[Cite as State v. Schmick, 2013-Ohio-4488.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99262


                                      STATE OF OHIO

                                                             PLAINTIFF-APPELLEE
                                                 vs.

                                   EUGENE SCHMICK

                                                             DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-532200

        BEFORE:          Jones, P.J., Kilbane, J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED:                      October 10, 2013
ATTORNEY FOR APPELLANT

John P. Parker
988 East 185th Street
Cleveland, Ohio 44119


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Brett Kyker
        Joseph J. Ricotta
Assistant County Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




LARRY A. JONES, SR., P.J.:
       {¶1} Defendant-appellant, Eugene Schmick, appeals from the 16-year sentence

imposed on him in 2012.     We reverse and remand for resentencing.

                                             I.

       {¶2} Schmick was a suspect in law enforcement’s investigation into internet

crimes against children.   In July 2009, Schmick’s computer was seized, and in December

2009, he was charged with over 80 sexually-oriented offenses. In April 2010, Schmick

pleaded guilty to several of the counts.   A presentence report was completed.   The trial

court sentenced him to 17 years in prison, designated him a Tier II sex offender, and

imposed 5 years of postrelease control. Schmick appealed, contending in part that his

plea was not knowingly, intelligently and voluntarily made. This court agreed and,

therefore, vacated his plea, and remanded the case to the trial court. State v. Schmick,

8th Dist. Cuyahoga No. 95210, 2011-Ohio-2263.

       {¶3} On remand, a new plea was negotiated, which resulted in Schmick pleading

guilty to 45 counts of the indictment in exchange for the remaining counts being nolled.

Another presentence report was prepared.          The trial court sentenced Schmick to a

16-year prison term, which included consecutive sentences.

       {¶4} Schmick now presents the following assignments of error for our review:

       I. The trial court’s imposition of consecutive sentences violates ORC
       2929.14 and is not supported by the record.

       II.   The 16 year sentence is not consistent with sentences imposed on

       similar offenders for similar offenses in violation of ORC 2929.11(B) and
       Ohio law.

       III.   The “illegal use” and “pandering” charges must be merged for

       sentencing under ORC 2941.25 and this court’s review is de novo.

                                             II.

       {¶5} R.C. 2953.08(G)(2), governing appellate review of felony sentencing,

provides as follows:

       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 (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} Thus, under R.C. 2953.08(G)(2), the following two grounds permit an

appellate court to reverse a trial court’s imposition of consecutive sentences upon an

offender: (1) the sentence is “otherwise contrary to law”; or (2) the appellate court, upon

its review, clearly and convincingly finds that “the record does not support the sentencing

court’s findings.”      See also State v. Venes, 8th Dist. Cuyahoga No. 98682,

2013-Ohio-1891, ¶ 11.

       {¶7} Under R.C. 2929.14(C)(4), when imposing consecutive sentences, the trial

court must first find that the sentence is “necessary to protect the public from future crime
or to punish the offender.”    The trial court must also find that consecutive sentences are

“not disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public.”     Id. Further, the trial court must find that one of the

following factors applies:

       (a) The offender committed one or more of the multiple offenses while the
       offender was awaiting trial or sentencing, was under a sanction * * *, or
       was under postrelease 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 * * * 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.

Id.

       {¶8} In sentencing Schmick, the court stated it reviewed both the defense’s and the

state’s sentencing memorandums, as well as the presentence reports, and had “given this a

great deal of thought.”      The court further stated that “some of the reasons for this

sentence are as follows”:

       Mr. Schmick, you have two prior felony convictions. You were given
       community control sanctions in each of those cases, and in each case you
       violated your community controlled sanction, or at [the] time it was known
       as probation.

       So clearly you have broken the law. You’ve been given chances and you
       have not been able to comply with the law. You were sent to prison on
       both of those cases. Those are just felonies. You have a number of
       misdemeanors, and we won’t even discuss all of those.
       {¶9} The court then outlined what it perceived to be inconsistencies in Schmick’s

responses to questions in the two presentence reports.      The court further noted that (1)

Schmick scored in the highest risk category for recidivism, and that (2) the most recent

presentence report indicated his lack of genuine remorse.

       {¶10} The trial court also considered proportionality and stated that it had been

sentencing on this “kind of activity” for over 16 years.    The court noted State v. Phillips,

8th Dist. Cuyahoga No. 92560, 2009-Ohio-5564, wherein the defendant was sentenced to

24 years for sexually-oriented offenses committed over the internet and this court upheld

the sentence.

       {¶11} The court considered the activity in this case, stating:

       These young girls clearly did not consent to the behavior, which is
       despicable, being done to them. You downloaded it, you looked at it, and
       you made it available to others. For eternity those photographs will be
       available. Those young girls will grow up, maybe [somebody] will
       recognize them, somebody won’t. But they are victimized each and every
       time the photos or the videos are looked at.

