[Cite as State v. Bonness,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96557

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

ROBERT BONNESS

DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND REMANDED FOR RESENTENCING

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-543662 BEFORE: Stewart, J., Kilbane, P.J., and E. Gallagher, J.

RELEASED AND JOURNALIZED: February 9, 2012

ATTORNEY FOR APPELLANT

Edward R. LaRue 75 Public Square Suite 800 Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

BY: Jesse W. Canonico Assistant County Prosecutor The Justice Center 1200 Ontario Street, 9th Floor Cleveland, OH 44113

MELODY J. STEWART, J.:

{¶ 1} Defendant-appellant, Robert Bonness, pleaded guilty to one count

of attempted rape; eight counts of pandering sexually-oriented matter

involving a minor in violation of R.C. 2907.322(A)(1); six counts of pandering

sexually-oriented matter involving a minor in violation of R.C. 2907.322(A)(5);

eight counts of the illegal use of a minor in nudity-oriented material or performance in violation of R.C. 2907.323(A)(3); and two counts of possession

of criminal tools. As relevant here, the court imposed consecutive five-year

terms on the eight illegal use of a minor in nudity-oriented material or

performance counts. When added to the sentences imposed on the other

counts, including an eight-year term for attempted rape, Bonness received a

total prison term of 52 years and six months.

{¶ 2} In this appeal, Bonness asserts two assignments of error: (1)

that the court abused its discretion by ordering the maximum sentence on the

attempted rape count, and (2) that the court abused its discretion by ordering

him to serve the eight counts of illegal use of a minor in nudity-oriented

material or performance (we will refer to these as the “child pornography”

counts) consecutively because the sentence constituted a de facto life

sentence. We find that the court did not abuse its discretion by ordering a

maximum sentence for the attempted rape count, but agree that consecutive

sentences in this case were disproportionate to those rendered in similar

cases, so we reverse and remand for resentencing.

I

{¶ 3} Bonness was a 53-year-old retired police officer with no prior

criminal record. He was caught in a police sting that involved his answering

an anonymous internet posting from a fictitious father and daughter who

were “looking for the right person in the Cleveland area” to do things “that may interest that special person.” Bonness was undeterred when he learned

from the poster that the daughter was only 12 years old, and even asked the

poster, “does she swallow?” He exchanged several emails with the poster,

each growing more graphic in its description of the sex acts that he hoped he

and the daughter might mutually perform. These exchanges went on for

several months and Bonness, satisfying himself that the 12-year-old would be

a willing participant, actually spoke on the telephone with an undercover

officer pretending to be the fictitious 12-year-old. Bonness finally arranged

to meet the father and daughter at a hotel and, when he arrived, was

arrested.

{¶ 4} Upon arrest, Bonness waived his right to remain silent. He

confessed that had there been a young girl present in the hotel room, he

would have engaged in sexual activity with her, but allowed that he would

only have done so after satisfying himself that she was not being forced to

submit. The police searched Bonness’s car and found condoms, lubricants,

and vibrators. Bonness told the police that he had a sexual addiction and

kept child pornography at his house. A search of his computer uncovered 94

pornographic files, some of which were videos showing children under the age

of 13 engaging in deviant sexual acts. The court described one of the videos

as showing a child being digitally and anally penetrated, forced to perform

oral sex, defecated upon, handcuffed, and restrained in a dog kennel. {¶ 5} As previously noted, the court imposed an eight-year sentence on

the attempted rape count and consecutive five-year terms on the eight illegal

use of a minor in nudity-oriented material or performance (child

pornography) counts. It also imposed concurrent 18-month terms on the six

pandering sexually-oriented matter involving a minor counts; concurrent

12-month terms on the eight pandering sexually-oriented matter involving a

minor counts; and consecutive 12-month terms on the two criminal tools

counts.

II

A

{¶ 6} At one time, Ohio law created presumptions that offenders be

given minimum, concurrent terms of incarceration. See former R.C.

