State v. Milhoan

[Cite as State v. Milhoan, 2014-Ohio-310.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellant, : No. 13AP-74
(C.P.C. No. 11CR-01-20)
v. :
(REGULAR CALENDAR)
Ryan L. Milhoan, :

Defendant-Appellee. :

D E C I S I O N

Rendered on January 30, 2014

Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for
appellant.

Dennis C. Belli, for appellee.

APPEAL from the Franklin County Court of Common Pleas.

GREY, J.
{¶ 1} Plaintiff-appellant, the State of Ohio, appeals from a judgment of the
Franklin County Court of Common Pleas sentencing defendant-appellee, Ryan L.
Milhoan, to a term of 48 months of community control in lieu of prison time.
{¶ 2} This case is before the court for the second time after a prior remand. State
v. Milhoan, 10th Dist. No. 12AP-61, 2012-Ohio-4507 ("Milhoan I"). By way of
background, we quote directly from our prior decision:
On January 3, 2011, the Franklin County Grand Jury indicted
Milhoan on 12 counts of pandering sexually oriented material
involving a minor, felonies of the second degree, and 12
counts of pandering sexually oriented material involving a
minor, felonies of the fourth degree. The charges arose
following an investigation with the Internet Crimes Against
No. 13AP-74 2

Children Task Force. Milhoan's IP address was associated
with numerous files containing child pornography. Following
a complete forensics exam conducted on three different
computers seized from Milhoan, 960 images and 75 videos of
child pornography were found.

Milhoan pled guilty to pandering sexually oriented material
involving a minor, Counts 1, 2, 3, and 4 of the indictment,
felonies of the second degree, and to Counts 21, 22, 23, and 24
of the indictment, felonies of the fourth degree. As part of the
plea agreement, the State agreed not to prosecute Milhoan on
Counts 5 through 20 of the indictment. Also, as part of the
plea agreement, the State agreed that they would not present
the matter to the United States Attorney for potential federal
prosecution. The trial court ordered a pre-sentence
investigation and continued the case for sentencing.
Ultimately, the trial court placed Milhoan on community
control for a period of four years, and ordered that he be
placed on intensive sex offender supervision, as well as
ordering him to maintain employment, submit to urine
screens, pay costs, and to have no use of the internet. Milhoan
was classified as a Tier II sex offender.

Id. at ¶ 2-3.

{¶ 3} In the case's first iteration before this court, we held that the trial court had
failed to make the findings required by R.C. 2929.13(D)(2) to overcome the statutory
presumption that a prison term is an appropriate sentence for a first or second-degree
felony. We vacated the sentence on this basis and remanded the matter to the trial court
for re-sentencing in compliance with R.C. 2929.13(D). Id. at ¶ 7.
{¶ 4} The trial court has now re-sentenced appellee to a sentence that again does
not include a prison term and the state has again appealed, bringing the following two
assignments of error:
[I.] THE TRIAL COURT ERRED IN IMPOSING
COMMUNITY CONTROL WHEN IT FAILED TO MAKE THE
FULL REQUIRED FINDINGS FOR OVERCOMING THE
PRESUMPTION OF PRISON AND WHEN IT RELIED ON
AN ERRONEOUS CLAIM THAT DEFENDANT COULD
ONLY RECEIVE TREATMENT IF HE WAS PLACED ON
COMMUNITY CONTROL.
No. 13AP-74 3

[II.] THE TRIAL COURT'S IMPOSITION OF COMMUNITY
CONTROL IS CONTRARY TO LAW, AS DEFENDANT
CANNOT OVERCOME THE PRESUMPTION IN FAVOR OF
A PRISON TERM.

