[Cite as State v. Bonness, 2013-Ohio-2699.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99129




                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                   ROBERT BONNESS
                                                       DEFENDANT-APPELLANT



                                              JUDGMENT:
                                               AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-543662

        BEFORE: Rocco, J., Boyle, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: June 27, 2013

                                                 -i-
ATTORNEYS FOR APPELLANT

Eric C. Nemecek
Kristina W. Supler
Friedman & Frey, L.L.C.
1304 West 6th Street
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Jesse W. Canonico
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:

       {¶1} Defendant-appellant Robert Bonness appeals from the sentences the trial

court imposed for his convictions for illegal use of a minor in nudity-oriented material or

performance (hereinafter referred to as “child pornography”) after this court reversed the

original sentences imposed and remanded his case for a resentencing hearing in State v.

Bonness, 8th Dist. No. 96557, 2012-Ohio-474 (“Bonness I”).

       {¶2} Bonness presents a single assignment of error. He argues the trial court

acted improperly in sentencing him to a total of 20 years for his child pornography

convictions, because the court: (1) did not consider the statutory sentencing factors, (2)

utilized the “sentencing package” doctrine, and (3) again imposed disproportionately long

terms in contravention of this court’s directive in Bonness I.

       {¶3} Upon a review of the record, however, this court does not find his arguments

persuasive. Consequently, his assignment of error is overruled and his sentences are

affirmed.

       {¶4} The background surrounding Bonness’s convictions was set forth in

Bonness I, at ¶ 3-4 as follows:

       Bonness was a 53-year-old retired police officer with no prior criminal record. He
was caught in a police sting that involved his answering an anonymous internet posting
from a fictitious father and daughter who were “looking for the right person in the
Cleveland area” to do things “that may interest that special person.” Bonness was
undeterred when he learned from the poster that the daughter was only 12 years old * * *
[.] He exchanged several emails with the poster, each growing more graphic in its
description of the sex acts that he hoped he and the daughter might mutually perform. * *
      * . Bonness finally arranged to meet the father and daughter at a hotel and, when he
      arrived, was arrested.

              Upon arrest, Bonness waived his right to remain silent. He confessed that had there
      been a young girl present in the hotel room, he would have engaged in sexual activity
      with her, but allowed that he would only have done so after satisfying himself that she
      was not being forced to submit. The police searched Bonness’s car and found condoms,
      lubricants, and vibrators. Bonness told the police that he had a sexual addiction and kept
      child pornography at his house. A search of his computer uncovered 94 pornographic
      files, some of which were videos showing children under the age of 13 engaging in
      deviant sexual acts. The court described one of the videos as showing a child being
      digitally and anally penetrated, forced to perform oral sex, defecated upon, handcuffed,
      and restrained in a dog kennel.

      {¶5} The ensuing indictment against Bonness contained 97 counts. He eventually pleaded

guilty to one count of attempted rape; eight counts of pandering sexually-oriented matter involving a

minor, R.C. 2907.322(A)(1); six counts of pandering sexually-oriented matter involving a minor, R.C.

2907.322(A)(5); eight child pornography counts; and two counts of possession of criminal tools.

      In Bonness I, at ¶ 5, this court summarized Bonness’s original sentences:

             * * * [T]he court imposed an eight-year sentence on the attempted rape count and
      consecutive five-year terms on the eight illegal use of a minor in nudity-oriented material
      or performance (child pornography) counts. It also imposed concurrent 18-month terms
      on the six pandering sexually-oriented matter involving a minor counts; concurrent
      12-month terms on the eight pandering sexually-oriented matter involving a minor counts;
      and consecutive 12-month terms on the two criminal tools counts.

      {¶6} After reviewing the recent evolution of Ohio sentencing laws in Bonness I, this court then

addressed Bonness’s arguments. In pertinent part, this court stated at ¶ 18-29:

             The next issue raised by Bonness is whether the court abused its discretion by
      running the eight child pornography counts consecutively. He argues * * * that the court
      neglected to consider that Bonness was a first-time offender who cooperated with the
      police and showed great remorse for his actions; and that the total sentence was
      disproportionate to his conduct and inconsistent with those given to similar offenders.
       * * * R.C. 2929.12(B)(1) and (2) require the court to consider the “physical and
mental injury” suffered by the victim of the offense and whether that injury was
“exacerbated” because of the victim’s physical or mental condition or age. The court
found that the victims were the children used to make the child pornography Bonness had
in his possession. It found that every viewing of the images and films constituting the
child pornography constituted a revictimization of the children. It noted that many of the
children depicted in the pornography had been identified and that the abuses perpetrated
upon them were essentially a “life sentence” because they know that “as they get older
and start to understand the breadth and scope * * * of their abuse, their victimization
continues.”

