[Cite as State v. Mannarino,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98727

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

CHRISTOPHER MANNARINO

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-555729

BEFORE: Boyle, P.J., S. Gallagher, J., and Keough, J.

RELEASED AND JOURNALIZED: May 2, 2013 ATTORNEYS FOR APPELLANT

Larry W. Zukerman Paul B. Daiker S. Michael Lear Brian A. Murray Zukerman, Daiker & Lear 3912 Prospect Avenue, East Cleveland, Ohio 44115

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Brett Kyker Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 MARY J. BOYLE, P.J.:

{¶1} Defendant-appellant, Christopher Mannarino, appeals from his sentencing

judgment. He raises six assignments of error for our review:

1. The sentence imposed by the trial court is contrary to law as the trial court imposed consecutive sentences on appellant prior to making any of the findings required by R.C. 2929.14(C)(4) and/or by failing to make all the findings required by R.C. 2929.14(C)(4).

2. The record does not support the sentencing court’s findings under division (C)(4) of R.C. 2929.14 and, as such, the sentence herein is contrary to law.

3. The trial court erred to the prejudice of appellant by failing to explain to appellant the effect of his guilty pleas pursuant to Crim.R. 11(C)(2)(b).

4. The trial court erred to the prejudice of appellant by imposing individual and consecutive sentences for counts eleven (11) and twenty-six (26) without obtaining a specific stipulation to a separate animus or separate acts to said counts and/or without engaging in a factual inquiry to determine whether counts 11 and 26 were allied offenses of similar import, in violation of appellant’s right to be free from multiple punishments for the same crime, as guaranteed by the Eighth Amendment to the United States Constitution and Article I, Section 9 of the Ohio Constitution and appellant’s right to be free from double jeopardy, as guaranteed by the Fifth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution.

5. The performance of appellant’s trial counsel was deficient and prejudiced appellant in such a way as to violate appellant’s state and federal constitutional rights to effective assistance of counsel, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution. 6. The trial court abused its discretion and/or committed plain error by sentencing appellant to fifteen (15) years in prison, because the sentence was grossly disproportionate to that imposed for other, similar offenders.

{¶2} Finding no merit to his appeal, we affirm.

Procedural History and Factual Background

{¶3} In November 2011, Mannarino was indicted on 139 counts involving child

pornography, including 14 counts of pandering sexually-oriented matter involving a

minor in violation of R.C. 2907.322(A)(2); 101 counts of pandering sexually-oriented

matter involving a minor in violation of R.C. 2907.322(A)(1); 23 counts of illegal use of

minor in nudity-oriented material or performance in violation of R.C. 2907.323(A)(1);

and one count of possessing criminal tools in violation of R.C. 2923.24(A). All counts

carried a forfeiture specification.

{¶4} In May 2012, Mannarino withdrew his former plea of not guilty and

pleaded guilty to a total of 117 counts: 14 counts of pandering sexually-oriented matter

involving a minor in violation of R.C. 2907.322(A)(2); 101 counts of pandering

sexually-oriented matter involving a minor in violation of R.C. 2907.322(A)(1); one

count of illegal use of minor in nudity-oriented material or performance in violation of

R.C. 2907.323(A)(1); and one count of possessing criminal tools in violation of R.C.

2923.24(A). As part of his plea, Mannarino agreed that the 117 offenses to which he

was pleading guilty to were not allied offenses of similar import. Mannarino also agreed

to forfeit his computer, CDs, DVDs, thumb drive, and cell phone. The remaining 22 counts of illegal use of minor in nudity-oriented material or performance were dismissed.

{¶5} The trial court sentenced Mannarino to 5 years for each of the 14 counts of

pandering sexually-oriented matter involving a minor in violation of R.C. 2907.322(A)(2)

(Counts 11 to 24); 5 years for each of the 101 counts of pandering sexually-oriented

matter involving a minor in violation of R.C. 2907.322(A)(1) (Counts 26 to 126); 5 years

for the one count of illegal use of minor in nudity-oriented material or performance in

violation of R.C. 2907.323(A)(1) (Count 25), and one year for possessing criminal tools

in violation of R.C. 2923.24(A) (Count 149). The trial court ordered that Counts 11, 17,

and 25 be served consecutive to each other, but concurrent to all other counts, for an

aggregate prison term of 15 years in prison. The trial court also ordered that Mannarino

forfeit the items as specified in his plea agreement, and further notified Mannarino that he

would be subject to a mandatory term of five years of postrelease control and be labeled a

Tier II sex offender.

{¶6} It is from this judgment that Mannarino appeals. We will address his

assignments of error out of order for ease of discussion.