{¶ 5} Appellee was convicted of four second-degree felonies and four fourth-
degree felonies. Pursuant to R.C. 2929.13(D)(1), "for a felony of the first or second degree,
* * * it is presumed that a prison term is necessary in order to comply with the purposes
and principles of sentencing under section 2929.11 of the Revised Code." Despite this
presumption in favor of prison time, the sentencing court may deviate downward and
impose community control instead of a prison term if the court makes both of the
following findings set forth in R.C. 2929.13(D)(2)(a) and (b):
(a) A community control sanction or a combination of
community control sanctions would adequately punish the
offender and protect the public from future crime, because the
applicable factors under section 2929.12 of the Revised Code
indicating a lesser likelihood of recidivism outweigh the
applicable factors under that section indicating a greater
likelihood of recidivism.

(b) A community control sanction or a combination of
community control sanctions would not demean the
seriousness of the offense, because one or more factors under
section 2929.12 of the Revised Code that indicate that the
offender's conduct was less serious than conduct normally
constituting the offense are applicable, and they outweigh the
applicable factors under that section that indicate that the
offender's conduct was more serious than conduct normally
constituting the offense.

{¶ 6} The sentencing court must make both the findings specified above before it
may deviate from the presumption that a prison term should be imposed. Id. at ¶ 6; State
v. Fisher, 10th Dist. No. 13AP-236, 2013-Ohio-4063, ¶ 7. "These findings must be made
at the sentencing hearing." Id. at ¶ 7, citing State v. Martin, 10th Dist. No. 08AP-1103,
2009-Ohio-3485, ¶ 7; State v. Wooden, 10th Dist. No. 05AP-330, 2006-Ohio-212, ¶ 5.
The enactment of 2011 Am.Sub.H.B. No. 86, effective September 30, 2011, removed the
requirement for the trial court to state its reasons for making findings under R.C.
2929.13(D)(2). Fisher at ¶ 6; compare former R.C. 2929.19(B)(2)(b) and State v. Mathis,
No. 13AP-74 4

109 Ohio St.3d 54, 2006-Ohio-855, ¶ 23. While the court is no longer required to
articulate reasons to explain its findings, the record must still reflect that the court clearly
did make the findings required by statute. Fisher at ¶ 6.
{¶ 7} In defining the standard for a downward departure in sentencing, R.C.
2929.13(D)(2) references the sentencing factors of R.C. 2929.12. With respect to the
seriousness of the offense, R.C. 2929.12(B) and (C) set forth the "more serious" and "less
serious" factors respectively:
(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.

(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.
No. 13AP-74 5

(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.

(4) There are substantial grounds to mitigate the offender's
conduct, although the grounds are not enough to constitute a
defense.

{¶ 8} With respect to the likelihood of recidivism, R.C. 2929.12(D) and (E) set
forth the factors indicating "a greater likelihood of recidivism" and "lesser likelihood of
recidivism" respectively.
(D) The sentencing court shall consider all of the following
that apply regarding the offender, and any other relevant
factors, as factors indicating that the offender is likely to
commit future crimes:

(1) At the time of committing the offense, the offender was
under release from confinement before trial or sentencing,
under a sanction imposed pursuant to section 2929.16,
2929.17, or 2929.18 of the Revised Code, or under post-
release control pursuant to section 2967.28 or any other
provision of the Revised Code for an earlier offense or had
been unfavorably terminated from post-release control for a
prior offense pursuant to division (B) of section 2967.16 or
section 2929.141 of the Revised Code.
No. 13AP-74 6

(2) The offender previously was adjudicated a delinquent
child pursuant to Chapter 2151. of the Revised Code prior to
January 1, 2002, or pursuant to Chapter 2152. of the Revised
Code, or the offender has a history of criminal convictions.

(3) The offender has not been rehabilitated to a satisfactory
degree after previously being adjudicated a delinquent child
pursuant to Chapter 2151. of the Revised Code prior to
January 1, 2002, or pursuant to Chapter 2152. of the Revised
Code, or the offender has not responded favorably to
sanctions previously imposed for criminal convictions.

(4) The offender has demonstrated a pattern of drug or
alcohol abuse that is related to the offense, and the offender
refuses to acknowledge that the offender has demonstrated
that pattern, or the offender refuses treatment for the drug or
alcohol abuse.

(5) The offender shows no genuine remorse for the offense.