       And I generally as a policy for each victim give a defendant a sentence.
       Given the number of victims that were involved in this, you would be here
       way past all of our lifetimes put together. And so I think that the 16 years
       is appropriate and proportional, given your conduct and the harm, the very,
       very significant harm this caused to these young girls.

       {¶12} In the past, this court has upheld consecutive sentences where statements

made by the trial court could be gleaned as the required statutory findings for such a

sentence. For example, a finding by the court made pursuant to R.C. 2929.12(D)(2) that

the defendant “previously was adjudicated a delinquent child * * * or has a history of

criminal convictions” could be deemed sufficient to satisfy a finding under R.C.
2929.14(C)(4) that the defendant’s “history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by the

offender.”

        {¶13} The current trend, however, has been to hold the trial court responsible for

more than just “substantial compliance” with the requirements.         We do not believe

following the trend is unreasonable.   Otherwise, general statements made by trial courts

can too easily be read as consecutive sentence findings.      We do not believe that the

legislature intended such a result; rather, it has specifically delineated the findings that

need to be made when sentencing to consecutive terms.

        {¶14} On this record, we find that the trial court did not satisfactorily make the

required findings for the imposition of consecutive sentences. Although the trial court

offered “reasons” for the sentence, they were not specifically tied to the required findings

for consecutive sentences.    Thus, we find that the sentence is “otherwise contrary to

law.”

        {¶15} Further, we find that the record does not clearly and convincingly support

some of the trial court’s findings.      For example, the court referred to Schmick’s

“numerous” misdemeanors. But the presentence reports showed prior misdemeanor

convictions for disorderly conduct and false information to police in 1976, and an OVI in

1994. That record does not clearly and convincingly support the trial court’s finding that

Schmick had a “number” of misdemeanors.

        {¶16} The trial court also found that Schmick had “not been able to comply with
the law.” It is true that he has prior convictions, but from his 1994 OVI until he was

indicted in this case in 2009, Schmick did not have any convictions; thus, he was law

abiding for a significant number of years.

       {¶17} In light of the above, the first assignment of error is sustained.

       {¶18} We next consider the issue of merger of the illegal use and pandering

charges for the purpose of sentencing.       The issue was not raised by the defense at the

trial court level, and there was no on the record discussion of merger at sentencing.

       {¶19} Recently, in an en banc decision this court considered various issues related

to the allied offenses merger doctrine, including:

       * * * determining the duty of a trial court judge under R.C. 2941.25 where a
       facial question of allied offenses of similar import exists but the trial court
       fails to inquire; determining the effect of a defendant’s failure to raise the
       allied offenses of similar import issue in the trial court and whether that
       failure constitutes a valid waiver or forfeiture of the defendant’s
       constitutional right against double jeopardy; determining the effect of a
       prosecutor’s failure to put facts on the record detailing a defendant’s
       conduct in relation to possible allied offenses of similar import at the trial
       court level; determining the impact of a silent or inconclusive record from
       the trial court that fails to detail the offender’s actual conduct involving
       allied offenses of similar import; determining the effect of a guilty plea to
       multiple charges on the allied offenses of similar import analysis; and
       determining the effect of the absence of a stipulation to the allied offenses
       of similar import question.

State v. Rogers, 8th Dist. Cuyahoga Nos. 98292, 98584, 98585, 98586, 98587, 98588,

98589, and 98590, 2013-Ohio-3235, ¶ 3.

       {¶20} After considering those issues, this court held the following:

       (a) Where a facial question of allied offenses of similar import presents
       itself, a trial court judge has a duty to inquire and determine under R.C.
       2941.25 whether those offenses should merge. A trial court commits plain
       error in failing to inquire and determine whether such offenses are allied
       offenses of similar import.
       (b) A defendant’s failure to raise an allied offenses of similar import issue
       in the trial court is not a bar to appellate review of the issue.
       (c) While facts establishing the conduct of the offender offered at the time
       of a plea may be used to establish that offenses are not allied, a guilty plea
       alone that does not include a stipulation or a finding that offenses are not
       allied offenses of similar import does not conclusively resolve the merger
       question. Thus, a guilty plea does not constitute a valid waiver of the
       protections from possible double jeopardy under R.C. 2941.25.

Id. at ¶ 63.

       {¶21}   R.C. 2941.25, which governs allied offenses, provides:

       (A) Where the same conduct by defendant can be construed to constitute
       two or more allied offenses of similar import, the indictment or information
       may contain counts for all such offenses, but the defendant may be
       convicted of only one.

       (B) Where the defendant’s conduct constitutes two or more offenses of
       dissimilar import, or where his conduct results in two or more offenses of
       the same or similar kind committed separately or with a separate animus as
       to each, the indictment or information may contain counts for all such
       offenses, and the defendant may be convicted of all of them.

