[Cite as State v. Thomas, 197 Ohio App.3d 176, 2011-Ohio-6073.]




                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                 Nos. 96146 and 96798


                               THE STATE OF OHIO,
                                                         APPELLEE,

                                                    v.

                                           THOMAS,
                                                         APPELLANT.



                                  JUDGMENT:
                         NO. 96146 AFFIRMED IN PART,
                        VACATED IN PART, REMANDED;

                                   NO. 96798 AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-535943


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

        RELEASED AND JOURNALIZED: November 23, 2011
     ATTORNEYS:

      William D. Mason, Cuyahoga County Prosecuting Attorney, and Jesse W.
Canonico and T. Allan Regas, Assistant Prosecuting Attorneys, for appellee.

     Rick Ferrara, for appellant.




                                    2
       KENNETH A. ROCCO, Judge.

       {¶ 1} After entering pleas of no contest to 30 sexual offenses, six counts of

endangering children, and one count of possession of criminal tools, defendant-appellant,

Christopher Thomas, appeals from his convictions, the sentence imposed, and the trial

court’s denial of his motion to withdraw his pleas.

       {¶ 2} In App. No. 96146, Thomas presents seven assignments of error. As to his

sentence, he claims that it was disproportionately severe, he was sentenced for allied

offenses, and the trial court neither adequately justified it nor provided findings to support

it. As to his pleas, he claims that they were invalid because he was not informed that

some of his offenses should be considered allied and because the trial court did not state

the maximum penalty he faced. Thomas also claims that his trial counsel rendered

ineffective assistance for failing to challenge the state’s version of the facts underlying

the charges.

       {¶ 3} In App. No. 96798, Thomas presents one assignment of error. He asserts

that the trial court abused its discretion in denying without conducting a hearing his

postsentence motion to withdraw his pleas. He bases this assertion on the same claims

he makes in arguing that his pleas were invalid and on his claim that his trial counsel

rendered ineffective assistance. Because the record reflects that the trial court lacked

jurisdiction to entertain Thomas’s motion to withdraw his plea, however, his assignment

of error is overruled.
                                             3
       {¶ 4} Upon a review of the record, this court cannot find any error in the trial

court’s acceptance of Thomas’s pleas or in his trial counsel’s performance. Thomas’s

sentence, however, must be reversed. The trial court imposed sentences for some allied

offenses and abused its discretion when it imposed a sentence that totaled 93 years for

Thomas’s convictions in this case.

       {¶ 5} No dispute exists with respect to the facts that Thomas’s convictions in this

case result from his inappropriate relationships with two of his students while he was

employed as a teacher at a middle school. The two victims were females, aged 14 and

13. Thomas had a sexual encounter with the younger girl. He also sent sexually explicit

electronic messages to the girls and convinced the girls to take sexually explicit

photographs of themselves and to send those photographs to his cell phone. He then

transferred the images to his computer.

       {¶ 6} Thomas originally was indicted in this case on 39 counts. Since the state

subsequently dismissed Counts 2 and 3, this court will not address them. All the counts

were grouped in terms of victims and dates.

       {¶ 7} Count 1 charged Thomas with committing sexual battery on the 13-year-old

sometime between June 11, 2008, and November 10, 2009. Counts 4 through 15 and

Counts 23 through 32 charged him with the illegal use of a minor in nudity-oriented

material. Counts 16 through 22 charged him with importuning. Counts 33 through 38

charged him with endangering children.        Count 39 charged him with possession of

criminal tools, to wit, cell phones and computers.
                                            4
       {¶ 8} Based upon forensic analysis of the electronic devices, the offenses

occurred on the following specific dates:

        Counts 4 and 37 - June 11, 2008.

        Counts 5 and 38 - June 13, 2008.

        Counts 23 and 33 - April 6, 2009.

        Counts 6, 8, 9, 24, 25, and 34 - April 7, 2009.

        Counts 10, 11, 12, 26, 27, and 28 - April 8, 2009.

        Count 29 - April 9, 2009.

        Count 30 - April 10, 2009.

        Counts 13 and 14 - April 15, 2009.

        Count 31 and 35 - May 3, 2009.

        Counts 7, 15, 32, and 36 - May 4, 2009.

