State v. Bonness, 2012 Ohio 474

Background

Bonness pleaded guilty to 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 counts of illegal use of a minor in nudity-oriented material or performance (R.C. 2907.323(A)(3)), and two counts of possession of criminal tools; court imposed 52½ years total, including an eight-year term for attempted rape and consecutive five-year terms on the eight child-pornography counts; other counts were concurrent.
He challenged two sentencing decisions: (1) maximum sentence on the attempted rape count, and (2) consecutively sentencing the eight child-pornography counts as a de facto life sentence.
Bonness was 53, with no prior criminal history, arrested in a police sting after communicating with a supposed 12-year-old and arranging a hotel meeting; police found sex paraphernalia and extensive child-pornography; he confessed.
Court discussed historical and current Ohio sentencing law, noting Foster severed certain provisions, Ice clarified limitations, and that consecutive sentencing remains within court discretion within statutory ranges.
Court concluded the maximum attempted-rape sentence was not an abuse of discretion, but eight consecutive child-pornography counts created a de facto life sentence and were disproportionate, thus reversing and remanding for resentencing.
Court noted that the decision to sentence based on retired officer status was improper and that consistency with similar cases supported remand for resentencing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Consecutive sentences for child-pornography counts are warranted?	Bonness	Bonness	Consecutive counts disproportionate; remand for resentencing
Was the eight-year maximum for attempted rape proper?	Bonness	Bonness	Not abuse of discretion; no error in imposing maximum given facts
Did Bonness’s former police officer status justify consecutive sentencing?	State	Bonness	Invalid consideration; status of retired officer not a factor for consecutive sentences
Did the court properly weigh R.C. 2929.11–2929.12 factors on the overall sentence?	State	Bonness	Court complied with factors; still remanded due to disproportionate consecutive term for child pornography

Key Cases Cited

State v. Foster, 109 Ohio St.3d 1 (2006-Ohio-856) (severed presumptive sentencing provisions; discretionary sentencing within range)
State v. Ice, 555 U.S. 160 (2009) (consecutive sentences not barred by Apprendi/Blakely)
State v. Hodge, 128 Ohio St.3d 1 (2010-Ohio-6320) (Ice did not revive severed provisions; judges retain discretion on consecutive vs. concurrent)
State v. Bates, 118 Ohio St.3d 174 (2008-Ohio-1983) (discretion to sentence consecutively or concurrently remains)
State v. Mathis, 109 Ohio St.3d 54 (2006-Ohio-855) (sentencing factors guide discretion post-Foster)
State v. Payne, 114 Ohio St.3d 502 (2007-Ohio-4642) (factors for R.C. 2929.12 considerations; no per-factor listing required)
State v. Geddes, 8th Dist. No. 88186 (2007-Ohio-2626) (reversal of excessive sentence; guidance on consistency)
State v. Mahan, 8th Dist. No. 95696 (2011-Ohio-5154) (long consecutive sentences evaluated against similar offenses)
State v. Corrao, 8th Dist. No. 95167 (2011-Ohio-2517) (multiple counts; proportionality considerations)
State v. Carney, 8th Dist. No. 95343 (2011-Ohio-2280) (significant consecutive sentencing evaluation)
State v. Siber, 8th Dist. No. 94882 (2011-Ohio-109) (consistency and proportionality in sentencing)