State v. Alter

2022 Ohio 2863

• Court: Ohio Court of Appeals
• Decided: August 17, 2022
• Docket: 2022CA0001
• Status: Published

Opinion

[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.