State v. Setty, 2017 Ohio 9059

Background

Officers investigated reports of a suspected meth lab at defendant Joseph Setty’s residence; they found lithium batteries, drug-manufacturing paraphernalia in a bedroom, and three bottles in a cellar that tested positive for large quantities of methamphetamine/pseudoephedrine.
Setty’s 14-year-old daughter had been present in the home, described observing meth manufacture, exhibited symptoms of chemical exposure, and was exposed to the chemicals.
Setty was charged in multiple consolidated indictments; he pled no contest to aggravated possession of drugs (reduced to a second-degree felony) and child endangering (third-degree felony) in exchange for dismissal of other counts.
The trial court imposed mandatory prison terms: 24 months for child endangering and 3 years for aggravated possession, plus a $7,500 fine and court costs, to run consecutively.
On appeal Setty challenged: (1) failure to merge allied offenses, (2) trial court’s consideration of R.C. 2929.11/2929.12 and the individual sentences, and (3) the factual support for consecutive-sentence findings.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Setty)	Held
Whether endangering children and aggravated possession are allied offenses	Offenses have different import: possession concerns possession of meth in cellar; endangering concerns allowing a child within 100 feet of manufacturing and exposure	Both convictions arise from same conduct (manufacturing near the child) and should merge	Court: Not allied. Distinct conduct/import: possession vs. harm to child; separate convictions permitted
Whether trial court failed to consider R.C. 2929.11/2929.12 when sentencing	Court argued it considered plea facts and PSI and applied statutory factors; mandatory terms applied	Setty asserted court did not properly consider sentencing statutes and that probation/minimums should have been used	Court: Sentences within statutory ranges; court referenced R.C. 2929.12 and mandatory terms; record supports sentences
Whether consecutive sentences lacked record support	State argued consecutive terms were justified to protect public/punish and because harm was great/unusual given child exposure	Setty argued the child-presence factor was already punished by the endangering conviction and does not justify consecutive terms	Court: Consecutive findings were made using statutory language; record (daughter’s exposure, detailed descriptions, dangerous chemical use) supports consecutive sentences
Applicable appellate standard of review for sentencing challenges	Sentencing reviewed under R.C. 2953.08(G)(2): appellate court may modify only if record clearly and convincingly does not support findings or sentence is contrary to law	Setty argued trial court’s findings/sentences were clearly and convincingly unsupported/contrary to law	Court: Applied statutory standard and found no clear-and-convincing basis to disturb sentence

Key Cases Cited

State v. Earley, 145 Ohio St.3d 281 (explains allied-offense analysis: consider conduct, animus, and import)
State v. Ruff, 143 Ohio St.3d 114 (articulates allied-offense test and factual focus)
State v. Rogers, 143 Ohio St.3d 385 (plain-error review for failure to raise allied-offense merger at trial)
State v. Bonnell, 140 Ohio St.3d 209 (trial court must make and incorporate consecutive-sentence findings but need not state supporting reasons)
State v. Marcum, 146 Ohio St.3d 516 (standard of review for felony-sentencing appeals under R.C. 2953.08)