2929.14(B), 2929.14(E)(4), 2919.19(B)(2), and 2929.41. These presumptions

could be overcome if the court made specific factual findings regarding the

nature of the offense and the need to protect the public. This judicial

fact-finding was called into question by Apprendi v. New Jersey,

,

,

(2000), and Blakely v. Washington,

,

,

(2004), in which the United States

Supreme Court held that judicial fact-finding could infringe upon a

defendant’s Sixth Amendment right to a jury trial because it invaded the

fact-finding function of the jury. In State v. Foster,

,

,

, the Ohio Supreme Court held that under

Apprendi and Blakely, Ohio’s sentencing statutes that required a judge to

make factual findings in order to increase a sentence beyond presumptive

minimum or concurrent terms unconstitutionally infringed upon the jury’s

fact-finding function in violation of the Sixth Amendment. It, therefore,

severed those sections and held that courts have full discretion to sentence

within the applicable statutory range and likewise have discretion to order

sentences to be served consecutively. Id. at ¶ 99-100.

{¶ 7} Foster was partially called into question by Oregon v. Ice,

,

,

(2009), in which the United States

Supreme Court later ruled that neither Apprendi nor Blakely implicated a

sentencing judge’s long-understood authority to order sentences to be served

consecutively. The Ohio Supreme Court later acknowledged that Foster

erroneously applied Apprendi and Blakely to ban judicial fact-finding in

support of consecutive sentences, but ruled that Ice could not revive that

which had previously been severed as unconstitutional in Foster. See State

v. Hodge,

,

,

, paragraph two

of the syllabus. In other words, R.C. 2929.14(E)(4), which had been declared

unconstitutional and severed in Foster, remained severed.1 Thus, Ice had no

The General Assembly reenacted the consecutive sentencing provisions formerly contained in 1

R.C. 2929.14(E)(4) in R.C. 2929.14(C)(4), effective September 30, 2011. The court sentenced practical effect on Foster, meaning that the court still has “the discretion and

inherent authority to determine whether a prison sentence within the

statutory range shall run consecutively or concurrently * * *.” State v. Bates,

,

,

.

B

{¶ 8} Even though there are no longer any express factors for the court

to consider before imposing sentences consecutively, the sentencing judge’s

discretion must nonetheless be guided by a consideration of the statutory

policies that apply to every felony offense, including those set forth in R.C.

2929.11 and 2929.12. State v. Mathis,

,

,

. The sentencing factors apply to decisions to impose

sentences consecutively. See State v. Freeman, 8th Dist. No. 95608,

,

, ¶ 25.

{¶ 9} One of the “overriding” purposes of felony sentencing is “to punish

the offender using the minimum sanctions that the court determines

accomplish those purposes without imposing an unnecessary burden on state

or local government resources.” R.C. 2929.11(A). To achieve that overriding

purpose, a felony sentence must be “commensurate with and not demeaning

to the seriousness of the offender’s conduct and its impact upon the victim,

Bonness on March 9, 2011, so the reenacted provisions do not apply to him. and consistent with sentences imposed for similar crimes committed by

similar offenders.” R.C. 2929.11(B).

{¶ 10} While the sentencing judge has discretion to determine the most

effective way to comply with R.C. 2929.11, the sentencing judge may only

exercise that discretion after considering the seriousness, recidivism, and

mitigating factors set forth in R.C. 2929.12. A separate finding on each

statutory factor is not required — the duty is satisfied merely by noting that

the sentencing factors were considered. State v. Payne,

,

,

; State v. Wright, 8th Dist. No. 95096,

,

, ¶ 4.

III

{¶ 11} Bonness first argues that the court erred by imposing the

maximum eight-year sentence on the attempted rape count. While conceding

that a minimum sentence would not have been appropriate, he claims that

the maximum term was inappropriate because he was a first-time offender

who cooperated with the police, that there was no actual victim given that he

was the subject of a police sting, and that even had there been an actual

victim, there was still the potential that he could abandon the plan before

committing any crime.

