[Cite as State v. Case,
2023-Ohio-4365.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SHELBY COUNTY
STATE OF OHIO, CASE NO. 17-23-04
PLAINTIFF-APPELLEE,
v.
ZACHARY T. CASE, OPINION
DEFENDANT-APPELLANT.
Appeal from Shelby County Common Pleas Court
Trial Court No. 22CR000276
Judgment Affirmed
Date of Decision: December 4, 2023
APPEARANCES:
Michael J. Scarpelli for Appellant
Timothy S. Sell for Appellee
Case No. 17-23-04
MILLER, P.J.
{¶1} Defendant-appellant, Zachary T. Case (“Case”) appeals the March 9,
2023 judgment entry of sentence of the Shelby County Court of Common Pleas.
For the reasons that follow, we affirm.
Background
{¶2} On December 8, 2022, the Shelby County Grand Jury indicted Case on
18 counts: Counts One through Six of pandering sexually oriented material
involving a minor in violation of R.C. 2907.322(A)(2), second-degree felonies; and
Counts Seven through Eighteen of pandering obscenity involving a minor in
violation of R.C. 2907.321(A)(5), fourth-degree felonies. Additionally, each of the
counts included a criminal forfeiture specification of two cell phones, two laptop
computers, and a desktop computer. Case appeared for arraignment on December
14, 2022 where he entered a not guilty plea to the charges in the indictment.
{¶3} Pursuant to a negotiated-plea agreement, on January 30, 2023, Case
appeared for a change-of-plea hearing where he entered guilty pleas to Counts One
and Two. In exchange, the State agreed to dismiss the remaining counts. The trial
court accepted Case’s guilty pleas, found him guilty of the two counts, and, at the
request of the State, dismissed the remaining counts. The trial court ordered a
presentence investigation. (“PSI”)
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{¶4} At the sentencing hearing held on March 9, 2023, the trial court
sentenced Case to an indefinite prison term of seven to ten and one-half years on
Count One and a definite prison term of seven years on Count Two. The trial court
ordered the sentences to be served consecutively for an aggregate term of 14 to 17
1/2 years in prison. The trial court filed its judgment entry that same day.
{¶5} Case filed a notice of appeal on April 17, 2023. He raises one
assignment of error for our review.
Assignment of Error
The trial court’s decision to impose consecutive sentences is
clearly and convincingly unsupported by the record.
{¶6} Case argues that the trial court erred by sentencing him to consecutive
sentences because the consecutive sentences are not supported by the record. For
the reasons that follow, we disagree.
Standard of Review
{¶7} Under R.C. 2953.08(G)(2), an appellate court may reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002,
¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’”
Id.
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at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
Relevant Authority
{¶8} In his assignment of error, Case argues that the trial court erred by
imposing consecutive sentences. “Except as provided in … division (C) of
section 2929.14, … 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). R.C. 2929.14(C) provides:
(4) … [T]he court may require the offender to serve the prison terms
consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the
offender and that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender
poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
(b) 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 committed 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.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
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{¶9} R.C. 2929.14(C)(4) requires a trial court to make specific findings on
the record when imposing consecutive sentences. State v. Hites, 3d Dist. Hardin
No. 6-11-07, 2012-Ohio-1892, ¶ 11. Specifically, the trial court must find: (1)
consecutive sentences are necessary to either protect the public or punish the
offender; (2) the sentences would not be disproportionate to the offense committed;
and (3) one of the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies.
Id.
{¶10} The trial court must state the required findings at the sentencing
hearing prior to imposing consecutive sentences and incorporate those findings into
its sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-
4140, ¶ 50, citing State v. Bonnell, 140 Ohio St. 209, 2014-Ohio-3177, ¶ 29. A trial
court “has no obligation to state reasons to support its findings” and is not “required
to give a talismanic incantation of the words of the statute, provided that the
necessary findings can be found in the record and are incorporated into the
sentencing entry.” Bonnell at ¶ 37.
Analysis
{¶11} Case does not argue that the trial court failed to make the requisite
consecutive-sentencing findings under R.C. 2929.14(C)(4). Rather, he contends
that the record does not support the trial court’s findings.
