[Cite as State v. Billings, 2024-Ohio-6000.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2024-A-0024
Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas
MICHAEL T. BILLINGS, Trial Court No. 2023 CR 00507 Defendant-Appellant.
OPINION
Decided: December 23, 2024 Judgment: Affirmed
Colleen M. O’Toole, Ashtabula County Prosecutor, and Christine Davis and M. Stanford, Assistant Prosecutors, 25 West Jefferson Street, Ashtabula, OH 44047 (For Plaintiff- Appellee).
Russell S. Bensing, 600 IMG Building, 1360 East Ninth Street, Cleveland, OH 44114 (For Defendant-Appellant).
EUGENE A. LUCCI, P.J.
{¶1} Appellant, Michael T. Billings, appeals the imposition of consecutive
sentences, ordered by the Ashtabula County Court of Common Pleas, after entering a
plea of guilty to four counts of Illegal Use of a Minor in Nudity-Oriented Material or
Performance, in violation of R.C. 2907.323(A)(1), felonies of the second degree. We
affirm the trial court’s sentence.
{¶2} In January 2023, the Ashtabula County Sheriff’s Department received a
report that a camera was found in the bedroom of a 14-year-old girl. Billings eventually admitted he placed the camera in the teenage girl’s bedroom and also admitted to
photographing her since she was 10 years old. Billings admitted he possessed all the
recordings on his home computer. He additionally conceded that, prior to placing the
camera in the girl’s bedroom, he had placed it in her bathroom. He also admitted to
recording the initial victim’s sister as well, another minor; he recorded each of the two
minor victims in the shower.
{¶3} Billings admitted he had a problem and that, beyond the reported offenses,
he had a significant amount of child pornography. During the investigation, officers
recovered approximately 1,190 videos and 127,767 images of child pornography,
including the videos and images of the two victims in this matter.
{¶4} In September 2023, Billings was indicted on 15 separate counts of sexual
offenses: six counts of Voyeurism, felonies of the fifth degree, in violation of R.C.
2907.08(C); four counts of Illegal Use of a Minor or Impaired Person in Nudity-Oriented
Material or Performance, felonies of the second degree, in violation of R.C.
2907.323(A)(1); and five counts of Pandering Sexually-Oriented Matter Involving a Minor,
felonies of the second degree, in violation of R.C. 2907.322(A)(1).
{¶5} After consulting the victims and their representatives, the State and Billings
entered into a plea wherein Billings would plead guilty to the four counts of Illegal Use of
a Minor or Impaired Person in Nudity-Oriented Material or Performance, each felonies of
the second degree. After a plea colloquy, during which the trial court established Billings
was knowingly, voluntarily, and intelligently waiving his constitutional and non-
constitutional rights, the trial court accepted the plea. The trial court nolled the remaining
counts.
Case No. 2024-A-0024 {¶6} After conducting a sentencing hearing, at which various individuals spoke
on Billings’ behalf, the trial court sentenced him to serve six years on each of the four
counts. The trial court ordered the terms to be served consecutively and, because the
offenses were “qualifying offenses” under the Reagan Tokes Act, he was sentenced to a
minimum 24-year term of imprisonment and a maximum, indefinite term of 27 years in
prison. This appeal follows.
{¶7} Billings assigns the following as error:
{¶8} “The trial court erred in imposing consecutive sentences which were clearly
and convincingly unsupported by the record.”
{¶9} This court reviews felony sentences pursuant to R.C. 2953.08(G)(2). That
subsection provides, in pertinent part:
The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court. The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court’s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following: (a) That the record does not support the sentencing court’s findings under division . . . (C)(4) of section 2929.14 [(regarding consecutive sentences)] . . . ; (b) That the sentence is otherwise contrary to law.
{¶10} Pursuant to R.C. 2929.14(C)(4), separate prison terms for multiple offenses
may be ordered to be served consecutively if the court finds it is necessary to protect the
public from future crime or to punish the offender; that consecutive sentences are not 3
Case No. 2024-A-0024 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 factors in R.C.