{¶ 12} The court stated that it considered the relevant statutory factors,

so that statement by itself was enough to fulfill its obligations under R.C. 2929.11 and 2929.12. See State v. Arnett,

,

,

; State v. Woodward, 8th Dist. Nos. 94672 and

94673,

,

, ¶ 6. Nevertheless, a rote statement

that the statutory factors have been considered should not be examined in a

vacuum — it must be considered in the context of facts brought out during

sentencing as applied to the relevant sentencing factors. The court had a

presentence investigation report, along with sentencing memoranda

submitted by the parties. It also heard from Bonness, his attorney, and the

assistant prosecuting attorney.

{¶ 13} Cooperation with authorities is not a stated factor for

consideration under R.C. 2929.12. In capital cases, “[a] defendant’s

confession and cooperation with law enforcement are mitigating factors.”

State v. Bethel,

,

,

.

However, the Supreme Court has made it clear that in capital cases,

mitigation applies only to sentencing and does not necessarily excuse a

defendant’s culpability. State v. Holloway,

,

(1988), paragraph one of the syllabus. R.C. 2929.12(C)(4) takes the

opposite approach — it allows the sentencing judge to consider whether there

were “substantial grounds to mitigate the offender’s conduct, although the

grounds are not enough to constitute a defense.” {¶ 14} While it is true that Bonness immediately confessed his

involvement in seeking a sexual liaison with a 12-year-old girl, that

confession did not mitigate his conduct leading up to his arrest. Perhaps his

quick confession, cooperation with the investigation, and guilty plea made the

case easier to prosecute, but there is little doubt on the record before us that

the state possessed overwhelming evidence of Bonness’s guilt and would not

likely have encountered difficulty in presenting and winning its case at trial.

The court rationally could have found that the cooperation of a defendant who

was caught in the act of committing a crime was entitled to little, if any,

weight.

{¶ 15} Bonness’s claim that he was entitled to favorable treatment

because he might still have abandoned the crime before committing it is not

supported by the record. He admitted to the police upon his arrest that had

there been an actual and willing father and child available for a liaison, he

would have engaged in sexual activity with the child. He pursued a sexual

liaison for several months, sending graphic email messages. He even spoke

with an undercover police officer, posing as the fictitious 12-year-old, in order

to satisfy himself that the child would be a willing participant. Finally, the

police found sex paraphernalia and female stimulant gel in Bonness’s car.

Bonness was fully prepared to go forward with an illicit liaison. His suggestion that he might have backed out of the liaison had the police not

intervened is not worthy of serious consideration.

{¶ 16} Finally, while it is true that there was no actual victim of the

attempted rape, we fail to see how this mitigates the seriousness of Bonness’s

actions. He was ready and willing to have sex with a 12-year-old,

demonstrated by his arrival at the hotel with a car trunk containing sex toys.

Although there was no actual victim, Bonness thought there would be, as

demonstrated by his insistence that he first speak to the child to ensure her

willingness to have sex with him. He had taken substantial, concrete steps

to consummate an encounter with a 12-year-old and was stopped from doing

so by his arrest.

{¶ 17} We thus see nothing in the record that would mitigate Bonness’s

conduct leading up to his arrest. On the other hand, the court could

rationally consider the seriousness of the attempted rape of a 12-year-old and

the very substantial steps Bonness took to make that rape happen. The

court did not abuse its discretion by finding that Bonness’s conduct went so

far beyond mere “curiosity” that it was deserving of the most severe penalty

allowed by law.

IV

{¶ 18} The next issue raised by Bonness is whether the court abused its

discretion by running the eight child pornography counts consecutively. He argues that the court erroneously gave weight to the fact that Bonness was a

police officer despite knowing that Bonness had been retired from the police

force at the time of his offenses; that the court neglected to consider that

Bonness was a first-time offender who cooperated with the police and showed

great remorse for his actions; and that the total sentence was

disproportionate to his conduct and inconsistent with those given to similar

offenders.

A

{¶ 19} R.C. 2929.12(B)(1) and (2) require the court to consider the

“physical and mental injury” suffered by the victim of the offense and

whether that injury was “exacerbated” because of the victim’s physical or

mental condition or age. The court found that the victims were the children

used to make the child pornography Bonness had in his possession. It found

that every viewing of the images and films constituting the child pornography

constituted a revictimization of the children. It noted that many of the

children depicted in the pornography had been identified and that the abuses

perpetrated upon them were essentially a “life sentence” because they know

that “as they get older and start to understand the breadth and scope * * * of

their abuse, their victimization continues.”

