State v. Case

2023 Ohio 4365

• Court: Ohio Court of Appeals
• Decided: December 4, 2023
• Docket: 17-23-04
• Status: Published

Opinion

[Cite as State v. Case, 2023-Ohio-4365.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SHELBY COUNTY

STATE OF OHIO, CASE NO. 17-23-04

PLAINTIFF-APPELLEE,

v.

ZACHARY T. CASE, OPINION

DEFENDANT-APPELLANT.

Appeal from Shelby County Common Pleas Court Trial Court No. 22CR000276

Judgment Affirmed

Date of Decision: December 4, 2023

APPEARANCES:

Michael J. Scarpelli for Appellant

Timothy S. Sell for Appellee Case No. 17-23-04

MILLER, P.J.

{¶1} Defendant-appellant, Zachary T. Case (“Case”) appeals the March 9,

2023 judgment entry of sentence of the Shelby County Court of Common Pleas.

For the reasons that follow, we affirm.

Background

{¶2} On December 8, 2022, the Shelby County Grand Jury indicted Case on

18 counts: Counts One through Six of pandering sexually oriented material

involving a minor in violation of R.C. 2907.322(A)(2), second-degree felonies; and

Counts Seven through Eighteen of pandering obscenity involving a minor in

violation of R.C. 2907.321(A)(5), fourth-degree felonies. Additionally, each of the

counts included a criminal forfeiture specification of two cell phones, two laptop

computers, and a desktop computer. Case appeared for arraignment on December

14, 2022 where he entered a not guilty plea to the charges in the indictment.

{¶3} Pursuant to a negotiated-plea agreement, on January 30, 2023, Case

appeared for a change-of-plea hearing where he entered guilty pleas to Counts One

and Two. In exchange, the State agreed to dismiss the remaining counts. The trial

court accepted Case’s guilty pleas, found him guilty of the two counts, and, at the

request of the State, dismissed the remaining counts. The trial court ordered a

presentence investigation. (“PSI”)

-2- Case No. 17-23-04

{¶4} At the sentencing hearing held on March 9, 2023, the trial court

sentenced Case to an indefinite prison term of seven to ten and one-half years on

Count One and a definite prison term of seven years on Count Two. The trial court

ordered the sentences to be served consecutively for an aggregate term of 14 to 17

1/2 years in prison. The trial court filed its judgment entry that same day.

{¶5} Case filed a notice of appeal on April 17, 2023. He raises one

assignment of error for our review.

Assignment of Error

The trial court’s decision to impose consecutive sentences is clearly and convincingly unsupported by the record.

{¶6} Case argues that the trial court erred by sentencing him to consecutive

sentences because the consecutive sentences are not supported by the record. For

the reasons that follow, we disagree.

Standard of Review

{¶7} Under R.C. 2953.08(G)(2), an appellate court may reverse a sentence

“only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.

-3- Case No. 17-23-04

at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus.

Relevant Authority

{¶8} In his assignment of error, Case argues that the trial court erred by

imposing consecutive sentences. “Except as provided in * * * division (C) of

section 2929.14, * * * a prison term, jail term, or sentence of imprisonment shall be

served concurrently with any other prison term, jail term, or sentence of

imprisonment imposed by a court of this state, another state, or the United States.”

R.C. 2929.41(A). R.C. 2929.14(C) provides:

(4) * * * [T]he court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

-4- Case No. 17-23-04

{¶9} R.C. 2929.14(C)(4) requires a trial court to make specific findings on

the record when imposing consecutive sentences. State v. Hites, 3d Dist. Hardin

No. 6-11-07, 2012-Ohio-1892, ¶ 11. Specifically, the trial court must find: (1)

consecutive sentences are necessary to either protect the public or punish the

offender; (2) the sentences would not be disproportionate to the offense committed;

and (3) one of the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. Id.

{¶10} The trial court must state the required findings at the sentencing

hearing prior to imposing consecutive sentences and incorporate those findings into

its sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-

4140, ¶ 50, citing State v. Bonnell, 140 Ohio St. 209, 2014-Ohio-3177, ¶ 29. A trial

court “has no obligation to state reasons to support its findings” and is not “required

to give a talismanic incantation of the words of the statute, provided that the

necessary findings can be found in the record and are incorporated into the

sentencing entry.” Bonnell at ¶ 37.

