[Cite as State v. Forney,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY

STATE OF OHIO : : Appellate Case No. 2012-CA-37 Plaintiff-Appellee : : Trial Court Case No. 2012-CR-91 v. : : ANDREW P. FORNEY : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........

OPINION

Rendered on the 12th day of July, 2013.

...........

KEVIN S. TALEBI, Atty. Reg. #0069198, by JANE A. NAPIER, Atty. Reg. #0061426, Champaign County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee

BRIAN A. SMITH, Atty. Reg. #0083620, Brian A. Smith, Attorney at Law, 503 West Park Avenue, Barberton, Ohio 44203 Attorney for Defendant-Appellant

.............

HALL, J.,

{¶ 1} Andrew P. Forney appeals from his conviction and sentence following a guilty

plea to charges of failure to report a crime, abuse of a corpse, gross abuse of a corpse, obstructing justice, and complicity to evidence tampering.

{¶ 2} Forney advances four assignments of error on appeal. First, he contends the trial

court erred in imposing partially consecutive sentences. Second, he claims the trial court erred in

imposing maximum sentences on all counts. Third, he asserts that the trial court erred in failing

to merge gross abuse of a corpse and obstructing justice as allied offenses. Fourth, he argues that

the trial court erred in failing to merge complicity to evidence tampering and obstructing justice

as allied offenses.

{¶ 3} The charges against Forney stemmed from his role, along with others, in helping

his friend, Matthew Puccio, dismember and dispose of the body of Jessica Sacco. The record

reflects that Puccio stabbed and suffocated Sacco in a residence they shared. Forney was in the

residence at the time. After Sacco’s death, Forney helped move her body into a bathtub. He then

helped dismember her body with pliers, a knife, and a sword. The dismemberment occurred in

multiple sessions lasting hours. Forney and his wife later transported Puccio and Sacco’s

dismembered body to Butler County in Forney’s van. Forney and his wife slept in the van with

the dismembered body before disposing of it. Police ultimately arrested Forney, Puccio, and

others in connection with the death and dismemberment of Sacco. As part of a plea agreement,

Forney pled guilty to the charges set forth above in exchange for the dismissal of other charges.

After merging two counts as allied offenses but declining to merge others, the trial court imposed

an aggregate ten-year prison sentence This appeal followed.

{¶ 4} Forney’s first two assignments of error challenge the trial court’s imposition of

partially consecutive sentences and its imposition of maximum sentences. Specifically, Forney

contests the trial court’s decision to impose consecutive sentences on counts three (gross abuse of

a corpse), six (obstructing justice), eight (complicity to evidence tampering), and nine 3

(obstructing justice). He also contests the trial court’s decision to impose statutory maximum

prison terms on all counts.

{¶ 5} Forney does not dispute that the trial court complied with the applicable

sentencing statutes. Therefore, he does not argue that his sentence is contrary to law. Instead, he

contends the trial court abused its discretion when considering the statutory “principles and

purposes of sentencing” and the statutory “seriousness” and “recidivism” factors and finding

partially consecutive and maximum sentences appropriate. Forney stresses his lack of any

criminal record, his expression of remorse, and his cooperation with law enforcement. He

contends the trial court overweighted the seriousness of his conduct while giving too little weight

to the mitigating factors mentioned in his brief. He also faults the trial court for not specifically

analyzing any of the statutory “seriousness” factors. Forney asserts that none of them apply. He

additionally argues that the trial court scarcely considered the “recidivism” factors, which he

claims show little likelihood of him re-offending. Forney also claims the trial court improperly

dismissed other mitigating factors, including his claim that his offenses occurred under

circumstances unlikely to occur and that he acted under strong provocation in the form of

“direction” from Puccio.

{¶ 6} We review a felony sentence using a two-step procedure. State v. Kalish,

,

,

. “The first step is to ‘examine the

sentencing court’s compliance with all applicable rules and statutes in imposing the sentence to

determine whether the sentence is clearly and convincingly contrary to law.’” State v. Stevens,

,

,

(2d Dist.), quoting

“If this step is

satisfied, the second step requires that the trial court decision be ‘reviewed under an 4

abuse-of-discretion standard.’”

quoting Kalish at ¶4.

