[Cite as State v. Costello, 2022-Ohio-3354.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-22-1004
Appellee Trial Court No. CR0202102082
v.
William Costello DECISION AND JUDGMENT
Appellant Decided: September 23, 2022
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Autumn D. Adams, for appellant.
MAYLE, J.
{¶ 1} Following a negotiated plea, the Lucas County Court of Common Pleas
convicted the defendant-appellant, William Costello, of five counts of pandering in child
pornography and sentenced him to serve a total maximum prison term of 33 years. On appeal, Costello argues that the record does not support the imposition of a prison
sentence under R.C. 2929.11 and 2929.12. Costello concedes that the Ohio Supreme
Court’s decision of State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649
precludes this court from independently weighing the evidence in the record and
substituting our judgment for that of the trial court concerning the sentence that best
reflects compliance with R.C. 2929.11 and 2929.12. Instead, he asks this court to ignore
Jones on the basis that it violates his right to due process. For the following reasons, we
affirm.
I. Background
{¶ 2} Costello was originally charged with 15 counts of pandering obscenity
involving a minor, in violation of R.C. 2907.321(A)(1) and (C), all felonies of the second
degree. Following negotiations, Costello pled guilty to Counts 1 through 5, and the state
agreed not to prosecute the remaining counts. At the time of his plea, the trial court
advised Costello that he faced up to 44 years in prison. The trial court accepted Costello’s
plea, found him guilty, and ordered a presentence investigation (“PSI”) in advance of
sentencing.
{¶ 3} At the sentencing hearing, the trial court heard statements from the
prosecutor and defense counsel, and Costello spoke on his own behalf. After hearing the
statements, the court reviewed the factors that it took into consideration when sentencing
Costello, including the information in his PSI. Before concluding, the trial court
2. reviewed the principles and purposes of sentencing in R.C. 2929.11 and the seriousness
and recidivism factors in R.C. 2929.12. After considering all of this information, the trial
court ordered Costello to serve six years in prison as to each count, to be served
consecutively to one another, for a total minimum-stated prison term of 30 years, with a
total indefinite stated prison term of three years as to each count, to be served
concurrently to one another, for a total maximum stated prison term of 33 years.
{¶ 4} Costello appealed and raises the following assignment of error:
State v. Jones cuts off Appellant’s right of appellate review and as
the prison sentence imposed in this case fails to serve the principles and
purposes of sentencing it is imperative this Court recognize State v. Jones is
a violation of Appellant’s due process rights and review the trial court’s
sentence for compliance with R.C. 2929.11 and R.C. 2929.12. [Sic].
II. Discussion
{¶ 5} We review challenges to felony sentencing under R.C. 2953.08(G)(2), which
provides that,
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
3. 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 (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.
{¶ 6} Costello’s underlying argument in this case is that the imposition of a prison
term fails to comport with the principles and purposes of sentencing under R.C. 2929.11
and 2929.12. But, as the Ohio Supreme Court has recognized, R.C. 2929.11 and 2929.12
are not listed in the statutory provisions under R.C. 2953.08(G)(2)(a). State v. Jones, 163
Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649 ¶ 28. Therefore, an appellate court
may not rely upon R.C. 2953.08(G)(2)(a) to “modify or vacate a sentence based on the
lack of support in the record for the trial court’s finding under R.C. 2929.11 and
2929.12.” Id. at ¶ 29. Moreover, R.C. 2953.08(G)(2)(b) does not allow an appellate
court to independently weigh the evidence and substitute its judgment for that of the trial
court regarding the appropriate sentence under R.C. 2929.11 and 2929.12, or modify or
vacate a sentence based on the lack of support in the record for the trial court’s findings
4. under those statutes. Jones at ¶ 39, 41-42; see also State v. Toles, 166 Ohio St.3d 397,
2021-Ohio-3531, 186 N.E.3d 784, ¶ 10 (Brunner, J., concurring) (R.C. 2953.08
“precludes second-guessing a sentence imposed by a trial court based on its weighing of
the considerations in R.C. 2929.11 and 2929.12.”).
{¶ 7} Therefore, as this court has repeatedly recognized, we cannot review a
felony sentence “where—as here—the appellant’s sole contention is that the trial court
improperly considered the factors of R.C. 2929.11 or 2929.12 when fashioning [a]
sentence.” State v. Stenson, 6th Dist. Lucas No. L-20-1074, 2021-Ohio-2256, ¶ 9, citing
Jones at ¶ 42, rev'd on other grounds, sub nom. In re Cases Held for the Decision in
State v. Maddox, Slip Opinion No. 2022-Ohio-1352; State v. Orzechowski, 6th Dist.
Wood No. WD-20-029, 2021-Ohio-985, ¶ 13 (“In light of Jones, assigning error to the
trial court’s imposition of sentence as contrary to law based solely on its consideration of
R.C. 2929.11 and 2929.12 is no longer grounds for this court to find reversible error.”).
