[Cite as State v. Barrett, 2012-Ohio-3948.]



                 Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 97614


                                        STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                      STEVEN BARRETT
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                        Case No. CR-551162

        BEFORE: Stewart, P.J., Cooney, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                      August 30, 2012
ATTORNEY FOR APPELLANT

Eric C. Nemecek
Friedman & Frey, L.L.C.
1304 West 6th Street
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Jesse W. Canonico
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, P.J.:

       {¶1} A grand jury returned a 20-count indictment against defendant-appellant

Steven Barrett charging him with illegal use of a minor in nudity-oriented material or

performance, voyeurism, and possessing criminal tools. In lieu of trial, Barrett pleaded

guilty to nine counts of illegal use of a minor in nudity-oriented material or performance,

two counts of voyeurism, and one count of possession of criminal tools. The court

sentenced him to seven years on each of the child pornography counts, six months in jail

on the voyeurism counts, and 11 months on the possession of criminal tools counts.       All

of the counts were ordered to be served concurrently for a total term of seven years. In

this appeal, Barrett complains that the court erred by failing to consider whether the child

pornography counts were allied offenses of similar import that the court should have

merged for sentencing, that the court abused its discretion by ordering a seven-year term

for each of the child pornography counts, and that the court erred by failing to consider the

statutory factors guiding the court’s discretion in sentencing by placing emphasis on

Barrett’s punishment over his rehabilitation.

                                                I

       {¶2} In his first assignment of error, Barrett does not argue that the nine child

pornography counts were allied offenses of similar import. Instead, he argues that even

though he did not raise the issue of allied offenses at sentencing, the court should have

nevertheless considered the matter on its own initiative. He asserts that, because “the
counts at issue involve the same statute and subsection, it is possible that the same conduct

could establish a violation of each offense.” (Emphasis added.) Appellant’s Brief at 11.

While acknowledging that he pleaded guilty to an indictment that contained different dates

for the offenses, Barrett argues that the dates used in the indictment “do not provide an

accurate indication as to when Appellant actually received, viewed or possessed the

[material].”   He asks that we vacate his sentence and remand the matter for a

determination of whether the child pornography counts were allied offenses of similar

import that should have merged for sentencing.

       {¶3} When a defendant’s conduct results in the commission of two or more “allied”

offenses of similar import, that conduct can be charged separately, but the defendant can

be convicted and sentenced for only one offense.          R.C. 2941.25(A).     Offenses are

“allied” and must be merged for sentencing if the defendant’s conduct is such that a single

act could lead to the commission of separately defined offenses, but those separate

offenses were committed with a state of mind to commit only one act. See State v.

Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 48-50.

       {¶4} Despite filing an extensive sentencing memorandum, Barrett did not raise the

issue of allied offenses at sentencing. He has forfeited all but plain error as defined by

Crim.R. 52(B), which states that “[p]lain errors or defects affecting substantial rights may

be noticed although they were not brought to the attention of the court.” A reviewing

court will take notice of plain error only with the utmost caution, and only then to prevent

a manifest miscarriage of justice. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804
(1978), syllabus. To qualify as “plain,” the error must be “obvious” from the record on

appeal. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 16.

       {¶5} Barrett’s convictions resulted from a guilty plea that constituted “a complete

admission of [his] guilt.” Crim.R. 11(B)(1). That guilt was based on the facts alleged in

the indictment. State v. Wilson, 58 Ohio St.2d 52, 388 N.E.2d 745 (1979), paragraph one

of the syllabus. Because Barrett’s guilty plea terminated the proceedings against him, the

facts alleged in the indictment and admitted by Barrett are the only facts in the record.

       {¶6} The state alleged in nine different counts of the indictment that Barrett “did

recklessly create, direct, produce or transfer material or performance that shows a minor in

a state of nudity in violation of Section 2907.232 of the Revised Code.” Three separate

dates were stated for the nine counts: July 26, 2009 for one count; September 15, 2009

for five counts; and April 12, 2011 for three counts. The images forming the basis of

each count are not in the record.

       {¶7} In his sentencing memorandum, Barrett stated that he had “images” depicting

minors in a state of nudity. The plural form of the word “images” and the multiple counts

of possessing child pornography indicate that more than one picture was involved. But

beyond that, the record on appeal is empty. To the extent that the multiple images

depicted different victims, we have held that they do not merge. State v. Collier, 8th Dist.

No. 95572, 2011-Ohio-2791, ¶ 12. However, as the dissent notes, the images are not in

the record on appeal, so we have no way of knowing what these images depict. It is

possible that the images depict different victims, or may depict the same victim in different
poses, or may even be duplicates of a single image. In short, the record on appeal gives

us no basis for saying whether the child pornography counts were allied.

       {¶8} Given the lack of facts in the record on appeal, we cannot find that the court

committed error, much less the kind of error that is so “obvious” on the record that it

qualifies as plain error, by failing to inquire prior to sentencing whether separate counts of

an indictment are allied offenses of similar import. State v. Snuffer, 8th Dist. Nos. 96480,

96481, 96482, 96483, 2011-Ohio-6430, ¶ 9; State v. Lindsey, 8th Dist. No. 96601,

2010-Ohio-804, ¶ 13; State v. Rogers, 8th Dist. Nos. 97093 and 97094, 2012-Ohio-2496.