{¶ 20} While Bonness disagrees with the court’s conclusion about the

continued revictimization of children shown in child pornography, that conclusion is within the mainstream of legal opinion. For example, when

amending 18 U.S.C. 2252, the United States Congress found that “[c]hild

pornography is a permanent record of a child’s abuse and the distribution of

child pornography images revictimizes the child each time the image is

viewed.” See Effective Child Pornography Prosecution Act of 2007,

(3),

(2008). See also Leary,

Self-Produced Child Pornography: The Appropriate Societal Response to

Juvenile Self-Sexual Exploitation, 15 Va.J.Soc.Policy&L. 1, 9-11 (2007)

(arguing that an image of child pornography is a permanent record that

“uniquely affects victims far into the future” and that “creates a continual

cycle of abuse”). It follows that the court did not abuse its discretion by

relying on the revictimization of the children shown in the pornography as a

sentencing factor.

{¶ 21} R.C. 2929.14(B)(3)-(5) focus on the offender’s occupation, whether

he held a position of trust in the community, whether the offender’s

occupation or profession obliged him to prevent the offense and bring others

to justice, and whether the offender used his profession or occupation to

facilitate the offense. The court found that Bonness was a retired police

officer whose former position “aggravates the situation” and noted that

Bonness used his skills in counter surveillance to avoid being watched by the police as he arrived at the hotel. The court stated that “your duty, the

integrity you are supposed to espouse was certainly lacking.”

{¶ 22} Bonness argues that he was no longer a police officer and should

not be held to the same standard as a currently-serving police officer. This is

a valid point. Had Bonness been an active member of the police department,

the court could rationally conclude that he violated a position of trust or

authority within the community. But there is no question that he had

retired as a police officer well before he committed these offenses. Therefore,

he held no position of trust or authority at the time he committed the crimes.

The oath of service he swore to uphold as a police officer no longer applied to

him, making him no different than any other member of the public. The

court should not have considered Bonness’s prior service as a police officer as

a factor for imposing sentences consecutively. See State v. Bradford, 11th

Dist. No. 2001-L-175,

,

, ¶ 30.

{¶ 23} R.C. 2929.14(C) contains factors indicating that the offender’s

conduct is less serious than conduct normally constituting the offense. These

include whether the victim induced or facilitated the offense, whether the

offender acted under strong provocation, whether the offender did not cause

or expect to cause physical harm, and whether there are grounds for

mitigation. {¶ 24} In mitigation, Bonness again claims that he was a first-time

offender and, given the length of sentence, unlikely to reoffend. He also

argues that his acts of possessing child pornography did not constitute the

worst form of the offense.

{¶ 25} The argument that his lack of a prior record and the lengthy

sentence given to him act as insurance that he is unlikely to reoffend is

questionable. Given the pervasiveness of the internet, it would be naive to

assume that Bonness will be completely insulated from child pornography

while in prison. Bonness’s long-term pursuit of a sexual liaison with a

12-year-old was indicative of a deeper pathology. According to his email

correspondences, he appeared to believe, or at least engaged in the fantasy,

that a prepubescent girl would be sexually gratified by him. He tried to

explain this by saying that his “rotten curiosity” got the better of him, but the

court was unconvinced, noting that Bonness’s attitude “is the terrible fallacy

of these crimes, and that is the disconnect, the problem in your personality

with respect to taking those steps to make this happen.” The court could

rationally find that Bonness’s curiosity had moved far beyond being a person

who merely looked at images of children to being a person who physically

assaulted those children.

B {¶ 26} Finally, we must determine whether, under R.C. 2929.11(A), the

sentence achieved the overriding purpose of punishing Bonness by using “the

minimum sanctions that the court determines accomplish those purposes

without imposing an unnecessary burden on state or local government

resources” and whether, under R.C. 2929.11(B), Bonness’s sentence was

“consistent with sentences imposed for similar crimes committed by similar

offenders.”