Analysis

{¶11} Case does not argue that the trial court failed to make the requisite

consecutive-sentencing findings under R.C. 2929.14(C)(4). Rather, he contends

that the record does not support the trial court’s findings.

{¶12} At the sentencing hearing, the trial court stated:

And the Court finds that consecutive sentencing is necessary to protect the public from future crime or to punish you; and that consecutive sentencing is not disproportionate to the seriousness of

-5- Case No. 17-23-04

your conduct and to the danger you pose to the public. And the Court also finds that * * * the multiple offenses so committed as part of the course of conduct * * * [are] so great or so unusual that no single prison term for any of the offenses committed as part of the courses of conduct would adequately reflect the seriousness of * * * your conduct.

(Mar. 9, 2023 Tr. at 7). The court memorialized those findings in its sentencing

entry. (Doc. No. 67). Accordingly, the record reflects that the trial court made the

appropriate R.C. 2929.14(C)(4) findings before imposing consecutive sentences and

incorporated those findings into its sentencing entry.

{¶13} Yet, Case argues that the trial court erred by failing to conduct its

analysis in accordance with the Supreme Court of Ohio’s decision in State v.

Gwynne, ____ Ohio St.3d _____, 2022-Ohio-4607 (“Gwynne IV”). However, in

State v. Gwynne, ___Ohio St.3d _____, 2023-Ohio-3851 (“Gwynne V”), which was

decided while Case’s appeal was pending, the Supreme Court of Ohio reconsidered

and vacated its prior decision in Gwynne IV and reiterated that “[a]ppellate review

turns on whether the trial court’s findings are clearly and convincingly not supported

by the record, and if the evidence supports the trial court’s consecutive-sentence

findings, the analysis ends there.” Gwynne V at ¶ 24.

{¶14} Nevertheless, Case argues that the trial court’s finding that

consecutive sentences are necessary to protect the public from him is clearly and

convincingly not supported by the record because his prior criminal record consists

-6- Case No. 17-23-04

only of two non-violent misdemeanors and that he was “gainfully employed up until

the time he was sent to prison.” (Appellant’s Brief at 6). We disagree.

{¶15} First, we note that, at the sentencing hearing, the trial court

acknowledged that Case “[has] something of a minimal record.” (Mar. 9, 2023 Tr.

at 6). However, the trial court also noted that Case was originally indicted on 18

felony counts and that the evidence demonstrates “this was not an * * * occasional

incident on [Case’s] part but that as a regular course of conduct * * * involving

extremely graphic and disturbing images and videos” and that Case “actually sought

out those * * * materials.” (Id.).

{¶16} Additionally, the PSI, which the trial court stated that it considered

when fashioning Case’s sentence, contained a plethora of information supporting

the trial court’s findings. Specifically, the PSI stated that Case possessed 112 videos

on his phone, 92 of which were “extreme juvenile porn” depicting “disturbing and

graphic pre-pubescent and young teenage females engaged in all kinds of sexual

activity (oral, vaginal, anal, and bondage) with adult males” with some of the

victims as young as seven-years-old. (PSI). Furthermore, the PSI indicates that

Case completely failed to acknowledge responsibility for the underlying conduct,

instead telling the PSI author that he has “no memory” of the instant offenses due

to side effects from a gas leak at his residence during the time of the offenses. (Id.).

Yet, Case simultaneously acknowledged that he was the only person with access to

his cellular phone during the relevant time period. (Id.).

-7- Case No. 17-23-04

{¶17} Accordingly, after reviewing the record, we find that the trial court’s

consecutive-sentence findings were amply supported by the record and we reject

Case’s argument to the contrary. We conclude that the record reflects that the trial

court made the appropriate R.C. 2929.14(C)(4) findings before imposing

consecutive sentences and incorporated those findings into its sentencing entry and

that those findings are not clearly and convincingly unsupported by the record.

Gwynne V, 2023-Ohio-3851, at ¶ 24.

{¶18} Case’s assignment of error is overruled.

Conclusion

{¶19} For the foregoing reasons, Case’s assignment of error is overruled.

Having found no error prejudicial to the appellant herein in the particulars assigned

and argued, we affirm the judgment of the Shelby County Court of Common Pleas.

WILLAMOWSKI and WALDICK, J.J., concur

/eks

-8-