{¶ 7} “The trial court has full discretion to impose any sentence within the authorized

statutory range, and the court is not required to make any findings or give its reasons for

imposing maximum or more than minimum sentences. * * * However, the trial court must

comply with all applicable rules and statutes, including R.C. 2929.11 and R.C. 2929.12.”

(Citations omitted) State v. King,

, __ N.E.2d __, ¶45 (2d. Dist.).

{¶ 8} Effective September 30, 2011, Ohio law requires judicial fact-finding for

consecutive sentences. Id. at ¶46. Specifically, a trial court must find “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[.]” R.C. 2929.14(C)(4). A trial court also must find at

least one 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 5

consecutive sentences are necessary to protect the public from future crime by the

offender.

Id.

{¶ 9} Here the trial court considered the statutory principles and purposes of

sentencing, as well as the seriousness and recidivism factors. (Sentencing Tr. at 29-30; Judgment

Entry, Doc. #41, at 3, 5). It also made the requisite findings for consecutive sentences.

(Sentencing Tr. at 33-34; Judgment Entry, Doc. #41, at 5). The issue raised in Forney’s appellate

brief is whether the trial court abused its discretion in applying the statutory sentencing criteria.1

We conclude that it did not.

{¶ 10} With regard to consecutive sentencing, the trial court made the following

findings pursuant to R.C. 2929.14(C)(4):

The Court finds that consecutive service is necessary to protect the public

from future crime and to punish the Defendant and that consecutive sentences are

not disproportionate to the seriousness of the Defendant’s conduct and to the

danger the Defendant poses to the public[,] and at least two of the multiple

offenses were committed as part of one or more courses of conduct, and the harm

cause by two or more of the multiple offenses was so great or unusual that no

single prison term for any of the offenses adequately reflects the seriousness of the

1 Under certain circumstances, a criminal sentence may be challenged under something other than an abuse-of-discretion standard. See, e.g., State v. Mays, 2d Dist. Montgomery No. 24923,

, discussing appeals brought under R.C. 2953.08. Here, however, Forney expressly addresses his assignments of error under the abuse-of-discretion standard. The first assignment of error is “[w]hether the trial court abused its discretion in imposing consecutive sentences on Appellant on Counts Three, Six, Eight, and Nine of the indictment.” The second assignment of error is “[w]hether the trial court’s imposition of maximum sentences on Appellant constituted an abuse of discretion by the trial court.” (Appellant’s brief at 2). 6

Defendant’s conduct.

(Doc. #41 at 5).

{¶ 11} The record before the trial court supports its findings. As Forney notes on appeal,

the trial court gave great weight to what it perceived as the relative seriousness of his conduct.

The trial court recognized Forney’s lack of a prior criminal record, and it agreed with him that

recidivism appeared “less likely” under the statutory factors. (Hearing Tr. at 29-30). With regard

to the statutory “seriousness” factors, however, the trial court stated: “[T]here’s no way that the

Court can consider your conduct of a less serious nature.” (Id. at 30).

{¶ 12} The statutory “seriousness” factors in R.C. 2929.12 are as follows:

(B) The sentencing court shall consider all of the following that apply

regarding the offender, the offense, or the victim, and any other relevant factors, as

indicating that the offender’s conduct is more serious than conduct normally

constituting the offense:

(1) The physical or mental injury suffered by the victim of the offense due

to the conduct of the offender was exacerbated because of the physical or mental

condition or age of the victim.

(2) The victim of the offense suffered serious physical, psychological, or

economic harm as a result of the offense.

(3) The offender held a public office or position of trust in the community,

and the offense related to that office or position.