        Counts 16, 17, 18, 19, 20, 21, and 22 - July 3, 2008; September 21, 2008;

        September 24, 2008; November 13, 2008; December 18, 2008; July 24,

        2009; and August 3, 2009.

       {¶ 9} Thomas’s case proceeded to a hearing on October 20, 2010. After the trial

court dismissed Counts 2 and 3, Thomas’s attorney stated that his client had decided to

plead no contest to the indictment.

       {¶ 10} The prosecutor outlined the charges against Thomas and the degree of the

offenses, then set forth the potential penalties for those offenses; the prosecutor indicated


                                             5
that there were “28 F-2s, one F-3, and eight felony fives.” He made no mention of the

possibility of consecutive terms.

       {¶ 11} The trial court thereupon held a colloquy with Thomas, informing him of

the constitutional rights he would be waiving in entering his plea and the potential penalty

for each degree of felony. In addressing Thomas, the trial court also failed to mention

that terms could be imposed consecutively.

       {¶ 12} Before finding Thomas guilty of the offenses, the trial court asked the

prosecutor to set forth the factual basis for Thomas’s plea. The prosecutor stated that

Thomas and the younger victim had “exchanged sexual text messages and nude

photographs” and that Thomas “e-mailed nude photographs of the minor victim from his

Blackberry to his computer ten times.” Thomas also had sexual contact with the girl.

The prosecutor further stated that Thomas also admitted twice “swapping nude

photographs” with the other victim. Thomas saved the victims’ photos on his laptop

computer’s hard drive, and his text messages and e-mails demonstrated that he was

“soliciting both minor female victims for sexual activity, as well as to send him naked

photographs of themselves.”

       {¶ 13} The trial court obtained a presentence report and held the sentencing

hearing on November 17, 2010. By that time, the prosecutor had filed a sentencing

memorandum for the court’s consideration.




                                             6
         {¶ 14} When the sentencing hearing commenced, Thomas and his mother each

provided a lengthy statement, Thomas’s psychotherapist spoke on his behalf, and defense

counsel reminded the court that Thomas had taken responsibility for his crimes.

         {¶ 15} When the prosecutor addressed the court, he reiterated the facts of the case.

 One of the victims’ parents then made a statement to the court, and the trial court viewed

a videotaped statement made by the younger victim. Finally, the prosecutor declared that

“these were separate, distinct crimes, every last one of them” and that Thomas deserved

severe punishment.

         {¶ 16} The trial court stated its intent to sentence Thomas “based upon the crimes

and the date.” Although the court became confused in setting forth the counts for which

it imposed sentence, the court proceeded to sentence Thomas to maximum and concurrent

terms for offenses that occurred on the same date, with the term imposed for each date to

run consecutively. The prosecutor asked for a total, and the trial court responded, “153

years.” In its journal entry of sentence, however, the court arrived at a total of 93 years,

which is the correct total.

         {¶ 17} Thomas presents the following seven assignments of error in App. No.

96146.

         {¶ 18} “I. The trial court abused its discretion when it sentenced Appellant to 93

years in prison, because the sentence was grossly disproportionate to that imposed for

other, similar offenses.


                                              7
       {¶ 19} “II. The trial court acted contrary to law by imposing Appellant’s sentence

without applying Ohio’s allied offense statute.

       {¶ 20} “III. Appellant was denied due process because he could not have entered

his plea knowingly or intelligently due to recent interpretation of state law.

       {¶ 21} “IV.    The trial court denied Appellant due process of law under the

Fourteenth Amendment because it failed to place substantial findings on record to support

its sentence.

       {¶ 22} “V. The trial court abused its discretion when it accepted Appellant’s plea

of no contest and did not state the maximum penalty.

       {¶ 23} “VI. The trial court abused its discretion when it accepted Appellant’s plea

of no contest in the face of allegations insufficient as a matter of law to warrant the

charges.

       {¶ 24} “VII. Defense counsel was ineffective because it [sic] failed to recognize

that insufficient evidence supported the charges, allowed sentencing on higher counts

than those possible under the law, and thus prejudiced Appellant.”

       {¶ 25} Thomas’s assignments of error can be grouped into separate categories.

This court first will address those that relate to his plea.

