State v. MoonState v. Moon
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-522061
RELEASED AND JOURNALIZED: September 23, 2010
Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Jesse W. Canonico
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶ 1} Appellant Michael E. Moon appeals his sentence and assigns seven errors for our review.1
{¶ 2} Having reviewed the record and pertinent law, we affirm Moon‘s sentence in part, reverse in part, and remand for the trial court to properly order the terms of postrelease control. The apposite facts follow.
Facts
{¶ 4} The search that precipitated his arrest was based upon baggage screeners locating 50 photographs of child pornography concealed in several envelopes in Moon‘s checked-in luggage. Because the luggage scanner could not penetrate the envelopes, a hand search was conducted, revealing the images. Officers did not attempt to retrieve Moon‘s computer until several days after his arrest. By then, Moon was out on bail, and his home computer had been concealed or destroyed; it was never recovered. However, in searching the house, the officers recovered seven computer disks containing child pornography.
{¶ 5} Moon and the state both filed sentencing memoranda. After a hearing was conducted, the trial court sentenced Moon to 20 years in prison and classified him as a Tier II sex offender. Moon filed a motion to reconsider his sentence, which the trial court denied without a hearing.
Ineffective Assistance of Counsel
{¶ 7} We review a claim of ineffective assistance of counsel under the two-part test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Under Strickland, a reviewing court will not deem counsel‘s performance ineffective unless a defendant can show his lawyer‘s performance fell below an objective standard of reasonable representation and that prejudice arose from the deficient performance. State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph one of the syllabus. To show prejudice, a defendant must prove that, but for his lawyer‘s errors, a reasonable probability exists that the result of the proceedings would have been different. Id. at paragraph two of the syllabus. Judicial scrutiny of a lawyer‘s performance must be highly deferential. State v. Sallie, 81 Ohio St.3d 673, 1998-Ohio-343, 693 N.E.2d 267.
{¶ 8} Moon argues that by not requesting to view the unsealed warrant, counsel was deprived of possibly arguing the search warrant was defective. If the search warrant was defective, then the offenses linked to the disks found at Moon‘s home would have been eliminated.
{¶ 9} Moon‘s argument is based on pure speculation because we obviously do not know what is contained in the search warrant. Speculation
Consideration of the Computer
{¶ 10} In his second assigned error, Moon argues the trial court erred by including in its consideration of his sentence, the fact that his computer was missing. In his sentencing memorandum to the court, Moon argued for mitigation of his sentence based on the fact he was not involved with any file-sharing networks online, and that he did not engage in chat rooms or online services providing child pornography. Thus, the missing computer became relevant because without the computer, there was no way to ascertain that Moon, in fact, did not access any of the online services.
{¶ 11} Additionally, in spite of his denial of using the internet, he admitted in his presentence investigation report that he used the internet to obtain child pornography. Thus, it was proper for the trial court to consider
Sentence Contrary to Law
{¶ 12} We will consider Moon‘s third, fourth, fifth, and sixth assigned errors together because they concern Moon‘s argument that his sentence is contrary to law.
{¶ 13} When reviewing felony sentences, an appellate court must first determine whether the sentencing court complied with all applicable rules and statutes in imposing the sentence, including
{¶ 14} The trial court‘s sentencing entry indicates that along with considering the PSI, and the sentencing memoranda filed by the state and Moon, it “considered all required factors of the law” and, further, that it found prison to be consistent with the purpose of
{¶ 15} We next consider whether the trial court abused it discretion in imposing the lengthy sentence. Moon contends the court abused its discretion because there was no evidence he shared the photographs with anyone or that he tried to seduce or molest a minor. Thus, he argues, because he did not physically harm anyone, his twenty-year sentence is excessive. Because the computer was destroyed, the trial court had no basis on which to determine whether his claims were true. Without the computer there was no way to determine whether he was involved in obtaining and trading child pornography or approached children online.
{¶ 16} Additionally, our review of the transcript indicates that the court throughly considered Moon‘s argument in favor of a lenient sentence. The trial court found that Moon‘s failure to be tested objectively pursuant to the ABEL Assessment factors and the Static 99 test created a situation in which it could not determine Moon‘s likelihood of recidivism. The court noted that although Moon took a polygraph test, the questions asked did not reflect on the likelihood of his recidivism. He was not questioned as to whether he was attracted to children or what his fantasies were.
