Opinion
No. 107242
04-11-2019
STATE OF OHIO PLAINTIFF-APPELLEE v. TERRANCE MITCHELL DEFENDANT-APPELLANT
ATTORNEY FOR APPELLANT Stephen L. Miles 20800 Center Ridge Road, Suite 405 Rocky River, OH 44116 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Jennifer Lynne O'Malley Saleh Awadallah Christopher D. Schroeder Assistant County Prosecutors Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-620376-A BEFORE: Sheehan, J., Kilbane, A.J., and Celebrezze, J.
ATTORNEY FOR APPELLANT
Stephen L. Miles
20800 Center Ridge Road, Suite 405
Rocky River, OH 44116
ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor By: Jennifer Lynne O'Malley
Saleh Awadallah
Christopher D. Schroeder
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113 MICHELLE J. SHEEHAN, J.:
{¶1} Defendant-appellant Terrance Mitchell appeals his sentence for pandering sexually oriented matter involving a minor, illegal use of a minor in nudity-oriented material or performance, and possessing criminal tools. For the reasons that follow, we affirm.
Procedural History
{¶2} In October 4, 2017, Mitchell was charged in a 26-count indictment as follows: Counts 1, 2, 3, and 6 — pandering sexually oriented matter involving a minor, in violation of R.C. 2907.322(A)(2); Counts 4, 5, 7, 11, and 22 — illegal use of minor in nudity-oriented material or performance, in violation of R.C. 2907.323(A)(1); Counts 8, 9, 10, and 12 through 21 — pandering sexually oriented matter involving a minor, in violation of R.C. 2907.322(A)(1); Counts 23 through 25 — pandering sexually oriented matter involving a minor, in violation of R.C. 2907.322(A)(5); and Count 26 — possessing criminal tools, in violation of R.C. 2923.24(A). The indictment stemmed from Mitchell's creation of material showing a minor in a state of nudity and his use of his computer to download, save, and share numerous images and videos of child pornography.
{¶3} On March 13, 2018, Mitchell pleaded guilty to 18 of the 26 counts: Counts 1 through 7; Counts 13 through 20; and Counts 24 through 26. For sentencing purposes, Count 24 merged with Count 19 and Count 25 merged with Count 13. The court then ordered a presentence investigation report ("PSI") and scheduled the matter for sentencing.
{¶4} On April 26, 2018, the court held a sentencing hearing. The parties agreed on the merger of Count 24 with Count 19 and Count 25 with Count 13, and they agreed that none of the other counts merged. The state elected to have the court sentence on Counts 13 and 19. The trial court then imposed a prison sentence of six years on Counts 1, 2, 3, and 6 (pandering in violation of R.C. 2907.322(A)(2)), collectively; six years on Counts 4, 5, and 7 (illegal use of minor), collectively; six years on Counts 13 through 20 (pandering in violation of R.C. 2907.322(A)(1)), collectively (including merged Counts 24 and 25, pandering in violation of R.C. 2907.322(A)(5)); and 12 months on Count 26 (criminal tools). The court ordered the sentence in the first two groups to be served consecutively to each other, and the consecutive sentences would be served concurrently with the remaining sentences, for a total of 12 years in prison. The court made the statutorily mandated consecutive sentence findings at sentencing and included the findings in the sentencing entry. The court also stated in its journal entry that it considered all required factors of the law and found that a prison sentence is consistent with the purposes of felony sentencing under R.C. 2929.11.
{¶5} Mitchell now appeals his sentence, assigning one error for our review: The trial court erred by sentencing the appellant to a 12-year cumulative sentence.
Sentence
{¶6} In his sole assignment of error, Mitchell contends that the trial court erred when it sentenced him to 12 years in prison. He asserts that the trial court "failed to go through the sentencing factors" before imposing a sentence (Appellant's brief at 10) and that the statutory factors favor a more lenient sentence. Essentially, Mitchell argues that the sentence does not serve the purposes of felony sentencing and the trial court failed to properly consider the relevant sentencing factors under R.C. 2929.12.
{¶7} We note initially that in reviewing felony sentences, we do not review the sentence for an abuse of discretion; rather, we apply the standard of review set forth in R.C. 2953.08(G)(2). State v. Wright, 8th Dist. Cuyahoga No. 106175, 2018-Ohio-965, ¶ 9; State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may increase, reduce, or otherwise modify a sentence, or vacate a sentence and remand for resentencing if we "clearly and convincingly find" that the record does not support the sentencing court's statutory findings under certain statutes (not relevant in this case) or the sentence is contrary to law.