       {¶ 26} Thomas argues in his third and fifth assignments of error that his plea was

invalid because (1) the record reflects that he was not informed that some of the crimes to

which he had pleaded no contest constituted allied offenses and (2) the trial court failed to


                                               8
inform him that it could impose consecutive terms. This court is not persuaded by his

arguments.

       {¶ 27} Because a criminal defendant gives up certain constitutional rights when

changing his plea of not guilty, the trial court cannot accept the change unless the

defendant is fully informed of the consequences. State v. Clark, 119 Ohio St.3d 239,

2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. A guilty or no-contest plea is invalid if it was

not knowingly, intelligently, and voluntarily made. Id., citing State v. Engle (1996), 74

Ohio St.3d 525, 527, 660 N.E.2d 450.

       {¶ 28} A trial court, therefore, must engage the defendant in a plea colloquy before

accepting the plea. Clark at ¶ 26, citing State v. Ballard (1981), 66 Ohio St.2d 473, 423

N.E.2d 115, paragraph one of the syllabus; see also Crim.R. 11(C). “It follows that, in

conducting this colloquy, the trial judge must convey accurate information to the

defendant so that the defendant can understand the consequences of his or her decision

and enter a valid plea.” Clark.

       {¶ 29} A trial court must comply with the mandates of Crim.R. 11(C)(2) before

accepting a change of a not-guilty plea to one of no contest. Pursuant to this rule, the

court should not have accepted Thomas’s no-contest plea unless it determined, inter alia,

that he was voluntarily entering the plea with an understanding of the maximum penalty

he faced. Id. at ¶ 27.

       {¶ 30} Crim.R. 11(B)(2) describes the effect of a no-contest plea as follows:



                                            9
       {¶ 31} “The plea of no contest is not an admission of defendant’s guilt, but is an

admission of the truth of the facts alleged in the indictment, information, or complaint,

and the plea or admission shall not be used against the defendant in any subsequent civil

or criminal proceeding.”

       {¶ 32} Thomas presents no argument that the trial court failed to inform him of the

effect of a no-contest plea as required by Crim.R. 11(C)(2)(b); cf., State v. Howell,

Mahoning App. No. 04 MA 31, 2005-Ohio-2927, 2005 WL 1385713.                    Rather, his

argument focuses on the trial court’s compliance with Crim.R. 11(C)(2)(a) and whether

he understood the maximum penalty involved.

       {¶ 33} The defendant’s right to be informed of the maximum possible penalty is a

nonconstitutional right. Id. Therefore, a substantial-compliance rule applies. Clark,

119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 31. Under this standard, the

plea is valid if the totality of the circumstances indicates that the defendant subjectively

understood the implications of his plea. State v. Nero (1990), 56 Ohio St.3d 106, 108,

564 N.E.2d 474.

       {¶ 34} If the trial judge partially complied with its duty to inform the defendant of

the maximum penalty involved, the plea may be vacated only if the defendant

demonstrates a prejudicial effect. Id. Prejudicial effect is established if the defendant

can demonstrate that he would not have entered the plea had the trial court literally

complied with Crim.R. 11(C)(2). Id.


                                            10
       {¶ 35} Thomas initially argues that his plea should be vacated because he did not

understand that some of his offenses could be considered “allied” pursuant to R.C.

2941.25(A). His argument has three flaws.

       {¶ 36} The first is the fact that Crim.R. 11(C)(2) contains no requirement for the

court to present such information to the defendant. The second is that the trial court was

nevertheless required to convict him of any allied offenses.

       {¶ 37} In State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182,

paragraph three of the syllabus, the Supreme Court noted:

       {¶ 38} “Because R.C. 2941.25(A) protects a defendant only from being punished

for allied offenses, the determination of the defendant’s guilt for committing allied

offenses remains intact, both before and after the merger of allied offenses for

sentencing.” (Emphasis added.)

       {¶ 39} The foregoing applies because Crim.R. 32(C) states that “[a] judgment of

conviction shall set forth the plea, the verdict or findings, and the sentence.”   In State v.

Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, the Supreme Court held

that the requirements of Crim.R. 32(C) are jurisdictional and that the trial court must

separately dispose of each count in the indictment. State v. Waters, Cuyahoga App. No.