2929.14(C)(4)(a)-(c) are present. Those factors include 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. {¶11} In cases in which the trial court makes the appropriate findings to
impose consecutive sentences, as it did in this case, this court’s review of the record is
limited to determine whether the record clearly and convincingly does not support the
imposition of consecutive sentences. State v. Gwynne, 2023-Ohio-3851, ¶ 15 (plurality);
R.C. 2953.08(G).
{¶12} With these standards in mind, on August 1, 2023, the Supreme Court of
Ohio accepted discretionary review of a matter similar to the case at issue. See State v.
Glover, 2023-Ohio-1153 (1st Dist.), appeal allowed, 2023-Ohio-2664.
{¶13} In Glover, the First Appellate District determined the record before it clearly
and convincingly did not support the trial court’s consecutive findings under R.C.
2929.14(C)(4). The trial court in Glover sentenced the defendant to an aggregate prison
term of 60 years. Id. ¶ 32. The court ran the defendant’s six aggravated-robbery terms
Case No. 2024-A-0024 (seven years each) and each charge’s firearm specification (three years each)
consecutively. Id at ¶ 80. The First District concluded that the 60-year sentence was
disproportionate to the defendant’s criminal history and the danger he posed to the public.
Id. at ¶ 102. The appellate court proceeded to modify the defendant’s sentence
downwardly from 60 years in prison to 25 years. Id. ¶ 106.
{¶14} The State of Ohio filed a jurisdictional appeal to the Supreme Court. In its
memorandum in support, the State noted “[d]espite acknowledging that the trial court did
in fact make the R.C. 2929.14(C)(4) findings required to impose consecutive sentences,
the court of appeals gave undue consideration to the aggregate amount and misapplied
the standard of review when it found that the record did not support it.” State v. Glover,
Ohio Supreme Court No. 2023-0654, State’s Jurisdictional Memorandum, at p. 1. The
State’s memorandum noted that the Supreme Court’s opinion on reconsideration of State
v. Gwynne, 2022-Ohio-4607, had not been released at the time it submitted its
jurisdictional filing. The appeal was accepted and oral argument was held on February 7,
2024. Prior to oral argument, on October 25, 2023, the high court released its opinion on
reconsideration of Gwynne. In a plurality opinion, the court vacated its prior decision in
2022-Ohio-4607. See Gwynne, 2023-Ohio-3851.
{¶15} On November 1, 2024, the Supreme Court of Ohio released its opinion in
Glover, 2024-Ohio-5195. The court summarized the State’s propositions of law
accordingly:
{¶16} “The . . . first proposition of law postulates that an appellate court should not
‘focus on a defendant’s aggregate prison term when . . . reviewing consecutive
sentences.’ The . . . second proposition of law states that a court of appeals may not
Case No. 2024-A-0024 ‘substitute its judgment for that of the trial court’ when reviewing a sentence under the
appellate-review statute.” Id. at ¶ 41.
{¶17} The lead opinion, comprised of three justices, agreed with the State on both
issues. With respect to the first proposition of law, the lead opinion determined that
“[n]owhere does the appellate-review statute direct an appellate court to consider the
defendant’s aggregate sentence.” Id. at ¶ 43. The lead opinion followed this conclusion
with its observation that the First District’s analysis was premised upon “its disagreement
with the aggregate sentence.” Id. The lead opinion emphasized “[t]o the extent that the
court of appeals premised its holding on its disagreement with Glover’s aggregate
sentence rather than its review of the trial court’s findings, it erred in doing so.” Id.
Accordingly, the lead opinion disposed of the State’s second proposition of law. Id. at ¶
44-47.
{¶18} The lead opinion next critiqued the court of appeals’ application of R.C.
2953.08(G)(2), Ohio’s appellate-review statute, and a fourth justice concurred in this
portion of the lead opinion. The court observed that the First District based its decision on
two findings that, in the appellate court’s view, were clearly and convincingly not
supported by the record. Namely, the trial court determined that consecutive sentences
are not disproportionate to the seriousness of the defendant’s conduct and to the danger
he poses to the public. Glover, 2024-Ohio-5195, at ¶ 48. And, the defendant’s criminal
history revealed a need to protect the public from future crime by the defendant. Id.