Effect of Guilty Plea

{¶7} In his third assignment of error, Mannarino argues that the trial court failed

to explain to him the effect of his guilty plea as required by Crim.R. 11(C)(2)(b). He

further argues that he was not required to show that he was prejudiced by the trial court’s

failure because it was a “complete failure,” rather than a partial one. {¶8} This court recently addressed this exact issue in State v. Simonoski, 8th Dist.

No. 98496,

. We explained:

Informing a defendant of the effect of his or her plea is a nonconstitutional right, and, therefore, is subject to review for substantial compliance rather than strict compliance. State v. Griggs,

,

,

, ¶ 11-12. “Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving.” State v. Nero,

,

(1990). Furthermore, “failure to comply with nonconstitutional rights will not invalidate a plea unless the defendant thereby suffered prejudice.” Griggs at ¶ 12. The test for prejudice is “whether the plea would have otherwise been made.”

.

Simonoski at ¶ 9.

{¶9} To ensure that a plea to a felony charge is knowingly, intelligently, and

voluntarily entered into, a trial court must follow the dictates of Crim.R. 11(C)(2). This

provision provides that the court must address defendants personally and (1) determine

that they understand the nature of the charges against them and of the maximum penalty

involved, (2) inform them of and determine that they understand the effect of a plea of

guilty or no contest and that the court may proceed with judgment and sentence, and (3)

inform them of and determine that they understand the constitutional rights that they are

giving up by entering into their plea. Crim.R. 11(C)(2)(a) – (c).

{¶10} “Effect of guilty or no contest pleas” is defined in Crim.R. 11(B), which

states that a “plea of guilty is a complete admission of the defendant’s guilt.”

{¶11} At the plea hearing, the state informed the trial court of the negotiated plea

that was reached with Mannarino, stating each count that Mannarino agreed to plead guilty to, as well as the maximum penalty involved with each count. The state further

told the court that as part of his plea, Mannarino agreed that the 117 offenses that he was

pleading guilty to were not allied offenses, and that Mannarino would forfeit the items as

specified in the indictment. Defense counsel stated that Mannarino understood “the

recitation” given by the state.

{¶12} The court asked Mannarino a series of questions. In response, Mannarino

said that he could read and write (in fact he said that he had obtained a bachelor’s

degree), he was not under the influence of drugs, alcohol, or medication, he did in fact

understand what was happening at the plea hearing, no promises or threats had been made

to induce him to change his plea, and that he was satisfied with the services of his defense

counsel. The court then informed Mannarino of his constitutional rights and determined

that he understood that he was waiving them by pleading guilty.

{¶13} Before asking Mannarino what his plea was to each of the 117 counts, the

trial court asked Mannarino if he understood that it could proceed to judgment and

sentence, which he replied he did. The trial court asked Mannarino if he understood that

his plea included his agreement that the offenses to which he was pleading guilty to were

not allied offenses of similar import; he stated that he did. The trial court then informed

Mannarino that it could sentence him two to eight years in prison on each of the 116

second-degree felony counts and six to twelve months for possessing criminal tools, for a

maximum penalty of 929 years. The trial court also informed Mannarino of the fines

and costs it could impose. Mannarino indicated that he understood the maximum penalty he could receive. The trial court also informed Mannarino of postrelease control

and the consequences for violating it, and informed him of the requirements of being

labeled a Tier II sex offender.

{¶14} After reviewing the transcript of the plea hearing in this case, there is no

question that the trial court complied with Crim.R. 11(C)(2)(a) and (c). The trial court

also asked Mannarino if he understood that by his pleading guilty, it could proceed with

judgment and sentence, which is part of Crim.R. 11(C)(2)(b). But Mannarino is correct

that the trial court failed to inform him of the effect of his plea under Crim.R.

11(C)(2)(b), i.e., it did not ask him if he understood that a “plea of guilty is a complete

admission of [his] guilt.”

{¶15} As this court recently explained in Simonoski, “even if the court failed to

substantially comply with explaining the effects of his plea,” the defendant still has to

prove that he was prejudiced by the court’s failure. Id. at ¶ 11. Simonoski raised the

exact argument that Mannarino does here, namely, “that the fact there was no compliance

absolves him of the duty to prove he was prejudiced.” Id. In support of his argument

that he did not have to show prejudice, Simonoski cited to cases dealing with

misdemeanors and postrelease control. Although we did not list these cases in

Simonoski, Mannarino also relies on cases dealing with misdemeanors and postrelease

control. See E. Cleveland v. Zapo, 8th Dist. No. 96718,

, and E.