85691, 2005-Ohio-5137, 2005 WL 2386477; State v. Cooper, Cuyahoga App. No. 84716,

2005-Ohio-754, 2005 WL 428599.

       {¶ 40} Thus, this court stated as follows in State v. White, Cuyahoga App. No.

92972, 2010-Ohio-2342, 2010 WL 2106092, ¶ 61-62:
                                            11
       {¶ 41} “[M]erger * * * implies that a sentence is announced for the allied offense

but literally merged into another offense so that the defendant serves a single term. This

conclusion is consistent with the supreme court’s finding that the imposition of a

concurrent sentence for an allied offense causes prejudice because it constitutes a second

conviction in violation of R.C. 2941.25. See State v. Underwood, 2010-Ohio-1, at ¶ 31,

[124 Ohio St.3d 365, 922 N.E.2d 923] * * *.

       {¶ 42} “When there has been a guilty finding on an allied offense, the sentencing

judge must comply with Crim.R. 32(C) by announcing a sentence on all counts for which

the defendant has been found guilty, including the allied offense. * * *

       {¶ 43} “By announcing a sentence for the allied offense, the court will comply with

Crim.R. 32(C). By merging the sentence for the non-elected allied offense into the

elected offense, the court will comply with R.C. 2941.25.” (Emphasis added.)

       {¶ 44} The foregoing analysis also demonstrates the third flaw in Thomas’s

argument. Even if the court were required to address the allied-offense issue during the

plea hearing, if it had done so, Thomas would have had more of an incentive to change

his not-guilty plea. Howell, ¶ 17. Thus, Thomas cannot demonstrate that any prejudice

resulted from the trial court’s failure.     His third assignment of error, therefore, is

overruled.

       {¶ 45} As to the argument Thomas presents in his fifth assignment of error, i.e.,

that his plea is invalid because the trial court failed to inform him that his sentences could

be imposed consecutively, his argument is rejected based upon State v. Johnson (1988),
                                            12
40 Ohio St.3d 130, 532 N.E.2d 1295. The Ohio Supreme Court held in Johnson that

there is no requirement that a defendant be told the maximum total of the sentences he

faces, or that the sentence could be imposed consecutively, in order for the plea to be

voluntary.

       {¶ 46} Since Crim.R. 11(C) “speaks in the singular,” the phrase “maximum

penalty” that is required to be explained in Crim.R. 11(C)(2)(a) refers to a single crime

rather than the total of all sentences. Id. In this case, Thomas’s responses to the trial

court’s questions indicated that he subjectively understood the consequences of his plea.

Consequently, his fifth assignment of error also is overruled.

       {¶ 47} Thomas further argues in his sixth assignment of error that the trial court

improperly accepted his pleas to the counts that charged him with violating R.C.

2907.323(A)(1)1 because the state’s recitation of the facts failed to establish that he either

took the photographs at issue or “transferred” any “nudity oriented material.” In support

of his argument, Thomas cites United States v. Hecht (C.A.4, 2006), 470 F.3d 177, and

United States v. Probel (C.A. 11, 2000), 214 F.3d 1285.

       {¶ 48} However, those authorities are not quite on point, since the courts

interpreted the word “distribution,” rather than the word, “transfer.” R.C. 2907.323 does

not define the word “transfer”; therefore, this court must apply the ordinary meaning.


       1R.C.   2907.323 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 * * *.”

                                               13
       {¶ 49} In Webster’s New Collegiate Dictionary (1977), the first definition listed

for “transfer” is “to convey from one person, place, or situation to another.” According

to the prosecutor’s statement of the facts, Thomas sent the photographs from his

Blackberry to his computer. This action falls within the ordinary definition of the word

“transfer.” See, e.g., State v. Anderson, Washington App. No. 03CA3, 2004-Ohio-1033,

2004 WL 413273.

       {¶ 50} In any event, Thomas’s plea of no contest had the effect of admitting the

truth of the facts alleged in the indictment. Crim.R. 11(B)(2). Consequently, Thomas’s

sixth assignment of error also is overruled.

       {¶ 51} Thomas’s first, second, fourth, and seventh assignments of error all

challenge his sentence. His second assignment of error must be addressed first.