{¶ 8} Costello concedes that “appellate review of a sentence for being ‘contrary to
law’ can no longer look at whether that sentence meets the principles and purposes of
sentencing under R.C. 2929.11 and 2929.12.” Nonetheless, he asks us to do it anyway,
on the basis that “[i]t is simply a denial of [his] due process rights for this Court to not
review his sentence for complying with the principles and purposes of sentencing.”
Costello argues that R.C. 2953.08(G)(2) “expressly requires an appellate court to ‘review
the record, including the findings underlying the sentence.’” He continues that if Jones is
5. interpreted so as to preclude review of “any findings made in [his] sentence,” then he will
be “denied his right to appeal under the Ohio Constitution.”
{¶ 9} First and foremost, we do not have the authority to disregard Jones, which is
binding precedent from the Supreme Court of Ohio. “As an intermediate appellate court,
we are bound to follow precedent set by the Supreme Court of Ohio, and we cannot issue
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[Cite as State v. Costello, 2022-Ohio-3354.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-22-1004
Appellee Trial Court No. CR0202102082
v.
William Costello DECISION AND JUDGMENT
Appellant Decided: September 23, 2022
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Autumn D. Adams, for appellant.
MAYLE, J.
{¶ 1} Following a negotiated plea, the Lucas County Court of Common Pleas
convicted the defendant-appellant, William Costello, of five counts of pandering in child
pornography and sentenced him to serve a total maximum prison term of 33 years. On appeal, Costello argues that the record does not support the imposition of a prison
sentence under R.C. 2929.11 and 2929.12. Costello concedes that the Ohio Supreme
Court’s decision of State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649
precludes this court from independently weighing the evidence in the record and
substituting our judgment for that of the trial court concerning the sentence that best
reflects compliance with R.C. 2929.11 and 2929.12. Instead, he asks this court to ignore
Jones on the basis that it violates his right to due process. For the following reasons, we
affirm.
I. Background
{¶ 2} Costello was originally charged with 15 counts of pandering obscenity
involving a minor, in violation of R.C. 2907.321(A)(1) and (C), all felonies of the second
degree. Following negotiations, Costello pled guilty to Counts 1 through 5, and the state
agreed not to prosecute the remaining counts. At the time of his plea, the trial court
advised Costello that he faced up to 44 years in prison. The trial court accepted Costello’s
plea, found him guilty, and ordered a presentence investigation (“PSI”) in advance of
sentencing.
{¶ 3} At the sentencing hearing, the trial court heard statements from the
prosecutor and defense counsel, and Costello spoke on his own behalf. After hearing the
statements, the court reviewed the factors that it took into consideration when sentencing
Costello, including the information in his PSI. Before concluding, the trial court
2. reviewed the principles and purposes of sentencing in R.C. 2929.11 and the seriousness
and recidivism factors in R.C. 2929.12. After considering all of this information, the trial
court ordered Costello to serve six years in prison as to each count, to be served
consecutively to one another, for a total minimum-stated prison term of 30 years, with a
total indefinite stated prison term of three years as to each count, to be served
concurrently to one another, for a total maximum stated prison term of 33 years.
{¶ 4} Costello appealed and raises the following assignment of error:
State v. Jones cuts off Appellant’s right of appellate review and as
the prison sentence imposed in this case fails to serve the principles and
purposes of sentencing it is imperative this Court recognize State v. Jones is
a violation of Appellant’s due process rights and review the trial court’s
sentence for compliance with R.C. 2929.11 and R.C. 2929.12. [Sic].
II. Discussion
{¶ 5} We review challenges to felony sentencing under R.C. 2953.08(G)(2), which
provides that,
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
3. 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 (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.
{¶ 6} Costello’s underlying argument in this case is that the imposition of a prison
term fails to comport with the principles and purposes of sentencing under R.C. 2929.11
and 2929.12. But, as the Ohio Supreme Court has recognized, R.C. 2929.11 and 2929.12
are not listed in the statutory provisions under R.C. 2953.08(G)(2)(a). State v. Jones, 163
Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649 ¶ 28. Therefore, an appellate court
may not rely upon R.C. 2953.08(G)(2)(a) to “modify or vacate a sentence based on the
lack of support in the record for the trial court’s finding under R.C. 2929.11 and
2929.12.” Id. at ¶ 29. Moreover, R.C. 2953.08(G)(2)(b) does not allow an appellate
court to independently weigh the evidence and substitute its judgment for that of the trial
court regarding the appropriate sentence under R.C. 2929.11 and 2929.12, or modify or
vacate a sentence based on the lack of support in the record for the trial court’s findings
4. under those statutes. Jones at ¶ 39, 41-42; see also State v. Toles, 166 Ohio St.3d 397,
2021-Ohio-3531, 186 N.E.3d 784, ¶ 10 (Brunner, J., concurring) (R.C. 2953.08
“precludes second-guessing a sentence imposed by a trial court based on its weighing of
the considerations in R.C. 2929.11 and 2929.12.”).