Cleveland v. Brown, 8th Dist.

. Mannarino acknowledges

that these cases deal with pleas involving misdemeanors, but he argues that “failure to explain the effect of guilty pleas” in felony cases is even more egregious than it is in

misdemeanor cases.

{¶16} Mannarino’s argument is without merit. As we explained in Simonoski:

[A]lthough that may be the law as to misdemeanors and postrelease control, the Ohio Supreme Court has consistently held that the court’s failure to tell the defendant the effect of a plea to a felony, does not invalidate the plea unless appellant shows that he was prejudiced by the court’s failure to substantially comply with the rule. State v. Griggs,

,

,

, ¶ 12; State v. Jones,

,

,

; State v. Veney,

,

,

. See also State v. Petitto, 8th Dist. No. 95276,

(court’s failure to advise the defendant regarding the effect of the plea did not prejudice the defendant).

Id. at ¶ 11.

{¶17} We further explained in Simonoski that “[u]nlike in felony cases,

misdemeanor cases only require the court to advise the defendant of the effect of the

plea.” (Emphasis added.) Id. at ¶ 14. But in felony cases, the court is required to

advise the defendant pursuant to Crim.R. 11(C)(2), which ensures that the defendant

knowingly, intelligently, and voluntarily entered into his or her plea. Id.

{¶18} To show prejudice, Mannarino must demonstrate that he would not have

pleaded guilty to 117 counts had the trial court informed him of the effects of his plea.

Because Mannarino contends that he does not have to show prejudice, he offers nothing

in support of him being prejudiced. Thus, he has failed to establish that he would not

have pleaded guilty had the trial court informed him of the effect of his plea.

{¶19} Moreover, as the Supreme Court held in Griggs: A defendant who has entered a guilty plea without asserting actual

innocence is presumed to understand that he has completely admitted his

guilt. In such circumstances, a court’s failure to inform the defendant of

the effect of his guilty plea as required by Crim.R. 11 is presumed not to be

prejudicial.

Griggs,

,

,

, at syllabus.

{¶20} Accordingly, Mannarino’s third assignment of error is overruled.

Consecutive Sentences

A. First Assignment of Error

{¶21} In his first assignment of error, Mannarino contends that the trial court

failed to make the appropriate findings under R.C. 2929.14(C)(4) before imposing

consecutive sentences. We disagree.

An appellate court must conduct a meaningful review of the trial court’s sentencing decision. State v. Johnson, 8th Dist. No. 97579,

, citing State v. Hites, 3d Dist. No. 6-11-07,

. Specifically, R.C. 2953.08(G)(2) provides that our review of consecutive sentences is not an abuse of discretion. An appellate court must “review the record, including the findings underlying the sentence or modification given by the sentencing court.”

If an appellate court clearly and convincingly finds either that (1) “the record does not support the sentencing court’s findings under [R.C. 2929.14(C)(4)]” or (2) “the sentence is otherwise contrary to law,” then “the appellate court may increase, reduce, or otherwise modify a sentence * * * or may vacate the sentence and remand the matter to the sentencing court for resentencing.”

State v. Lebron, 8th Dist. No. 97773,

,

, ¶ 5. {¶22} R.C. 2929.14(C)(4), as revived, now requires that a trial court engage in a

three-step analysis before imposing consecutive sentences. First, the trial court must

find that “consecutive service is necessary to protect the public from future crime or to

punish the offender.”

Next, the trial court must find that “consecutive sentences

are not disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public.”

Finally, the trial court must find that at least one of

the following applies: (1) the offender committed one or more of the multiple offenses

while awaiting trial or sentencing, while under a sanction, or while under postrelease

control for a prior offense; (2) 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

offenses 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; or (3) the offender’s history of criminal conduct demonstrates that

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

offender.

{¶23} In each step of this analysis, the statutory language directs that the trial court

must “find” the relevant sentencing factors before imposing consecutive sentences. R.C.

2929.14(C)(4). In making these findings, a trial court is not required to use “talismanic

words to comply with the guidelines and factors for sentencing.” State v. Brewer, 1st

Dist. No. C-000148,

, *10 (Nov. 24, 2000). But it must be

clear from the record that the trial court actually made the findings required by statute. See State v. Pierson, 1st Dist. No. C-970935,

(Aug. 21,

1998). A trial court satisfies this statutory requirement when the record reflects that the

court has engaged in the required analysis and has selected the appropriate statutory

criteria. See State v. Edmonson,

,

(1999).

