[Cite as State v. Whitt, 2023-Ohio-2443.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SHELBY COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 17-22-12
v.
CLAUDIE D. WHITT, OPINION
DEFENDANT-APPELLANT.
Appeal from Shelby County Common Pleas Court Trial Court No. 22CR000110
Judgment Affirmed
Date of Decision: July 17, 2023
APPEARANCES:
Christopher R. Bucio for Appellant
Timothy S. Sell for Appellee Case No. 17-22-12
WALDICK, J.
{¶1} Defendant-appellant, Claudie D. Whitt (“Whitt”), brings this appeal
from the September 20, 2022, judgment of the Shelby County Common Pleas Court
sentencing him to an indefinite prison term of 14 to 17.5 years after Whitt pled guilty
to, and was convicted of, two counts of Pandering Obscenity Involving a Minor. On
appeal, Whitt argues that the aggregate sentence amounted to cruel and unusual
punishment. For the reasons that follow, we affirm the judgment of the trial court.
Background
{¶2} From 2019 to 2022 Whitt used cameras in his bathroom to record his
juvenile step-granddaughter while she showered. At one point, Whitt showed his
step-granddaughter a video that he had recorded of her and he blackmailed her by
threatening to expose the video if she told anyone he had it. In addition, when Whitt
learned an investigation into his conduct might occur, he removed his equipment
from his house and placed it in the woods.
{¶3} On May 12, 2022, Whitt was indicted for seventeen counts of Pandering
Obscenity Involving a Minor in violation of R.C. 2907.321(A)(1), all second degree
felonies, and Having Weapons While Under Disability in violation of R.C.
2923.13(A)(1), a third degree felony. Whitt originally pled not guilty to the charges.
{¶4} Pursuant to a written, negotiated plea agreement, Whitt agreed to plead
guilty to two counts of Pandering Obscenity as indicted, and in exchange, the State
-2- Case No. 17-22-12
agreed to dismiss the remaining charges against him. The trial court held a
Crim.R.11 hearing and determined that Whitt was entering knowing, intelligent, and
voluntary pleas. Whitt was found guilty, and on September 19, 2022, he was
sentenced to serve an aggregate, indefinite prison term of 14 to 17.5 years. A
judgment entry memorializing his sentence was filed September 20, 2022. It is from
this judgment that Whitt appeals, asserting the following assignment of error for our
review.
Assignment of Error
Considering the Appellant’s age and health at the time of the offense, the maximum prison sentence being imposed upon the Appellant amounts to cruel and unusual punishment.
{¶5} In his assignment of error, Whitt argues that because he was 73 years
old at the time of sentencing, the aggregate 14-17.5 year prison term that was
imposed was effectively a life sentence. He contends that the sentence amounts to
cruel and unusual punishment under the Eighth Amendment.
Standard of Review
{¶6} 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
-3- Case No. 17-22-12
trier of facts a firm belief or conviction as to the facts sought to be
established.’” Id. at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954),
paragraph three of the syllabus.
Relevant Authority
{¶7} The Eighth Amendment to the United States Constitution provides that
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” This provision applies to the states pursuant to the
Fourteenth Amendment. State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, ¶
12. Further, the same restriction is codified in Ohio’s Constitution in Article I,
Section 9.
{¶8} “Historically, the Eighth Amendment has been invoked in extremely
rare cases, where it has been necessary to protect individuals from inhumane
punishment such as torture or barbarous acts.” State v. Weitbrecht, 86 Ohio St.3d
368, 370 (1999). “Over the years, it has also been used to prohibit punishments that
were found to be disproportionate to the crimes committed.” Id. The rare cases
where cruel and unusual punishments have been found involved “sanctions which
under the circumstances would be considered shocking to any reasonable person.”
Id. at 371. “Furthermore, ‘the penalty must be so greatly disproportionate to the
offense as to shock the sense of justice of the community.’” Id. quoting McDougle
v. Maxwell, 1 Ohio St.2d 68, 70 (1964).
-4- Case No. 17-22-12
Analysis
{¶9} In this case, Whitt argues that his aggregate sentence constitutes cruel
and unusual punishment because he was 73 years old at the time of sentencing and
he would not get out of prison until he was 87-90 years old. He contends that given
his life expectancy is shorter than the age that he would be when he was released
from prison, his aggregate sentence was unduly harsh.
{¶10} Further, Whitt argues that his sentence was unduly harsh because he
had lived a mostly law-abiding life, having only one prior conviction related to
marijuana in the 1990s. Whitt also contends that he was in poor health at the time
of sentencing and that he was unlikely to even have the capacity to be a danger to
the community in the future, let alone the propensity to be a danger based on his
criminal history.