{¶ 18} In light of these factors and the substantial collection of child pornography that Moon possessed, the sentence of 20 years was commensurate with the seriousness of his crime and hence not manifestly disproportionate to the crimes committed.
{¶ 19} Moon also argues the trial court erred by denying his motion for reconsideration of his sentence in which he discussed cases of similar criminal offenders who committed similar crimes but received less prison time. A motion to reconsider a sentence is a nullity because the trial court lacks jurisdiction to reconsider its own valid final judgment. State v. Shamaly, Cuyahoga App. No. 88409, 2007-Ohio-3409, citing Pitts v. Dept. of Transp. (1981), 67 Ohio St.2d 378, 380, 423 N.E.2d 1105; State v. Johnson, 6th Dist. No. L-07-1338, 2008-Ohio-1298; State v. I‘uju, 10th Dist. No. 06AP452, 2006-Ohio-6436. Thus, the trial court did not err by denying the motion and could not consider the cases cited by Moon in support of his argument his sentence was not proportionate to those of other offenders.
{¶ 20} Even if Moon preserved the issue for appeal, it does not correlate that the cases presented dictate a lesser sentence. Although Moon cited cases where lesser sentences were imposed, our perfunctory review of cases indicates that similar sentences have been imposed. In State v. Phillips, Cuyahoga App. No. 92560, 2009-Ohio-5564, a first time offender who committed similar offenses received 24 years in prison. In State v. Geddes, Cuyahoga App. No. 91042, 2008-Ohio-6489, the offender received 18 years for six counts of pandering.
{¶ 21} Moreover, the goal of felony sentencing is to achieve consistency rather than uniformity. State v. Calvillo, Cuyahoga App. No. 90146, 2009-Ohio-2024, ¶16. Since there is no grid in place to ensure identical sentences for various classifications of offenders, consistency is achieved by weighing the factors enumerated in
{¶ 22} Moon also contends that the trial court erred by ordering consecutive sentences without making the necessary findings to justify
{¶ 23} In Ice, the United States Supreme Court upheld an Oregon statute permitting judicial fact finding in the imposition of consecutive sentences, calling into question the continuing validity of Foster. This court has held that it will apply the holding in Foster unless and until directed otherwise by the Ohio Supreme Court. State v. Woodson, Cuyahoga App. No. 92315, 2009-Ohio-5558; State v. Reed, Cuyahoga App. No. 91767, 2009-Ohio-2264; State v. Robinson, Cuyahoga App. No. 92050, 2009-Ohio-3379; and State v. Eatmon, Cuyahoga App. No. 92048, 2009-Ohio-4564.2
{¶ 24} Lastly, Moon contends his sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment of the U.S. Constitution. The Ohio Supreme Court in State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, addressed the review of a sentence under the Eighth Amendment. In Hairston, the defendant appealed his sentence, arguing that the aggregate sentence constituted cruel and unusual
“In State v. Weitbrecht (1999), 86 Ohio St.3d 368, 715 N.E.2d 167, we applied Justice Kennedy‘s Eighth Amendment analysis in his concurring opinion in Harmelin v. Michigan (1991), 501 U.S. 957, 997, 111 S.Ct. 2680, 115 L.Ed.2d 836. We quoted with approval his conclusion that ‘[t]he
Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are “grossly disproportionate” to the crime.’ Weitbrecht, 86 Ohio St.3d at 373, quoting Harmelin, 501 U.S. at 1001, (Kennedy, J., concurring in part and in judgment). We further emphasized that ‘only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality’ may a court compare the punishment under review to punishments imposed in Ohio or in other jurisdictions. Id. at 373, fn. 4, quoting Harmelin, 501 U.S. at 1005, (Kennedy, J., concurring in part and in judgment).“With respect to the question of gross disproportionality, we reiterated in Weitbrecht that ‘[c]ases in which cruel and unusual punishments have been found are limited to those involving sanctions which under the circumstances would be considered shocking to any reasonable person,’ and furthermore that ‘the penalty must be so greatly disproportionate to the offense as to shock the sense of
justice of the community.’ Id. at 371, quoting McDougle v. Maxwell (1964), 1 Ohio St.2d 68, 70, 30 O.O.2d 38, 203 N.E.2d 334, and citing State v. Chafin (1972), 30 Ohio St.2d 13, 59 O.O.2d 51, 282 N.E.2d 46, paragraph three of the syllabus.” Hairston, at ¶13-14.