{¶24} At the sentencing hearing, the trial court first heard from defense counsel

who spoke at length as to why Mannarino should receive community control sanctions

rather than prison. Defense counsel explained how Mannarino accepted responsibility

immediately and cooperated with investigators. Defense counsel argued that although

there were a significant amount of charges, many of them occurred on the same day,

which “mischaracterizes and perhaps overemphasizes the culpability of Mr. Mannarino.”

Defense counsel also argued that there was no evidence that Mannarino would “engage in

sexual activity with children in the future” or was a “risk to physically offend on a child

in the future.”

{¶25} Defense counsel then explained to the court that Mannarino sought

immediate help from Candice Risen, a licensed social worker specializing in sexual

offenders. Mannarino saw Risen weekly for the ten months preceding the sentencing

hearing. Risen submitted a report for purposes of sentencing. In response to defense

counsel’s questions, Risen opined that (1) Mannarino was not a pedophile, (2) he did not

present a risk to children, and (2) there was a minimal risk that he would ever return to

viewing child pornography. Mannarino told Risen that he began looking at pornography in 2000, while a student at John Carroll University. He had been viewing child

pornography for approximately four years.

{¶26} Defense counsel further explained that Mannarino had no prior criminal

history, either as a juvenile or an adult. Mannarino was an honor student at St. Peter

Chanel High School, and graduated with honors at John Carroll University. Mannarino

had been working as transportation director for Airgas Merchant Gases for four years.

Mannarino moved in with his parents after he was arrested as a “personal check on his

own lifestyle.” Further, Mannarino had been attending a 12-step program called “Sex

and Love Addicts Anonymous,” two to three times a week for ten months.

{¶27} Further, defense counsel attached 12 letters to Mannarino’s sentencing

memorandum in support of Mannarino, including letters from Risen, Mannarino’s former

pastor, a chaplain for the 12-step program, persons who met Mannarino through the

12-step program, neighbors, friends, and his family (brother, mother, and father).

{¶28} Mannarino’s father also spoke at the sentencing hearing, as did Mannarino

himself, accepting responsibility and apologizing for his actions.

{¶29} The state explained that Mannarino was arrested as part of “an operation

conducted by the Ohio Task Force,” called “Operation Fall Clean Sweep.” As part of

this sweep, the state told the court that 26 people were indicted, and that Mannarino was

“among the worst, if not the worse offender.” The reasons given by the state as to why

Mannarino was worse than other offenders were (1) the volume of child pornography

found on his computer, with each count pertaining to a specific file “where a child is either shown in a state of nudity or where a child engages in sexual activity,” including

toddlers, (2) the forensic examiner found 50 videos and 593 images on Mannarino’s

computer, (3) many of the files were found “still within the file sharing program,” which

allows other individuals to download files from it, (4) “a number of files” were found in

folders within his email account, (5) Mannarino was not only storing child pornography

for himself, but moving them around and sharing them, (6) some of the charges in the

indictment to which Mannarino pleaded guilty were from images he sent via emails to his

codefendant, Wendy Campbell, and (7) the fact that Mannarino admitted to chatting

online with minors, talking about sex with them and the possibility of meeting in person

(although he denied actually meeting a child in person). The state also read some of

these “chat conversations” into the record.

{¶30} In the state’s sentencing memorandum, it indicated that each charge in the

indictment “was supported by a distinct and separate image or video of child sexual

abuse.” The state further informed the court that Counts 11 through 16 reflected files

that were being shared via the file sharing network, Counts 17 through 25 reflected files

that Mannarino emailed to Wendy Campbell, and the remaining counts reflected the files

that were found on Mannarino’s computer. Based upon all of these reasons, the state

recommended a significant prison term.

{¶31} The court explained that it reviewed Mannarino’s presentence investigation

report (“PSI”). In the report, it indicates that one of the files that Mannarino possessed

was a 26-minute video depicting child pornography. The court stated: I can barely read that without being appalled, let alone I couldn’t even imagine watching something like that.

So I find these types of charges to be extremely disturbing, and I do find that while there is no physically, or you physically touching any of the children, I do find that you looking at this and possessing it and exchanging it and sharing it is a risk to children and our community. I mean, children are the most vulnerable citizens in our community next to the elderly.

So I find that this type of behavior is really appalling and, while you may not have touched any of them physically, I find that those actions are so harmful and harmful to our community as well.

***

As I indicated, it is overwhelming to me the amount of information and files of children in the most vulnerable positions that I could even imagine, and it is incomprehensible to me that you had so much on your computer and engaged in such a sharing process that I feel really violates children and is harmful to our community.