(4) The offender’s occupation, elected office, or profession obliged the

offender to prevent the offense or bring others committing it to justice. [Cite as State v. Forney,

.] (5) The offender’s professional reputation or occupation, elected office, or

profession was used to facilitate the offense or is likely to influence the future

conduct of others.

(6) The offender’s relationship with the victim facilitated the offense.

(7) The offender committed the offense for hire or as a part of an organized

criminal activity.

(8) In committing the offense, the offender was motivated by prejudice

based on race, ethnic background, gender, sexual orientation, or religion.

(9) If the offense is a violation of section 2919.25 or a violation of section

2903.11, 2903.12, or 2903.13 of the Revised Code involving a person who was a

family or household member at the time of the violation, the offender committed

the offense in the vicinity of one or more children who are not victims of the

offense, and the offender or the victim of the offense is a parent, guardian,

custodian, or person in loco parentis of one or more of those children.

(C) The sentencing court shall consider all of the following that apply

regarding the offender, the offense, or the victim, and any other relevant factors, as

indicating that the offender’s conduct is less serious than conduct normally

constituting the offense:

(1) The victim induced or facilitated the offense.

(2) In committing the offense, the offender acted under strong provocation.

(3) In committing the offense, the offender did not cause or expect to cause

physical harm to any person or property. [Cite as State v. Forney,

.] (4) There are substantial grounds to mitigate the offender's conduct,

although the grounds are not enough to constitute a defense.

R.C. 2929.12(B) and (C).

{¶ 13} Forney argues that none of the R.C. 2929.12(B) factors making an offense “more

serious” apply to him. He stresses that victim Jessica Sacco already was dead when he committed

his crimes and that nothing about his occupation or relationship to Sacco contributed to the

offense. Given the nature of Forney’s crimes, we agree that the enumerated factors in R.C.

2929.12(B) have little applicability. But the trial court also was entitled to consider “any other

relevant factors * * * indicating that the offender’s conduct is more serious than conduct

normally constituting the offense.” R.C. 2929.12(B).

{¶ 14} As set forth above, Forney was convicted of failure to report a crime, abuse of a

corpse, gross abuse of a corpse, obstructing justice, and complicity to evidence tampering. Based

on the disturbing facts before us, we have no trouble concluding that Forney’s conduct was more

serious than conduct normally constituting these offenses. The trial court also correctly observed

that Forney had several opportunities to stop what he was doing and to report what had occurred.

Instead, he engaged in unspeakable acts over an extended time period and exhibited a level of

coldness and depravity that reasonably warranted the aggregate sentence he received. We see no

error in the trial court’s evaluation of the statutory seriousness and recidivism factors, in its

decision to impose maximum sentences, or in its consecutive-sentence findings pursuant to R.C.

2929.14(C)(4).

{¶ 15} Forney’s citation to State v. Nichols,

,

,

(2d Dist.), fails to persuade us otherwise. In Nichols, this court reversed the

imposition of maximum, consecutive sentences on multiple counts of gross sexual imposition. In 9

so doing, this court found that the defendant’s conduct was not more serious than conduct

normally constituting the offense. In contrast, the record before us reasonably supports a finding

that Forney’s role in the brutal dismemberment, transportation, and concealment of Sacco’s body

over a period of days was more serious than conduct normally constituting the offenses of failure

to report a crime, abuse of a corpse, gross abuse of a corpse, obstructing justice, and complicity to

evidence tampering. Therefore, Nichols is distinguishable. The first and second assignments of

error are overruled.

{¶ 16} In his third assignment of error, Forney contends the trial court erred in failing to

merge count three (gross abuse of a corpse) and count six (obstructing justice) as allied offenses

of similar import under R.C. 2941.25(A). Because Forney preserved his allied-offense argument

below, we review the trial court’s merger ruling de novo. State v. Willis, 12th Dist. Butler No.

CA2012-08-155,

; State v. Williams,

,

,

.

{¶ 17} Count three of the indictment alleged:

That ANDREW PETER FORNEY, on or about March 22, 2012, through

March 24, 2012, at Champaign County, Ohio, did except as authorized by law,

recklessly treat a human corpse in a way that would outrage reasonable

community sensibilities;

to wit: dismembering the body of Jessica Rae Sacco and disposing [of] her

severed limbs and fingers * * *.

