State v. Costello, L-22-1004

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtMAYLE, J.
Citation2022 Ohio 3354
PartiesState of Ohio Appellee v. William Costello Appellant
Docket NumberL-22-1004
Decision Date23 September 2022

2022-Ohio-3354

State of Ohio Appellee
v.

William Costello Appellant

No. L-22-1004

Court of Appeals of Ohio, Sixth District, Lucas

September 23, 2022


Trial Court No. CR0202102082

Julia R. Bates, Lucas County Prosecuting Attorney, and Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.

Autumn D. Adams, for appellant.

DECISION AND JUDGMENT

MAYLE, J.

{¶ 1} Following a negotiated plea, the Lucas County Court of Common Pleas convicted the defendant-appellant, William Costello, of five counts of pandering in child pornography and sentenced him to serve a total maximum prison term of 33 years. On

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appeal, Costello argues that the record does not support the imposition of a prison sentence under R.C. 2929.11 and 2929.12. Costello concedes that the Ohio Supreme Court's decision of State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649 precludes this court from independently weighing the evidence in the record and substituting our judgment for that of the trial court concerning the sentence that best reflects compliance with R.C. 2929.11 and 2929.12. Instead, he asks this court to ignore Jones on the basis that it violates his right to due process. For the following reasons, we affirm.

I. Background

{¶ 2} Costello was originally charged with 15 counts of pandering obscenity involving a minor, in violation of R.C. 2907.321(A)(1) and (C), all felonies of the second degree. Following negotiations, Costello pled guilty to Counts 1 through 5, and the state agreed not to prosecute the remaining counts. At the time of his plea, the trial court advised Costello that he faced up to 44 years in prison. The trial court accepted Costello's plea, found him guilty, and ordered a presentence investigation ("PSI") in advance of sentencing.

{¶ 3} At the sentencing hearing, the trial court heard statements from the prosecutor and defense counsel, and Costello spoke on his own behalf. After hearing the statements, the court reviewed the factors that it took into consideration when sentencing Costello, including the information in his PSI. Before concluding, the trial court

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reviewed the principles and purposes of sentencing in R.C. 2929.11 and the seriousness and recidivism factors in R.C. 2929.12. After considering all of this information, the trial court ordered Costello to serve six years in prison as to each count, to be served consecutively to one another, for a total minimum-stated prison term of 30 years, with a total indefinite stated prison term of three years as to each count, to be served concurrently to one another, for a total maximum stated prison term of 33 years.

{¶ 4} Costello appealed and raises the following assignment of error:

State v. Jones cuts off Appellant's right of appellate review and as the prison sentence imposed in this case fails to serve the principles and purposes of sentencing it is imperative this Court recognize State v. Jones is a violation of Appellant's due process rights and review the trial court's sentence for compliance with R.C. 2929.11 and R.C. 2929.12. [Sic]

II. Discussion

{¶ 5} We review challenges to felony sentencing under R.C. 2953.08(G)(2), which provides that,

The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and
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remand the matter to the sentencing court for resentencing. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.

{¶ 6} Costello's underlying argument in this case is that the imposition of a prison term fails to comport...

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