(E) The sentencing court shall consider all of the following
that apply regarding the offender, and any other relevant
factors, as factors indicating that the offender is not likely to
commit future crimes:

(1) Prior to committing the offense, the offender had not been
adjudicated a delinquent child.

(2) Prior to committing the offense, the offender had not been
convicted of or pleaded guilty to a criminal offense.

(3) Prior to committing the offense, the offender had led a
law-abiding life for a significant number of years.

(4) The offense was committed under circumstances not likely
to recur.

(5) The offender shows genuine remorse for the offense.

{¶ 9} The state's first assignment of error asserts that the trial court once again
failed to make the requisite findings to overcome the presumption that a prison term was
the appropriate sentence for appellee's convictions. Subsumed in this position is the
No. 13AP-74 7

argument that, if the court did make the requisite findings, those findings are not
supported by the record.
{¶ 10} Our discussion begins with the threshold question of how the recent
enactment of H.B. No. 86 has affected the nature and scope of our review of trial court
decisions. Specifically, we must decide whether the law requires the trial court to make
"findings" with respect to each of the itemized factors set forth in R.C. 2929.12, or whether
these factors are more in the nature of "reasons" supporting the court's R.C.
2929.13(D)(2) findings. If the R.C. 2929.12 factors are not required findings unto
themselves, the court must still satisfy its statutory obligation to consider and weigh those
reasons, but need go no further in its expressed reasoning than to state that it had done
so. Neither of our two post-H.B. No. 86 cases addressing amended R.C. 2929.13(D)(2),
Fisher and Milhoan I, expressly addresses these questions because both were decided on
bare failure by the trial court to make the two initial findings under R.C. 2929.13(D)(2)
proper.
{¶ 11} Cases decided under pre-H.B. No. 86 law, in which the trial court was
required to state its reasons for making R.C. 2929.13(D) findings, tended to discuss the
R.C. 2929.13(D)(2) determination concurrently with the itemization of underlying
considerations set forth in R.C. 2929.12. This sometimes implied that the required
express findings by the trial court consist not only of the two-pronged determination
required by R.C. 2929.13(D)(2)(a) and (b), but also a detailed examination of each of the
factors to be considered under R.C. 2929.12.
{¶ 12} Unlike other aspects of felony sentencing, the statutory language governing
the procedure for a downward departure under R.C. 2929.13(D)(2) was unaffected by the
Supreme Court of Ohio's decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856.
Pre- Foster cases addressing the consideration of R.C. 2929.12 factors in other felony
sentencing situations, such as the imposition of consecutive terms of imprisonment in
derogation of the presumption for concurrent terms, are therefore instructive.
{¶ 13} Even pre-Foster, the Supreme Court did not require particularized
explanations of the R.C. 2929.12 factors: "The Code does not specify that the sentencing
judge must use specific language or make specific findings on the record in order to evince
the requisite consideration of the applicable seriousness and recidivism factors. R.C.
No. 13AP-74 8