***

So in looking at what you did plead to, in considering all of the statements made by your family, by you, by your counsel, from the state of Ohio, and thoroughly examining and reading your [PSI], the sentencing memorandum that was prepared on your behalf by your lawyer, all the letters that were written on your behalf from your family, who seems to be very supportive of you, and in considering the memorandum prepared by the state of Ohio, it is this court’s position that in considering all the relevant seriousness and recidivism factors, and in insuring that the public is protected from future crime and that you are punished, you did plead to a number of felonies of the second degree, where there is a presumption in favor of prison, so I am going to impose a prison term on Counts [11 through 24] of a period of five years.

On Counts [26 through 126], I am imposing a prison term of five years.

On Count 148, I am imposing a prison term of one year. Counts 11, 17, and 26 are all going to run consecutive to one another, for a total prison term of 15 years.

And I find that consecutive prison terms are necessary to protect the community and punish the offender, it is not disproportionate, and I find that the harm was so great or unusual that a single term would not adequately reflect the seriousness of your conduct.

I find that a consecutive prison term is necessary to protect our public from you, Mr. Mannarino.

All other counts are going to run concurrent to one another.

{¶32} After reviewing the transcript of the sentencing hearing in its entirety, we

find that the trial court fully met the statutory requirements of R.C. 2929.14(C)(4) to

impose consecutive sentences.

{¶33} Mannarino argues that the trial court imposed consecutive sentences prior to

making its findings on the record. We disagree. Although the trial court technically

gave the sentences first, it stated its findings immediately after it gave the sentence.

This is not the same, as Mannarino argues, as adding the findings in a journal entry “after

the fact” when it did not state them at the sentencing hearing.

{¶34} Mannarino further argues that the trial court’s findings were not complete

because the trial court did not use the exact words of the statute. For example, he claims

that because the trial court found that consecutive sentences were “not disproportionate,”

but did not specify that they were “not disproportionate to the seriousness of the

offender’s conduct and to the danger the offender poses to the public.” But as we have

repeatedly stated, the trial court is not required to use “talismanic words to comply with

the guidelines and factors for sentencing.” {¶35} Mannarino also argues that this case is analogous to Lebron, 8th Dist. No.

97773,

,

, where we found that the trial court failed to

make the required findings before imposing consecutive sentences. We disagree. In

Lebron, the trial court only discussed the defendant’s criminal history before imposing

consecutive sentences. We found that was not enough under R.C. 2929.14(C)(4).

{¶36} Finally, Mannarino cites to State v. Comer,

,

,

, contending that the trial court should have also given

its reasons for each of its findings before imposing consecutive sentences. Mannarino

argues this while also acknowledging that the legislature did not revive the language in

R.C. 2929.19(B)(2)(c) that Comer had relied on when it held that courts must also give its

reasons. As we have stated:

Notably, however, the General Assembly deleted R.C.

2929.19(B)(2)(c) in H.B. 86. This was the provision in S.B. 2 that had

required sentencing courts to state their reasons for imposing consecutive

sentences on the record. Accordingly, a trial court is not required to

articulate and justify its findings at the sentencing hearing. A trial court is

free to do so, of course. But where, as here, there is no statutory

requirement that the trial court articulate its reasons, it does not commit

reversible error if it fails to do so, as long as it has made the required

findings.

State v. Goins, 8th Dist. No. 98256,

. {¶37} While we agree that the Ohio Criminal Sentencing Commission’s

prediction, i.e., that the legislature’s decision to “remove the companion directing the

judges to give its reasons for consecutive sentences (striking [R.C.] 2929.19(B)(2)(c))”

limited “the value of the revived language” set forth in H.B. 86, this court cannot write

the law; we merely interpret it. The legislature’s choice to remove R.C.

2929.19(B)(2)(c) requiring judges to give their reasons is perplexing, given its overall

goal in H.B. 86. See State v. Johnson, 8th Dist. No. 98245,

(S.

Gallagher, J., concurring in part and dissenting in part) (“a main purpose behind H.B.

86 was to reduce Ohio’s prison population”). Nonetheless, this court cannot require trial

courts to give their reasons for imposing consecutive sentences when the legislature

intentionally did not.

{¶38} Accordingly, Mannarino’s first assignment of error is overruled.

