STATE OF OHIO v. MICHAEL CARNEY
No. 95343
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 12, 2011
[Cite as State v. Carney, 2011-Ohio-2280.]
BEFORE: Keough, J., Kilbane, A.J., and Cooney, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-516762; RELEASED AND JOURNALIZED: May 12, 2011
Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, OH 44113
Michael H. Peterson
The Hoyt Block – Suite 214
700 St. Clair Avenue
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Katherine Mullin
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{1} Defendant-appellant, Michael Carney (“Carney“), appeals his sentence. For the following reasons, we affirm.
{2} In November 2008, Carney was charged with 64 counts of pandering sexually-oriented material involving a minor and one count of possession of criminal tools. These charges stemmed from child pornography
{3} In his first assignment of error, he claims that his sentence is contrary to law and was an abuse of discretion.
{4} We review felony sentences using the Kalish framework. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. In its plurality opinion, the Kalish court declared that in applying State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, to the existing statutes, appellate courts “must apply a two-step approach.” Kalish at 4. Appellate courts must first “examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law.” Id. at 26. See, also,
{5} In the first step of our analysis, we review whether Carney‘s sentence is contrary to law as required by
{6}
{7}
{8}
{9} We do not find Carney‘s sentence contrary to law. Carney pled guilty to a total of 20 counts of pandering sexually-oriented material involving a minor pursuant to
{10} Furthermore, the sentencing journal entry reflects that the trial court considered all required factors of law and found that prison was consistent with the purposes of
{11} We next consider whether the trial court abused its discretion. Kalish at 4 and 19. “An abuse of discretion is ‘more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or
{12} Carney argues that the trial court abused its discretion because it did not articulate any reasons for imposing the sentence other than “the trial court‘s belief that Carney was not sufficiently remorseful.” We note that post-Foster, a trial court does not have to state its reasons on the record. Nevertheless, we find nothing in the record to suggest that the trial court‘s decision was unreasonable, arbitrary, or unconscionable.
{13} At sentencing, the trial court had the benefit of sentencing memoranda from Carney and the State, a presentence investigation report, and multiple court psychological clinic reports, including a mitigation of penalty report and a neuropsychological evaluation. Additionally, the trial court heard statements from Carney‘s family.
{14} In sentencing Carney, the trial judge noted that she considered Carney‘s allocution, apology to his family, and the substantial mitigation arguments by his attorney and family. However, the trial judge felt that Carney lacked an understanding of the seriousness and gravity of his actions. Due to the lack of remorse and responsibility, and the mere depravity of Carney‘s actions, the trial court determined that a term of incarceration was necessary. Accordingly, we find no abuse of discretion.
{15} We make these above findings while recognizing that a 24-year sentence is a lengthy, and possibly harsh, sentence, considering the crimes committed. An argument could be made that his sentence is disproportionate to the crimes committed, such that had he actually committed the acts that were depicted in the sexually graphic media he possessed, he possibly would have received a lesser sentence.
{16} In its sentencing memoranda, the State cited two cases where the defendants were charged with engaging in identical conduct as Carney, yet received substantially lesser sentences. See United States v. Stults (C.A.8, 2009), 575 F.3d 834 (defendant with prior conviction of attempted sexual assault of a child received a total sentence of 144 months after being convicted of one count of possession child pornography); United States v. Christy (2007), 65 M.J. 657 (military defendant convicted of distributing and possessing child pornography received 12 months confinement and a “bad-conduct discharge.“) Nevertheless, we find it incumbent upon the party challenging the sentence to demonstrate error by the trial court and point to authority comparing cases and guiding this court to find such disproportionality. See State v. Geddes, Cuyahoga App. No. 91042, 2008-Ohio-6489, 13.
{17} Carney‘s first assignment of error is overruled.
{18} Consecutive Sentence Findings
{20} The Ohio Supreme Court recently rejected this argument in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768. The court concluded that Ice did not require it to depart from its holding in Foster because “there is no constitutional requirement that a judge make findings of fact before imposing consecutive sentences” and requiring resentencing to include findings of fact would “disrupt reasonable and settled expectations of finality,” and impose an “undue burden on the judicial system.” Hodge at 30-32.
{21} Accordingly, Carney‘s second assignment of error is overruled.
Judgment 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. The defendant‘s
Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
KATHLEEN ANN KEOUGH, JUDGE
MARY EILEEN KILBANE, A. J., and COLLEEN CONWAY COONEY, J., CONCUR