[Cite as State v. Warner, 2014-Ohio-1519.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100197




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                     ALLEN WARNER
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CR-12-568077

        BEFORE: S. Gallagher, J., Boyle, A.J., and Rocco, J.

        RELEASED AND JOURNALIZED: April 10, 2014
ATTORNEY FOR APPELLANT

Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Brett Kyker
Assistant Prosecuting Attorney
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:

      {¶1} Defendant-appellant Allen Warner appeals from his conviction on 18 counts

of pandering sexually oriented material involving a minor, five counts of illegal use of a

minor in nudity-oriented material or performance, two counts of voyeurism, and one

count of possessing criminal tools.    For the following reasons, we affirm Warner’s

conviction.

      {¶2} On October 11, 2012, Warner posted on Craigslist.org, seeking

surreptitiously produced pictures or videos of undressed or masturbating family members.

Shortly after the posting, an investigator with the Ohio Internet Crimes Against Children

Task Force responded to the advertisement. Warner revealed that he photographed his

own minor daughter using sex toys, and bugged various household items to record those

images. Warner also gave some of the bugged devices to children of other women and

admitted that he received child pornography from a foreign individual.

      {¶3} Warner ultimately pleaded guilty to 18 counts of pandering sexually oriented

material involving a minor in violation of R.C. 2907.322(A)(1) and (2), five counts of

illegal use of a minor in nudity-oriented material or performance in violation of R.C.

2907.323(A)(1), two counts of voyeurism in violation of R.C. 2907.08(B), and one count

of possessing criminal tools in violation of R.C. 2923.24(A). The trial court sentenced

Warner to concurrent terms of imprisonment of five years on the 17 violations of R.C.

2907.322(A)(1), five years on the violation of R.C. 2907.322(A)(2), six years on the

violations of R.C. 2907.323(A)(1), time served on the violations of R.C. 2907.08(B), and
one year on the violation of R.C. 2923.24(A). The trial court ordered each group of

violations to be served consecutive to the other types for an aggregate sentence of 17

years (5+5+6+1). It is from this decision that Warner timely appeals, advancing two

assignments of error.

       {¶4} In his first assignment of error, Warner claims the trial court’s imposition of

consecutive sentences was contrary to law because the court failed to give reasons in

support of its findings and failed to make all the required findings before imposing the

consecutive sentences. We find no merit to Warner’s first assignment of error.

       {¶5} Pursuant to R.C. 2953.08(G)(2), an appellate court may overturn the

imposition of a consecutive sentence if (1) the sentence is otherwise contrary to law or (2)

the appellate court clearly and convincingly finds that the record does not support the

sentencing court’s findings under R.C. 2929.14(C)(4). State v. Venes, 2013-Ohio-1891,

992 N.E.2d 453, ¶ 11; State v. Goins, 8th Dist. Cuyahoga No. 98256, 2013-Ohio-263, ¶ 6.

 Under the current version of R.C. 2929.14(C)(4), when imposing consecutive sentences,

the trial court must find that the sentence is “necessary to protect the public from future

crime or to punish the offender,” that consecutive sentences are “not disproportionate to

the seriousness of the offender’s conduct and to the danger the offender poses to the

public,” and find the existence of one of the three statutory factors set forth in

R.C. 2929.14(C)(4)(a)-(c).      State   v.   Redd, 8th Dist. Cuyahoga No. 99624,

2014-Ohio-491, ¶ 15. Specific to the current appeal, the last factor is that at “least two of

the multiple offenses were committed as part of one or more courses of conduct, and the
harm caused * * * was so great or unusual that no single prison term for any of the

offenses * * * adequately reflect[ed] the seriousness of the offender’s conduct.” R.C.

2929.14(C)(4)(b).

       {¶6} Contrary to Warner’s argument, the trial court made the required findings

before imposing the consecutive sentences. The trial court specifically found that “a

consecutive prison term is necessary to protect the community and to punish the offender

in this case. It’s not disproportionate. And I find that the harm was so great or unusual

that a single term does not adequately reflect the seriousness of this conduct.” Tr.