2929.12. For this reason, the sentencing judge could have satisfied her duty under R.C.
2929.12 with nothing more than a rote recitation that she had considered the applicable
age factor of R.C. 2929.12(B)(1)." State v. Arnett, 88 Ohio St.3d 208, 215 (2000), citing
State v. Edmonson, 86 Ohio St.3d 324, 326 (1999). Post-Foster cases continued this
interpretation: "R.C. 2929.11 and 2929.12 * * * are not fact-finding statutes like R.C.
2929.14. Instead, they serve as an overarching guide for trial judges to consider in
fashioning an appropriate sentence." State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,
¶ 17 (footnote 0mitted) (plurality opinion) (explaining why R.C. 2929.12 sentencing
factors were unaffected by Foster). More explicitly put, "the trial court's considerations
under R.C. 2929.11 and 2929.12 are not 'findings.' " Id. at ¶ 36 (Willamowski, J., sitting
by assignment, concurring in judgment). Accordingly, " '[t]he Code does not specify that
the sentencing judge must use specific language or make specific findings on the record in
order to evince the requisite consideration of the applicable seriousness and recidivism
factors.' " State v. Saur, 10th Dist. No. 10AP-1195, 2011-Ohio-6662, ¶ 44, quoting Arnett
at 215. See also State v. Stevens, 1st Dist. No. 130278, 2013-Ohio-5218, ¶ 12, citing State
v. Kennedy, 1st Dist. No. C-120337, 2013-Ohio-4221: "R.C. 2929.11 and 2929.12 are not
'fact finding' statutes, and * * * we may presume a trial court has considered these factors
absent an affirmative demonstration by a defendant to the contrary."
{¶ 14} We conclude from this that, while R.C. 2929.13(D)(2) requires express
findings that include a general declaration that the court has weighed the R.C. 2929.12
factors as directed by R.C. 2929.13(D)(2)(a) and (b), any further explanation by the trial
court is optional because it constitutes the expression of "reasons" that are no longer
required by statute.
{¶ 15} This clarification leads us to the standard of review to be applied on appeal.
The prosecution brings the present appeal under R.C. 2953.08(B), pursuant to which the
state "may appeal as a matter of right a sentence imposed upon a defendant * * * on any of
the following grounds: (1) the sentence did not include a prison term despite a
presumption favoring a prison term for the offense for which it was imposed." R.C.
2953.08(G)(2) defines our standard of review:
The court hearing an appeal under division (A), (B), or (C) of
this section shall review the record, including the findings
No. 13AP-74 9

underlying the sentence or modification given by the
sentencing court.

The appellate court may increase, reduce, or otherwise modify
a sentence that is appealed under this section or may vacate
the sentence and remand the matter to the sentencing court
for resentencing. The appellate court's standard for review is
not whether the sentencing court abused its discretion. The
appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the
following:

(a) That the record does not support the sentencing court's
findings under division (B) or (D) of section 2929.13.

(b) That the sentence is otherwise contrary to law.

{¶ 16} Under this standard of review, we consider whether the sentence imposed is
both in accordance with applicable law and supported by the record. The "clear and
convincing" standard of R.C. 2929.08(G)(2) is unaffected by the Supreme Court's
abrogation of Ohio's felony sentencing scheme in Foster, and subsequent clarifications to
Foster provided by Kalish, as well as the legislature's reinstatement of some Foster-
affected provisions by H.B. No. 86. State v. Sherman, 8th Dist. No. 97840, 2012-Ohio-
3958. As the case is now postured, this asks us to determine whether the trial court
expressly made the required findings and whether we determine by clear and convincing
evidence that those findings are not supported by the record.
{¶ 17} The standard of "clear and convincing evidence" is defined as "that measure
or degree of proof which is more than a mere 'preponderance of the evidence,' but not to
the extent of such certainty as is required 'beyond a reasonable doubt' in criminal cases,
and which will produce in the mind of the trier of facts a firm belief or conviction as to the
facts sought to be established." Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three
of the syllabus. In applying the clear and convincing standard when reviewing a sentence
imposed by the trial court, " 'we neither substitute our judgment for that of the trial court
nor simply defer to its discretion.' " State v. Burton, 10th Dist. No. 06AP-690, 2007-
Ohio-1941, ¶ 25, quoting State v. Vickroy, 4th Dist. No. 06CA4, 2006-Ohio-5461, ¶ 16
(both cases overruled by Kalish as to the standard of review in upward departures, State
No. 13AP-74 10