{¶11} The State counters by first emphasizing that Whitt had 16 crimes
dismissed as part of his plea agreement and that Whitt did not even receive a
maximum prison term on either of the prison terms he did receive. The State also
argues that given the gravity of the crimes, the fact that the victim in this case was
a juvenile, and the fact that Whitt abused the victim’s trust as a family member, the
aggregate sentence was not unduly harsh.
{¶12} In our own review of the matter, we emphasize that the Supreme Court
of Ohio has specifically held that “[F]or purposes of the Eighth Amendment and
-5- Case No. 17-22-12
Section 9, Article I of the Ohio Constitution, proportionality review should focus on
individual sentences rather than on the cumulative impact of multiple sentences
imposed consecutively.” State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338,
¶ 20. Further,
[w]here none of the individual sentences imposed on an offender are grossly disproportionate to their respective offenses, an aggregate prison term resulting from consecutive imposition of those sentences does not constitute cruel and unusual punishment.
Id.
{¶13} Here, Whitt was sentenced to serve 7 years in prison on each of the
Pandering Obscenity convictions, which was less than the maximum 8 year prison
terms permitted. The Supreme Court of Ohio has explicitly held that, “As a general
rule, a sentence that falls within the terms of a valid statute cannot amount to cruel
and unusual punishment.” McDougle at 69. Thus, generally, the sentence in this
case cannot amount to cruel and unusual punishment, and for this reason alone
Whitt’s assignment of error is overruled.
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[Cite as State v. Whitt, 2023-Ohio-2443.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SHELBY COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 17-22-12
v.
CLAUDIE D. WHITT, OPINION
DEFENDANT-APPELLANT.
Appeal from Shelby County Common Pleas Court Trial Court No. 22CR000110
Judgment Affirmed
Date of Decision: July 17, 2023
APPEARANCES:
Christopher R. Bucio for Appellant
Timothy S. Sell for Appellee Case No. 17-22-12
WALDICK, J.
{¶1} Defendant-appellant, Claudie D. Whitt (“Whitt”), brings this appeal
from the September 20, 2022, judgment of the Shelby County Common Pleas Court
sentencing him to an indefinite prison term of 14 to 17.5 years after Whitt pled guilty
to, and was convicted of, two counts of Pandering Obscenity Involving a Minor. On
appeal, Whitt argues that the aggregate sentence amounted to cruel and unusual
punishment. For the reasons that follow, we affirm the judgment of the trial court.
Background
{¶2} From 2019 to 2022 Whitt used cameras in his bathroom to record his
juvenile step-granddaughter while she showered. At one point, Whitt showed his
step-granddaughter a video that he had recorded of her and he blackmailed her by
threatening to expose the video if she told anyone he had it. In addition, when Whitt
learned an investigation into his conduct might occur, he removed his equipment
from his house and placed it in the woods.
{¶3} On May 12, 2022, Whitt was indicted for seventeen counts of Pandering
Obscenity Involving a Minor in violation of R.C. 2907.321(A)(1), all second degree
felonies, and Having Weapons While Under Disability in violation of R.C.
2923.13(A)(1), a third degree felony. Whitt originally pled not guilty to the charges.
{¶4} Pursuant to a written, negotiated plea agreement, Whitt agreed to plead
guilty to two counts of Pandering Obscenity as indicted, and in exchange, the State
-2- Case No. 17-22-12
agreed to dismiss the remaining charges against him. The trial court held a
Crim.R.11 hearing and determined that Whitt was entering knowing, intelligent, and
voluntary pleas. Whitt was found guilty, and on September 19, 2022, he was
sentenced to serve an aggregate, indefinite prison term of 14 to 17.5 years. A
judgment entry memorializing his sentence was filed September 20, 2022. It is from
this judgment that Whitt appeals, asserting the following assignment of error for our
review.
Assignment of Error
Considering the Appellant’s age and health at the time of the offense, the maximum prison sentence being imposed upon the Appellant amounts to cruel and unusual punishment.
{¶5} In his assignment of error, Whitt argues that because he was 73 years
old at the time of sentencing, the aggregate 14-17.5 year prison term that was
imposed was effectively a life sentence. He contends that the sentence amounts to
cruel and unusual punishment under the Eighth Amendment.
Standard of Review
{¶6} 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
-3- Case No. 17-22-12
trier of facts a firm belief or conviction as to the facts sought to be
established.’” Id. at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954),
paragraph three of the syllabus.