131:7-13. Warner argues that the trial court’s mention of the word disproportionate was

an insufficient finding that the consecutive sentences were not disproportionate to the

seriousness of the offender’s conduct and the danger the offender poses to the public.

This court has previously determined that the trial court’s identical finding was sufficient.

 State v. Wilson, 8th Dist. Cuyahoga No. 99331, 2013-Ohio-3915, ¶ 13; but see State v.

Barnett, 8th Dist. Cuyahoga No. 99419, 2013-Ohio-4595 (S. Gallagher, J., concurring in

judgment only) (noting the diverging reference to the standard of review did not alter the

analysis underlying the Wilson court’s decision to affirm).

       {¶7} Warner also argues that Crim.R. 32(A)(4) requires the trial court to give

reasons for imposing consecutive sentences and, therefore, the trial court erred by only

making the findings pursuant to R.C. 2929.14(C)(4). We simply note that the Tenth

District has persuasively addressed this argument in State v. Wilson, 10th Dist. Franklin
No. 12AP-551, 2013-Ohio-1520, ¶ 20-21. In that case, the court noted, in part relying on

the Staff Notes to Crim.R. 32, that

       Criminal Rule 32(A) was amended to conform with the Supreme Court of
       Ohio’s decision in State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165. The
       Comer decision mandates that a trial court must make specific statutory
       findings and the reasons supporting those findings when a trial court, in
       serious offenses, imposes consecutive sentences * * * pursuant to R.C.
       2929.14(B), R.C. 2929.14(E)(4) and 2929.19(B)(2). Crim.R. 32(A) was
       modified to ensure that there was no discrepancy in the criminal rules and
       the Court’s holding in Comer.

Id. Therefore, because “neither R.C. 2929.14 nor 2929.19, as revised by H.B. No. 86,

require[s] the trial court to give its reasons for imposing consecutive sentences,” the

revisions of H.B. No. 86 must logically supersede the rationale of Comer, which was the

original impetus for the amendment to Crim.R. 32(A)(4).        Id.   The Tenth District

accordingly rejected the defendant’s attempt to interweave the Crim.R. 32(A) reasons

requirement into consecutive sentencing post-H.B. No. 86, which is especially compelling

because Crim.R. 32(A)(4) only requires reasons to support findings “if appropriate.”

Thus, Warner’s reliance on Crim.R. 32(A)(4) is misplaced.        In light of the above

reasoning, Warner’s first assignment of error is overruled.

       {¶8} In his second assignment of error, Warner claims the trial court erred by

imposing a sentence that was not clearly and convincingly supported by the record. We

find no merit to Warner’s argument.

       {¶9} Warner’s sole argument with regard to his second assignment of error is that

the trial court should have considered Warner’s age (60 years old), the fact that Warner
made “substantial progress” in his eight months of treatment, and the fact that Warner had

no prior criminal history. Warner’s argument is misplaced.

       {¶10} As we previously noted, pursuant to R.C. 2953.08(G)(2), an appellate court

may overturn the imposition of a consecutive sentence if the appellate court clearly and

convincingly finds that the record does not support the sentencing court’s findings under

R.C. 2929.14(C)(4). Venes, 2013-Ohio-1891, 992 N.E.2d 453, at ¶ 11; Goins, 8th Dist.

Cuyahoga No. 98256, 2013-Ohio-263, at ¶ 6. Our review is limited. Warner essentially

seeks a determination that the trial court abused its discretion in giving greater weight to

the nature of the offense and the impact on the victims, rather than elevating Warner’s

remorse, progress in treatment, age, and lack of a criminal history to a greater degree, for

the purposes of considering the appropriate sentence, in Warner’s eyes as being one of a

lesser term of imprisonment.