       {¶9} Some panels of this court have reached a different conclusion on similar facts:

 notably State v. Corrao, 8th Dist. No. 95167, 2011-Ohio-2517, and State v. Baker, 8th

Dist. No. 97139, 2012-Ohio-1833. In both cases, the panels considered issues of plain

error in the failure to merge allied offenses following a guilty plea. And in both cases, the

panels acknowledged the absence of facts supporting an allied offenses claim: in Baker,

the panel stated “[t]he record is nearly devoid of any facts[;]” id. at ¶ 2; in Corrao, the

panel stated, “[i]t is impossible to determine whether any of the * * * offenses were

committed in ‘a single act with a single state of mind.’” Id. at ¶ 10. Nevertheless, both

panels found that the trial court’s failure to conduct an allied offenses analysis was plain

error. The cases were reversed and remanded with instructions for the respective trial

courts to resolve the allied offenses issues raised on appeal.

       {¶10} Our disagreement with Baker and Corrao is with the decision to reverse a

sentence on the basis of plain error when the records in both cases admittedly did not
contain any evidence from which an allied offenses error might be determined. This is a

departure from the well-established principle of appellate review that requires the

appellant to exemplify the error by reference to the record on appeal.          See App.R.

12(A)(2); State v. Stojetz, 84 Ohio St.3d 452, 455, 1999-Ohio-464, 705 N.E.2d 329.

What is more, to the extent that appellate review requires the application of the plain error

doctrine, it is an oxymoron to find plain error because there are insufficient facts in the

record necessary to determine whether error occurred at all. If we cannot determine

whether error exists because of the absence of facts in the record on appeal, it follows that

there is no plain error that is “obvious.”

       {¶11} Baker found that the trial court’s failure in the first instance to inquire into

allied offenses prior to imposing sentence was itself plain error. This conclusion followed

from several premises. First, allied offenses issues invoke the Double Jeopardy Clause of

the Fifth Amendment to United States Constitution, Johnson at ¶ 25, and constitutional

errors cannot be waived unless the waiver is knowing or intelligent. State v. Underwood,

124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, at ¶ 32. Second, Underwood held that

“imposition of multiple sentences for allied offenses of similar import is plain error.” Id.

at ¶ 31, citing State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845, ¶

96-102. Third, Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, stated,

“[u]nder R.C. 2941.25, the court must determine prior to sentencing whether the offenses

were committed by the same conduct.” Id. at ¶ 47. From these principles, Baker and

Corrao appear to conclude that the court not only has a duty to merge allied offenses of
similar import, but that it also has the obligation to raise the issue of allied offenses at

sentencing, even if the defendant fails to do so.

       {¶12} Baker and Corrao misapprehend the extent to which Underwood and

Johnson apply to guilty pleas in which there are no facts or concessions demonstrating the

existence of allied offenses. Beginning with Johnson, the facts of that case show that

Johnson was found guilty by a jury verdict following a trial.     The facts produced at trial

would have enabled the court to determine whether Johnson’s offenses were committed by

the same conduct.     The holding in Johnson is consistent with the R.C. 2941.25(A)

prohibition against sentencing a defendant twice for the same conduct because the court

could “construe” the evidence. But unlike a trial, a guilty plea is made to an indictment.

Johnson cannot apply to guilty pleas because there are no facts that the court could

construe as showing whether offenses are allied.

       {¶13} Underwood concerned a no contest plea.             On direct appeal, the state

conceded that Underwood’s offenses were allied offenses of similar import. Id. at ¶ 8.

Given that concession, we have distinguished Underwood from cases in which we have

held that, by voluntarily entering guilty pleas to two separate offenses, a “defendant

waive[s] any argument that the same constituted allied offenses of similar import.” State

v. Antenori, 8th Dist. No. 90580, 2008-Ohio-5987, ¶ 6. In State v. Wulff, 8th Dist. No.

94087, 2011-Ohio-700, we explained the distinction between Underwood and Antenori

as follows:

       Underwood pled no contest to all four counts for which he was indicted. On
       appeal, the State in Underwood, conceded that the convictions were in fact
       allied offenses of similar import. Whereas, in Antenori and the instant case, a
       plea bargain was entered involving pleas to just some charges and no such
       concession by the State exists. Moreover, Underwood applies to an
       appellate review of a jointly recommended sentence, as opposed to sentences
       like those in Antenori and the instant case, which were imposed by the trial
       court after the defendant pled guilty to just some of the charges he faced.
       (Emphasis sic.) Id. at ¶ 25.

       {¶14} The dissent claims that we have “play[ed] the Antenori card,” claiming that

Antenori is invalid precedent because it is an “anomaly” that is in conflict with

Underwood. This is a curious statement because Antenori was also followed by State v.

Clementson, 8th Dist. No. 94230, 2011-Ohio-1798, a decision written by the dissenting

judge in an application for reopening. Clementson stated:

       Likewise, Clementson entered separate guilty pleas to four of eight charges,
       the parties did not jointly recommend a sentence to the trial court, and the
       state did not concede that the charges were allied offenses. This court
       decided Antenori in 2008, and Clementson’s case was briefed, argued, and
       decided in 2009-2010. In light of Antenori, therefore, Clementson has not
       met his burden to demonstrate that there is a genuine issue of a colorable
       claim of the ineffective assistance of appellate counsel [for not assigning as
       error the trial court’s failure to determine whether offenses were allied].
       (Emphasis in original.)