       {¶ 52} Thomas argues that some of his convictions required merger pursuant to

R.C. 2941.25 and the recent decision in State v. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, 942 N.E.2d 1061. Based upon the record, this court agrees.

       {¶ 53} The Johnson court held that instead of comparing the elements of the

crimes in the abstract, courts must consider the defendant’s conduct.          Johnson at

syllabus. “If the 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).


                                               14
       {¶ 54} In this case, the state charged Thomas with committing several offenses on

certain days.   The trial court convicted Thomas based upon the charges and the

prosecutor’s declaration, rather than making the necessary inquiry, and then imposed

sentences consecutively for each crime. State v. Corrao, Cuyahoga App. No. 95167,

2011-Ohio-2517, 2011 WL 2112721.

       {¶ 55} However, Thomas’s actions in soliciting and transferring the photographs

of the two victims were the same actions that led to the charges of child endangering.

State v. Johnson, Cuyahoga App. No. 94813, 2011-Ohio-1919, 2011 WL 1582958; cf.,

State v. LaPrairie, Greene App. No. 2010CA-0009, 2011-Ohio-2184, 2011 WL 1753195.

       {¶ 56} The following counts, therefore, required merger: Counts 37 and 4; Counts

38 and 5; Counts 33 and 23; Counts 34 and either 6, 8, 9, 24, or 25; Counts 35 and 31;

and Counts 36 and either 7, 15, or 32.

       {¶ 57} Thomas’s convictions and sentences for endangering children must be

vacated, and this cause must be remanded for the state to make its elections and for a

resentencing hearing pursuant to State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1,

922 N.E.2d 923. Thomas’s second assignment of error is sustained.

       {¶ 58} In light of this disposition, it would be premature for this court to address

Thomas’s first assignment of error, in which he argues that his 93-year sentence for his

convictions was excessive. 2 This court cannot presume which offenses the state will


      2 Thomas objected to the length of his sentence in the trial court.   State v. Edwards,
Cuyahoga App. No. 89191, 2007-Ohio-6068, 2007 WL 3377209, ¶ 11.

                                            15
elect and cannot assume that the trial court will fail to consider the purposes and

principles of sentencing at Thomas’s resentencing hearing. State v. Jones, Montgomery

App. No. 23926, 2011-Ohio-1984, 2011 WL 1591285, ¶ 38-54; cf. Johnson; Corrao.

But see Clark, ¶ 25: “The benefit to a defendant of agreeing to plead guilty is the

elimination of the risk of receiving a longer sentence after trial.” Thus, Thomas’s first

assignment of error, at this juncture, is moot. App.R. 12(A)(1)(c).

       {¶ 59} However, the argument Thomas raises in his fourth assignment of error is

rejected.   He contends that the trial court’s failure to make findings to support the

sentence it imposed upon him violates the Fourteenth Amendment.

       {¶ 60} The Ohio Supreme Court recently considered the issue Thomas raises in

State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768. The Supreme

Court concluded that despite the decision in Oregon v. Ice (2009), 555 U.S. 160, 129

S.Ct. 711, 172 L.Ed.2d 517, “trial court judges are not obligated to engage in judicial

fact-finding prior to imposing consecutive sentences.” In light of Hodge, this court

overrules Thomas’s fourth assignment of error.

       {¶ 61} Thomas argues in his seventh assignment of error that his trial counsel

provided ineffective assistance. He bases this argument mainly on the one he presented

in his sixth assignment of error, which this court overruled. He further argues that his

trial counsel permitted him to enter no-contest pleas to higher-degree violations of R.C.

2907.323 than the state could prove.


                                           16
      {¶ 62} In order to successfully assert ineffective assistance of counsel under the

Sixth Amendment, a defendant must show not only that the attorney made errors so

serious that he was not functioning as counsel, as guaranteed by the Sixth Amendment,

but also that the deficient performance was so serious as to deprive defendant of a fair

and reliable trial. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.

      {¶ 63} There are many ways to provide effective assistance in any given case;

therefore, scrutiny of counsel’s performance must be highly deferential, and there will be

a strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance. Id.; see also Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 209

N.E.2d 164. Counsel will not be deemed ineffective for failing to raise futile challenges.