       {¶11} The trial court expressly considered his age, lack of a criminal record, and

treatment but discounted those factors in favor of the harm caused to the victims because

of Warner’s conduct and the harm posed to the public. Warner made those factors clear

during his sentencing hearing. Tr. 62:13-21 and 79:1-16. The trial court, therefore, was

acting within its discretion in weighing the competing sentencing factors, and absent a

demonstration that the record does not clearly and convincingly support the findings, we

are bound to affirm consecutive sentences. Warner has made no such showing, and the

trial court found that the longer term of imprisonment was warranted because of the

impact to the victims and the harm posed to the public by Warner’s conduct, and that the
sentence was not disproportionate to Warner’s conduct, especially pertinent in light of the

fact he surreptitiously recorded minors engaging in sexual conduct with bugged

household items.

       {¶12} Further, inasmuch as Warner’s arguments could be considered as one

claiming his sentence is contrary to law pursuant to R.C. 2953.08(G)(2), because the trial

court failed to consider certain sentencing factors, nothing in the record clearly and

convincingly demonstrates that Warner’s sentence is contrary to law. Warner concedes

the trial court appropriately considered the type and degree of harm caused by his

conduct. His sole contention is that the trial court should have also considered his age,

lack of a prior criminal record, and progress in eight months of treatment.

       {¶13} An appellate court cannot “increase, reduce, or otherwise modify a

sentence” on appeal unless “that the sentence is otherwise contrary to law.”

R.C. 2953.08(G)(2). The trial court expressly considered all the factors including those

advanced by Warner on appeal; it simply discounted factors that Warner considered to be

favorable to a lesser term of imprisonment. Discounting some factors, even if considered

to mitigate against a longer term of imprisonment, against other factors that weigh in

favor of a longer prison sentence, does not render a prison sentence as one being imposed

contrary to law. Again, trial courts have discretion to consider all sentencing factors.

Warner simply disagrees with how the trial court weighed what he considered to be

mitigating factors against a longer term of imprisonment. The legislature limited our
review to whether the sentence is contrary to law, expressly rejecting any abuse of

discretion review. R.C. 2953.08(G)(2).

       {¶14} Even if we combed the record for the trial court’s rationale, we still would

find the record supports the sentence, and therefore, the sentence is not contrary to law.

The fact that the trial court’s decision to discount the factors Warner thinks most

important is unpalatable to him and others does not render the sentence entered contrary

to law under Ohio’s sentencing review process. Alas, it is not in the province of an

appellate court to create a new standard of review solely because the legislature arguably

prohibited any “meaningful” review over an offender’s final sentence. The trial court

simply placed emphasis on factors less favorable to Warner.                    The trial court had

discretion to weigh all sentencing factors under the statutory scheme, not just those

thought important by Warner himself.1




       1
            More than once this writer called into question the fallout from Ohio’s sentencing statutes
brought on by the changes created by S.B. No. 2 and pointed to the need to review felony sentencing
or relegate the sentencing changes to the “ash heap of history.” State v. Nash, 2012-Ohio-3246, 973
N.E.2d 353, ¶ 28 (S. Gallagher, J., dissenting); State v. Hunt, 8th Dist. Cuyahoga No. 97925,
2012-Ohio-3578, ¶ 13. The sentencing ranges imposed by the statutory scheme are broad.
Rather than relying on appellate courts with limited review of final felony
sentences, a soft sentencing grid would be preferable to bridge the proportionality
and consistency gaps caused by the unbridled discretion provided to felony trial
court judges in sentencing. To date, these soft grid approaches have been
universally condemned as compromising judicial discretion. Judicial discretion
and consistency in sentencing share a decidedly inverse relationship. State v.
Moore, 8th Dist. Cuyahoga No. 99788, 2014-Ohio-819, ¶ 22.
       {¶15} Warner’s sentence is not contrary to law, and he did not clearly and

convincingly demonstrate that the consecutive sentencing findings are not supported by

the record. His second assignment of error, therefore, must be overruled.

       {¶16} Finding no merit to either of Warner’s assigned errors, we affirm Warner’s

conviction and the decision of the trial court.

       {¶17} Judgment affirmed.

       It is ordered that appellee recover from appellant 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. 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.



SEAN C. GALLAGHER, JUDGE

MARY J. BOYLE, A.J., and
KENNETH A. ROCCO, J., CONCUR