Clementson at ¶ 13.

       {¶15} Far from being an anomaly, Antenori is, and continues to be, viable precedent

in this district. If by “play[ing] the Antenori card” the dissent means that we are not

disregarding the precedential significance of the case, then guilty as charged.

       {¶16} We can also distinguish Underwood because it was decided under the former

allied offenses law stated in State v. Rance, 85 Ohio St.3d 632, 1999-Ohio-291, 710

N.E.2d 699. Rance required a “comparison of the statutory elements in the abstract” to
determine whether the statutory elements of crimes correspond to such a degree that the

commission of one crime will result in the commission of the other. Unlike the new allied

offenses standard in Johnson that requires a court to consider a defendant’s conduct, under

Rance, the court could not consider the facts giving rise to each offense.            A court

reviewing an allied offenses claim under Rance did not need any facts on appeal to

determine whether offenses were allied. The Supreme Court’s decision in Underwood

could thus be made on a bare record. For that reason, Underwood has no applicability to

a guilty plea made in the Johnson era of allied offenses law.

       {¶17} Applying cases like Underwood and Johnson, where facts or a concession

exists to find plain error in the failure to merge allied offenses of similar import, to cases

involving only bare guilty pleas is pointless. If there are insufficient facts on the record to

determine whether plain error occurred, a reviewing court simply cannot find any error at

all. Baker and Corrao incorrectly assume that an allied offenses error exists because the

record fails to show that one does not.            This conclusion is a departure from

well-established rules of appellate review.

       {¶18} The holdings in Baker and Corrao take the extraordinary step of declaring

that the court’s failure to sua sponte raise the issue of allied offenses at sentencing from a

guilty plea amounts to plain error. In fact, those cases arguably institute a form of per se

error because they believe a bare record makes it impossible for an appellate court to

determine whether offenses are allied and thus protect a defendant’s right not to be
sentenced twice for the same offense. They do this on the basis of the following language

from Underwood:

      When the plea agreement is silent on the issue of allied offenses of similar
      import, however, the trial court is obligated under R.C. 2941.25 to determine
      whether the offenses are allied, and if they are, to convict the defendant of
      only one offense.

Underwood at ¶ 29.

      {¶19} This passage lends no support to the proposition that the court must sua

sponte review whether offenses are allied.    The supreme court made it clear that a trial

judge is required to merge allied offenses of similar import “when the issue of allied

offenses is before the court[.]”    (Emphasis added.)      Id. at ¶ 27.   For example, in

Johnson, there were demonstrable facts in the record to show that the allied offenses issue

was before the court — the sentencing judge presided over trial and heard the evidence, so

the judge had facts at hand to determine whether individual counts were allied offenses of

similar import even without an express request to do so.

      {¶20} Johnson stands for the proposition that a judge who presides over trial and

hears evidence showing that multiple offenses are allied must merge those offenses even if

the defendant does not request merger. And in Underwood, the supreme court was able to

determine that Underwood’s sentence was imposed in violation of R.C. 2941.25(A)

because the state conceded on appeal that the underlying offenses were allied offenses of

similar import. As in Johnson where the trial court had a factual record to indicate that

offenses were allied, the concession in Underwood that the offenses should have merged
was enough to allow the court to conclude that the defendant had been sentenced in

violation of R.C. 2941.25(A).

       {¶21} Barrett’s case is different because the allied offenses issue was never before

the court. He pleaded guilty to the indictment in exchange for having some charges

dismissed, he did not have any discussion or reach an agreement with the state on whether

any of the remaining counts were allied, and further failed to raise the issue of allied

offenses at sentencing. Barrett essentially concedes this point by arguing only that there

is the “possibility” that his sentences might be subject to merger. An appellate court

cannot find plain error on the mere possibility that error occurred. See, e.g., State v.

Sanders, 92 Ohio St.3d 245, 264, 2001-Ohio-189, 750 N.E.2d 90 (finding that “the

possibility of jury confusion * * * does not reach the level of plain error.”); State v. Kelley,

57 Ohio St.3d 127, 130, 566 N.E.2d 658 (1991) (criticizing court of appeals for finding

that “the possibility that appealable errors occurred at trial constituted plain error and

negated appellee’s plea of guilty to the lesser included offense for which he was ultimately

sentenced.”) There is nothing in the record that would indicate that the offenses Barrett

pleaded guilty to were allied.

       {¶22} This case is more like State v. Comen, 50 Ohio St.3d 206, 211, 553 N.E.2d

640 (1990), in which the supreme court found an allied offenses issue forfeited on appeal

because the defendant did not raise it in the trial court. Implicit in the idea of issue

forfeiture in the context of allied offenses is that a party who fails to object waives all but

plain error. See State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶
139 (argument that state failed to prove separate animus for separate offenses was not

raised at trial and defendant “thus waived all but plain error.”).

       {¶23} The supreme court did not mention Comen in either Underwood or Johnson.