State v. Leonard, Cuyahoga App. No. 93496, 2010-Ohio-3601, 2010 WL 3036451, ¶ 27.

      {¶ 64} In this case, the prosecutor’s recitation of the facts showed two things: (1)

Thomas solicited the photographs the victims provided to him on his Blackberry device

and (2) he then sent those photographs to his laptop computer. These actions fell within

the common understanding of conduct prohibited by R.C. 2907.323(A)(1).

      {¶ 65} Under these circumstances, trial counsel had no reason to challenge the

indictment. Thomas, therefore, cannot demonstrate that counsel fell below an objective

standard of reasonable representation. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373.

      {¶ 66} His seventh assignment of error, accordingly, is overruled.



                                           17
         {¶ 67} In App. No. 96798, Thomas presents only the following assignment of

error:

         {¶ 68} “The trial court abused its discretion when it denied Appellant’s motion to

withdraw its [sic] plea of no contest.”

         {¶ 69} On the same grounds he asserted in his challenge to his pleas and sentences

as presented in App. No. 96146, Thomas argues that the trial court should have granted

his postsentence motion to withdraw his pleas. This argument is rejected.

         {¶ 70} Thomas filed his notice of appeal in App. No. 96146 on December 9, 2010.

 He filed his motion to withdraw his pleas in the trial court on April 8, 2011, while his

appeal of his convictions and sentences already was pending.

         {¶ 71} “Once an appeal is taken, the trial court is divested of jurisdiction until the

case is remanded to it by the appellate court, except where the retention of jurisdiction is

not inconsistent with that of the appellate court to review, affirm, modify, or reverse the

order from which the appeal is perfected.” State v. Abboud, Cuyahoga App. Nos. 87660

and 88078, 2006-Ohio-6587, 2006 WL 3635311, ¶ 11, citing State v. Taogaga, Cuyahoga

App. No. 79845, 2002-Ohio-5062, 2002 WL 31122774, at ¶ 18, and Stewart v. Zone Cab

of Cleveland (Jan. 31, 2002), Cuyahoga App. No. 79317, 2002 WL 127367.

         {¶ 72} Since a motion to withdraw a plea that led to a conviction is inconsistent

with a notice of appeal of the conviction, the trial court lacked jurisdiction to grant

Thomas’s motion.          Id., cf., State v. Christinger, Cuyahoga App. No. 95109,


                                              18
2010-Ohio-6192, 2010 WL 5239179. The trial court, therefore, committed no error in

denying his motion.

       {¶ 73} Thomas’s sole assignment of error in App. No. 96798 is overruled. The

trial court’s order in that appeal is affirmed.

       {¶ 74} In App. No. 96146, Thomas’s convictions and sentences are affirmed in

part and vacated in part, and this cause is remanded for a resentencing hearing pursuant to

Underwood.


                                                                     Judgment accordingly.

       STEWART, P.J., concurs.

       GALLAGHER, J., concurs in part and dissents in part.


       SEAN C. GALLAGHER, Judge, concurring in part and dissenting in part:

       {¶ 75} I respectfully concur in part and dissent in part from the majority opinion.

       {¶ 76} Though I concur in much of the majority decision, I believe a closer

analysis is required of the allied-offense issue and Thomas’s lengthy cumulative sentence.

       {¶ 77} Among other charges, Thomas was convicted on numerous counts of illegal

use of a minor in nudity-oriented material (Counts 4 though 15 and Counts 23 through 32)

and endangering children (Counts 33 through 38). These charges stem from conduct in

which Thomas sent electronic messages to two female students and enticed them to send

sexually explicit photographs of themselves to his cell phone. He then transferred the


                                              19
images to his computer for his personal gratification.   In all, there were 12 photographs

created of the victims.

       {¶ 78} In order to determine whether offenses are allied offenses of similar import

and subject to merger, a court is required to engage in a two-step analysis.   The first step

considers whether it is possible to commit the offenses by the same conduct:             “In

determining whether offenses are allied offenses of similar import under R.C.