v. Murphy, 10th Dist. No. 12AP-952, 2013-Ohio-5599). Under this standard, we " 'look to
the record to determine whether the sentencing court considered and properly applied the
non-excised statutory guidelines and whether the sentence is otherwise contrary to law.' "
Id. at ¶ 12, citing Vickroy at ¶ 16 (alterations in Burton omitted).
{¶ 18} Having clarified our interpretation of the statutory requirements placed
upon the trial court at sentencing, we turn to the merits of the appeal. Upon remand from
this court pursuant to Milhoan I, the trial court held a new sentencing hearing beginning
on December 4, 2012, and continued to conclusion on December 20, 2012. At the outset
of proceedings, the state argued vigorously for imposition of a prison sentence
emphasizing the vast quantity of carefully catalogued and organized child pornography
discovered on appellee's computer, and the fact that appellee's training and degree in
computer science obviated the possibility of the materials being acquired or retained in
error. The state also stressed appellee's reported lack of cooperation with probation
authorities, and appellee's perceived lack of repentance or acknowledgement of the
seriousness of his crime.
{¶ 19} Defense counsel responded by pointing to appellee's ongoing psychological
treatment for severe psychological and neurological disorders, lack of criminal history,
and a strong family support network. Defense counsel also expressed surprise at the
prosecution's assertion that appellee had not cooperated with the probation process;
defense counsel claimed that conversations with appellee's probation officer in Jefferson
County revealed no such lack of cooperation.
{¶ 20} When the hearing reconvened on December 20, the court had before it the
pre-sentence investigation report prepared by the Franklin County Adult Probation
Department. This report concluded with a recommendation of community control:
"Based on the information obtained throughout the PSI process, no prior criminal history,
and the offender's low risk on the ORAS [Ohio Risk Assessment System] risk assessment
tool, the offender is amenable to community control." (PSI at 10.) The court also had
available several summaries prepared by different mental health caregivers who had
counseled or treated appellee. The court heard live comments from counsel, appellee's
mother, appellee himself, and Ms. Sean Kelly, an officer of the Franklin County Adult
Probation Department. Because appellee's supervision is in part delegated to a probation
No. 13AP-74 11

officer in Jefferson County, where appellee resides with his family, and the Jefferson
County officer did not appear, the court was again faced with conflicting accounts of
appellee's conduct and attitude while under supervision. The assigned Franklin County
officer, however, did relate her personal observations as well as those expressed to her by
her Jefferson County colleague. Among these was the belief that appellee had access to a
computer and the internet while living in his mother's home, in clear violation of his
terms of community control. In response, appellee and his mother both stated that this
was no longer the case.
{¶ 21} The court then made the following findings, which we reproduce in toto:

[THE COURT:] But the concern I have is that this problem is
not a problem that is cured. In fact, it isn't cured. It is
controlled. But I have not been able to find anything that says
that imprisonment is an effective method of dealing with this
problem. It does teach the defendant that there are
consequences for his behavior, but it doesn't get to the root of
the problem.

And so what I achieve when I put somebody like Mr. Milhoan
in prison for a specific period of time is to protect the public,
which is a very important fact. It is a primary concern that I
have in this matter.

But eventually he will be back into society if he goes to prison.
And he won't have benefited from any kind of - - I am not
aware there is any program within the ODRC that deals with
this particular issue on an incarceration basis.

Another thing that has to be considered in Mr. Milhoan's case
is that he has a number of several other emotional difficulties
to deal with and they are all outlined. I don't need to go
through them and put them on the record. I am sure counsel
on both sides are aware of that.

That has relevance in the context of it does make him a more
challenging individual to deal with than a person that didn't
have those emotional conflicts that he has. It doesn't mean
that he is impossible to deal with.

My interest is protecting the public. It is also in protecting the
public today, tomorrow and into the future. The short-term
answer is imprisonment to protect the public. The long-term
No. 13AP-74 12

answer is I don't think there is an effective way of protecting
the public with this type of problem. A better way is to give
the type of counseling that's been considered here an
opportunity to work.

I think it is appropriate that the first thing I consider in this
case is to review the seriousness and recidivism factors as they
are set forth in Revised Code 2929.12.

In considering what I should be regarding the impact on the
victim, and other relevant factors indicating that the
defendant's conduct is more serious than the conduct
normally constituting the offense, there are actually nine
different categories to review to make this assessment.

But the only two that really apply in this particular type of a
case are the physical or mental injuries suffered by the victim
of the offense due to the conduct of the offender and whether
or not it was exacerbated because of physical or mental
condition or age of the victim.