But it has not overruled Comen or the long line of precedent finding an allied offenses

argument forfeited on appeal because it was not raised at the time of sentencing and the

defendant failed to show the existence of plain error.         Although seemingly at odds,

Comen, Underwood, and Johnson can be reconciled: the Comen line of cases ultimately

rests on the absence of plain error; in Underwood and Johnson there were either facts or a

concession showing that plain error occured at sentencing.           The present case is like

Comen because the lack of any facts or a concession on the issue of allied offenses makes

it impossible to determine if plain error occurred.

       {¶24} The approach advocated by Baker and Corrao essentially makes allied

offenses an issue whenever a defendant pleads guilty to multiple offenses, regardless of

whether those offenses might colorably be allied. The difficulty with this approach is that

it puts a greater burden on the trial judge to advocate for a defendant’s rights than on

defense counsel. In criminal cases that terminate by plea agreement, the court usually has

no involvement apart from taking the plea and sentencing.              It is unclear why the

sentencing judge, who would presumably have less knowledge of the facts than defense

counsel, should have the obligation to raise the issue of allied offenses in the first instance

when defense counsel has failed to do so. To be sure, the court has an affirmative duty to

advise a defendant of the consequences of waiving constitutional rights; for example,
guilty pleas, speedy trial, or jury waiver. But we have never required the court to act as

second-chair to defense counsel to point out possible errors in trial tactics that might

result in the defendant’s forfeiture of rights on appeal. If defense counsel fails to preserve

error for appeal, that issue should be the basis of an ineffective assistance of counsel claim

in postconviction proceedings.

       {¶25} The better practice is that a defendant who pleads guilty to multiple offenses

must take the initiative and not only raise the matter of allied offenses at the time of the

plea or at sentencing, but also take steps to ensure that the record contains the information

necessary to demonstrate a claimed error on appeal. While we have made it clear that

allied offenses are a sentencing issue, Snuffer, supra, at ¶ 10, defense counsel should raise

potential allied offenses as part of the plea bargain. Of course, the parties to a plea

bargain cannot decide on a sentence — that is the court’s prerogative. State ex rel. Duran

v. Kelsey, 106 Ohio St.3d 58, 2005-Ohio-3674, 831 N.E.2d 430, ¶ 6. But the parties can

certainly reach an agreement on whether offenses might merge for sentencing and state on

the record why they believe that the offenses should merge for sentencing. In fact, the

state represented during oral argument in this case that it is now addressing potential allied

offenses at the bargaining stage. If the court were to reject a recommendation that allied

offenses merge, a record would exist to review the trial court’s decision.

       {¶26} The absence of any facts in the record demonstrating that the counts to which

Barrett pleaded guilty should merge as allied offenses rules out any finding of plain error.

We overrule this assignment of error.
                                               II

       {¶27} Barrett next argues that the court abused its discretion in sentencing him to a

seven-year cumulative sentence because it failed to consider rehabilitation as a proper

purpose of felony sentencing. He bases this argument on the court’s statement that “I

don’t personally believe that the goal of a prison term in this type of case is rehabilitation *

* * I’m not convinced in 15 years as a Judge and 30 years as a lawyer that sexual offenders

can be rehabilitated.”

       {¶28} R.C. 2929.11(A) states:

       A court that sentences an offender for a felony shall be guided by the
       overriding purposes of felony sentencing. The overriding purposes of
       felony sentencing are to protect the public from future crime by the offender
       and others and to punish the offender using the minimum sanctions that the
       court determines accomplish those purposes without imposing an
       unnecessary burden on state or local government resources. To achieve
       those purposes, the sentencing court shall consider the need for
       incapacitating the offender, deterring the offender and others from future
       crime, rehabilitating the offender, and making restitution to the victim of the
       offense, the public, or both.

       {¶29} In its journal entry imposing sentence, the court stated that it “considered all

required factors of the law” and further stated that a prison term “is consistent with the

purpose of R.C. 2929.11.” Apart from its sentencing entry, the court mentioned Barrett’s

prospects for rehabilitation, but rejected them out-of-hand. In State v. Nichols, 2d Dist.

No. 2010CA60, 2011-Ohio-4671, the Second District Court of Appeals considered a

similar circumstance in which a sentencing judge told Nichols that “I’m not here to be

concerned about what happens to you. Whether or not you’re rehabilitated * * * — It’s

not my job to worry about what happens to you. It’s my job to punish you, and it’s my job
to protect the community.” Id. at ¶ 36. The Second District criticized this approach,

finding that the judge who sentenced Nichols failed to give the kind of individualized

attention to the matter that “justice” required. Id.

       {¶30} The distinction between Nichols and this case is that in Nichols, the court

refused to consider whether Nichols could be rehabilitated, stating “it’s not my job to

worry about what happens to you.” The court in this case did consider whether Barrett

could be rehabilitated, but rejected that idea given its past experience in dealing with

sexual offenders. The court stated that sexual offenders “can perhaps be taught to resist

the urge, but nobody has convinced me yet from any of the literature or studies that

anything makes the urge go away.” Barrett may disagree with the court’s statements, but

those statements did consider rehabilitation.

       {¶31} Barrett’s argument is really that the court’s outright rejection of the

amenability of sexual offenders for rehabilitation was tantamount to no consideration at

all. The difficulty with this approach is that Barrett appears to consider one’s prospects

for “rehabilitation” as obviating the need for a prison term. This argument incorrectly

assumes that an offender’s prospects for rehabilitation would necessarily rule out a prison

term. State v. Gilmer, 6th Dist. No. OT-05-028, 2005-Ohio-6435, ¶ 7.

