s fifth assignment of error and it is therefore
overruled.
{¶53} Having found no merit to any of Appellant’s assignments of error, the
judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
Pickaway App. No. 22CA13 35
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Pickaway County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed 60 days upon
the bail previously posted. The purpose of a continued stay is to allow Appellant
to file with the Supreme Court of Ohio an application for a stay during the
pendency of proceedings in that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period, or the failure of the
Appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day
appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of 60 days, the stay will terminate as of the date of such
dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Abele, J., & Hess, J., Concur in Judgment and Opinion.
For the Court,
_____________________________
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.