{¶12} At the sentencing hearing, the trial court stated:
And the Court finds that consecutive sentencing is necessary to
protect the public from future crime or to punish you; and that
consecutive sentencing is not disproportionate to the seriousness of
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your conduct and to the danger you pose to the public. And the Court
also finds that … the multiple offenses so committed as part of the
course of conduct … [are] so great or so unusual that no single
prison term for any of the offenses committed as part of the courses
of conduct would adequately reflect the seriousness of … your
conduct.
(Mar. 9, 2023 Tr. at 7). The court memorialized those findings in its sentencing
entry. (Doc. No. 67). Accordingly, the record reflects that the trial court made the
appropriate R.C. 2929.14(C)(4) findings before imposing consecutive sentences and
incorporated those findings into its sentencing entry.
{¶13} Yet, Case argues that the trial court erred by failing to conduct its
analysis in accordance with the Supreme Court of Ohio’s decision in State v.
Gwynne, ____ Ohio St.3d _____, 2022-Ohio-4607 (“Gwynne IV”). However, in
State v. Gwynne, ___Ohio St.3d _____,
2023-Ohio-3851 (“Gwynne V”), which was
decided while Case’s appeal was pending, the Supreme Court of Ohio reconsidered
and vacated its prior decision in Gwynne IV and reiterated that “[a]ppellate review
turns on whether the trial court’s findings are clearly and convincingly not supported
by the record, and if the evidence supports the trial court’s consecutive-sentence
findings, the analysis ends there.” Gwynne V at ¶ 24.
{¶14} Nevertheless, Case argues that the trial court’s finding that
consecutive sentences are necessary to protect the public from him is clearly and
convincingly not supported by the record because his prior criminal record consists
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only of two non-violent misdemeanors and that he was “gainfully employed up until
the time he was sent to prison.” (Appellant’s Brief at 6). We disagree.
{¶15} First, we note that, at the sentencing hearing, the trial court
acknowledged that Case “[has] something of a minimal record.” (Mar. 9, 2023 Tr.
at 6). However, the trial court also noted that Case was originally indicted on 18
felony counts and that the evidence demonstrates “this was not an … occasional
incident on [Case’s] part but that as a regular course of conduct … involving
extremely graphic and disturbing images and videos” and that Case “actually sought
out those … materials.” (Id.).
{¶16} Additionally, the PSI, which the trial court stated that it considered
when fashioning Case’s sentence, contained a plethora of information supporting
the trial court’s findings. Specifically, the PSI stated that Case possessed 112 videos
on his phone, 92 of which were “extreme juvenile porn” depicting “disturbing and
graphic pre-pubescent and young teenage females engaged in all kinds of sexual
activity (oral, vaginal, anal, and bondage) with adult males” with some of the
victims as young as seven-years-old. (PSI). Furthermore, the PSI indicates that
Case completely failed to acknowledge responsibility for the underlying conduct,
instead telling the PSI author that he has “no memory” of the instant offenses due
to side effects from a gas leak at his residence during the time of the offenses. (Id.).
Yet, Case simultaneously acknowledged that he was the only person with access to
his cellular phone during the relevant time period. (Id.).
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{¶17} Accordingly, after reviewing the record, we find that the trial court’s
consecutive-sentence findings were amply supported by the record and we reject
Case’s argument to the contrary. We conclude that the record reflects that the trial
court made the appropriate R.C. 2929.14(C)(4) findings before imposing
consecutive sentences and incorporated those findings into its sentencing entry and
that those findings are not clearly and convincingly unsupported by the record.
Gwynne V, 2023-Ohio-3851, at ¶ 24.
{¶18} Case’s assignment of error is overruled.
Conclusion
{¶19} For the foregoing reasons, Case’s assignment of error is overruled.
Having found no error prejudicial to the appellant herein in the particulars assigned
and argued, we affirm the judgment of the Shelby County Court of Common Pleas.
Judgment Affirmed
WILLAMOWSKI and WALDICK, J.J., concur
/eks
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