STATE OF OHIO v. CHARLES LOCKE
No. 102371
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 20, 2015
[Cite as State v. Locke, 2015-Ohio-3349.]
Jones, P.J., E.T. Gallagher, J., and Stewart, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-14-587363-A
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART AND REMANDED
RELEASED AND JOURNALIZED: August 20, 2015
Fernando Mack
323 Lakeside Avenue
Suite 420
Cleveland, Ohio 44113
Edward F. Borkowski, Jr.
P.O. Box 609151
Cleveland, Ohio 44109
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Christopher D. Schroeder
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Charles Locke, appeals his sentence for unlawful sexual conduct with a minor, pandering sexually oriented matter involving a minor, and possessing criminal tools. We affirm in part and reverse in part.
{¶2} Locke was a 42-year-old police officer for the сity of Cleveland who had sexual intercourse with a 15-year-old girl on multiple occasions and used his cell phone to record his crimes. In 2014, he was charged with two counts of sexual battery, two counts of unlawful sexual conduct with a minor, ten counts of pandering sexually oriented matter involving a minor, and one count of possessing criminal tools. He pleaded guilty to two counts of unlawful sexual conduct with a minor, five counts of pandering sexually oriented matter involving a minor, and possessing criminal tools. The trial court ordered all the terms of incarceration to be served consecutively for a total prison sentence of 19 and one-half years. The court also ordered him to register as a Tier III sex offender.
{¶3} Locke filed a notice of appeal and raises two assignments of error:
- The trial court erred by failing to make the necessary findings pursuant to
R.C. 2929.14(C)(4) before imposing consecutive sentences. - The trial court erred by failing to address the issue of allied offenses.
Consecutive Sentences
{¶4} In his first assignment of error, Locke argues that the trial court did not make the requisite statutory findings under
{¶5}
(1) the offender committed one or more of the multiple offenses while awaiting trial or sentencing, while under a sanction, or while under postrelease control for a prior offense;
(2) at least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the offenses was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct; [or]
(3) the offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
Id.
{¶6} The court must make the statutory findings as stated above at the sentencing
{¶7} Here, the trial court stated the following when it sentenced Locke to consecutive terms of imprisonment:
In fashioning an appropriate sentence for him, for this individual and the charges in this case, the court has to look to
Revised Code Section 2929.11 and the overriding purposes of felony sentencing, which is to protect the рublic from future crime by the offender as well as to punish the offender.And in attempting to achieve these purposes, the court has to consider the need for incapacitating the offender, as well as deterring the offender and others like him from future crime, and protecting the public, which is basically foremost the court‘s obligation in this respect.
So in fashioning an appropriatе sentence, the court has to look to the seriousness factors pursuant to
2929.12 . And in looking at the factors in2929.12(B) , there are several factors that are involved, including the mental injury that has been suffered by the victim in this case; the psychological and economic harm to the victim‘s family; and in particular the fact that the defendant held a position of public trust in the community, his occupation certainly facilitated this offense.And in looking at the less serious factors, there are no less serious factors in this case.
So for all of those purposes, I am going to sentence the defendant as to the unlawful sexual conduct with a minor, which is Counts 2 and 6,
2907.04(A) , to a term of incarceration of two years each. And as to the five pandering sexually oriented matter involving a juvenile, a term of incarceration on each one of those of three years each. Those sentences will run consecutive to one another. As to the possessing criminal tools, six months. So a total of 15 years on the felony 2s, four years on the felony 3s, and six months on the possessing criminal tools. Those sentences will run consecutive to one another.And I believe that for all of the reasons that the sergeant has indicated, I do believe that that‘s an appropriate sentence.
{¶9} We agree with Locke, as conceded by the state, that the trial court failed to make the necessary findings. Locke contends that this court should modify his sentences to concurrent sеntences rather than remand his case for resentencing. See
{¶10} To support his position, Locke cites Bonnell, where the court stated that:
With exceptions not relevant here, if the trial court does not make the factual findings required by
R.C. 2929.14(C)(4) , then “a prison term, jail term, or sentence of imprisonment shall be served concurrently with any other prison term, jail term, or sentence of imprisonment imposed by a court of this state, another state, or the United States.”R.C. 2929.41(A) . Thus, judicial fact-finding is once again required to overcome the statutory presumption in favor of concurrent sentences.
(Emphasis added). Id. at ¶ 23.
{¶11} But we do not interpret the above рaragraph to mean that the appellate court is required to modify an appellant‘s sentence if the trial court did not make the requisite
{¶12} We believe the best course of action in this case is for the trial court to consider, on remand, whether consecutive sentences are appropriate under
{¶13} Therefore, wе vacate Locke‘s consecutive sentences and remand this matter to the trial court for a limited resentencing. See Bonnell at ¶ 30, 37.
{¶14} The first assignment of error is sustained.
