STATE OF OHIO, PLAINTIFF-APPELLEE, v. PAUL E. OLIVER, DEFENDANT-APPELLANT.
CASE NO. 14-20-23
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
March 29, 2021
[Cite as State v. Oliver, 2021-Ohio-1002.]
Appeal from Union County Common Pleas Court, Trial Court No. 20-CR-0062
Judgment Affirmed
APPEARANCES:
Alison Boggs for Appellant
David W. Phillips for Appellee
{1} Defendant-appellant, Paul E. Oliver (Oliver), brings this appeal from the October 9, 2020 judgment of the Union County Common Pleas Court sentencing him to an aggregate, indefinite prison term with a minimum of 33 years, 10 months, to a maximum of 34 years, 10 months. On appeal, Oliver argues his sentence was clearly and convincingly contrary to law.
Background
{2} On April 16, 2020, Oliver was indicted for 17 counts of Illegal Use of Minor in Nudity Oriented Material or Performance in violation of
{4} Pursuant to a written, negotiated plea agreement, Oliver agreed to plead guilty to 10 counts of Illegal Use оf Minor in Nudity Oriented Material or Performance in violation of
{6} On October 8, 2020, the matter proceeded to sentencing. At sentencing the State argued for an aggregаte prison sentence of at least 15 years, and the defense argued in mitigation for an aggregate prison sentence under 5 years. Ultimately the trial court sentenced Oliver to 2 years in prison on each of the 16 second degree felonies, and 11 months in prison on each of the fifth degree felonies. All the prison terms were orderеd to be served consecutive to each other, for an aggregate indefinite prison term of 33 years, 10 months, to a maximum of 34 years, 10 months. A judgment entry memorializing Oliver‘s sentence was filed October 9, 2020. It is from this judgment that Oliver appeals, asserting the following assignments of error for our review.
Assignment of Error No. 1
The trial court erred when it imposed consecutive sentences as the record does not support consecutive sentences and the sentence is contrary to law.
Assignment of Error No. 2
Appellant was deprived effective assistance of counsel when counsel was not prepared to fully argue consistency-in-sentencing
First Assignment of Error
{7} In his first assignment of error, Oliver argues that even though the trial court indicated it had considered
Standard of Review
{8} Under
Prison Terms
{9} ” ‘The trial court has full discretion to impose any sentence within the authorized statutory range, and the court is not required to make any findings or give
{10}
{11} In this case, Oliver was convicted of 16 second degree felonies. Pursuant to
{12} Moreover, at the sentеncing hearing, the trial court referenced the requisite sentencing statutes, specifically indicating that it had considered the principles and purposes of sentencing in
{13} Furthermore, to the extent that Oliver seeks to have this Court modify his prison terms, we emphasize that the Supreme Court of Ohio recently clarified an appellate court‘s review of a felony sentence under
{14} In Jones, the Supreme Court of Ohio also confirmed that
{15} In sum, the record demonstrates that the prison terms imposed by the trial court in this case are within the statutory range and that the trial court considered the requisite statutory factors in
Consecutive Sentences
{16} Oliver next argues that the trial court‘s decision to implement consecutive sentences was “purely arbitrary.” Pursuant to
{17} In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 37, the Supreme Court of Ohio held that a trial court must make the requisite statutory
{18} In this case, the trial court made the appropriate consecutive sentencing findings at the sentencing hearing and in its final judgment entry of sentence. On appeal, Oliver does not even attempt to argue that the trial court failed to make any of the appropriate findings; rаther, he contends that the trial court‘s consecutive sentence findings were unsupported by the record. Importantly, and contrary to Oliver‘s argument, a trial court has no obligation to state reasons to support its findings. Bonnell at ¶ 37. For this reason alone we could overrule Oliver‘s assignment of error.
{19} Nevertheless, the record reflects that Oliver had hundreds of images of child pornography on his eleсtronic devices. Oliver also altered photos that he had obtained, placing himself in them with the children engaged in child pornography. Oliver then went even further, taking nude photographs of his 10-year old step daughter, then altering the photograph so that it looked like she was in a bedroom with Oliver preparing to penetrate her. He сreated numerous other photographs of his step-daughter as well.
{20} Moreover, Oliver used vacation photos of his step-daughter‘s friends, aged 9-11, and placed their faces onto photographs of other children engaged in
{21} Based on the record, the trial court found that consecutive sentences were necessary to protect the public from future crime and to punish Oliver. The trial court found that consecutive sentences were not disproportionate to the seriousness of Oliver‘s conduct and the danger he posed to the public. Further, the trial court determined that “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 multiple offenses so сommitted was so great or unusual that no single prison term * * * adequately reflects the seriousness of the offender‘s conduct.”
{22} After reviewing the record we cannot find that Oliver has demonstrated that consecutive sentences were clearly and convincingly contrary to law, particularly where the trial court made the approрriate findings under
Second Assignment of Error
{23} In his second assignment of error, Oliver argues that he received ineffective assistance of counsel. Specifically, he contends that his counsel was unprepared at sentencing to argue that a 4 year and 11 month sentence was more consistent with sentences given to similarly situated offenders.
{24} “To establish a claim for ineffective assistance of counsel, a defendant must show that counsel‘s performance was deficient and that counsel‘s deficient performance prejudiced him.” State v. Hernandez, 3d Dist. Defiance Nos. 4-16-27, 28, 2017-Ohio-2797, ¶ 12, citing State v. Phillips, 3d Dist. Allen No. 1-15-43, 2016-Ohio-3105, ¶ 11, citing State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 133, citing Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure to make either showing defeats a claim of ineffective assistance of counsel. State v. Bradley, 42 Ohio St.3d 136, 143 (1989), quoting Strickland at 697. (“[T]here is nо reason for a court deciding an ineffective assistance of counsel claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.“).
Analysis
{25} In arguing that his counsel was ineffective at sentencing, Oliver contends that his counsel failed to preservе the issue of inconsistent sentencing in this matter by failing to raise it at the trial court level. Oliver argues that when his trial counsel argued for an aggregate prison term of under 5 years, he did not present any prior cases from Union County or surrounding courts to support his assertion for that type of sentence. Further, Oliver argues that his sentence is dispropоrtionate to other sentencing in similar cases. Importantly, however, Oliver does not cite a
{26} Finally, the goal of felony sentencing pursuant to
Conclusion
{28} For the foregoing reasons Oliver‘s assignments of error are overruled and the judgment and sentence of the Union County Common Pleas Court is affirmed.
Judgment Affirmed
ZIMMERMAN and MILLER, J.J., concur.
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