State v. Corrao
| Decision Date | 26 May 2011 |
| Docket Number | No. 95167,95167 |
| Parties | STATE OF OHIO PLAINTIFF-APPELLEE v. RONALD CORRAO, JR. DEFENDANT-APPELLANT |
| Court | Ohio Court of Appeals |
JOURNAL ENTRY AND OPINION
AFFIRMED IN PART; REVERSED IN PART
AND REMANDED
Criminal Appeal from the
Case No. CR-527400 BEFORE: Cooney, P.J., S. Gallagher, J., and Keough, J.
Susan J. Moran
William D. Mason
Cuyahoga County Prosecutor
By: Kristen L. Sobieski
Assistant County Prosecutor
{¶ 1} Defendant-appellant, Ronald Corrao, Jr. ("Corrao"), appeals the trial court's judgment sentencing him to a ten-year prison termfollowing his guilty plea to 26 sexually oriented offenses. We find some merit to the appeal and reverse in part.
{¶ 2} Corrao was charged in a 35-count indictment for crimes alleged to have occurred between January 1, 2006 and January 31, 2009. Pursuant to a plea agreement, Corrao pled guilty to seven counts of pandering sexually oriented material involving a minor, 16 counts of illegal use of a minor in nudity-oriented material, one count of sexual battery, one count of corrupting another with drugs, and one count of possession of criminal tools. The remaining nine counts were nolled.
{¶ 3} At the sentencing hearing, the court sentenced Corrao to three years in prison on Counts 5-8, 18, 26, and 27, the seven pandering charges. The court also sentenced him to three years in prison on Counts 9-17 and 19-25, the 16 counts of illegal use of minor in nudity-oriented material. Finally, the court sentenced him to two years on the sexual battery charge, one year for corrupting another with drugs, and one year for possession of criminal tools. At the conclusion of the sentencing, the court explained:
"Now, the 3 years, with the 3 years, the 2 year, the 1 year and the 1 year are all to be served consecutively for a term of 10 years in prison."
{¶ 4} Corrao now appeals his sentence, raising four assignments of error.
{¶ 5} In his first assignment of error, Corrao argues the trial court erred by imposing consecutive sentences for the pandering and illegal use of a minor in nude material convictions. He contends these are allied offenses of similar import that should have merged for sentencing.
{¶ 6} Corrao failed to object to the court's imposition of multiple sentences and has therefore waived all but plain error. Under Crim.R. 52(B), "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." The Ohio Supreme Court has expressly held that the imposition of multiple sentences for allied offenses of similar import is plain error. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶31; State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845, ¶96-102.
{¶ 7} R.C. 2941.25, which governs allied offenses, provides:
{¶ 8} The Ohio Supreme Court recently redefined the test for determining whether two offenses are allied offenses of similar import subject to merger under R.C. 2941.25 in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. The Johnson court expressly overruled State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699, which required a "comparison of the statutory elements in the abstract" to determine whether the statutory elements of the crimes correspond to such a degree that the commission of one crime will result in the commission of the other. The Johnson court held that rather than compare the elements of the crimes in the abstract, courts must consider the defendant's conduct. Johnson at syllabus. "If multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., 'a single act, committed with a single state of mind.'" Id., quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶50, (Lanzinger, J., dissenting).
{¶ 9} R.C. 2907.322(A)(1) prohibits pandering sexually oriented matter involving a minor, and states: "No person, with knowledge of the character of the material or performance involved, shall * * * [c]reate, record, photograph, film, develop, reproduce, or publish any material that shows a minor participating or engaging insexual activity, masturbation, or bestiality." R.C. 2907.323(A)(1) prohibits illegal use of a minor in nudity-oriented material or performance, and provides that "No person shall photograph any minor who is not the person's child or ward in the state of nudity, or create, direct, produce, or transfer any material or performance that shows the minor in a state of nudity." R.C. 2907.322(A)(1) prohibits one from photographing a minor engaged in sexual activity including masturbation. Photographs of minors engaged in sexual activity and masturbation could involve a child "in the state of nudity" prohibited by R.C. 2907.323(A)(1). Thus, it is possible for the same conduct to violate both R.C. 2907.322(A)(1) and 2907.323(A)(1).
{¶ 10} However, under Johnson, we must consider the defendant's conduct in determining whether the offenses are allied offenses that should merge. The record of Corrao's plea does not contain the necessary details as to the timing and circumstances of the various criminal acts from which we can make such a determination. In Underwood, the supreme court explained that the trial court's duty to merge allied offenses "is mandatory, not discretionary." Underwood at ¶26.1 Corrao was convicted of seven counts of pandering sexually oriented matter involving a minor and 16 counts of illegal use of a minor in nudity-oriented material. These crimes werecommitted between January 1, 2006 and January 31, 2009. It is impossible to determine whether any of the pandering and illegal use of a minor in nudity-oriented material offenses were committed in "a single act with a single state of mind." The trial court's failure to make the necessary inquiry constitutes plain error necessitating a remand. State v. Miller, 11th Dist. No. 2009-P-0090, 2011-Ohio-1161, ¶56, 58.
{¶ 11} Accordingly, we sustain the first assignment of error and vacate the sentences for pandering and illegal use of a minor in nudity-oriented material. However, because Ohio sentencing laws do not recognize the sentencing-package doctrine, our decision to vacate the sentences for pandering and illegal use of a minor in nudity-oriented material does not affect Corrao's other sentences. See State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824. Therefore, we now turn to Corrao's other assigned errors as they apply to the remaining sentences.
{¶ 12} In his second assignment of error, Corrao argues the trial court erred in sentencing him to consecutive sentences without making findings under R.C. 2929.14(E)(4). Corrao contends that the United States Supreme Court's decision in Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, retroactively reinstates the consecutive-sentencing statutes requiring fact-finding that were excised in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.
{¶ 13} The Ohio Supreme Court rejected these arguments in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768. In Hodge, the Supreme Court held that Oregon v. Ice does not revive Ohio's former consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4) and 2929.41(A), which were held unconstitutional in Foster. "Because the statutory provisions are not revived, trial judges are not obligated to engage in judicial fact-finding prior to imposing consecutive sentences unless the General Assembly enacts new legislation requiring that findings be made." Hodge at ¶39. See, also, State v. Torres, Cuyahoga App. No. 95646, 2011-Ohio-350.
{¶ 14} Therefore, the second assignment of error is overruled.
{¶ 15} In his third assignment of error, Corrao argues the trial court abused its discretion by imposing a sentence that was contrary to the sentencing guidelines. Corrao contends his sentence is more severe than other similarly situated defendants.
{¶ 16} To support a claim that a "sentence is disproportionate to sentences imposed upon other offenders, a defendant must raise this issue before the trial court and present some evidence, however minimal, in order to provide a starting point for analysis and to preserve the issue for appeal." State v. Edwards, Cuyahoga App. No. 89191, 2007-Ohio-6068, ¶11. Corrao raised the issue of proportionality both in his sentencing brief and at the sentencing hearing.
{¶ 17} R.C. 2929.14(E)(4) previously required a sentencing court to find "that the consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public" before imposing consecutive sentences. The court also had to state its reasons for such finding under R.C. 2929.19(B)(2)(c). However, Foster severed these provisions so that a sentencing court no longer has to provide findings or reasons. Foster at ¶97, 99 ().
{¶ 18} In a post-Foster plurality decision, the Ohio Supreme Court held that appellate courts must apply a two-step approach when reviewing felony sentences. State v. Kalish, 120...
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