There is a direct implication here. And I think I am safe in
taking judicial notice the victim is not only society, but more
narrowly the victims are the children that are the subject of
these films and downloads. And clearly no one can argue that
they aren't being victimized in a very gross fashion.

The other thing to consider is the victim of the offense
suffered serious physical or physiological or economic harm.
That's probably true. In fact, I would say that is true to one
degree or another. In every instance when you have this type
of - - I am going to call it reproduction, if you will, different
forms.

The other things to consider typically, those would be three
through nine, which don't apply to this type of case.

For instance, just picking one at random, offender's
occupation, elected office or profession, that sort of thing.

We are not playing with that. I do think that I have * * *
addressed the first two things that makes it more likely to
consider the offense being repeated by the defendant.
No. 13AP-74 13

Then the next thing under Item "C" of that statute is I am
supposed to consider all of the following items that make this
offense less serious.

Well, looking down through, the victim induced or facilitated
the offense. That certainly doesn't apply here.

In committing the offense the offender acted under strong
provocation. That doesn't apply. In fact, the bottom line is
that none of the remaining conditions are applicable here just
because of the nature of the crime. It is not because they don't
exist, but they just don't exist in this type of an offense. There
may be some effort made to update that statute to take into
consideration what we are dealing with here.

Having concluded and put on the record the court's views on
the requirements of 2929.12, the next thing for me to consider
are the elements that are set forth in Section 2929.13. This
would be (D)2.

Now, basically, it is presumed that the prison term is
appropriate for a felony of the second degree, which is what
we are dealing with here. Notwithstanding the presumption
of community control may be imposed, the trial court makes
both of the following findings:

The first thing I have to do is a community control sanction
or a combination of control sanctions that would adequately
punish the offender and protect the public from future crime,
because of the applicable factors under Section 2929.12 of the
Revised Code indicating a lesser likelihood of recidivism
outweigh the applicable factors under that section indicating
a greater likelihood of recidivism.

The other thing that I need to consider under 13 is whether or
not the community control sanction or a combination of
sanctions would not demean the seriousness of the offense
because of one or more factors under 2929.12 of the Ohio
Revised Code and so forth.

I am determining that it is appropriate for me to move on
from 2929.12. And I do feel that the criteria set forth in that
statute have resolved those elements in favor of the
defendant, which then moves me into 2929.13.
No. 13AP-74 14

Applying the standards that are set forth in that section of the
code, with the responsibility of the supervision of Mr. Milhoan
resting with the authorities in Jefferson County, and based on
the report from the person that has that responsibility, which
has more positives to it than negatives, and further based on
the fact that Mr. Milhoan will be accepted into the program at
the Tri-County Health Center and will successfully complete
that program, I do feel that it is appropriate to grant
community control in this case.

Now, I am placing Mr. Milhoan on community control for a
period of 48 months. The supervision is to be intensive and it
is to be administered by Jefferson County. And it is their
responsibility to report to the community control authorities
in Franklin County any violation or failure or omission that is
apart of Mr. Milhoan's supervision.

In addition to that, another condition is that he enter and
successfully complete the Tri-County Health Center program.

I want to make it clear, Mr. Belli, your responsibility is to find
out whether he, in fact, has successfully completed the
assessment program and is admitted into that program. If he
is not, then he is in automatic violation of the community
control sanctions.

And under those circumstances, it will be my call to make, and
it will be between now and the 31st of this month if he is not
accepted.

You are telling me you will know tomorrow. If he is not
accepted, I will still be here. And I want your client back in
this courtroom prepared for sentencing, and the sentencing
will be imprisonment. So, it is a condition that he complete
that program.

The other conditions that were originally imposed will remain
in full force and effect. The primary change is in the length of
the supervision. I am also going to modify that portion of
what happens if - - let me back up for a second.

Mr. Milhoan, you need to understand if you fail to comply
with the conditions of the community control I have just
stated and were previously imposed, I have options of making
the community control last for a longer period of time. I can
No. 13AP-74 15

put on additional conditions or I can revoke the community
control and put you in prison.