        While Bonness disagrees with the court’s conclusion about the continued
revictimization of children shown in child pornography, that conclusion is within the
mainstream of legal opinion. * * * It follows that the court did not abuse its discretion by
relying on the revictimization of the children shown in the pornography as a sentencing
factor.

       ***

       Finally, we must determine whether, under R.C. 2929.11(A), the sentence
achieved the overriding purpose of punishing Bonness by using “the minimum sanctions
that the court determines accomplish those purposes without imposing an unnecessary
burden on state or local government resources” and whether, under R.C. 2929.11(B),
Bonness’s sentence was “consistent with sentences imposed for similar crimes committed
by similar offenders.”

       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, 2003 WL
1564323. 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, 2011 WL 198670.

       Nevertheless, the comparison of one sentence against other sentences given for
similar crimes is a useful guide for determining if the court abused its discretion in a
particular case. Obviously, a survey of cases issued from this appellate district will tend to
show only the worst sentences - we presume that defendants who are given much shorter
sentences are not appealing on that basis so any list of opinions from this court will
necessarily be skewed to longer sentences. With this caveat in mind, we note that the
most recent cases from this appellate district have affirmed lengthy sentences for
possession of child pornography, but none that were as remotely lengthy as the sentence
       given to appellant. In State v. Geddes, 8th Dist. No. 88186, 2007 Ohio 2626, 2007 WL
       1559544, 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. While acknowledging that Geddes’s actions were
       reproachable, we nonetheless concluded that the lengthy sentence was disproportionate to
       his conduct. On remand for resentencing, Geddes was given an 18-year sentence, which
       was affirmed on appeal. That sentence was broadly consistent with those given to similar
       offenders. See, e.g., State v. Mahan, 8th Dist. No. 95696, 2011 Ohio 5154, 2011 WL
       4600044 (16 years consecutive on 81 counts); State v. Corrao, 8th Dist. No. 95167, 2011
       Ohio 2517, 2011 WL 2112721 (ten years on 23 counts); State v. Carney, 8th Dist. No.
       95343, 2011 Ohio 2280, 2011 WL 1842257 (24 years on 21 counts); Siber, 8th Dist. No.
       94882, 2011 Ohio 109, 2011 WL 198670 (three years, nine months on 14 fourth and fifth
       degree felony counts); State v. Moon, 8th Dist. No. 93673, 2010 Ohio 4483, 2010 WL
       3721872 (20 years on 49 counts).

               Given these cases, we conclude that the 40-year sentence imposed on Bonness for
       eight child pornography counts was inconsistent with sentences imposed for similar
       crimes committed by similar offenders. The inconsistency arises because the court ran the
       child pornography counts consecutive to one another. While there is no question that
       Bonness committed very serious crimes that deserve punishment, we find it difficult on
       this record to justify 40 consecutive years in prison for the nonviolent crime of possessing
       child pornography. This is a de facto life sentence because it extends well beyond
       Bonness’s current life expectancy. The sentence would thus place an undue burden on the
       state’s resources as the prison system would be forced to pay for all of Bonness’s medical
       care as he enters the final stages of his life.
       * * * The court’s need to punish Bonness is understandable. But ordering consecutive
       sentences on the eight child pornography counts went beyond punishment, especially
       when similar offenders have been given significantly lower sentences. [Footnote omitted.]

       {¶7} Based upon the foregoing analysis, Bonness’s sentences were reversed and the matter was

remanded to the trial court.

       {¶8} The trial court conducted Bonness’s resentencing hearing on

       October 2, 2012. By this time, H.B. 86, which contained the new version of R.C.

       2929.14, had come into effect; the trial court was aware that Bonness deserved the benefit

       of the new sentencing law. After listening to the arguments presented by the prosecutor

       and defense counsel, the court imposed consecutive five-year prison terms on the child
pornography counts according to the dates Bonness downloaded the videos. Because

Bonness downloaded the child pornography on four separate days, he received a sentence

totaling 20 years for those convictions. On all of Bonness’s other convictions, the court

imposed the same terms as it had previously. Bonness thus received a prison sentence

that totaled 32 and one-half years.

       {¶9} Bonness presents the following as his sole assignment of error.

              I. The trial court erred and imposed a sentence contrary to law
       by failing to consider all statutory sentencing factors.