(Doc. #1 at 2).

{¶ 18} Count six of the indictment alleged:

That ANDREW PETER FORNEY, on or about March 22, 2012, through 10

March 24, 2012, at Champaign County, Ohio, did with purpose to hinder the

discovery, apprehension, prosecution, conviction, or punishment of another for

crime or to assist another to benefit from the commission of a crime, did destroy

or conceal physical evidence of the crime or act, or induce any person to withhold

testimony or information or to elude legal process summoning the person to testify

or supply evidence;

the crime committed by the person aided is aggravated murder, murder, or

a felony of the first or second degree,

to wit: with purpose to hinder the discovery and apprehension of Matthew

Starr Puccio for the crimes of Felonious Assault in violation of R.C.

2903.11(A)(2)(D)(1)(a) and Aggravated Murder in violation of R.C.

2903.01(A)(F)/2929.03(A), you destroyed and concealed physical evidence of the

crimes by (1) participating in carrying the deceased body of Jessica Rae Sacco

from her bed to the bath tub and (2) participating in the altering by

dismemberment of the deceased Jessica Rae Sacco so as to thwart law

enforcement attempts to obtain the personal identification of the deceased and in

turn, develop evidence into the cause of her death and the injury to her torso * * *.

(Id. at 3).

{¶ 19} The allied-offense statute, R.C. 2941.25, provides:

(A) Where the same conduct by defendant can be construed to constitute

two or more allied offenses of similar import, the indictment or information may

contain counts for all such offenses, but the defendant may be convicted of only

one. 11

(B) Where the defendant’s conduct constitutes two or more offenses of

dissimilar import, or where his conduct results in two or more offenses of the

same or similar kind committed separately or with a separate animus as to each,

the indictment or information may contain counts for all such offenses, and the

defendant may be convicted of all of them.

{¶ 20} In State v. Johnson,

,

,

, the

Ohio Supreme Court announced a new test for determining when offenses are allied offenses of

similar import that must be merged pursuant to R.C. 2941.25. Johnson held: “When determining

whether two offenses are allied offenses of similar import subject to merger under R.C. 2941.25,

the conduct of the accused must be considered.”

at syllabus. It explained:

Under R.C. 2941.25, the court must determine prior to sentencing whether

the offenses were committed by the same conduct. Thus, the court need not

perform any hypothetical or abstract comparison of the offenses at issue in order

to conclude that the offenses are subject to merger.

In determining whether offenses are allied offenses of similar import under

R.C. 2941.25(A), the question is whether it is possible to commit one offense and

commit the other with the same conduct, not whether it is possible to commit one

without committing the other. * * * If the offenses correspond to such a degree

that the conduct of the defendant constituting commission of one offense

constitutes commission of the other, then the offenses are of similar import.

If the 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.” * * * 12

If the answer to both questions is yes, then the offenses are allied offenses

of similar import and will be merged.

Conversely, if the court determines that the commission of one offense

will never result in the commission of the other, or if the offenses are committed

separately, or if the defendant has separate animus for each offense, then,

according to R.C. 2941.25(B), the offenses will not merge.

(Citations and quotations omitted) Id. at ¶47-51.

{¶ 21} Upon review, we reject Forney’s argument that counts three and six of his

indictment are allied offenses. Count six charged him with obstructing justice by moving Sacco’s

body from the bedroom to the bathroom and dismembering it. Count three charged him with

abusing a corpse by dismembering and disposing of Sacco’s body. Admittedly, both counts

involved dismembering Sacco’s body. We do not dispute that Forney’s act of dismembering a

body can constitute abuse of a corpse and obstruction of justice.

{¶ 22} We note, however, that count six also involved moving Sacco’s body from the

bedroom (where she apparently died) to the bathroom (where she was dismembered), whereas

count three involved disposing of the body. Based on the record before us, disposal of the body

appears to have occurred in Butler County days after it was moved from the bedroom to the

bathroom of the Champaign County residence where it was dismembered. Because these events

were separated by a significant amount of time and distance, we conclude that they involved

separate conduct. In short, abusing the corpse by disposing of Sacco’s body in Butler County

was a separate and distinct act from moving her body into the bathroom in Champaign County to

dismember it. Therefore, the trial court properly declined to merge counts three and six as allied

offenses under R.C. 2941.25. The third assignment of error is overruled. 13

{¶ 23} In his fourth assignment of error, Forney claims the trial court erred in failing to

merge count eight (complicity to evidence tampering) and count nine (obstructing justice) as

allied offenses of similar import under R.C. 2941.25(A).

{¶ 24} Count eight of the indictment alleged:

That ANDREW PETER FORNEY, on or about March 22, 2012, through

March 24, 2012, at Champaign County, Ohio, did acting with the kind of

culpability required for the commission of an offense, did aid or abet another in

committing the offense of Tampering with Evidence, in violation of R.C.

2921.12(A)(1)(B), to wit: knowing that an official proceeding or investigation is

in progress, or is about to be or likely to be instituted, did alter, destroy, conceal,

or remove any record, document, or thing, with purpose to impair its value or

availability as evidence in such proceeding or investigation,

to wit: you aided and abetted Matthew Starr Puccio in committing the

offense of Tampering with Evidence in violation of R.C. 2921.12(A)(1)(B) by

using your motor vehicle, a 2001 maroon Chevrolet Venture van * * * to removed

and transported [sic] the severed limbs and fingers of the deceased Jessica Ray

Sacco from her residence in Urbana, Champaign County, Ohio, to Hamilton,

Butler County, Ohio for the purpose of furthering the commission of felony three

Tampering with Evidence in violation of R.C. 2921.12(A)(1)(B) * * *.

(Doc. #1 at 4).

{¶ 25} Count nine of the indictment alleged:

That ANDREW PETER FORNEY, on or about March 22, 2012, through

March 24, 2012, at Champaign County, Ohio, did with purpose to hinder the 14

discovery, apprehension, prosecution, conviction, or punishment of another for

crime or to assist another to benefit from the commission of a crime, did provide

the other person with money, transportation, a weapon, a disguise, or other means

of avoiding discovery or apprehension;

the crime committed by the person aided is aggravated murder, murder, or

a felony of the first or second degree,

to wit: with purpose to hinder the discovery and apprehension of Matthew

Starr Puccio for the crimes of Felonious Assault in violation of R.C.

2903.11(A)(2)(D)(1)(a) and Aggravated Murder in violation of R.C.

2903.01(A)(F)/2929.03(A), you provided Matthew Starr Puccio with

transportation in your motor vehicle, a 2001 maroon Chevrolet Venture van * *

*from the scene of a homicide at 625 West Light Street, Urbana, Champaign

County, Ohio, to the residence located at 318 North 11th Street, Hamilton, Butler

County, Ohio, so as to help him avoid detection by law enforcement authorities[.]

(Id. at 5).

{¶ 26} Count eight charged Forney with complicity to evidence tampering by

transporting Sacco’s body to Butler County. Count nine charged him with obstructing justice by

transporting co-defendant Puccio to Butler County. Although Forney engaged in a single act of

driving to Butler County, he transported two different things, Sacco’s body and Puccio, with a

separate animus for each one. According to the indictment, he transported the body to impair its

availability as evidence. He transported Puccio to hinder Puccio’s discovery and apprehension by

law enforcement. Under these circumstances, the trial court correctly found no allied offenses.

The fourth assignment of error is overruled. 15

{¶ 27} The judgment of the Champaign County Common Pleas Court is affirmed.

.............

FAIN, P.J., and DONOVAN, J., concur.

copies mailed to:

Kevin S. Talebi Jane A. Napier Brian A. Smith Hon. Nick A. Selvaggio