Allied Offenses
{¶15} In the second assignment of error, Locke argues that his convictions should have merged for the purposes of sentencing pursuant to
{¶16}
{¶17} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, the Ohio Supreme Court created a two-part test to determine if offenses should merge. The first prong requires that the court determine if the multiple offenses “were committed by the same conduct.” Id. at ¶ 47. The second prong is whether “it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other.” Id. If both of these question are answered affirmatively then the offenses should be merged. But “if the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to
{¶18} In State v. Ruff, Slip Opinion No. 2015-Ohio-995, ¶ 31, the Ohio Supreme Court recently clarified that courts are to consider three questions when determining whether offenses are allied offenses of similar import within the meaning of
{¶19} But the Ohio Supreme Court also recently determined that the issue of allied
{¶20} Crim.R. 52(B) affords appellate courts discretion to correct plain errors or defects affecting substantial rights even if the accused failed to bring those errors to the trial court‘s attention. Id. at ¶ 22. But, the court determined, if a defendant fails to raise the issue at the trial court lеvel, the burden is solely on that defendant, not on the state or the trial court, to “demonstrate a reasonable probability that the convictions are for allied offenses of similar import committed with the same conduct and without a separate animus.” Id. If a defendant fails to make the showing, then “the accused cannot demonstrate that the trial court‘s failure to inquire whether the convictions merge for purposes of sentencing was plain error.” Id.
{¶21} The court noted that “even if the error is obvious, it must have affected substantial rights, and * * * ‘the trial court‘s error must have affected the outcome of the trial.‘” Id. The accused is therefore required to demonstrate a reasonable probability that the error resulted in prejudice—the same deferential standard for reviewing ineffective assistance of counsel claims. Id., citing United States v. Dominguez Benitez, 542 U.S. 74, 81-83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).
{¶22} The court further cautioned that even if the defendant is able to make the
{¶23} In this case, the state raised the issue of allied offenses during the sentencing hearing when the state told the court that it was of the opinion that none of the offenses were allied. Locke did not object. “[F]orfeiture is the failure to timely assert a right or object to an error.” Rogers at ¶ 21. “It is a well-established rulе that an appellate court will not consider any error which counsel for a party complaining of the trial court‘s judgment could have called but did not call to the trial court‘s attention at a time when such error could have been avoided or corrected by the trial court.” Id., quoting State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15.
{¶24} Based on the foregoing principles, Locke has not shown that the trial court committed plain error by not merging his convictions. Although not discussed by Locke with specificity, his two convictions for unlawful sexual conduct with a minor clearly do not merge because the indictment specifies that they occurred on different dates: April 28, 2014 and May 30, 2014. Where the defendant is charged with conduct occurring on different dates, the offenses are not allied on the face of the indictment. State v. Liuzzo, 8th Dist. Cuyahoga No. 99545, 2013-Ohio-5028, ¶ 11. The proseсutor also stated during the sentencing hearing that the sexual conduct “didn‘t happen just one time. She
{¶25} Locke‘s convictions for unlawful sexual conduct with a minor and pandering also do not merge because they are of dissimilar import. “Two or more offenses of dissimilar import exist within the meaning of
{¶26} Locke‘s conviction for possessing criminal tools also does not merge with any of the other counts because the creation of each pornographic video is separate and distinct from the continuing possession of that video. State v. Hadding, 3d Dist. Auglaize No. 2-12-14, 2013-Ohio-643, ¶ 18. In Hadding, the court found that the defendant‘s convictions for pandering obscenity involving a minor in violation of
Hadding first created the video and cell phone image of [the victim], and then continued to possess this obscene material until his arrest on September 17, 2011. We also find that Hadding had one animus, or improper motive, for initially creаting the obscene material, and a separate
animus for continuing to possess it after its creation. * * * We disagree with Hadding that his initial creation and then continued possession of the video and images constituted a single course of conduct lasting weeks, and even months. Rather, we find that Hadding had a separate motive to create the obscene material from his motive to continue to possess it for his personal use, and that this separate animus results in separate offenses.
{¶27} Locke pleaded guilty to five counts of pandering sexually oriented matter involving a minor, in violation of
{¶28} As to Locke‘s five pandering convictions, “[e]ach child pornography file or image that is downloaded is ‘a nеw and distinct crime.‘” State v. Mannarino, 8th Dist. Cuyahoga No. 98727, 2013-Ohio-1795, ¶ 53, quoting State v. Eal, 10th Dist. Franklin No. 11AP-460, 2012-Ohio-1373, ¶ 93. This court has held that “multiple convictions are allowed for each individual image because a separate animus exists every time a separate image or file is downloaded and saved.” State v. Hendricks, 8th Dist. Cuyahoga No. 92213, 2009-Ohio-5556, ¶ 35.
{¶29} The state contends that Locke‘s pandering convictions are not allied because the conduct of creating each video was committed separatеly and because each offense
{¶30} The second assignment of error is overruled.
Sex Offender Classification
{¶32} A “Tier II sex offender/child-victim offender” includes a sex offender who is convicted of, pleads guilty to, has been convicted of, or hаs pleaded guilty to pandering sexually oriented matter involving a minor under
{¶33} Locke‘s classification as a Tier III sex offender is hereby vacated and Locke is to be reclassified as a Tier II sex offender and the journal entry amended to reflect this classification.
{¶34} Case affirmed in part and reversed in part. On remand, the trial court must determine whether Locke‘s convictions should run consecutive to each other and, if so, make the proper findings and incorporate those findings into its sentencing journal entry. The trial court is further ordered to classify Locke as a Tier II sex offender according to law and to indicate such in its journal entry.
{¶35} Judgment affirmed in part, reversed in part, vacated in part and remanded.
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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
LARRY A. JONES, SR., PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
MELODY J. STEWART, J., CONCUR