B. Second Assignment of Error

{¶39} In his second assignment of error, Mannarino argues that the record does not

clearly and convincingly support the trial court’s findings for imposing consecutive

sentences. He claims that under R.C. 2929.11 and 2929.12, the record does not support

the trial court’s findings that he is likely to commit future crimes. Therefore, he

maintains that the trial court’s findings — that consecutive sentences were necessary to

protect the public and were not disproportionate to the danger he poses to the public —

were contrary to law. {¶40} R.C. 2929.12 provides that “a court that imposes a sentence under this

chapter upon an offender for a felony has discretion to determine the most effective way

to comply with the purposes and principles of sentencing set forth in section 2929.11 of

the Revised Code.” R.C. 2929.12(B) and (C) set forth considerations relating to the

seriousness of the offender’s conduct (not at issue in Mannarino’s second assignment of

error). The relevant factors are set forth in R.C. 2929.12(D) and (E), and relate to the

likelihood of the offender’s recidivism.

{¶41} We agree that most of the factors under R.C. 2929.12(D) and (E) are in

Mannarino’s favor. He had no prior convictions as a juvenile or adult, he led a

law-abiding life for a significant number of years (he was 30 at the time of the sentencing

hearing), and he showed genuine remorse for the offenses. But we do not agree that

R.C. 2929.12(E)(4) (“the offense was committed under circumstances not likely to

recur”) is in Mannarino’s favor.

{¶42} Mannarino’s sexual addiction counselor opined that the risk of him viewing

child pornography in the future was minimal if he continued his treatment, but she did not

say that there was no risk. Moreover, the trial court had other substantial information

before it to determine whether Mannarino would likely reoffend in the future.

{¶43} At the sentencing hearing, the trial court considered the report summarizing

the offenses in the PSI, where Mannarino admitted to everything when the investigators

arrived. He told officers that he had been downloading child pornography for many

years from peer-to-peer networks. He indicated that he had “files in the range of hundreds.” He had videos and images of children ranging from three years old to

teenagers. He told investigators that he would search “young, pre-teen, PTHC, and

PTSC to find child pornography.” He admitted “that he has a problem and continuously

stated that he was sick.” He kept saying “that his life was over, he was going to prison,

and he would die in prison because of the amount of child pornography he had on his

computer.” He further admitted to chatting with minors on Yahoo about sex, knowing

they were minors. He further admitted to sharing child pornography and emailing it.

{¶44} Further, according to Mannarino’s sexual addiction counselor, Mannarino

began using pornography in 2000. When his relationship with his girlfriend ended, “a

year out of college,” he began looking at pornography excessively. Eventually, “when

the conventional adult pornography became boring, he increasingly turned to more

deviant and bizarre imagery,” including child pornography. The counselor concluded

that Mannarino’s “sexual addiction became his escape and substitution for real life.”

{¶45} Finally, after he was arrested, Mannarino sold his condominium and moved

back in with his parents as a check on his “lifestyle.” This was an extreme move. But

it is not likely that a 30-year-old adult will live with his parents forever. He would most

likely obtain separate housing in the future, having unrestricted and unlimited access to

the Internet. Based on the pervasiveness of the Internet and the difficulty in overcoming

addiction, the trial court’s findings that consecutive sentences were necessary to protect

the public and were not disproportionate to the danger he poses to the public were not

clearly and convincingly contrary to law. {¶46} Accordingly, Mannarino’s second assignment of error is overruled.

Allied Offenses

{¶47} In his fourth assignment of error, Mannarino argues that the trial court erred

by not determining if Counts 11 and 26 were allied offenses of similar import. We

disagree.

{¶48} Mannarino asserts that this court should review this issue for plain error.

But as part of his plea bargain, Mannarino stipulated that the offenses to which he was

pleading guilty were not allied offenses of similar import. Thus, the trial court had no

obligation to determine if Counts 11 and 26 were allied offenses. As the Ohio Supreme

Court explained in State v. Underwood,

,

,

, ¶ 29:

With respect to the argument that the merger of allied offenses will allow defendants to manipulate plea agreements for a more beneficial result than they bargained for, we note that nothing in this decision precludes the state and a defendant from stipulating in the plea agreement that the offenses were committed with separate animus, thus subjecting the defendant to more than one conviction and sentence. When the plea agreement is silent on the issue of allied offenses of similar import, however, the trial court is obligated under R.C. 2941.25 to determine whether the offenses are allied, and if they are, to convict the defendant of only one offense.

(Emphasis added.)

{¶49} Because the plea agreement here was not silent, the trial court was not

obligated under R.C. 2941.25 to determine whether the offenses were allied offenses.

{¶50} Mannarino also cites to State v. Baker, 8th Dist. No. 97139,

, claiming that the facts of his case are analogous to the facts in that case. We disagree. In Baker, we found that the “record [was] nearly devoid of any facts.”

That is not the case here.

