State v. Schmick
2013 Ohio 4488
Ohio Ct. App.2013Background
- Schmick became a suspect in internet crimes against children; July 2009 computer seizure occurred.
- December 2009 Schmick was charged with over 80 offenses; April 2010 he pled guilty to several counts.
- A prior presentence report was prepared; he was sentenced to 17 years, designated Tier II, with 5 years postrelease control, a plea reversal occurred on appeal.
- On remand, Schmick accepted a new plea to 45 counts; remaining counts were nolled; a new presentence report was prepared.
- Trial court sentenced Schmick to 16 years with consecutive terms; Schmick now appeals raising three assignments of error.
- This court reverses and remands for resentencing, directing allied-offense inquiry and reconsideration of proportionality.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Consecutive-sentence findings adequate | Schmick | Schmick | Findings not satisfactorily tied to statutory requirements; error in imposition |
| Proportionality compared to similar offenders | Proportionality supported by precedent | Sentence excessive relative to similar cases | Second assignment sustained to the extent discussed; remand for proportionality reconsideration |
| Merger/allied offenses of pandering and illegal use | Allied offenses should be considered under Johnson framework | Issues were not properly developed at trial | Plain error to fail to conduct allied-offense inquiry; merger analysis required on remand |
Key Cases Cited
- State v. Johnson, 128 Ohio St.3d 153 (2010-Ohio-6314) (overruled prior Rance approach; analyze conduct for allied-offense merge)
- State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891 (2013-Ohio-1891) (requires clear allied-offense inquiry; plain-error standard)
- State v. Rogers, 2013-Ohio-3235 (8th Dist. Cuyahoga) (en banc discussion on allied offenses and merger procedures)
- State v. Phillips, 8th Dist. Cuyahoga No. 92560, 2009-Ohio-5564 (2009-Ohio-5564) (consideration of seriousness and recidivism factors in proportionality)
- State v. Corrao, 8th Dist. Cuyahoga No. 95167, 2011-Ohio-2517 (2011-Ohio-2517) (allied offenses analysis in context of merger)