{¶19} The lead opinion pointed out that even though the appellate court took issue
with the defendant’s criminal history, it did not challenge the trial court’s additional finding
that the defendant’s offenses were committed as “‘part of one or more courses of
Case No. 2024-A-0024 conduct.’” Accordingly, even without the trial court’s criminal-history finding, the trial
court’s sentence satisfied the R.C. 2929.14(C)(4)(a) through (c) findings. Glover at ¶ 50.
{¶20} The lead opinion then considered the appellate court’s evaluation of the trial
court’s proportionality determination. The Supreme Court criticized the appellate court’s
position that the lack of physical harm on any of the defendant’s victims was significant.
Id. at ¶ 55. The lead opinion determined that the court of appeals, in various ways,
transcended its role under the appellate-review statute when it (1) noted the State initially
offered the defendant 15 years in exchange for a plea of guilty; (2) inaccurately suggested
the State advocated for concurrent sentences; and (3) compared the defendant’s
sentence to sentences imposed under statutes in other cases. Id. at ¶ 56-60.
{¶21} The lead opinion accordingly concluded the record did not clearly and
convincingly fail to support the trial court’s consecutive sentencing finding and therefore
reinstated the trial court’s sentence.
{¶22} One justice concurred in judgment and concurred in part with the lead
opinion’s analysis. Id. at ¶ 62 (Fischer, J.). In his concurring opinion, Justice Fischer
determined that courts must necessarily review the aggregate prison term pursuant to the
mandate of R.C. 2929.14(C)(4). Glover, 2024-Ohio-5195, at ¶ 68. He observed:
[t]hat statutory provision requires courts to determine whether “consecutive sentences are not disproportionate.” (Emphasis added.) Id. This raises the question of how a court can determine whether consecutive sentences are not disproportionate (i.e., are proportionate) to the offender’s conduct and the danger the offender poses to the public if the court does not know what the aggregate of all the terms would be. In my view, there must be a number involved to determine proportionality, and if a court does not consider the aggregate amount, then what number would the court consider?” Id. 7
Case No. 2024-A-0024 {¶23} Justice Fischer therefore concluded he would reject the State’s first
proposition of law; he nevertheless agreed with the lead opinion’s disposition of the
State’s second proposition of law and concurred with the disposition of the case based
upon this agreement. Id. at ¶ 69-71.
{¶24} Finally, three justices dissented to the lead opinion. The three justices
determined that the State’s first proposition of law should be rejected. Id. at ¶ 75-82. The
dissenting opinion also rejected the State’s second proposition of law. Id. at ¶ 83-85. The
dissenting opinion reiterated that its reasoning and conclusion in Glover was premised
upon the reconsidered and subsequently vacated lead opinion in State v. Gwynne, 2022-
Ohio-4607, commonly referred to as Gwynne IV.
{¶25} With the standards set forth in Gwynne, 2023-Ohio-3851 and Glover, 2024-
Ohio-5195 in mind, we proceed to address Billings’ arguments on appeal.
{¶26} Under his assignment of error, Billings concedes that the crimes to which
he pleaded were serious. He also acknowledges that the victims have and will continue
to experience anguish and psychological turmoil due to his criminal acts and his invasion
of their privacy. He contends, however, that the 24- to 27-year sentence was clearly and
convincingly unsupported by the record. He principally maintains the length of the prison
term is disproportionate to the danger he poses to the public. Billings argues that the
record does not support that he would recidivate and, therefore, the record does not
demonstrate he would in any way pose a risk or a danger to the public. We do not agree.
{¶27} Initially, we emphasize the trial court made all the requisite statutory findings
under R.C. 2929.14(C)(4), and Billings does not take issue with this point. As noted,
however, Billings challenges the trial court’s determination that the consecutive terms are
Case No. 2024-A-0024 necessary to protect the public and not disproportionate to the danger he poses to the
same. His argument therefore addresses the trial court’s findings as they relate to the
evidence and information in the record.
{¶28} Billings first argues that, prior to the offenses at issue, he was a law-abiding
citizen for some 50 years. He points out that, other than minor traffic violations, he had
no previous criminal record. In the abstract, Billings’ claim is accurate. This court,
however, cannot ignore Billings’ admission to secretly photographing and recording
videos of the minor victims for a period of years. Billings’ admission demonstrates a
pattern of criminal conduct against the victims well beyond the specific counts charged.