       {¶32} Rehabilitation has lost favor in the criminal justice system. State v. Boddie,

170 Ohio App.3d 590, 2007-Ohio-626, 868 N.E.2d 699, ¶ 8 (8th Dist.). Under the

rehabilitative theory of sentencing, the courts had broad discretion to order indeterminate

sentences and early release based on the change shown by an offender during confinement.
 This was replaced with a more punitive regime in which the goal of sentencing is to

punish and protect. R.C. 2929.11(A). To accomplish the move towards punishment, the

legislature imposed definite sentences that were designed to remove a great deal of the

court’s sentencing discretion.      An offender’s prospects for rehabilitation are a

consideration in sentencing, but rehabilitation is certainly subordinate to punishment and

protection in the current statutory scheme.

       {¶33} We agree that the court’s statements concerning the viability of rehabilitation

for sexual offenders as a whole may have been broader than necessary in this case. But

those statements do not show an abuse of the court’s sentencing discretion because the

court made it plain that it considered Barrett’s need for punishment to outweigh his

prospects for rehabilitation. In addition to the child pornography counts, Barrett pleaded

guilty to two counts of voyeurism. The voyeurism counts were particularly disturbing to

the court because they involved Barrett rigging a peephole in the shower of a bathroom at

his house to watch his female roommate while she showered. What is more, he went far

beyond mere voyeurism by surreptitiously shooting video of her showering and posting that

video on the internet. The victim gave a compelling statement of the adverse ways in

which Barrett’s actions had harmed her; from the loss of trust she placed in him as a friend

to the unspeakable violation of her privacy by having a nude video of her posted for the

world to see.

       {¶34} Barrett told the court that he was receiving therapy and engaging in

Sexaholics Anonymous.       These were positive steps for Barrett to take, but the court
determined that they did not overcome his need for punishment.         Barrett admittedly

violated the trust placed in him by the victims and told the court that he had given into

temptation.   We find that the court rationally concluded that Barrett’s rehabilitation

required a prison term.

                                            III

       {¶35} Finally, Barrett argues that his seven-year sentence is disproportionate to

those given for similarly-situated offenders.     In his sentencing memorandum, Barrett

offered a list of sentences imposed in child pornography cases in Cuyahoga County from

2008 to October 2011 involving “similar offenses and similar defendants,” showing a

range of punishments from community control to 24 years in prison. He argues that his

punishment should have fallen into the lower range because he had no prior criminal

history and did not manufacture or create the images in question.

       {¶36} R.C. 2929.11(B) states that a felony sentence should be “reasonably

calculated” to achieve the goals of punishing the offender and protecting the public from

future crime by the offender “commensurate with and not demeaning to the seriousness of

the offender’s conduct and its impact upon the victim, and consistent with sentences

imposed for similar crimes committed by similar offenders.”

       {¶37} R.C. 2929.11(B) states two different concepts:          proportionality and

consistency. “Proportionality,” as encompassed in the goal of punishing an offender

“commensurate” with the seriousness of his conduct, refers to the concept of the

punishment fitting the crime. In Collier, 8th Dist. No. 95572, 2011-Ohio-2791, we stated:
          “The Eighth Amendment does not require strict proportionality between
          crime and sentence. Rather, it forbids only extreme sentences that are
          grossly disproportionate” to the crime. State v. Weitbrecht (1999), 86 Ohio
          St.3d 368, 373, 715 N.E.2d 167, quoting Harmelin v. Michigan (1991), 501
          U.S. 957, 1001, 111 S.Ct. 2680, (Kennedy, J., concurring in part and in
          judgment).

          Claims of ineffective assistance of counsel based on a failure to object to the
          proportionality of a sentence are rarely, if ever, successful. Ewing v.
          California (2003), 538 U.S. 11, 21, 123 S.Ct. 1179, 155 L.Ed.2d 108
          (“outside the context of capital punishment, successful challenges to the
          proportionality of particular sentences have been exceedingly rare.”) This is
          because courts are vested with “full discretion” to impose a sentence within
          the applicable statutory range. State v. Foster, 109 Ohio St. 3d 1,
          2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the syllabus. The
          statutory range is established by the General Assembly, and any sentence
          falling within that range is presumptively valid. Id. at ¶ 14-15.

          {¶38} “Consistency” in sentencing goes beyond considerations of an individual

defendant to consider whether a sentence given in a particular case is consistent with those

given to similar offenders. The goal of “consistent” sentencing does not mean that all

sentences must be identical. In State v. Bonness, 8th Dist. No. 96557, 2012-Ohio-474, we

stated:

          The goal of “consistency” in sentencing as stated in R.C. 2929.11(B) does
          not mean uniformity.          State v. Klepatzki, 8th Dist. No. 81676,
          2003-Ohio-1529, ¶ 32. Each case stands on its own unique facts, so we have
          concluded that “[a] list of child pornography cases is of questionable value in
          determining whether the sentences imposed are consistent for similar crimes
          committed by similar offenders since it does not take into account all the
          unique factors that may distinguish one case from another.” State v. Siber,
          8th Dist. No. 94882, 2011-Ohio-109, ¶ 15. Id. at ¶ 27.