{¶8} A sentence is "contrary to law" if (1) the sentence falls outside the statutory range for the particular degree of offense, or (2) the trial court failed to consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12. State v. Morgan, 8th Dist. Cuyahoga No. 105682, 2018-Ohio-1834, ¶ 14; State v. Pawlak, 8th Dist. Cuyahoga No. 103444, 2016-Ohio-5926, ¶ 58.
{¶9} R.C. 2929.11(A) provides that the overriding purposes of felony sentencing are (1) to protect the public from future crime by the offender and others and (2) 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. Further, the sentence imposed shall be "reasonably calculated" to achieve these purposes, "commensurate with and not demeaning to the seriousness of the offender's conduct and its impact on the victim, and consistent with sentences imposed for similar crimes by similar offenders." R.C. 2929.11(B).
{¶10} In determining the most effective way to comply with the purposes and principles of sentencing set forth in R.C. 2929.11, the sentencing court must consider the seriousness and recidivism factors enumerated in R.C. 2929.12. State v. Hamilton, 8th Dist. Cuyahoga No. 102870, 2016-Ohio-1376, ¶ 14. The seriousness factors include any physical or mental harm suffered by the victim, the age of the victim, and whether there are substantial grounds to mitigate the offender's conduct. R.C. 2929.12(B) and (C). The recidivism factors include any relevant factors that indicate whether an offender is likely to commit future crimes, such as the offender's drug abuse, criminal history, and demonstration of remorse for the offense, and whether the offender had previously led a "law-abiding life." R.C. 2929.12(D) and (E).
{¶11} R.C. 2929.11 and 2929.12 are not fact-finding statutes. Therefore, although the trial court has a mandatory duty to "consider" the statutory factors under R.C. 2929.11 and 2929.12, the court is not required to "use particular language" or engage in any factual findings under R.C. 2929.11 or 2929.12. State v. Underwood, 8th Dist. Cuyahoga No. 106597, 2019-Ohio-67, ¶ 14, citing State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31. Indeed, consideration of the statutory factors is presumed unless the defendant affirmatively demonstrates otherwise. State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-Ohio-5234, ¶ 11. Moreover, a trial court's statement in its sentencing journal entry that it considered the required statutory factors sufficiently fulfills its obligations under R.C. 2929.11 and 2929.12. Wright, 8th Dist. Cuyahoga No. 106175, 2018-Ohio-965, at ¶ 16; State v. West, 8th Dist. Cuyahoga No. 105568, 2018-Ohio-956, ¶ 11.
{¶12} Additionally, we are mindful of the trial court's broad discretion in fashioning a prison sentence within the statutory range. Underwood at ¶ 11, citing State v. Sergent, 148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, ¶ 34. And the offender's sentence is not contrary to law "simply because he disagrees with the way in which the trial court weighed the factors under R.C. 2929.11 and 2929.12 and applied these factors in crafting an appropriate sentence." State v. Frazier, 2017-Ohio-8307, 98 N.E.3d 1291, ¶ 28 (8th Dist.).
{¶13} Here, Mitchell essentially disagrees with the manner in which the court weighed the relevant factors and how the court applied these factors in fashioning his sentence. He fails to demonstrate that the trial court neglected to consider the purposes and principles of felony sentencing under R.C. 2929.11 and the relevant statutory factors under R.C. 2929.12. And in fact, our review of the record demonstrates otherwise.
{¶14} During the sentencing hearing, the court heard from defense counsel, who advised the court that Mitchell had previously led "a very exemplary life," has no prior criminal record, began watching pornography after his wife left him and then "took the next step into the child pornography," and is a good guy who has made a terrible mistake. Counsel urged the court to consider that the "good things" in Mitchell's life outweigh what has happened here.