{¶ 27} The goal of “consistency” in sentencing as stated in R.C.

2929.11(B) does not mean uniformity. State v. Klepatzki, 8th Dist. No.

81676,

,

, ¶ 32. Each case stands on its

own unique facts, so we have concluded that “[a] list of child pornography

cases is of questionable value in determining whether the sentences imposed

are consistent for similar crimes committed by similar offenders since it does

not take into account all the unique factors that may distinguish one case

from another.” State v. Siber, 8th Dist. No. 94882,

,

, ¶ 15.

{¶ 28} Nevertheless, the comparison of one sentence against other

sentences given for similar crimes is a useful guide for determining if the

court abused its discretion in a particular case. Obviously, a survey of cases

issued from this appellate district will tend to show only the worst sentences

— we presume that defendants who are given much shorter sentences are not appealing on that basis so any list of opinions from this court will necessarily

be skewed to longer sentences. With this caveat in mind, we note that the

most recent cases from this appellate district have affirmed lengthy sentences

for possession of child pornography, but none that were as remotely lengthy

as the sentence given to appellant. In State v. Geddes, 8th Dist. No. 88186,

,

, we reversed a 30-year sentence on six

counts of pandering sexually oriented materials when Geddes pleaded guilty

to printing images of child pornography from a public library while on parole.

While acknowledging that Geddes’s actions were reproachable, we

nonetheless concluded that the lengthy sentence was disproportionate to his

conduct. On remand for resentencing, Geddes was given an 18-year

sentence, which was affirmed on appeal. That sentence was broadly

consistent with those given to similar offenders. See, e.g., State v. Mahan,

8th Dist. No. 95696,

,

(16 years consecutive

on 81 counts); State v. Corrao, 8th Dist. No. 95167,

,

(ten years on 23 counts); State v. Carney, 8th Dist. No. 95343,

,

(24 years on 21 counts); Siber, 8th Dist.

No. 94882,

,

(three years, nine months on 14

fourth and fifth degree felony counts); State v. Moon, 8th Dist. No. 93673,

,

(20 years on 49 counts). {¶ 29} Given these cases, we conclude that the 40-year sentence imposed

on Bonness for eight child pornography counts was inconsistent with

sentences imposed for similar crimes committed by similar offenders. The

inconsistency arises because the court ran the child pornography counts

consecutive to one another. While there is no question that Bonness

committed very serious crimes that deserve punishment, we find it difficult

on this record to justify 40 consecutive years in prison for the nonviolent

crime of possessing child pornography. This is a de facto life sentence

because it extends well beyond Bonness’s current life expectancy. The

sentence would thus place an undue burden on the state’s resources as the

prison system would be forced to pay for all of Bonness’s medical care as he

enters the final stages of his life. The court plainly intended to punish

Bonness because he was a police officer, but as we explained, that is not a

valid consideration because he was retired from the police force at the time he

committed his crimes. The court’s need to punish Bonness is

understandable. But ordering consecutive sentences on the eight child

pornography counts went beyond punishment, especially when similar

offenders have been given significantly lower sentences.2

We note with some interest that the child pornography laws in other countries are far less 2

severe than in the United States. For example, a Canadian man in possession of the largest stash of child pornography ever found in that country — more than 4.5 million pornographic images — was sentenced to concurrent prison terms of five years for distribution, four and one half years {¶ 30} This cause is reversed and remanded for resentencing.

It is ordered that appellant recover of appellee his costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to the Cuyahoga County Court of Common

Pleas to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

MELODY J. STEWART, JUDGE

MARY EILEEN KILBANE, P.J., and EILEEN A. GALLAGHER, J., CONCUR

for accessing, and four and one half years for possession. Interesting, the Crown had only sought a prison term of five to seven years. See http://www.cbc.ca/news/canada/new-brunswick/story/2011/11/14/nb-douglas-stewart-child-pornograp hy-sentencing-612.html?cmp=rss (last visited January 30, 2012).