       {¶10} This court has set forth the current law relating to consecutive sentences in

State v. Goins, 8th Dist. No. 98256, 2013-Ohio-263, ¶ 9-11, as follows:

               R.C. 2929.14(C)(4), as revived, now requires that a trial court
       engage in a three-step analysis in order to impose consecutive sentences.
       First, the trial court must find that “consecutive service is necessary to
       protect the public from future crime or to punish the offender.” Id. Next,
       the trial court must find that “consecutive sentences are not disproportionate
       to the seriousness of the offender’s conduct and to the danger the offender
       poses to the public.” Id. Finally, the trial court must find that at least one
       of the following applies: (1) the offender committed one or more of the
       multiple offenses while awaiting trial or sentencing, while under a sanction,
       or while under postrelease control for a prior offense; (2) at least two of the
       multiple offenses were committed as part of one or more courses of
       conduct, and the harm caused by two or more of the offenses was so great
       or unusual that no single prison term for any of the offenses committed as
       part of any of the courses of conduct adequately reflects the seriousness of
       the offender’s conduct; or (3) the offender’s history of criminal conduct
       demonstrates that consecutive sentences are necessary to protect the public
       from future crime by the offender. Id.

       In each step of this analysis, the statutory language directs that the trial court must
“find” the relevant sentencing factors before imposing consecutive sentences. R.C.
2929.14(C)(4). In making these findings, a trial court is not required to use “talismanic
words to comply with the guidelines and factors for sentencing.” State v. Brewer, 1st
Dist. No. C-000148, 2000 Ohio App. LEXIS 5455, *10 (Nov. 24, 2000). But it must be
      clear from the record that the trial court actually made the findings required by statute.
      See State v. Pierson, 1st Dist. No. C-970935, 1998 Ohio App. LEXIS 3812 (Aug. 21,
      1998). A trial court satisfies this statutory requirement when the record reflects that the
      court has engaged in the required analysis and has selected the appropriate statutory
      criteria. See State v. Edmonson, 86 Ohio St.3d 324, 326, 1999 Ohio 110, 715 N.E.2d 131
      (1999).

              Notably, however, the General Assembly deleted R.C. 2929.19(B)(2)(c) in H.B.
      86. This was the provision in S.B. 2 that had required sentencing courts to state their
      reasons for imposing consecutive sentences on the record. Accordingly, a trial court is
      not required to articulate and justify its findings at the sentencing hearing. A trial court
      is free to do so, of course. But where, as here, there is no statutory requirement that the
      trial court articulate its reasons, it does not commit reversible error if it fails to do so, as
      long as it has made the required findings.

      {¶11} This court in Goins also set forth the applicable standard of appellate review at ¶ 6:

             An appellate court must conduct a meaningful review of the trial court’s
      sentencing decision. State v. Johnson, 8th Dist. No. 97579, 2012 Ohio 2508, ¶ 6, citing
      State v. Hites, 3d Dist. No. 6-11-07, 2012 Ohio 1892, ¶ 7. Specifically, R.C.
      2953.08(G)(2) provides that our review of consecutive sentences is not an abuse of
      discretion. An appellate court must “review the record, including the findings underlying
      the sentence or modification given by the sentencing court.” Id. If an appellate court
      clearly and convincingly finds either that (1) “the record does not support the sentencing
      court’s findings under [R.C. 2929.14(C)(4)]” or (2) “the sentence is otherwise contrary to
      law,” then “the appellate court may increase, reduce, or otherwise modify a sentence * * *
      or may vacate the sentence and remand the matter to the sentencing court for
      re-sentencing.” Id.

      {¶12} Although Bonness concedes that the sentences he received on the child pornography

counts were within the statutory range of punishment, he essentially argues that the trial court’s

decision to impose a 20-year sentence for those eight convictions was contrary to law because the trial

court failed to fully consider R.C. 2929.11 and 2929.12, employed a “sentencing package” approach,

and gave him a total term that was disproportionately severe compared to similar crimes committed by

similar offenders. This court disagrees.
      {¶13} R.C. 2929.11(A) provides that when a trial court sentences an offender for a felony

conviction, the court must be guided by the “overriding purposes of felony sentencing.”         Those

purposes are “to protect the public from future crime by the offender and others and to punish the

offender.” R.C. 2929.11(B) requires a felony sentence to be reasonably calculated to achieve the

purposes set forth under R.C. 2929.11(A), commensurate with and not demeaning to the seriousness of

the crime and its impact on the victim, and consistent with sentences imposed for similar crimes

committed by similar offenders.

             {¶14} R.C. 2929.12 provides a nonexhaustive list of factors a trial court must

      consider when determining the seriousness of the offense and the likelihood that the

      offender will commit future offenses.

