State v. Wright

[Cite as State v. Wright, 

.]




                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                             BROWN COUNTY




 STATE OF OHIO,                                    :

        Appellee,                                  :    CASE NO. CA2024-10-011

                                                   :          OPINION
     - vs -                                                    5/12/2025
                                                   :

 DANIEL V. WRIGHT,                                 :

        Appellant.                                 :




      CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
                          Case No. CRI2024-2037



Zachary Corbin, Brown County Prosecuting Attorney, and Mary McMullen, Assistant
Prosecuting Attorney, for appellee.

The Bucio Firm, LLC, and Christopher R. Bucio, for appellant.



        SIEBERT, J.

        {¶ 1} Daniel Wright appeals the 24-year indefinite sentence imposed by the

Brown County Court of Common Pleas for four counts of Illegal Use of a Minor in Nudity-

Oriented Material or Performance. Despite admitting the sentence imposed by the trial

court is not "contrary to law," he raises three assignments of error on appeal. We overrule
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all of them. First, this court does not have the legal authority to substitute its judgment for

that of the trial court's regarding the application of the relevant sentencing statutes. We

reject Wright's invitation to change "public policy" from the bench and his arguments the

trial court exhibited unfair prejudice. Second, Wright fails to show his sentence was

disproportionate to those imposed on similarly situated defendants. Finally, Wright does

not demonstrate his former counsel provided him with ineffective assistance. We affirm

Wright's sentence.

                                        I. Background

       {¶ 2} Wright was indicted on March 27, 2024, on 27 counts of Illegal Use of a

Minor or Impaired Person in a Nudity-Oriented Material or Performance in violation of

R.C. 2907.323(A)(1), second-degree felonies, and 27 counts of Pandering Obscenity

Involving a Minor or Impaired Person in violation of R.C. 2907.321(A)(5), fourth-degree

felonies. Wright pled guilty to four counts of the second-degree offense, and the remaining

50 counts were dismissed. At the plea hearing, the State made clear it would ask for up

to a 24-year prison sentence, and Wright confirmed his understanding of this on the

record.

       {¶ 3} At sentencing, Wright's attorney reiterated that Wright understood a 24-year

sentence could be imposed and had "been made aware as to what the Court has

indicated they have sentenced other like and similar defendants in the past." Next, the

State summarized the underlying facts of the case, including that Wright "actively

search[ed] for[,]" sent, and received hundreds of videos and pictures that depicted

children as young as two years old "being violently raped by adults, as they scream[ed]

out." Finally, the State emphasized Wright's crimes created, among other human

trafficking issues, "a market for children to be raped" and stressed these crimes were not

victimless simply because Wright did not physically commit the actions depicted in the

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content he possessed. Before sentencing Wright, the trial court stated its hope that the

people in the courtroom would "never have to hear a two-year-old scream in anguish as

it gets violated over and over" and noted "that child's life will never be the same, much

less the hundreds and hundreds [of other victims]."

       {¶ 4} At the hearing and in its sentencing order, the trial court confirmed that it

considered the record, arguments of counsel, the principles and purposes of sentencing

found in R.C. 2929.11, as well as the seriousness and recidivism factors found in R.C.

2929.12. The court emphasized its responsibility to both punish Wright and to protect the

public by deterring him and others from committing future crimes. Given the horrific nature

and volume of the crimes Wright committed against children, the court stressed that

Wright's conduct "was so unusual and so great that no one sentence [could] adequately

reflect the seriousness of the conduct." Ultimately, the trial court sentenced Wright to

consecutive prison terms on each count which totaled up to a 24-year indefinite sentence.

       {¶ 5} Wright now appeals.

                                      II.    Analysis

       {¶ 6} FIRST     ASSIGNMENT           OF    ERROR.   DEFENDANT-APPELLANT'S

SENTENCE IS UNSUPPORTED BY THE RECORD AND CONTRARY TO LAW.

       {¶ 7} Within this single assignment of error, Wright argues that despite his

sentence not being expressly contrary to the law, it nonetheless should be set aside on

multiple grounds. Wright's arguments lack merit.

                       A. Applicable Law and Standard of Review

       {¶ 8} R.C. 2929.11 embodies the "overriding purposes of felony sentencing" and

requires that sentences protect the public, punish an offender, and promote the

rehabilitation of the offender. The statute also requires that imposed sentences balance

the seriousness of the crime with its impact on a victim and be consistent with sentences

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imposed on similar crimes and offenders. 

 at (B). In turn, R.C. 2929.12 gives the trial

court discretion on how to balance and comply with these overriding purposes of

sentencing while considering various factors regarding the seriousness of the crime and

the risk of recidivism, including whether there was serious harm to the victim and whether

the offender had a criminal history. State v. Johnson, 

 (12th Dist.).