{¶15} The court also heard from Mitchell, who explained that he initially explored child pornography when the images came to him through downloaded music, and eventually, "yes, I double-clicked some files and, yes, it snowballed." Mitchell attempted to reconcile "what happened on [his] computer at home" with his job teaching children at a local school, stating that his actions at home "did not leave the apartment" and "when [he] was with kids, everything had to do with my interest in chess, and * * * art, and teaching, which is what educators do." Mitchell further stated that he is a Christian and, in his previous position as a teacher's aide, he received training on how to keep children safe. He explained that he does not want to be viewed as someone who distributes child pornography because he "tried closing [the computer] window but it didn't work." Mitchell asserted that "[t]his was just a very vain decision, vain thing" and the child pornography "just [appeared] on the screen and it just snowballed," and he told the court that his actions were "not as serious as * * * actually doing those things." Finally, in addressing the charges of illegal use of a minor, Mitchell explained that he photographed nude children in Kenya as part of an artistic endeavor and the images of the nude children in his home were art.
{¶16} The court heard from the prosecutor and an investigator with the Ohio Internet Crimes Against Children Task Force. The investigator explained that the programs Mitchell accessed were not accidentally acquired; rather, the programs are very complex and require an individual to "search for [the] files, download them, view them, possess them, and share them with others." And these files continue to exist on the internet, according to the investigator, because of individuals like Mitchell who perpetuate the pornography by continuing to download, view, and save the images. The investigator advised the court that the children discovered on the images obtained from Mitchell are actual children, not digital images, and they are repeatedly victimized every time the images are viewed.
{¶17} The prosecutor advised the court that the state discovered child pornography on approximately seven different devices in Mitchell's home as a result of the task force's investigation, including three computers, three USB hard drives, "a box of hundreds of DVDs, all of which contained child pornography," and one framed photo of a nude child. The investigation also discovered a camera with a separate memory card that the investigation revealed was the source of some of the photos. The prosecutor further advised the court that the files recovered from Mitchell's possession dated from 2003 up to the investigation in 2016 and included 473 different images and 68 videos, as well as an additional 374 deleted images and 30 deleted videos, for a total of approximately one thousand images of child pornography.
{¶18} At several points during the colloquy with Mitchell, the court interjected with questions or comments. When Mitchell discussed teaching chess at a local school, the court stated:
[Y]ou as a teacher should understand the vulnerability of children. You should understand each time you download those images and you share that pornography that you're victimizing children. Do you understand that?
* * *
Especially in your position as a teacher, you understand the need to have children protected, and the need to have children's innocence maintained. So when you leave your position as a teacher, you go home and you start downloading and sharing and watching this pornography, that you're victimizing those children that you teach every day.
{¶19} After Mitchell explained to the court that the images just appeared on the screen when he downloaded music and "it just snowballed," the court stated that it did not believe Mitchell understood the serious nature of his actions, nor did it find Mitchell remorseful. The court stated:
By your actions, you have victimized the most vulnerable citizens of our community: our children, and very, very young children.
By downloading and sharing these files, you continue to prey on our most vulnerable citizens in our community, and that's what you've done is prey on them. And by your own admissions and by your own statements, it's very concerning to me that you don't even understand what you've done and that you don't believe that this is a big deal.
It's also concerning to me that you, as a teacher, an instructor, were around high school students all the time. You worked with them. You understand their vulnerability and their innocence. Even being in your position, you understand that it is a position of trust and you understand the importance of protecting them, and by your actions, you have taken that all away and you've continued to victimize them.
Despite the fact that you may have had some personal setbacks in your life that have caused you to be depressed, that is not an excuse to do what you've done.
Based on what I've heard today and what I've read, your actions are simply reprehensible.
{¶20} Prior to imposing sentence, the court once again stated that it did not find Mitchell to be remorseful, nor did it find that Mitchell understood the severity of his actions. The court, rather, found that Mitchell minimized his actions and "minimized the fact that you prey on children when you describe yourself as not being 'one of those people.'" The court then noted that it reviewed the PSI and the sentencing memoranda, which included a letter that was written on Mitchell's behalf by a pastor.
{¶21} Finally, the court stated that it considered all of the "relevant seriousness and recidivism factors" as well as its "responsibility" to protect the community and punish the offender. In so doing, the court found that community control sanctions "would minimize the severity of what [Mitchell had] done and a prison sentence is appropriate." The court reiterated this consideration in its sentencing entry.
{¶22} On this record, we find Mitchell's sentence is not contrary to law. There is no dispute that the sentence is within the permissible statutory range, and the record reflects that the trial court considered the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12.
{¶23} Mitchell's sole assignment of error is overruled.
{¶24} Judgment affirmed.
It is ordered that appellee recover of 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. /s/_________
MICHELLE J. SHEEHAN, JUDGE MARY EILEEN KILBANE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR