State v. Alter

[Cite as State v. Alter, 2022-Ohio-2863.]
COURT OF APPEALS
MORROW COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. Earle E. Wise, P.J.
Plaintiff - Appellee : Hon. W. Scott Gwin, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
BRANDON LEE ALTER, : Case No. 2022CA0001
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Morrow County
Court of Common Pleas, Case No.
2021-CR-0013
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 17, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
THOMAS SMITH J.C. RATLIFF
Morrow County Prosecuting Attorney JEFF RATLIFF
ROCKY RATLIFF
By: DAVID HOMER KYLE PHILPS
Assistant Prosecuting Attorney KATHERINE EBRAHEIM
60 East High Street NICHOLAS BARONS
Mt. Gilead, Ohio 43338 Ratliff Law Office
200 West Center Street
Marion, Ohio 43302
Morrow County, Case No. 2022CA0001 2
Baldwin, J.
{¶1} Defendant-appellant Brandon Lee Alter appeals his sentence from the
Morrow County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On April 6, 2020, Detective Christina High of the Morrow County Sheriff’s
Office received an email from the Broadview Heights Police Department (BHPD)
indicating that the BHPD had received an online application from appellant for a medical
marijuana card. Appellant attached to the application, an image of his driver’s license and
also an image of a prepubescent nude female inserting and object into her anus. After a
search warrant for appellant’s residence was obtained, several items including a desktop
computer and tablet were seized from appellant’s home. They were later determined to
contain child pornography.
{¶3} On January 28, 2021, the Morrow County Grand Jury indicted appellant on
five counts of pandering sexually oriented material involving a minor in violation of R.C.
2907.322(A)(1), felonies of the second degree, and one count of pandering sexually
oriented material involving a minor in violation of R.C. 2907.322(A)(5), a felony of the
fourth degree. At his arraignment on February 19, 2021, appellant entered a plea of not
guilty to the charges.
{¶4} Subsequently, appellant withdrew his former not guilty plea and entered a
plea of guilty to two counts of pandering sexually oriented material involving a minor in
violation of R.C. 2907.322(A)(1), felonies of the second degree. The remaining charges
were dismissed. Pursuant to a Judgment Entry filed on December 14, 2021, appellant
was sentenced to six (6) years on each count, to be served consecutively, for an
Morrow County, Case No. 2022CA0001 3
aggregate prison sentence of twelve (12) years, subject to an indefinite prison sentence
of up to fifteen (15) years. In addition, appellant was fined $10,000.00 on each count, but
$9,000.00 on each count was suspended.
{¶5} Appellant now appeals, raising the following assignments of error on
appeal:
{¶6} “I. THE COURT OF COMMON PLEAS ERRED TO THE PREJUDICE OF
THE DEFENDANT BY IMPOSING CONSECUTIVE SENTENCES AS CONSECUTIVE
SENTENCES ARE UNSUPPORTED BY THE RECORD AND THEREFORE
CONTRARY TO LAW.”
{¶7} “II. THE COURT OF COMMON PLEAS ERRED TO THE PREJUDICE OF
THE DEFENDANT BY IMPOSING CONSECUTIVE SENTENCES AND FAILING TO
FOLLOW THE PRINCIPLES AND PURPOSES OF FELONY SENTENCING PURSUANT
TO R.C. 2929.11 AND IMPROPERLY WEIGHED THE SENTENCING FACTORS
IDENTIFIED IN R.C. 2929.12 TO THE PREJUDICE OF THE DEFENDANT.”
I, II
{¶8} Appellant, in his two assignments of error, argues that the trial court erred
in sentencing him to consecutive sentences. We disagree.
{¶9} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Roberts, 5th Dist. Licking No. 2020 CA 0030, 2020-Ohio-6722, ¶13,
citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. R.C.
2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence
and remand for sentencing where we clearly and convincingly find either the record does
not support the sentencing court's findings under R.C. 2929.13(B) or (D),
Morrow County, Case No. 2022CA0001 4
2929.14(B)(2)(e) or (C)(4), or 2929.20(l), or the sentence is otherwise contrary to law. Id.,citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659.
{¶10} When sentencing a defendant, the trial court must consider the purposes
and principles of felony sentencing set forth in R.C. 2929.11 and the seriousness and
recidivism factors in R.C. 2929.12. State v. Hodges, 8th Dist. Cuyahoga No. 99511, 2013-
Ohio-5025, ¶ 7.
{¶11} “The overriding purposes of felony sentencing are to protect the public from
future crime by the offender and others, to punish the offender, and to promote the
effective rehabilitation of 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 these purposes, the
sentencing court shall consider the need for incapacitating the offender, deterring the
offender and others from future crime, rehabilitating the offender, and making restitution
to the victim of the offense, the public, or both. Id. Further, the sentence imposed shall be
“commensurate with and not demeaning to the seriousness of the offender's conduct and
its impact on the victim, and consistent with sentences imposed for similar crimes by
similar offenders.” R.C. § 2929.11(B).
{¶12} R.C. 2929.12 lists general factors which must be considered by the trial
court in determining the sentence to be imposed for a felony, and gives detailed criteria
which do not control the court's discretion, but which must be considered for or against
severity or leniency in a particular case. The trial court retains discretion to determine the
most effective way to comply with the purpose and principles of sentencing as set forth in
R.C. 2929.11 and R.C. 2929.12.
Morrow County, Case No. 2022CA0001 5
{¶13} Nothing in R.C. 2953.08(G)(2) permits this Court to independently weigh
the evidence in the record and substitute our own judgment for that of the trial court to
determine a sentence which best reflects compliance with R.C. 2929.11 and R.C.
2929.12. State v. Jones, 169 N.E.3d 649, 2020-Ohio-6729, ¶ 42. Instead, we may only
determine if a sentence is contrary to law. State v. Pettorini, 5th Dist. Licking No. 2020
CA 00057, 2021-Ohio-1512, ¶ 15.
{¶14} A sentence is not clearly and convincingly contrary to law where the trial
court “considers the principles and purposes of R.C. 2929.11, as well as the factors listed
in R.C. 2929.12, properly imposes post release control, and sentences the defendant
within the permissible statutory range.” Id. at ¶¶ 14-16, quoting State v. Dinka, 12th Dist.
Warren Nos. CA2019-03-022 & CA2019-03-026, 2019-Ohio-4209, ¶ 36.
{¶15} In the case sub judice, the record established that the trial court considered
the purposes and principles of sentencing as well as the seriousness and recidivism
factors set out in R.C. 2929.11 and R.C. 2929.12, respectively. The trial court found that
the child victims suffered serious physical, psychological or economic harm, that appellant
had a history of criminal convictions and that appellant did not show genuine remorse.
The trial court noted on the record that appellant’s interviewer did not feel that appellant
had remorse at the time and did not feel that appellant had admitted his knowledge and
wrongdoing. The court stated that “[s]o the investigator didn’t feel there was remorse and
I feel remorse, unfortunately, is a minimal statement here.” Sentencing Transcript at 28.
Upon review, we do not find clear and convincing evidence that the record does not
support the trial court's findings or that the sentence is contrary to law. The sentences are
within the statutory ranges and the trial court considered the appropriate statutory factors.
Morrow County, Case No. 2022CA0001 6
{¶16} Appellant contends that the trial court erred in imposing consecutive
sentences. Appellant argues that consecutive sentences are not supported by the record.
{¶17} R.C.§ 2929.14(C)(4) provides:
{¶18} (C)(4) If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison terms
consecutively if the courts 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:
{¶19} (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.
{¶20} (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.
{¶21} (c)The offender's history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the offender.
{¶22} Thus, the trial court must find that consecutive sentences are necessary to
protect the public from future crime to punish the offender. In addition, the court must find
that consecutive sentences are not disproportionate to the offender's conduct and to the
Morrow County, Case No. 2022CA0001 7
danger the offender poses to the public. Finally, the court must make at least one of these
three additional findings: (1) the offender committed one or more of the offenses while
awaiting trial or sentencing, while under a sanction imposed under R.C. § 2929.16, §
2929.17, or § 2929.18, or while 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 offenses was so great or unusual that no
single prison term for any of the offenses committed as part of any of the courses of
conduct would adequately reflect the seriousness of the offender's conduct; or (3) the
offender's criminal history demonstrates that consecutive sentences are necessary to
protect the public from future crime by the offender. See, State v. White, 5th Dist. Perry
No. 12-CA-00018, 2013-Ohio-2058, ¶36.
{¶23} “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. § 2929.14(C)(4) at the sentencing
hearing and incorporate its findings into its sentencing entry, but it has no obligation to
state reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 16 N.E.3d
659, 2014-Ohio-3177, syllabus. In other words, the sentencing court does not have to
perform “a word-for-word recitation of the language of the statute.” Id. at ¶29. Therefore,
“as long as the reviewing court can discern that the trial court engaged in the correct
analysis and can determine that the record contains evidence to support the findings,
consecutive sentences should be upheld.” Id. If a sentencing court fails to make the
findings required by R.C. § 2929.14(C)(4), a consecutive sentence imposed is contrary
to law. Id. at ¶34. The trial court is not required “to give a talismanic incantation of the
Morrow County, Case No. 2022CA0001 8
words of the statute, provided that the necessary findings can be found in the record and
are incorporated into the sentencing entry.” Id. at ¶37.
{¶24} The trial court, in this matter, found that that consecutive sentences were
necessary to protect the public from future crime and to punish the offender and that
consecutive sentences were not disproportionate to the offender's conduct and to the
danger the offender poses to the public. Finally, the court found that at least two of the
multiple offenses were committed as part of one or more courses of conduct, and the
harm caused by two or more of the offenses was so great or unusual that no single prison
term for any of the offenses committed as part of any of the courses of conduct would
adequately reflect the seriousness of the offender's conduct. The trial court noted that
there were many child victims exploited over a long period of time. There were 74
individual images of known child victims in addition to 939 other graphics, videos and web
pages of possible images of child pornography seized from appellant’s digital devices.
{¶25} Appellant argues, in part, that the trial court should not have sentenced him
to consecutive sentences because the trial court had no reasonable basis to consider the
State’s unsupported and uninvestigated allegation that appellant was receiving some sort
of economic gain from the photographs. Appellant maintains that the trial court
”continually returned to this unsupported and uninvestigated allegation of economic gain
to elevate the seriousness of the charges and the total sentence.” While appellant argues
that appellant’s case is a possession rather than a pandering case, appellant entered a
plea of guilty to two counts of pandering sexually oriented material involving a minor in
violation of R.C. 2907.322(A)(1), felonies of the second degree. By pleading guilty,
appellant admitted that he, with knowledge of the character of the material or performance
Morrow County, Case No. 2022CA0001 9
involved, Created, recorded, photographed, filmed, developed, reproduced, or published
any material that shows a minor or impaired person participating or engaging in sexual
activity, masturbation, or bestiality. R.C. 2907.322 (A)(1).
{¶26} We find that the trial court did not err in sentencing appellant to consecutive
sentences.
{¶27} Appellant’s two assignments of error are, therefore, overruled.
{¶28} Accordingly, the judgment of the Morrow County Court of Common Pleas is
affirmed.
By: Baldwin, J.
Wise, Earle, P.J. and
Gwin, J. concur.