          {¶39} In Bonness, we reversed a 40-year sentence on eight child pornography

counts as being inconsistent with sentences imposed for similar crimes. We canvassed a

number of our decisions showing penalty ranges from 10 to 20 years, noting for example
that in State v. Geddes, 8th Dist. No. 88186, 2007-Ohio-2626, we reversed a 30-year

sentence on six counts of pandering sexually oriented materials when Geddes pleaded

guilty to printing images of child pornography from a public library while on parole and

subsequently affirmed an 18-year sentence imposed on remand. Id. at ¶ 28.

      {¶40} Bonness was an egregious case because Bonness not only possessed child

pornography, but was caught in a police sting in which he thought he was going to have

sex with a 12-year-old girl and her father. Barrett claimed to have no pedophilic desire

and offered the results of a polygraph examination that indicated the truthfulness of his

negative answer to the question “as an adult, have you ever had sexual contact with a

minor?”    Yet he admitted engaging in acts of voyeurism in addition to possessing child

pornography. Furthermore, he explained his conduct as merely “a temptation that I

caved in to.” The court was rightfully concerned by the violation of trust placed in him by

his roommate and his surreptitiously videotaping her in the shower. His act of posting the

video on the internet went beyond mere temptation. The court did not abuse its discretion

by imposing a seven-year sentence.

      {¶41} Judgment affirmed.

      It is ordered that appellee recover of appellant its 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 Cuyahoga

County Court of Common Pleas to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated.       Case remanded

to the trial court for execution of sentence.

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

Rules of Appellate Procedure.




MELODY J. STEWART, PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., CONCURS
IN JUDGMENT ONLY WITH SEPARATE
OPINION;

SEAN C. GALLAGHER, J., DISSENTS WITH
SEPARATE OPINION




COLLEEN CONWAY COONEY, J., CONCURRING IN JUDGMENT ONLY:

       {¶42} I concur in judgment only because the majority goes beyond what I consider

necessary to affirm the judgment. I concur in all but the majority’s disagreement with the

precedent of this court in Baker and Corrao. Clearly, in the instant case, each file Barrett

saved is a separate offense, and that is why he pled guilty to nine counts of the same crime.

 See State v. Hendricks, 8th Dist. No. 92213, 2009-Ohio-5556 (multiple convictions are

allowed for each individual image because a separate animus exists every time a separate

image or file is downloaded and saved). Thus, the record contains enough information

for us to affirm.
       {¶43} Moreover, Barrett has failed to meet the standard set forth by this court to

find plain error for these specific charges. He has failed to offer any evidence to make an

obvious case for plain error in the trial court’s failure to merge these nine counts of illegal

use of a minor.     Barrett admitted he had obtained the images as part of larger file

transfers. In State v. Snuffer, 8th Dist. No. 96480, 2011-Ohio-6430, and State v. Lindsey,

8th Dist. No. 96601, 2012-Ohio-804, ¶ 13, this court held that defendants must make an

“obvious case” for plain error review to apply. Barrett’s suggestion that “it is possible

that the same conduct could establish a violation of each offense,” does not meet this

requirement, not in light of his admission that he obtained the images as part of larger file

transfers. Therefore, I would affirm.



SEAN C. GALLAGHER, J., DISSENTING:

       {¶44} The majority opinion and this dissent represent two distinct views on the

allied offense issue. In light of all the confusion and inconsistent application of the

principles in R.C. 2941.25 that continue in spite of Johnson, this is a healthy and needed

discourse. Both views raise issues involving the trial court record below, the duty of

prosecutors and defense counsel, the duties of the trial judge, and the burden of who must

raise the issue and how it must be resolved.     If this case stands for anything, it calls for

another review of these issues by the Supreme Court of Ohio.        Clearly, many courts are

still struggling with these issues, and unless the legislature acts to clarify the statutory
language, the Supreme Court of Ohio will once again have to intervene. See State v.

Anderson, 1st Dist. No. C-110029, 2012-Ohio-3347.

       {¶45} While the majority view is well written and well reasoned, it nevertheless

represents an “end run” around the mandates of State v. Underwood, 124 Ohio St.3d 365,

2010-Ohio-1, 922 N.E.2d 923. While Barrett’s guilty plea may be a complete admission

of his guilt, it in no way is an acknowledgment that the facts support the imposition of

separate convictions or that Barrett acted with a separate animus as mandated by State v.

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

       {¶46} In my view, plain error exists as a result of the trial court’s failure to

determine whether the offenses were allied where the absence of facts in the record makes

that determination on appeal impossible. As the majority notes in paragraph six of their

opinion, images were downloaded by Barrett on three separate dates, resulting in nine

separate charges.   There is no specificity in the individual indictment counts or in the

record at any other location explaining “what goes where” to establish separate conduct or

separate animus.

       {¶47} In my view, the existence of plain error cannot be predicated on Barrett’s

failure to put facts in the record or his failure to raise the issue in the trial court.   The

defendant is under no duty to prove offenses are allied.   Entering into a plea agreement to

reduced charges, likewise, does not resolve the issue unless the defendant agreed in the

plea that his conduct was committed with a separate animus.