{¶51} Count 11 charged pandering sexually-oriented matter involving a minor

under R.C. 2907.322(A)(2), which provides that

No person, with knowledge of the character of the material or performance involved, shall * * * [a]dvertise for sale or dissemination, sell, distribute, transport, disseminate, exhibit, or display any material that shows a minor participating or engaging in sexual activity, masturbation, or bestiality.

The state explained that this count referred to files that were being actively shared on

Mannarino’s computer.

{¶52} Count 26 charged pandering sexually-oriented matter involving a minor

under R.C. 2907.322(A)(1), which provides that

No person, with knowledge of the character of the material or performance involved, shall * * * [c]reate, record, photograph, film, develop, reproduce, or publish any material that shows a minor participating or engaging in sexual activity, masturbation, or bestiality[.]

The state explained that this count referred to a file that was saved on Mannarino’s

computer.

{¶53} The state placed evidence on the record at the sentencing hearing, through

its sentencing memorandum, that each charge in the indictment “was supported by a

distinct and separate image or video of child sexual abuse.” Each child pornography file

or image that is downloaded is “a new and distinct crime.” State v. Eal, 10th Dist. No.

11AP-460,

, ¶ 93. Further, this court has previously held that “multiple

convictions are allowed for each individual image because a separate animus exists every time a separate image or file is downloaded and saved.” State v. Hendricks, 8th Dist.

No. 92213,

, ¶ 35, citing State v. Stone, 1st Dist. No. C-040323,

; State v. Yodice, 11th Dist. No. 2001-L-155,

. Thus,

there is no question in this case that the pandering child pornography offenses that

Mannarino was convicted of are not allied offenses of similar import.

{¶54} Accordingly, Mannarino’s fourth assignment of error is overruled.

Disproportionate Sentence

{¶55} Mannarino asserts in his sixth assignment of error that his sentence was

grossly disproportionate to other sentences imposed for similarly situated offenders.

{¶56} Mannarino acknowledges that he did not raise the issue of proportionality at

his sentencing hearing. Thus, he has waived all but plain error.

{¶57} R.C. 2929.11(B) provides: “A sentence imposed for a felony shall be * * *

consistent with sentences imposed for similar crimes committed by similar offenders.”

But there is a distinction between consistent and identical sentences, which was noted by

this court in State v. Georgakopoulos, 8th Dist. No. 81934,

, ¶ 26:

The legislature’s purpose for inserting the consistency language contained in R.C. 2929.11(B) is to make consistency rather than uniformity the aim of the sentencing structure. See Griffin and Katz, Ohio Felony Sentencing Law (2001), 59. Uniformity is produced by a sentencing grid, where all persons convicted of the same offense with the same number of prior convictions receive identical sentences.

Consistency, on the other hand, requires a trial court to weigh the same factors for each defendant, which will ultimately result in an outcome that is rational and predictable. Under this meaning of “consistency,” two defendants convicted of the same offense with a similar or identical history of recidivism could properly be sentenced to different terms of imprisonment.

quoting State v. Quine, 9th Dist. No. 20968,

.

{¶58} When sentencing an offender, each case stands on its own unique facts.

Thus, this court has 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.

{¶59} Mannarino argues that his sentence is disproportionate to similarly situated

offenders because he received a 15-year sentence compared to lesser sentences received

by 18 other defendants charged with similar child pornography offenses in Cuyahoga

County. He sets forth these 18 cases, including the name of the case, the case number,

the statutory offense each offender was convicted of and the number of counts, and the

sentence the offender received.

{¶60} Recently, in State v. Stein, 8th Dist. No. 97395,

, this court

was faced with the same issue regarding a defendant who had been convicted of one

count of pandering sexually oriented matter involving a minor under R.C.

2907.322(A)(2), 54 counts of pandering sexually-oriented matter involving a minor under

R.C. 2907.322(A)(1), 24 counts of illegal use of a minor in nude material or performance

under R.C. 2907.323(A)(1), and one count of possessing criminal tools under R.C.

2923.24(A). In Stein, the defendant received a ten-year prison sentence. Stein argued

on appeal that his sentence was disproportionate to similarly situated offenders, citing to a

list of 70 cases from Cuyahoga County involving child pornography. In each case, Stein gave the same basic information that Mannarino sets forth here. In overruling his

argument, we explained:

A review of the list * * * does not tell any facts about the individual case. Thus, we do not know whether the offenders in those cases were similar to Stein. As this court recently stated in [State v. Mahan, 8th Dist. No. 95696,

], in upholding a 16-year sentence on an offender who pleaded no contest to 95 counts of various child pornography charges, “these journal entries tell us little, if anything, of the offender characteristics and provide no information beyond the convictions and terms of the sentences.”