{¶ 7} Therefore, as this court has repeatedly recognized, we cannot review a
felony sentence “where—as here—the appellant’s sole contention is that the trial court
improperly considered the factors of R.C. 2929.11 or 2929.12 when fashioning [a]
sentence.” State v. Stenson, 6th Dist. Lucas No. L-20-1074, 2021-Ohio-2256, ¶ 9, citing
Jones at ¶ 42, rev'd on other grounds, sub nom. In re Cases Held for the Decision in
State v. Maddox, Slip Opinion No. 2022-Ohio-1352; State v. Orzechowski, 6th Dist.
Wood No. WD-20-029, 2021-Ohio-985, ¶ 13 (“In light of Jones, assigning error to the
trial court’s imposition of sentence as contrary to law based solely on its consideration of
R.C. 2929.11 and 2929.12 is no longer grounds for this court to find reversible error.”).
{¶ 8} Costello concedes that “appellate review of a sentence for being ‘contrary to
law’ can no longer look at whether that sentence meets the principles and purposes of
sentencing under R.C. 2929.11 and 2929.12.” Nonetheless, he asks us to do it anyway,
on the basis that “[i]t is simply a denial of [his] due process rights for this Court to not
review his sentence for complying with the principles and purposes of sentencing.”
Costello argues that R.C. 2953.08(G)(2) “expressly requires an appellate court to ‘review
the record, including the findings underlying the sentence.’” He continues that if Jones is
5. interpreted so as to preclude review of “any findings made in [his] sentence,” then he will
be “denied his right to appeal under the Ohio Constitution.”
{¶ 9} First and foremost, we do not have the authority to disregard Jones, which is
binding precedent from the Supreme Court of Ohio. “As an intermediate appellate court,
we are bound to follow precedent set by the Supreme Court of Ohio, and we cannot issue
a decision in conflict with a decision of the Supreme Court that has not been reversed or
overruled.” State v. Bruce, 10th Dist. Franklin No. 21AP-376, 2022-Ohio-909, ¶ 39-40,
quoting State v. Tatom, 10th Dist. No. 17AP-758, 2018-Ohio-5143, ¶ 24 (Rejecting
argument to “ignore Ohio Supreme Court precedent and reverse [the defendant’s
sentence on the grounds that it fails to comport with the principles and purposes of
sentencing] ‘despite Jones.’”).
{¶ 10} Second, Jones does not preclude appellate review of “any findings” made
by a trial court in imposing a sentence. As recently explained by the Ohio Supreme
Court in State v. Bryant:
The narrow holding in Jones is that R.C. 2953.08(G)(2) does not
allow an appellate court to modify or vacate a sentence based on its view
that the sentence is not supported by the record under R.C. 2929.11 and
2929.12. See Jones at ¶ 31, 39. Nothing about that holding should be
construed as prohibiting appellate review of a sentence when the claim is
that the sentence was improperly imposed based on impermissible
6. considerations—i.e., considerations that fall outside those that are
contained in R.C. 2929.11 and 2929.12. Indeed, in Jones, this court made
clear that R.C. 2953.08(G)(2)(b) permits appellate courts to reverse or
modify sentencing decisions that are “‘otherwise contrary to law.’” Jones at
¶ 32, quoting R.C. 2953.08(G)(2)(b). This court also recognized that
“otherwise contrary to law” means “‘in violation of statute or legal
regulations at a given time.’ ” Id. at ¶34 quoting Black’s Law Dictionary
328 (6th Ed.1990). Accordingly, when a trial court imposes a sentence
based on factors or considerations that are extraneous to those that are
permitted by R.C. 2929.11 and 2929.12, that sentence is contrary to law.
Claims that raise these types of issues are therefore reviewable.
Slip Opinion No. 2020-0599, 2022-Ohio-1878 (June 7, 2022), ¶ 22.
{¶ 11} Third, in response to Costello’s claim that R.C. 295308(G)(2) requires us to
“review * * * findings underlying the sentence,” we agree. Post-Jones, it is clear that
“although an appellate court lacks the authority to conclude that a sentence is
unsupported by the record (which would entail substituting its judgment for that of the
trial court), it may nonetheless conclude that certain findings are unsupported by the
record under R.C. 2953.08(G)(2)(a), and then modify, remand, or vacate the sentence on
that basis.” State v. Szozda, 6th Dist. Lucas No. L-21-1026, 2022-Ohio-2294, ¶ 69,
quoting State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 17
7. (Mayle, concurring). But, neither R.C. 2929.11 or 2929.12 are included within the
purview of R.C. 2953.08(G)(2)(a)—which makes sense, given that “R.C. 2929.11 and
2929.12 * * * are not fact-finding statutes * * *. Instead, they serve as an overarching
guide for trial judges to consider in fashioning an appropriate sentence.” Id. at ¶ 71,
quoting State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 17.
{¶ 12} For all of the foregoing reasons, we find that the present challenge is
“squarely prohibited” under the authority of Jones and Toles. Toles at ¶ 11.
III. Conclusion
{¶ 13} Costello’s assignment of error is found not well taken, and the trial court’s
judgment is affirmed. Costello is ordered to pay the costs of this appeal pursuant to App.
R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
8. State of Ohio v. William Costello L-22-1004
Thomas J. Osowik, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Myron C. Duhart, P.J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
9.