       [N]othing in this decision precludes the state and a defendant from
       stipulating in a plea agreement that the offenses were committed with
         separate animus, thus subjecting the defendant to more than one conviction
         and sentence. When the plea agreement is silent on the issue of allied
         offenses of similar import, however, a trial court is obligated under R.C.
         2941.25 to determine whether the offenses are allied, and if they are, to
         convict the defendant of only one offense.

Underwood, at ¶ 29.

         {¶48} Barrett never agreed his counts were allied.        If we look solely at the facts in

the record, we cannot determine if his conduct involved separate acts or a separate animus

for each of the nine offenses charged.       Barrett downloaded large files containing multiple

images or films on three distinct dates, but there is no specificity detailing the number or

identity of these images or films to these specific download dates. 1                 Thus, we are

incapable of determining how, or if, these images are related to the specific charges to

which Barrett pled guilty.

         {¶49} It is a fundamental principle that an offender can be punished only once for a

crime.       The trial court judge has a duty to ensure this constitutional protection.         If the

facts necessary to determine whether offenses are allied are not in the record and the trial

court does not inquire, then plain error exists when the issue is raised on appeal. R.C.

2941.25 codifies the protections of the Double Jeopardy Clauses of the Fifth Amendment

to the United States Constitution and the Ohio Constitution, Article I, Section 10, which

prohibit multiple punishments for the same offense.


         This writer has previously affirmed the imposition of separate convictions for the possession
         1

of multiple films and pictures involving child pornography under the former Cabrales standard in
State v. Hendricks, 8th Dist. No. 92213, 2009-Ohio-5556. Unlike in the present case, in Hendricks,
the films and pictures were specifically identified and distinct.
       {¶50} The majority views our earlier decisions in State v. Baker, 8th Dist. No.

97139, 2012-Ohio-1833, and State v. Corrao, 8th Dist. No. 95167, 2011-Ohio-2517, as

departures from prior precedent only because it deems plain error cannot be found due to

the “absence of facts” in the record.    The majority has the cat chasing its own tail in a

hopeless endeavor that can never be realized.    The view that it is plain error not to merge

allied offenses, but we do not have facts to find plain error, therefore plain error does not

exist, is a self-fulfilling prophecy that defeats the constitutional protection outlined in

Underwood.     In my view, it is the absence of facts, or at least an inquiry into those facts,

that makes the question ripe for review and creates plain error.      In a previous case, this

court held that the failure of the trial court to inquire was plain error and required a

remand.

              In the present case, the parties did not stipulate that the offenses were
       not allied offenses, and the trial court did not make the necessary inquiry.
       Furthermore, the record of Quigley’s plea and sentence does not contain the
       necessary details as to the timing, circumstances, and animus of the burglary
       and theft from which a court can make the determination as to whether the
       offenses are or are not allied offenses of similar import. The failure to
       make the inquiry was plain error and requires a remand.

State v. Quigley, 8th Dist. No. 96299, 2012-Ohio-2751, ¶ 10.

       {¶51} Under the majority’s view, the duty would fall to the defendant to raise the

issue in the trial court and arguably prove the offenses were allied by putting sufficient

facts in the record supporting this position. Short of that, the defendant would be left

with a claim on appeal for ineffective assistance of counsel.    This would absolve the trial
court and prosecutors of having to demonstrate why separate punishments were warranted.

 I reject this approach.

       {¶52} As we noted in Baker,

       The trial court is therefore prohibited from imposing individual sentences for
       counts that constitute allied offenses of similar import unless the defendant
       specifically stipulates to a separate animus or separate acts, either during the
       plea or at the sentencing hearing. Underwood, 124 Ohio St.3d 365,
       2010-Ohio-1, 922 N.E.2d 923, ¶26-27. Further, “[a] defendant’s plea to
       multiple counts does not affect the court’s duty to merge those allied counts
       at sentencing.” Underwood at ¶ 26. A plea to reduced charges, in and of
       itself, is not a stipulation to separate animus or separate acts. Waiver of a
       fundamental, constitutional right must be an intentional relinquishment or
       abandonment of a right. Id. at ¶ 32. Defendants cannot “acquiesce away”
       a constitutional right.

Baker, 2012-Ohio-1833, ¶ 17.

       {¶53} As further noted in Underwood,

       [A] trial court is prohibited from imposing individual sentences for counts
       that constitute allied offenses of similar import. A defendant’s plea to
       multiple counts does not affect the court’s duty to merge those allied counts
       at sentencing. This duty is mandatory, not discretionary.

(Citations omitted.) Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶

26.   Thus, when a sentence fails to include a mandatory provision, it may be appealed

because such a sentence is “contrary to law” and is also not “authorized by law.”

       {¶54} The majority plays the Antenori card that has been used before in an effort to

distinguish Underwood.     I am well aware that the Supreme Court of Ohio dismissed the

Antenori appeal as improvidently allowed following the release of Underwood and further

declined to accept it on reconsideration.       State v. Antenori, 8th Dist. No. 90580,

2008-Ohio-5987, is an anomaly that, in my view, is in conflict with Underwood.            I am
also aware that I cited Antenori in a postconviction Murnahan decision referenced by the

majority. State v. Clementson, 8th Dist. No. 94230, 2011-Ohio-1798. That case was

not a direct appeal and involved a postconviction claim for ineffective assistance of

counsel.     That is a far different circumstance from Barrett’s case now under review.