       {¶ 9} As Wright acknowledges, "courts across this State have routinely held" that

to prevail on an appeal relating to R.C. 2929.11 and 2929.12, the appellant must present

clear and convincing evidence that the sentence is "otherwise contrary to law" under R.C.

2953.08(G)(2)(b). State v. Iverson, 

 (12th Dist.). A sentence is not

"clearly and convincingly contrary to law" if the trial court considers the principles and

purposes of felony sentencing and the sentencing factors, but the trial court is not required

to make any specific factual findings on the record. State v. Murphy, 

, ¶ 15-

16 (12th Dist.), citing State v. Bryant, 

.

       {¶ 10} An appellate court does not have the authority to independently weigh the

sentencing factors and substitute its judgment for that of the trial court's. State v. Jones,

. Appellate courts only have the authority to analyze whether an

appellant presents clear and convincing evidence showing the trial court imposed a

sentence that was "otherwise contrary to law." See 

                      B. Compliance with R.C. 2929.11 and 2929.12

       {¶ 11} Wright admits his sentence "does not fall outside the applicable statutory

range and is not itself contrary to law." This admission contradicts his own assignment of

error. Our review could begin and end with his admission because, as relevant here, R.C.

2953.08(G)(2)(b) only gives appellate courts authority to "increase, reduce, or otherwise

modify a sentence that is appealed . . . if it clearly and convincingly finds . . . [t]hat the



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sentence is otherwise contrary to law."1

        {¶ 12} Nonetheless, Wright characterizes the trial court as making "blanket

statements" and "brief[ ] mention[s]" regarding the purposes and principles of felony

sentencing and the "seriousness of his conduct." He contends that the trial court's lack of

analysis and specificity related to these statements did not satisfy its obligations under

R.C. 2929.11 and 2929.12. Not so.

        {¶ 13} At the sentencing hearing and in its sentencing order, the trial court

expressly invoked the relevant statutory factors and emphasized its responsibility to both

punish Wright and protect the public by deterring future crimes. The court also

emphasized that Wright's crimes, given their horrific nature and volume, could not be

adequately punished by a single prison term. Further, the trial court (and the State)

stressed what this court has made clear in past opinions—sexually oriented matter

involving a minor directly harms the children who are depicted and indirectly contributes

to the market for the sexual exploitation of children. State v. Boggs, 

; State v. Pearce, 

 (12th Dist.).

        {¶ 14} The trial court's explanations are far more than "blanket statements," and

they satisfy the trial court's obligations under R.C. 2929.11 and 2929.12.

                                C. Wright's Underlying Arguments

        {¶ 15} This court could again stop its analysis here and overrule this assignment

of error because the trial court stated it had considered the relevant sentencing purposes

and factors related to seriousness and recidivism as required by R.C. 2929.11 and

2929.12. The sentence was not, therefore, contrary to law.




1. R.C. 2953.08(G)(2)(a) also permits appellate review if the record does not support the sentence related
to several specifically referenced statutes, none of which are relevant here.


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       {¶ 16} However, this court is concerned about the extent to which Wright also

attempts to provide "clear and convincing" support for his position by asserting arguments

that either ignore fundamental principles found in Ohio's Constitution or cites to legal

authority which directly contradicts his own position. Therefore, we will analyze Wright's

underlying arguments to address those concerns.2

       {¶ 17} First, Wright argues that "as a matter of public policy," trial courts should

assign specific weights to the various sentencing purposes, the seriousness of the crime,

and the recidivism factors. The Ohio Constitution frames and delineates the separate

powers held by each branch of our State's government, and the judiciary's role is clear—

absent a constitutional concern, it interprets the law as written by the legislature. Ohio

Const. Art. IV, § 1; Beagle v. Walden, 

 (1997). In turn, legislative

power is wholly vested in the General Assembly, or in the people themselves. Ohio Const.

Art. II, § 1. The legislature is thus the "ultimate arbiter of public policy." (Cleaned up.)

State ex rel. Johnson v. Ohio State Senate, 

, quoting Gabbard v.

Madison Local School Dist. Bd. of Edn., 

; see also Berkheimer v.