{¶29} Moreover, Billings downloaded over 120,000 photos of child pornography
on his computer. The trial court could draw the reasonable inference that Billings did not
accumulate these voluminous files immediately prior to being caught and charged with
the underlying charges. It stands to reason, in other words, that Billings had been
collecting the photos over a lengthy period of time.
{¶30} Simply because Billings was not charged with or convicted of a criminal
offense prior to the instant matter does not imply he was living an otherwise “law-abiding”
life. The amount of child pornography on his computer in conjunction with his admission
that he had been photographing at least one of the victims for nearly four years renders
Billings’ argument unpersuasive.
{¶31} Next, Billings points out he scored low on his recidivism, risk-assessment
test. We recognize Billings scored as a “low risk” to reoffend; the assessment, however,
is merely a tool to assist the court in fashioning its sentence. While the low-risk score
Case No. 2024-A-0024 militates in Billings’ favor, it does not control the trial court’s discretion in fashioning a
sentence.
{¶32} This court has commented, albeit in the context of a “sexual-predator”
determination, that “even a ‘low risk’ result from standardized testing does not preclude a
sexual predator adjudication.” (Citation omitted.) State v. Burgan, 2004-Ohio-6185, ¶ 27
(11th Dist.). This court emphasized that “‘the psychological tests designed to indicate a
sexual offender’s propensity to reoffend, and the resulting risk level, must be objectively
evaluated and not be blindly relied upon.’” Burgan at ¶ 27, quoting State v. Purser, 2003-
Ohio-3345, ¶ 42 (8th Dist.). Even though these points related to a “sexual-predator”
determination, they apply with equal force to a court’s evaluation of a defendant’s “low-
risk” test assessment in the context of a general recidivism analysis. In short, no objective
testing tool should be relied upon in a vacuum and must be considered in the context of
the facts of the offenses under consideration.
{¶33} With this in mind, during Billings’ allocution, he conceded what he did was
“evil.” He also stated, “my mind was telling me I wasn’t hurting anyone, because I never
touched anyone or no one knew.” He further stated that he “just fell into something that
[he] lost control of. Got out of hand.” Even though Billings recognized how wrong his
actions were, the trial court was within its discretion to view Billings’ prior rationalizations
as a basis for considering him a future threat to the public. Rationalizations are neither
justifications nor reasonable explanations that might refute or weigh against the
conclusion that a defendant poses a serious risk to the public such that consecutive
sentences are not disproportionate to the defendant’s conduct at issue.
Case No. 2024-A-0024 {¶34} Furthermore, the trial court could reasonably conclude that Billings’ actions
are not activities which one “falls” into or matters outside of a reasonable person’s control.
The court could conclude that if Billings “fell into” the situation prompting the charges and
could not stop himself, the situation could occur again thereby rendering him risk to the
public.
{¶35} Similarly, Billings stated, “I got caught up in something I don’t even know. I
don’t know where that came from and I don’t know why I kept doing it.” This observation
suggests Billings acted upon an impulse the origin of which he still has no insight. Despite
his apologies and assurances that he would never commit the acts at issue again, the
trial court could reasonably see Billings’ statement as a foundation that his impulses could
manifest again. To wit, if he could not understand from whence the impulses issued or
why he was unable to control them, they could arise anew and he could again lack the
ability to control them. In this regard, the court could also reasonably conclude Billings
represents a danger to the public and consecutive sentences are necessary to protect
the same.
{¶36} In its appellate brief, the State draws this court’s attention to a recent case
with similar facts, State v. Lautanen, 2023-Ohio-1945 (11th Dist.). In Lautanen, the
defendant had 15 pornographic images of two minor girls on his cell phone. Id. at ¶ 14-
15. The pictures were sent to him by his wife, and the defendant downloaded the pictures
on his phone then transferred the same to another phone. Id. at ¶ 32. The defendant was
found guilty and convicted on all 15 counts of Illegal Use of a Minor or Impaired Person
in Nudity-Oriented Material. Id. at ¶ 30. The defendant had one prior conviction for
domestic violence and a pending charge for theft. Id. at ¶ 33. The trial court sentenced
Case No. 2024-A-0024 the defendant to an indefinite term of 30 to 31 years (two years on each qualifying charge
to be served consecutively). This court affirmed the trial court’s sentence. Id. at ¶ 83-90.