             {¶15} In this case, the trial court stated in relevant part as follows:

                    The Court has * * * incorporat[ed] all the exhibits that were admitted
             at the last sentencing hearing, incorporating the presentence investigation
             report that I have reviewed. Also the information provided by the State
             and defense counsel with respect to all the counts in the lengthy indictment.

                    Also, I have carefully considered the principles and purposes of
             felony sentencing, the appropriate recidivism and seriousness factors, all the
             statutory requirements with respect to the issues in this matter.

                    I have reviewed the Court of Appeals opinion as well, and I respect
             their opinion and will endeavor to follow their wishes.

                    ***

                     The Court is specifically wanting to first of all adequately punish this
             defendant in a way that’s not disproportionate, considering the danger to the
             public.

                    And also these consecutive sentences I believe are necessary to
             protect the community from these specific things.
                     This defendant, over a period of time, took many different steps,
              different acts, * * * every time he downloaded a separate act.

                     * * * [E]ach one of those criminal acts led to the attempted rape.


              And the fact that concerns this Court, the fact that shows the dangerousness of this
       offender and the danger to the community is the fact that when he arrived at the scene,
       that he recognized * * * police in the area, he left and then came back * * * . So not
       even [that] stopped him from going to have sex with a 12 year old girl.

              One would have to wonder what would stop this defendant other than being
       separated from society where he can’t get his hands on little girls. And that’s the only
       conclusion the Court can make at this point, that consecutive sentences are necessary to
       protect our public, to punish this offender based on the history of that criminal conduct,
       where it is multiple offenses.

             And certainly the harm is so great to those children depicted * * * that it is a life
       sentence for them that they will never forget, that they are revictimized every time
       someone else downloads that film * * * for their own prurient reasons. * * *

              * * * I am considering * * * the harm to those victims. * * *

              So I am going to sentence the defendant accordingly.

       {¶16} From the foregoing, it is clear that the record belies Bonness’s contention that, in

imposing sentence, the trial court so focused on the burden to the state that the other relevant statutory

considerations were ignored. Rather, the trial court’s comments indicated that its focus was on the

relevant sentencing statutes in conjunction with this court’s opinion in Bonness I, the danger to the

community that Bonness presented, and the specific facts of his case.

              {¶17} Similarly, nothing in the record supports Bonness’s claim that the trial court

       devised a “sentencing package” in contravention of State v. Saxon, 109 Ohio St.3d 176,

       2006-Ohio-1245, 846 N.E.2d 824, paragraph two of the syllabus. Instead, the court
decided to impose five-year consecutive terms for the child pornography convictions

based upon the days on which Bonness downloaded the pornographic images. Because

Bonness engaged in this act on four separate days, the trial court imposed a 20-year

sentence for these counts. State v. Harder, 8th Dist. No. 98409, 2013-Ohio-580, ¶ 10.

The trial court’s analysis of the appropriate sentence to impose under these circumstances

can be considered neither an improper “package” nor unsupported by the record. Id. at ¶

9 (“* * * a judge sentencing a defendant pursuant to Ohio law must consider each offense

individually and impose a separate sentence for each offense”). See also, e.g., State v.

Thomas, 197 Ohio App.3d 176, 2011-Ohio-6073, 966 N.E.2d 939.

      {¶18} Finally, this court has upheld similar terms for similar offenders. See, e.g.,

State v. Geddes, 8th Dist. No. 91042, 2008-Ohio-6489 (affirmed an 18-year sentence for

six separate convictions of pandering sexually-oriented material involving a minor); State

v. Carney, 8th Dist. No. 95343, 2011-Ohio-2280 (affirmed a 24-year sentence for 20

counts of pandering sexually-oriented material involving a minor); State v. Phillips, 8th

Dist. No. 92560, 2009-Ohio-5564 (affirmed a 24-year sentence for 30 counts of

pandering sexually-oriented matter involving a minor when convictions arose from

defendant’s use of a home computer to download and trade child pornography and

defendant’s contacting someone he believed to be a 12-year-old girl).

      {¶19} “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, 86 Ohio St.3d 368, 373,
1999-Ohio-113, 715 N.E.2d 167 (1999), quoting Harmelin v. Michigan, 501 U.S. 957,

1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), (Kennedy, J., concurring in part and in

judgment).

      {¶20} Because his sentences are not grossly disproportionate to the crimes with

which he was charged, Bonness’s assertion based upon this ground, therefore, remains

unsupported.

      {¶21} This court cannot find that the trial court’s sentence is “clearly and

convincingly” unsupported in the record.    Accordingly, Bonness’s assignment of error is

overruled.

      {¶22} 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. 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.



_________________________________________
KENNETH A. ROCCO, JUDGE
MARY J. BOYLE, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