.

{¶61} Just as in Stein, the cases that Mannarino lists do not tell us anything about

the individual case, and thus, are of no use to this court.

{¶62} In support of his argument that his sentence is disproportionate, Mannarino

also cites to State v. Bonness, 8th Dist. No. 96557,

, where this court

reversed a 40-year consecutive sentence in a child pornography case. 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, in violation of

R.C. 2923.24(A). We determined that his sentence was inconsistent with other cases

that we had previously affirmed on appeal, acknowledging that “a survey of cases issued

from this appellate district will tend to show only the worst sentences,” because

“defendants who are given much shorter sentences are not appealing on that basis.” Id.

at ¶ 28, referencing State v. Mahan, 8th Dist. No. 95696,

(16 years consecutive on 81 counts); State v. Corrao, 8th Dist. No. 95167,

(10

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

(24 years on

21 counts); State v. Siber, 8th Dist. No. 94882,

(3 years, 9 months on 14

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

(20 years on 49 counts).

{¶63} But Mannarino’s sentence of 15 years is not similar to Bonness’s 40-year

sentence, which we determined was more like a “de facto life sentence.” Bonness at ¶

29. Mannarino’s sentence is more similar to Mahan, where the defendant was a

first-time offender, as Mannarino is here, and received a 16-year sentence. And similar

to Mannarino, Mahan also had the support of family and friends, was gainfully employed,

and had attended 100 meetings for sexual addicts. We stated in Mahan:

We acknowledge that a 16-year prison term imposed on a first-time offender who has, by all accounts, led an otherwise productive, law abiding life is a harsh sentence and is perhaps not one that we may have imposed. Nonetheless, the sentence was significantly less than what the court could have imposed based on defendant’s 95 convictions. There was ample testimony in the record of the harm that has been, and continues to be, inflicted upon the victims who are the subjects of the material being viewed in these types of cases. The images, once uploaded, continue to circulate on the internet where individuals, like defendant, view them and make them available for viewing by others. The wide range of sentences that have been apparently imposed on defendants convicted of similar offenses is the result of the discretion vested in the trial court. Defendant’s sentence was within the statutory range, lawful, and supported by the record, thus we cannot say it was unconscionable or otherwise an abuse of the trial court’s discretion.

Id. at ¶ 63. {¶64} Further, we note that 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, however, Geddes was given an 18-year

sentence, which this court affirmed on appeal. See State v. Geddes, 8th Dist. No. 91042,

.

{¶65} Moreover, the record here reflects that the trial court properly considered the

statutory factors and guidelines in R.C. 2929.11 and 2929.12 before imposing defendant’s

sentence. 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. Although

Mannarino had no prior criminal history and had otherwise led a law-abiding life, the trial

court balanced those factors with the fact that the children in the images and videos were

the victims of Mannarino’s crimes. As this court has stated before,

“[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. Bonness, 8th Dist. No. 96557,

.

{¶66} Accordingly, we find no error, plain or otherwise, in the porportionality of

Mannarino’s sentence.

Ineffective Assistance of Counsel

{¶67} In his fifth assignment of error, Mannarino argues that his trial counsel was

ineffective for advising him to accept a plea agreement where he agreed that the offenses

were not allied offenses and for failing to raise the issue of proportionality.

{¶68} To demonstrate ineffective assistance of counsel, defendants must satisfy

both parts of a two-prong test. Strickland v. Washington,

,

,

(1984). Defendants must first show that their trial counsel’s

performance was so deficient that the attorney was not functioning as the counsel

guaranteed by the Sixth Amendment to the United States Constitution.

Second,

defendants must establish that counsel’s “deficient performance prejudiced the defense.”

The failure to prove either prong of the Strickland test is fatal to a claim of

ineffective assistance. State v. Madrigal,

,

(2000),

citing

{¶69} We have already determined that the offenses to which Mannarino pleaded

guilty to were not allied offenses of similar import. Thus, his counsel was not deficient

for advising him to plea when the state’s deal turned on whether Mannarino agreed that

the offenses were not allied offenses. {¶70} And because we have determined that Mannarino’s sentence was not

disproportionate to similarly situated offenders, his counsel was also not ineffective for

failing to raise the issue of proportionality.

{¶71} Mannarino’s fifth assignment of error is overruled.

{¶72} Judgment affirmed.

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

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

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

the Rules of Appellate Procedure.

MARY J. BOYLE, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and KATHLEEN ANN KEOUGH, J., CONCUR