2941.25(A), the question is whether it is possible to commit one offense and commit the

other with the same conduct, not whether it is possible to commit one without committing

the other. * * * If the offenses correspond to such a degree that the conduct of the

defendant constituting commission of one offense constitutes commission of the other,

then the offenses are of similar import.” (Emphasis sic.) State v. Johnson, 128 Ohio

St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, at ¶ 48.           The second step looks to

whether the offenses were committed by the same act and animus:            “If the 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. at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447,

2008-Ohio-4569, 895 N.E.2d 149, ¶ 50. “If the answer to both questions is yes, then the

offenses are allied offenses of similar import and will be merged.”            Id. at ¶ 50.

Summarily stated, “When ‘in substance and effect but one offense has been committed,’

the defendant may be convicted of only one offense.” Id. at ¶ 43, quoting State v. Botta

(1971), 27 Ohio St.2d 196, 203, 271 N.E.2d 776.
                                            20
       {¶ 79} Appellate courts across Ohio have struggled with application of the

Johnson test. Determining how an offender’s conduct should be evaluated in the first

prong of the test has been inconsistent. In Johnson, Justice O’Connor’s concurring

opinion properly noted, “[T]he trial court’s consideration of whether there should be

merger is aided by a review of the evidence introduced at trial.” Id. at ¶ 69, O’Connor,

J., concurring. Despite this, Johnson gave no express model or formula to follow when

looking at the offender’s conduct to determine “[i]f the offenses correspond to such a

degree that the conduct of the defendant constituting commission of one offense

constitutes commission of the other.” Id. at ¶ 48.     Some courts, including the Supreme

Court of Ohio, have remanded cases for further review to determine whether the

offender’s conduct is allied.        See State v. Damron,           129 Ohio St.3d 86,

2011-Ohio-2268, 950 N.E.2d 512; State v. Miller, Portage App. No. 2009-P-0090,

2011-Ohio-1161, 2011 WL 861166.         Nevertheless, despite remanding cases for review,

without more clarity on the test process, inconsistent results in applying the first prong of

Johnson will continue.

       {¶ 80} The second prong of the test is even more problematic.              The term

“animus,”   as applied to allied offenses, is so amorphous that it defies description.

Animus is often described as the offender’s “purpose,” but when evaluating the facts of a

case, a viable argument can always be made that an offender has a separate purpose for

each of his offenses involving the completion of criminal conduct. Certainly, when an

offender commits a rape or robbery, he has a separate purpose to restrain the victim in
                                            21
committing the accompanying kidnapping offense. Despite this, kidnapping, in relation

to rape or robbery, is almost always considered an allied offense and not separately

punishable unless facts establish a separate or distinct pattern of conduct. See State v.

Sidibeh, 192 Ohio App.3d 256, 2011-Ohio-712, 948 N.E.2d 995; State v. Logan (1979),

60 Ohio St.2d 126, 397 N.E.2d 1345.

       {¶ 81} If the conduct of the offender is to be the primary factor in determining

whether offenses are allied, then a model or formula for evaluating that conduct is

needed. Some decisions have discussed distinctive factors that help the analysis, but

have stopped short of creating a workable test.      See Logan, 60 Ohio St.2d 126, 397

N.E.2d 1345 (“asportation or restraint [subjects victim to] substantial increase in risk of

harm separate [and apart] from that involved in the underlying crime”); State v. Lee, 190

Ohio App.3d 581, 2010-Ohio-5672, 943 N.E.2d 602 (the “temporal continuum”); State v.

Williams, Cuyahoga App. No. 94616, 2011-Ohio-925, 2011 WL 743085 (“proximate

conduct”).

       {¶ 82} At some point, the Supreme Court of Ohio is going to have to revisit

Johnson and devise a more formal test that encompasses factors like time, distance, harm,

risk of harm, and purpose in determining merger of allied offenses.

       {¶ 83} In this case, there are multiple, corresponding sets of offenses of illegal use

and endangering children.     The illegal-use charges arise under R.C. 2907.323(A)(1),

which does not allow a person to “create, direct, produce, or transfer any material or

performance that shows the minor in a state of nudity.”          The endangering-children
                                            22
charges arise under R.C. 2919.22(B)(5), which instructs that a person shall not “[e]ntice,

coerce, permit, encourage, compel, hire, employ, use, or allow [a child under 18 years] to

act, model, or in any other way participate in, or be photographed for, the production,

presentation, dissemination, or advertisement of any material or performance that the

offender knows or reasonably should know is obscene, is sexually oriented matter or is

nudity-oriented matter.”