If I put you in prison, it will be for a period of three years.
And there are two counts involved here. And those three-year
sentences will run consecutive to each other. The fine and
costs, those obligation remain the same as they were before.

I want to note on the record that this sentence meets with the
strong disapproval of Miss Russo, who has done a very good
job of representing the interest of the state.

(Emphasis added.) (Tr. 18-25.)

{¶ 22} Before we consider whether the "record does not support the sentencing
court's findings under division (B) or (D) of section 2929.13," R.C. 2953.08(G)(2)(a), we
consider whether the trial court in fact made the affirmative findings required by R.C.
2929.13(D)(2)(a) and (b). The italicized passage in the transcript excerpt above
establishes that the trial court made the necessary affirmative finding that the imposition
of community control sanctions would adequately punish the offender and protect the
public from future crime, and would not demean the seriousness of the offenses
committed. The court references the weighing of R.C. 2929.12 factors and expressly
determines that they favor a downward departure in sentencing. We find that the court
made the requisite findings.
{¶ 23} We now turn to the question of whether we can find, by clear and
convincing evidence, that the record does not support the court's determination. The
state first argues that the above analysis by the court does not effectively apply the
balancing of more serious and less serious factors required by R.C. 2929.12(A), because
the court did not adequately take note of the fact that, in this case, there are no "less
serious" factors present under R.C. 2929.12(C). The state asserts that the basic logical
structure underpinning the balancing test of R.C. 2929.12 dictates that at least one "less
serious" factor must, in fact, be present in order for the "less serious" to outweigh the
"more serious." Absent this, the state urges, R.C. 2929.12(A) cannot be met as a matter of
law.
No. 13AP-74 16

{¶ 24} The state also argues that another "more serious" factor should have been
applied by the trial court. The state argues that the downloading of child pornography to
a computer, by use of file-sharing peer-to-peer networks, constituted organized criminal
activity that satisfies R.C. 2929.12(B)(7). The state also argues that the court failed to
consider the fact that appellant pleaded guilty to a total of eight counts, including four
second-degree felonies, out of the more numerous indictments arising from the large
quantity of child pornography discovered on his home computer equipment.
{¶ 25} With respect to the state's argument that the balancing test could not be
resolved in appellee's favor as matter of law, the court did determine that, because of the
child pornography nature of the offense, in addition to the generalized harm caused to
society, the specific victims were involved in the form of the children who were made to be
the object of the abuse depicted in the pornography. Thus, the "more serious" factors of
R.C. 2929.12(B)(1) and (2), physical or mental injuries suffered by the victim and the
physical or mental condition or age of the victim, as well as the physical or psychological
harm suffered as a result of the offense, were present. The court went on to note that,
because the nature of the offense, none of the enumerated factors under R.C. 2929.12(C)
were particularly relevant. The court nonetheless found that the "less serious" outweighed
the "more serious."
{¶ 26} We agree with the trial court's observation that most of the specific "less
serious" factors under R.C. 2929.12(C) are not likely to apply to crimes arising from
possession of child pornography. There is little chance of finding that the victim
facilitated the offense (R.C. 2929.12(C)(1)) or that the offender acted under strong
provocation (R.C. 2929.12(C)(2)). Nor can one logically conclude that the offender did
not cause or expect to cause harm (R.C. 2929.12(C)(3)), since the harm from this type of
crime is both a generalized injury to society and is imputable from the abuse suffered by
victims at the time of creation of pornography.
{¶ 27} Nonetheless, to accept the state's argument is to find that for all crimes of
this type the weighing of factors under R.C. 2929.12 is futile. Since the legislature has not
specifically exempted such crimes from eligibility for a downward departure in
sentencing, we do not accept the postulated premise that prison is mandatory in such
cases. Furthermore, the state's position renders meaningless the "any other relevant
No. 13AP-74 17