REKM, L.L.C., 

, ¶ 12 (Fischer, J., concurring) ("Public policy is the

province of the legislative—not the judicial—branch of our government.").

       {¶ 18} Consistent with Ohio's Constitution and established law, this court refuses

Wright's invitation to dictate public policy by judicial fiat. His arguments should not be

made to an appellate court, but to the General Assembly or his fellow Ohio citizens, as

they are the only entities constitutionally entrusted with the power to change the statutory

obligations in R.C. 2929.11 and 2929.12.



2. Among these arguments is the unsupported assertion that upholding his sentence will affect his
constitutional right to be free from cruel and unusual punishment. Pursuant to App.R. 12(A)(1)(b) and
App.R. 16(A)(7), we will not address this undeveloped claim.

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        {¶ 19} Next, Wright asserts the trial court did not properly weigh his lack of a prior

criminal record and his "proven ability to function as a law-abiding citizen over the past

forty-three years of life." He argues this improper weighing provides him with clear and

convincing evidence that "the trial court's judgment was clouded by unfair prejudice which

did not support the sentence."

        {¶ 20} But Wright's own legal citations are fatal to this assertion because, just as

Wright admits that his sentence was not "itself contrary to law," he cites to law finding that

the factors included in R.C. 2929.11 [and R.C. 2929.12] are "nonexhaustive" and the trial

court can "consider and weigh any other factor it pleases." State v. Theodorou, 2017-

Ohio-9171, ¶ 11 (8th Dist.). Further, Wright's briefing notably omits the next critical holding

from Theodorou—"the weight to be given to any one sentencing factor is purely

discretionary and rests with the trial court." Id.3

        {¶ 21} Wright also relies on State v. Marcum for his position that our review of the

record would provide clear and convincing evidence that "the trial court's judgment was

clouded by unfair prejudice." See generally 

. In that case, the Ohio

Supreme Court stated that appellate courts may set aside or modify a sentence despite

not being contrary to law if it "finds by clear and convincing evidence that the record does

not support the sentence." Id. at ¶ 23. But Wright fails to acknowledge that the Ohio

Supreme Court later clarified that this statement in Marcum was dicta, and that an

appellate court did not have the authority to independently weigh the sentencing factors

and substitute its judgment for that of the trial court's. Jones, 

,

citing R.C. 2953.08(G)(2).



3. We note that citations to our sister district are not binding on this court, but we agree with the Eighth
District's analysis of the statutory language and obligations (or lack thereof), as stated in Theodorou at ¶
11.

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       {¶ 22} Far from providing the clear and convincing evidence his assignment of

error requires, Wright's own cited legal authorities undermine his position or have been

negated by the Ohio Supreme Court.

       {¶ 23} The trial court satisfied its statutory obligations under R.C. 2929.11 and

2929.12, and Wright's sentence was not contrary to law. Despite this, Wright asks this

court to act outside its authority under Ohio law by either judicially implementing his

preferred public policy or by second-guessing the trial court's judgment regarding how to

apply the sentencing principles and factors of R.C. 2929.11 and 2929.12 to him. Ohio

law, including law Wright cites, explicitly prohibits either action by this court, and we will

do neither.

       {¶ 24} Wright's first assignment of error is overruled.

       {¶ 25} SECOND ASSIGNMENT OF ERROR. DEFENDANT-APPELLANT'S

SENTENCE IS DISPROPORTIONATE TO OTHER SENTENCES IMPOSED FOR

SIMILAR CRIMES UPON SIMILARLY SITUATED OFFENDERS.

       {¶ 26} Wright argues his sentence is "unduly punitive and skewed, compared to

his peers" and ignores that Wright had no prior criminal record and "was simply a hard-

working, taxpaying U.S. citizen"4 before being indicted on 54 counts of possessing and

using material depicting nude, young children and pandering obscenity, including images

of violent rape that, again, involved young children.

       {¶ 27} Ohio courts have long held that "[a] felony sentence should be proportionate

to the severity of the offense committed, so as not to 'shock the sense of justice in the




4. Such statements in Wright's first and second assignments of error seem to ignore the period of time
when he was accumulating and sending images of nude, young children being sexually violated but before
law enforcement caught him doing so. The record does not show an instantaneous shift from law abiding
honesty to illegally possessing such abhorrent images. These actions, presumably, occurred over an
indeterminate period of time.