Relevant Authority
{¶7} The Eighth Amendment to the United States Constitution provides that
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” This provision applies to the states pursuant to the
Fourteenth Amendment. State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, ¶
12. Further, the same restriction is codified in Ohio’s Constitution in Article I,
Section 9.
{¶8} “Historically, the Eighth Amendment has been invoked in extremely
rare cases, where it has been necessary to protect individuals from inhumane
punishment such as torture or barbarous acts.” State v. Weitbrecht, 86 Ohio St.3d
368, 370 (1999). “Over the years, it has also been used to prohibit punishments that
were found to be disproportionate to the crimes committed.” Id. The rare cases
where cruel and unusual punishments have been found involved “sanctions which
under the circumstances would be considered shocking to any reasonable person.”
Id. at 371. “Furthermore, ‘the penalty must be so greatly disproportionate to the
offense as to shock the sense of justice of the community.’” Id. quoting McDougle
v. Maxwell, 1 Ohio St.2d 68, 70 (1964).
-4- Case No. 17-22-12
Analysis
{¶9} In this case, Whitt argues that his aggregate sentence constitutes cruel
and unusual punishment because he was 73 years old at the time of sentencing and
he would not get out of prison until he was 87-90 years old. He contends that given
his life expectancy is shorter than the age that he would be when he was released
from prison, his aggregate sentence was unduly harsh.
{¶10} Further, Whitt argues that his sentence was unduly harsh because he
had lived a mostly law-abiding life, having only one prior conviction related to
marijuana in the 1990s. Whitt also contends that he was in poor health at the time
of sentencing and that he was unlikely to even have the capacity to be a danger to
the community in the future, let alone the propensity to be a danger based on his
criminal history.
{¶11} The State counters by first emphasizing that Whitt had 16 crimes
dismissed as part of his plea agreement and that Whitt did not even receive a
maximum prison term on either of the prison terms he did receive. The State also
argues that given the gravity of the crimes, the fact that the victim in this case was
a juvenile, and the fact that Whitt abused the victim’s trust as a family member, the
aggregate sentence was not unduly harsh.
{¶12} In our own review of the matter, we emphasize that the Supreme Court
of Ohio has specifically held that “[F]or purposes of the Eighth Amendment and
-5- Case No. 17-22-12
Section 9, Article I of the Ohio Constitution, proportionality review should focus on
individual sentences rather than on the cumulative impact of multiple sentences
imposed consecutively.” State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338,
¶ 20. Further,
[w]here none of the individual sentences imposed on an offender are grossly disproportionate to their respective offenses, an aggregate prison term resulting from consecutive imposition of those sentences does not constitute cruel and unusual punishment.
Id.
{¶13} Here, Whitt was sentenced to serve 7 years in prison on each of the
Pandering Obscenity convictions, which was less than the maximum 8 year prison
terms permitted. The Supreme Court of Ohio has explicitly held that, “As a general
rule, a sentence that falls within the terms of a valid statute cannot amount to cruel
and unusual punishment.” McDougle at 69. Thus, generally, the sentence in this
case cannot amount to cruel and unusual punishment, and for this reason alone
Whitt’s assignment of error is overruled.
{¶14} Notwithstanding the prior point, we emphasize that while Whitt
claimed he had led a mostly law-abiding life, he perpetrated the crimes in this case
against a juvenile over months and years, meaning these crimes were not an isolated
incident. Then, Whitt attempted to blackmail the victim into staying quiet about the
matter. The trial court emphasized these facts and noted that while it was aware of
-6- Case No. 17-22-12
Whitt’s age and his scant criminal history, Whitt had to be “appropriately
sanctioned” for his conduct. (Sept. 29, 2022, Tr. at 9).
{¶15} Given the circumstance in this case, we do not find that the prison
terms “shock the sense of justice of the community.”1 Weitbrecht at 371. As Whitt’s
individual sentences are not grossly disproportionate to their respective offenses,
we find that Whitt’s aggregate prison term does not constitute cruel and unusual
punishment.2 Therefore, Whitt’s assignment of error is overruled.
Conclusion
{¶16} Having found no error prejudicial to Whitt in the particulars assigned
and argued, his assignment of error is overruled and the judgment and sentence of
the Shelby County Common Pleas Court is affirmed.
MILLER, P.J. and WILLAMOWSKI, J., concur.
/jlr
1 Whitt is effectively arguing that no elderly person can be sentenced to a lengthy prison term regardless of the gravity of their crimes. 2 Whitt does not specifically argue in his brief that consecutive sentences are unsupported, but even if he did, the trial court made the appropriate findings and those findings were not clearly and convincingly contrary to law.
-7-