Nevertheless, I readily acknowledge my view of allied offense analysis has undergone a

transformation, and like many of the nearly 200 appellate decisions released since the

Supreme Court of Ohio released Johnson, conflict and evolution is regrettably the norm

and not the exception in this area of the law.

         {¶55} I would also strongly reject the notion that because Underwood was decided

when Rance was still in play, that it somehow has lost its viability in the post-Johnson

world.      Underwood was not about the test to determine allied offenses; it was about the

right to be free from separate punishments for the same conduct, regardless of the test

imposed.       The principles of Underwood are clear and would be no different if

Underwood was decided under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180,

76 L.Ed 306 (1932); State v. Logan, 60 Ohio St.2d 126, 128, 397 N.E.2d 1345 (1979);

State v. Blankenship, 38 Ohio St.3d 116, 526 N.E.2d 816 (1988); State v. Rance, 85 Ohio

St.3d 632, 710 N.E.2d 699 (1999); State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625,

886 N.E.2d 181; or State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d

1061.

         {¶56} In my view, Baker does not go as far as the majority claims that it does in its

analysis.     At no point does the term “per se” appear in the opinion. Baker does not
apply a different plain error standard than was used in Underwood. Baker simply points

out that there has to be something in the record that would allow for a resolution or review

of the allied offenses issue once the issue (whether in the trial court or on initial appeal) is

raised.     It is not so much a “per se” plain error violation, as it is the inability to resolve the

issue based on the record and the trial court’s failure to inquire.       Call the error “plain” or

another adjective of description, but that is where the error occurs.        The semantics are not

important.      If facts exist in the record for a healthy examination, then the trial court’s

failure to act will not necessarily result in “per se” plain error.            The failure to put

something on the record by way of a stipulation, an expression of facts, an assertion, or

even a finding by the trial court of separate conduct or animus results in the issue

remaining unresolved and the constitutional protection potentially undermined.

Appellant’s use of the term “possible” in terms of whether these offenses are or are not

allied is merely a representation of the fact that the matter is not capable of a fair and full

determination based on this record.

          {¶57} I also take issue with the majority parsing out distinctions between cases

involving no contest pleas, guilty pleas, bench trials or jury trials or how the manner of

conviction is achieved. This turns the discussion into a debate about trees when the

forest is the issue.       In all cases, it is the constitutional protection against multiple

punishments that is critical, not the manner or method of conviction.

          {¶58} I respectfully disagree with the majority’s view that Baker creates an unfair

burden on trial judges by having them take responsibility for determining whether offenses
are allied.   The view that pleas to multiple counts will always create allied offense issues

is an oversimplification or a “red herring” view of the issue.     I think we all know when

allied offense issues are implicated.   All we have to do is find a simple way to address

them. I am very much aware that trial judges are frustrated by never-ending mandates

that turn plea sessions and sentencing hearings into mini-trials. Nevertheless, this does

not have to be rocket science.

       {¶59} I am well aware that there are offenders who deserve separate convictions

and punishments for certain conduct. Rather than ignoring the question, prosecutors

should relish the opportunity to make the case for why certain offenders deserve

convictions or punishments based on their conduct. Barrett may well be one of them.

       {¶60} Prosecutors are free to charge in any manner they see fit.      They can charge

as many counts as they conceivably feel cover the gamut of a defendant’s conduct.        With

that, there are many opportunities to address the allied offenses issue along the path of

case resolution.     Prosecutors can put facts into the individual indictment counts

distinguishing conduct; they can indicate in the response to a bill of particulars what

offenses are not allied; at the time of a plea, they can indicate which offenses are not allied

and why they are not allied; they can also point out at sentencing why offenses are not

allied; they can also enter into a stipulation on what offenses are committed with a similar

or distinct animus. Thus, at any point in the process, they can put facts on the record that

would support a determination that certain offenses are not allied.
          {¶61} This does not have to involve long or complicated hearings or witnesses.

Historically, merger of offenses has always been viewed as a part of the sentencing

process. Thus, “the sentencing process is less exacting than the process of establishing

guilt.”    State v. Bowser, 186 Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714, ¶ 14 (2d

Dist.), citing Nichols v. United States, 511 U.S. 738, 747, 114 S.Ct. 1921, 128 L.Ed.2d 745

(1994).     Therefore, this process can easily be satisfied by a brief recitation of facts or

circumstances by the prosecutor to aid the trial court in its determination.     Nothing more

should be required.

          {¶62} The trial judge has the ultimate responsibility to ensure that an offender is

punished only once for a specific crime.       That is the ultimate issue that cannot be lost in

this process. A defendant’s conviction on multiple counts, regardless of how achieved,

does not affect the court’s duty to merge those allied counts at sentencing. This duty is

mandatory, not discretionary.      Therefore, when a sentence is imposed on multiple counts

that are allied offenses of similar import in violation of R.C. 2941.25(A), R.C. 2953.08(D)

does not bar appellate review of that sentence even though it was jointly recommended by

the parties and imposed by the court.     Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922

N.E.2d 923.

          {¶63} If the record does not support it, or the trial court does not inquire, you have

plain error.    Therefore, I respectfully dissent.