{¶ 25} The court noted that Ohio‘s felony sentencing scheme had been designed to focus the sentencing courts on one offense at a time; therefore, the Eighth Amendment proportionality test is inapplicable to aggregate sentences. Id. at ¶16, quoting State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶8-9. The Court explained:
“[F]or purposes of the
Eighth Amendment andSection 9, Article I of the Ohio Constitution , proportionality review should focus on individual sentences rather than on the cumulative impact of multiple sentences imposed consecutively. Where none of the individual sentences imposed on an offender are grossly disproportionate to their respective offenses, an aggregate prison term resulting from consecutive imposition of those sentences does not constitute cruel and unusual punishment.” Id. at ¶20.
{¶ 27} Here, for a second-degree felony, a trial court may sentence an offender to two, three, four, five, six, seven, or eight years.
{¶ 28} Moon‘s sentence of six years on each count would not shock the conscience of the community. Likewise, the fact that Moon was sentenced to the maximum of 12 months for the criminal possession counts does not shock the conscience. Given Moon was found with over 500 images of child pornography, mostly of prepubescent children, the six year sentence on each of the pandering and nudity-oriented material counts, is not cruel or unusual. Accordingly, Moon‘s third, fourth, fifth, and sixth assigned errors are overruled.
Postrelease Control
{¶ 30} At the sentencing hearing, the trial court informed Moon he would receive a mandatory five years for postrelease control; the court also ordered a mandatory five years of postrelease control in the sentencing entry. However, only the counts related to the pandering and illegal use of a minor in nudity-oriented material have a five year mandatory postrelease control. As to the two counts of criminal possession, only up to three years of postrelease control applies.
{¶ 31} Pursuant to
“If an offender is subject to more than one period of post-release [sic] control, the period of post-release [sic] control for all of the sentences shall be the period of post-release [sic] control that expires last, as determined by the parole board or court. Periods of post-release [sic] control shall be served concurrently and shall not be imposed consecutively to each other.”
{¶ 32} Thus, even if the trial court had imposed three years for the criminal possession counts, Moon would still serve five years of postrelease control because that is the term that expires last. Nonetheless, this court and others, addressing the identical situation have concluded remand is necessary for the trial court to impose the correct postrelease control because
{¶ 33} The Ohio Supreme Court in State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, paragraph two of the syllabus held that for “sentences imposed on and after July 11, 2006, in which a trial court failed to properly impose postrelease control, trial courts shall apply the procedures set forth in
“The hearing contemplated by
R.C. 2929.191(C) and the correction contemplated byR.C. 2929.191(A) and(B) pertain only to the flawed imposition of postrelease control.R.C. 2929.191 does not address the remainder of an offender‘s sentence. Thus, the General Assembly appears to have intended to leave undisturbed the sanctions imposed upon the offender that are unaffectedby the court‘s failure to properly impose postrelease control at the original sentencing.” Id. at ¶24.
{¶ 34} Accordingly, we sustain Moon‘s seventh assigned error and remand the case for a
Judgment is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share equally the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
PATRICIA ANN BLACKMON, JUDGE
Appendix
“I. Appellant was denied effective assistance of counsel as guaranteed by
“II. The trial court erred when sentencing appellant by considering the fact that appellant‘s computer was now missing when there is no evidence that appellant had anything to do with that.”
“III. The trial court by ordering appellant to serve a sentence which is contrary to law.”
“IV. The trial court erred by ordering appellant to serve a twenty (20) year prison sentence which is contrary to law because the sentence imposed was inconsistent with the sentences imposed on similarly situated offenders and the court erred when it failed to consider similar and proportionate sentences.”
“V. Appellant‘s twenty (20) year prison sentence violated the
“VI. Appellant‘s consecutive sentences are contrary to law and violative of due process because the trial court failed to make and articulate the findings and reasons necessary to justify it.”
“VII. Appellant is entitled to a de nova sentencing hearing as the court did not properly impose a specific term or period of postrelease control at the sentencing hearing.”