{¶37} We recognize the proceedings in Lautanen were different than those in the
case sub judice; namely, the defendant in Lautanen elected to proceed to jury trial on 15
counts of Illegal Use of a Minor or Impaired Person in Nudity-Oriented Material, and
Billings pleaded guilty to four of 15 counts of the same charge. Still, the cases are
somewhat similar in that each defendant had multiple pornographic pictures of underage
females. A persuasive argument, however, can be made that the facts leading to the
charges against Billings are more egregious.
{¶38} In Lautanen, the defendant did not take the pictures or have direct access
to the minor females. Instead, the defendant passively received them from a third party.
In contrast, Billings, over the course of several years, exploited his personal access to the
minor victims and personally photographed and/or filmed them from their bathroom and
bedroom. The sordid opportunism exhibited by Billings is different than the defendant in
Lautanen and reasonably supports the trial court’s determination that the sentence is
necessary to protect the public from future crime Billings might commit and is not
disproportionate to the danger he poses to the public.
{¶39} Considering the foregoing, the record does not clearly and convincingly fail
to support the trial court’s findings under R.C. 2929.14(C)(4). Put differently, “it does not
overwhelmingly support a contrary result concerning the imposition of consecutive
sentences.” Gwynne, 2023-Ohio-3851, at ¶ 18.
{¶40} A final point requires attention. In Glover, 2024-Ohio-5195, four justices
voted to reject the State’s first proposition of law and four justices agreed with the State’s
Case No. 2024-A-0024 second proposition of law. It would therefore appear that trial courts (and appellate courts)
must consider the aggregate term of imprisonment when imposing consecutive sentences
under R.C. 2929.14(C)(4), but an appellate court may not substitute its judgment under
the appellate standard of review.
{¶41} Because four justices in Glover seem to agree that an appellate court
should consider or “focus” on a defendant’s aggregate prison term when reviewing
consecutive sentences (Fischer, J., Stewart, J., Donnelly, J., and Brunner, J.), we must
somehow assess the aggregate term. In State v. Jones, 2020-Ohio-6729, ¶ 39, the
Supreme Court of Ohio concluded that R.C. 2953.08(G)(2) does not permit a reviewing
court to independently weigh the evidence and/or substitute its judgment for that of the
trial court as it relates to individual sentences imposed pursuant to R.C. 2929.11 and R.C.
2929.12. Still, because four justices in Glover determined an appellate court should focus
on the aggregate prison term when reviewing “stacked,” individual sentences, this
assessment would necessarily require the reviewing court to take into account (or
evaluate) each individual sentence that contributes to the aggregate. An exercise which
we, as an appellate court, are statutorily unable to do. It is accordingly unclear how an
appellate court might have any substantive input on the aggregate term of imprisonment
issued by a trial court. This is a conundrum. Without more guidance, it is therefore equally
unclear what a reviewing court’s role would involve other than to assess whether the trial
court focused upon the aggregate term of imprisonment in the consecutive sentencing
process.
{¶42} With this in mind, the transcript of the sentencing hearing demonstrates the
trial court gave due consideration to the aggregate term of imprisonment it was imposing.
Case No. 2024-A-0024 The trial court emphasized that the offenses were committed over a course of years,
between 2020 and 2023. The offenses involved minor victims, and Billings used cameras
in the victims’ bathroom and bedroom to effectuate the crimes. The court also noted that
Billings had a relationship with the victims’ mother and, by implication, with the victims as
well. In light of these points, the trial court sentenced Billings to six years on each count
to be served consecutively with one another. We construe these observations sufficient
consideration of the aggregate term ultimately imposed by the trial court. This court
concludes the record does not clearly and convincingly fail to support the imposition of
the aggregate terms of imprisonment, Billings’ assignment of error is without merit.
{¶43} The judgment of the Ashtabula County Court of Common Pleas is affirmed.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
Case No. 2024-A-0024