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community.'" State v. Smith, 

 (8th Dist.), quoting State v. Chafin, 

 (1972). Under Ohio law, Wright has the burden of producing evidence

to show how his sentence is "'directly disproportionate'" to the sentences other offenders

with similar records have received for the same offenses. Id. at ¶ 66, quoting State v..

Breeden 

 (8th Dist.).

       {¶ 28} Here, Wright was convicted of four second-degree sex offense felonies

involving young children, and none of the cases he cites to as evidence of

disproportionality are legally or factually similar to his own. State v. Warton, 2021-Ohio-

2502, ¶ 7 (5th Dist.) (defendant pled to fifth- and fourth-degree sex offenses involving

teenage minors); State v. Duncan, 

 (12th Dist.) (involved various robbery

related felonies and post release control violations); and State v. Lugo-Casiano, 2023-

Ohio-3711 (8th Dist.) (defendant pled guilty to fourth- and third-degree felony after eluding

traffic stop while operating ATV).

       {¶ 29} This court also notes that Wright's counsel confirmed Wright's

understanding at the sentencing hearing that he understood a 24-year sentence was

consistent with the sentences of other "like and similar defendants before the trial court

in the past." So, at sentencing Wright agreed his potential 24-year sentence was not

disproportionate to other similarly situated offenders, but now argues it was

disproportionate, without positing supporting evidence.

       {¶ 30} Put simply, Wright fails to meet his evidentiary burden to show his sentence

was disproportionate when compared to other sentences imposed for similar crimes upon

similarly situated individuals. He has not demonstrated, through evidence or relevant

sentence comparisons, that the community's sense of justice should be shocked by his

24-year prison sentence for possessing pictures of screaming toddlers being violently

raped by adults.

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       {¶ 31} Wright's second assignment of error is overruled.

       {¶ 32} THIRD ASSIGNMENT OF ERROR: THE ACTIONS AND OMISSIONS OF

DEFENDANT-APPELLANT'S               TRIAL      COUNSEL         IN    THE      AGGREGATE

CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

       {¶ 33} Wright asserts that his trial counsel provided him with ineffective assistance

because "at no time during the Plea Hearing was [he made aware of] the full gravity of

his prospective plea." Wright also notes, without any detail that provides relevance,

context, or substantiation, that his trial counsel "is currently the subject of a disciplinary

action with the Ohio Bar's Board of Professional Conduct."

       {¶ 34} "To prevail on an ineffective assistance of counsel claim in the context of a

guilty plea, the defendant must show that (1) his [or her] counsel's performance was

deficient and (2) there is a reasonable probability that, but for counsel's errors, the

defendant would not have pled guilty." State v. Arledge, 

 (12th Dist.),

citing State v. Bird, 

 (1998). Courts determine deficient

performance by asking whether counsel's conduct "fell below an objective standard of

reasonableness" based on "the facts of the particular case, viewed as of the time of

counsel's conduct." Strickland v. Washington, 

 (1984). In turn,

prejudice is shown where "there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different." 

.

A defendant's failure to sufficiently show either Strickland prong is fatal to a claim of

ineffective assistance of counsel. State v. Lloyd, 

, citing 

.

       {¶ 35} At best, Wright's arguments are unconvincing. At worst, they are misleading

and disingenuous. The record makes clear that before Wright pled guilty, the State

asserted that it would ask for up to a 24-year prison sentence, and Wright confirmed his

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understanding of the State's assertion on the record. Further, Wright's trial counsel

reiterated at sentencing that Wright understood a 24-year sentence could be imposed,

consistent with the sentences of other "like and similar defendants before the trial court

in the past."5 Wright not only fails to show his counsel's performance was objectively

deficient but also fails to show that he would not have pled guilty or the outcome of his

plea and sentencing would have been different without these (alleged, but unproven)

deficiencies. Such failures defeat his claim of ineffective counsel.

        {¶ 36} Finally, Wright provides no reason for this court to believe that the

purported, unnamed disciplinary action involving his trial counsel affected this case. His

allegation of this disciplinary action, without any attempt to show why it relates to Wright's

assignment of error, amounts to nothing but an inappropriate, ad hominem attack. Such

an attack has no legal merit.

        {¶ 37} This final assignment of error is overruled.

        {¶ 38} Judgment affirmed.


        {¶ 39} HENDRICKSON, P.J., and BYRNE, J., concur.




5. We acknowledge there is nothing in the record to demonstrate what "like and similar" sentences the trial
court previously imposed, but it is Wright's burden on appeal to demonstrate that it was not. As previously
noted, Wright failed to meet his burden.

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