       {¶22} The Ohio Supreme Court redefined the test for determining whether two

offenses are allied offenses of similar import subject to merger under R.C. 2941.25 in

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. The Johnson

court expressly overruled State v. Rance, 85 Ohio St.3d 632, 1999-Ohio-291, 710 N.E.2d

699, which required a “comparison of the statutory elements in the abstract” to determine

whether the statutory elements of the crimes correspond to such a degree that the

commission of one crime will result in the commission of the other. The Johnson court

held that rather than compare the elements of the crimes in the abstract, courts must
consider the defendant’s conduct. Id. at syllabus.

       If multiple offenses can be committed by the same conduct, then the court
       must determine whether the offenses were committed by the same conduct,
       i.e., “a single act, committed with a single state of mind.”

Id., quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶50

(Lanzinger, J., dissenting).

       {¶23} Schmick pleaded guilty to pandering counts under R.C. 2907.322(A)(1) and

(2), which provide:

       (A) No person, with knowledge of the character of the material or
       performance involved, shall do any of the following:

       (1) Create, record, photograph, film, develop, reproduce, or publish any
       material that shows a minor participating or engaging in sexual activity,
       masturbation, or bestiality;

       (2) Advertise for sale or dissemination, sell, distribute, transport,
       disseminate, exhibit, or display any material that shows a minor
       participating or engaging in sexual activity, masturbation, or bestiality.

       {¶24} He also pleaded guilty to counts of illegal use of a minor in nudity-oriented

material or performance under R.C. 2907.323(A)(1), which provides:

       (A) No person shall do any of the following:

       (1) Photograph any minor who is not the person’s child or ward in a state of
       nudity, or create, direct, produce, or transfer any material or performance
       that shows the minor in a state of nudity * * *.

       {¶25} Considering the crimes of pandering and illegal use, it is possible for the

same conduct to violate both statutes. See State v. Corrao, 8th Dist. Cuyahoga No.

95167, 2011-Ohio-2517, ¶ 9. But under Johnson, there needs to be consideration of

Schmick’s conduct in determining whether the offenses are allied offenses that should
merge. See also id. at ¶ 10.    The record here, however, does not contain enough details

as to the timing, circumstances, or victims for us to make an allied-offense determination.

 The trial court’s failure to inquire constitutes plain error. Id.

       {¶26} In light of the above, the third assignment of error is sustained to the extent

that on remand the trial court should conduct an allied-offense inquiry.

       {¶27} Finally, because on remand Schmick will be resentenced, we consider his

second assignment of error, in which he contends that his 16-year sentence was

disproportionate to similarly situated defendants.

       {¶28} Schmick contended at the trial court level that of the 35 defendants who

were part of the “round-up” in this particular investigation, 15 were sentenced to

community control sanctions; 1 was sentenced to 20 days; 2 were sentenced to 2 years; 3

were sentenced to 3 years; 3 were sentenced to 4 years; 2 were sentenced to 5 years; 1

was sentenced to 59 months; 2 were sentenced to 6 years; 1 was sentenced to 7 years; and

2 were sentenced to 8 years.    At the time of his sentencing, 2 cases were pending, and 1

had been dismissed.

       {¶29} In considering proportionality, the trial court stated that it is a “difficult

issue,” and that it had given sentences for this “kind of activity * * * for over 16 years.”

As mentioned, the court then referenced Phillips, 8th Dist. Cuyahoga No. 92560,

2009-Ohio-5564, in which this court upheld a 24-year sentence for importuning,

pandering obscenity, possessing criminal tools, and pandering sexually oriented matter

involving a minor.
       {¶30} The issue in Phillips was whether the trial court properly considered and

weighed the seriousness and recidivism factors under R.C. 2929.12.              This court

concluded that although the sentence seemed “unduly harsh,” the trial court had

considered the seriousness and recidivism factors in determining the sentence and the

sentence was not contrary to law. Id. at ¶ 10, 13.

       {¶31} Aside from not addressing proportionality, the facts in Phillips are

somewhat distinguishable from the facts here. Phillips was diagnosed as a pedophile

with a heightened interest in children eight to ten years old and a moderate to high risk to

reoffend.     There were thousands of “chat calls” Phillips had with whom he believed to

be a 12-year girl, but was actually a law enforcement official.    Phillips sent pictures of

his genitalia to the “girl” and asked her to send pictures of herself to him. Phillips told

the “girl” that it would be “hotter” if she were under 12 years old. Further, Phillips

admitted to talking to and sending pictures of his genitalia to other children over the

internet.

       {¶32} Here, Schmick was not diagnosed as a pedophile and the evidence

demonstrated that he downloaded and viewed the pornographic material, but did not

communicate with or send pictures to the victims. Thus, in addressing proportionality

on remand, the trial court should not rely on Phillips.

       {¶33} The second assignment of error is sustained to the extent of the above

discussion.

       {¶34} Judgment reversed; case remanded for resentencing.
       It is ordered that appellant recover from appellee his costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, SR., PRESIDING JUDGE

MARY EILEEN KILBANE, J., CONCURS;
EILEEN T. GALLAGHER, J., CONCURS IN
JUDGMENT ONLY