      {¶ 84} Upon review, it is possible to commit the offenses by the same conduct.

One can entice a minor to be photographed in a state of nudity while also playing a role in

the creation of the nudity-oriented material.      Thus, the offenses are allied.      The

determination then turns to whether the corresponding offenses were in fact committed by

the same act and animus.

      {¶ 85} Thomas committed the crime of endangering children multiple times.        On

six occasions, he enticed, encouraged, or compelled the minors to take nude photographs.

 Once he received the photographs, he e-mailed them to his computer and saved them for

his personal gratification, resulting in the illegal-use charges.   The record does not

reflect any action or intent beyond obtaining the images and retaining them for Thomas’s

personal use.    Rather, the evidence reflects that the corresponding counts were

committed by the same actions and with the same animus.       Because “ ʻin substance and

effect but one offense has been committed,’ ” the defendant may be convicted of only one

offense on the corresponding counts.     Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314,

942 N.E.2d 1061, at ¶ 43 quoting State v. Botta (1971), 27 Ohio St.2d 196, 203, 271
                                           23
N.E.2d 776. As the majority finds, “Thomas’s actions in soliciting and transferring the

photographs of the two victims were the same actions that led to the charges of child

endangering.”

       {¶ 86} I believe that the majority stops short by only requiring the merger of each

of the six endangering-children counts with corresponding counts for illegal use. It is

undisputed that only 12 images were created, yet Thomas was charged with 22 counts of

illegal use.   The state argues that distinct conduct occurred with regard to Thomas’s

e-mailing the pictures and then saving them to his computer, resulting in separate counts

for each action.   The state ignores that the enticement, creation, and retention of the

images by Thomas was part and parcel of the same criminal conduct.       At a minimum, I

believe that the 22 illegal-use charges should merge with regard to the 12 photographs to

which they correspond.    Further, as Thomas argues, many of the photographs occurred

within a short period of time, were of the same victim, and were taken in the same

location, reflecting that they were tied to the same criminal animus.   He argues that the

evidence supports merging the sentences into four counts of illegal use. In this regard, I

believe that the trial court should conduct a hearing to determine which of these offenses

were allied offenses of similar import subject to merger.

       {¶ 87} Thomas further claims that possession of criminal tools (Count 39) should

merge with importuning (Counts 16-22). However, he ignores the fact that his cell

phone was not the only criminal tool used for the crimes.   In fact, computer devices also

were used.
                                           24
       {¶ 88} Finally, although the majority does not address the issue, I believe that the

trial court abused its discretion in imposing a cumulative sentence of 93 years.            In

reviewing felony sentencing, appellate courts must apply a two-step approach: “First, they

must examine the sentencing court’s compliance with all applicable rules and statutes in

imposing the sentence to determine whether the sentence is clearly and convincingly

contrary to law. If this first prong is satisfied, the trial court’s decision shall be reviewed

under an abuse-of-discretion standard.”             State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912, 896 N.E.2d 124 ¶ 4; see also State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470.

       {¶ 89} While Thomas’s sentence falls within the statutory range and is not contrary

to law, I believe that his sentence is disproportionate to the severity of the offense

committed.    In considering the overriding purposes of felony sentencing, a sentence

should be reasonably calculated to be “consistent with sentences imposed for similar

crimes committed by similar offenders.”          See R.C. 2929.11(B).        Thomas had an

improper relationship with two of his students. He obtained nude photographs of the

minors, and he had improper sexual contact with them. He was given the equivalent of a

life term for his crimes.   Thomas cites several multicount sex-offense cases in which a

defendant received a total prison term under 20 years.         He indicates that the crimes

herein did not involve sexual intercourse.     If the charges had been two counts of rape,

the maximum consecutive sentence he would have faced would have been 20 years.               A

felony sentence must not be “so greatly disproportionate to the offense as to shock the
                                             25
sense of justice of the community.” State v. Chaffin (1972), 30 Ohio St.2d 13, 17, 282

N.E.2d 46, paragraph three of the syllabus.

      {¶ 90} For these reasons, I concur in part and dissent in part.

                                _____________________




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