factors" language contained in R.C. 2929.12(C), as well as the general catch-all "less
serious" mitigating factors contained in R.C. 2929.12(C)(4). The record before us does, in
fact, present extensive evidence relied upon by the trial court regarding appellee's mental,
neurological, and emotional conditions that could be assessed under these broad
provisions. While the state points out that these conditions are less severe than in other
cases in which a downward departure was found appropriate, see, e.g., State v. Stewart,
8th Dist. No. 84157, 2004-Ohio-5612 (paranoid schizophrenia), the trial court was not
obligated to share that opinion as a matter of law.
{¶ 28} With respect to the likelihood of recidivism, the state argues that the court
again failed to particularize its consideration of the enumerated statutory factors under
R.C. 2929.12(D) and (E). The state asserts that, had the court undertaken an explicit
analysis of these factors, it would have found at least three factors indicating a greater risk
of recidivism were present: an absence of genuine remorse (including appellee's
minimization of his own conduct), denial of having done anything illegal, and the
enormous quantity of child pornography present on appellee's computer equipment. The
state points out that repeated commission of the same sex offense demonstrates a
compulsion and likelihood to re-offend, citing State v. Bartis, 10th Dist. No. 97APA05-
600 (Dec. 9, 1997), affirmed 84 Ohio St.3d 9 (1998). The state also argues that the trial
court did note one factor that indicates a greater likelihood of recidivism, when the court
described appellant's behavior as a condition that cannot be cured but, at best, controlled.
{¶ 29} The state also argues that the court created a false dilemma when the court
concluded that effective control of appellee's condition could only be obtained through
types of treatment that were unavailable in prison. The state then goes on to assert that
multiple sex offender treatment programs exist. The state further asserts that appellee
could obtain the requisite treatment once he completed his prison term, undergoing his
treatment as part of a post-release control sanction.
{¶ 30} It is clear that the court in fact devoted the bulk of its rationale in its
decision to weighing the risk of recidivism, concluding that community control in fact
presented the best option for reducing the risk of recidivism from this particular
defendant. During the course of the first day's hearing, the judge noted that opportunities
for effective counseling and rehabilitation in prison were "slight to none." (Dec. 4, 2012
No. 13AP-74 18

Tr. 18.) While the prosecution vigorously disagreed with this proposition both at the
hearing and in the present appeal ("an internet search easily refutes this assumption,"
state's reply brief at 12), we have no specific record evidence before us otherwise and defer
to the trial court's perception of the opportunities for effective treatment. In contrast,
counsel for appellee was able to assure the court by the time of the December 20th
hearing that appellee had been accepted into a comprehensive treatment program near
his current home in Jefferson County.
{¶ 31} The court also noted that appellee was severely beaten by other inmates in
the Franklin County Jail upon his initial arrest. Appellee's mother stated that, due to his
neurological conditions (Tourette's syndrome, inter alia) and social deficits, he lacked any
functional skills to avoid such confrontations and violence while incarcerated. The court
decided that appellee's expressed extreme fear of returning to prison would serve as a
powerful incentive for appellee to adhere to his conditions of community control and
pursue his treatment. The state concedes that "the record is silent on what safety
measures are or are not available in prison." (State's reply brief at 13.) More to the point,
appellee's personal safety in prison was not the driving concern expressed by the trial
court. Rather, the court stressed the likelihood that appellee's concern for his own safety,
should he violate the terms of his sentence, was a strong factor supporting a decreased
likelihood of recidivism.
{¶ 32} We conclude that, under the clear and convincing standard of review, there
was sufficient evidence before the trial court to support this determination. The court's
observations regarding appellee's emotional and neurological deficits, the likelihood of
appellee benefiting from rehabilitation programs while in prison, and his participation in
such programs, with the support of his family, while under community control, are
supported by the record. The trial court's finding that the sentence imposed would
effectively lessen the likelihood of recidivism is supported by the record.
{¶ 33} We reach this conclusion with due consideration of the limits conferred
upon this court and the corresponding latitude afforded the trial court in sentencing
matters. Our role as a reviewing court on appeal does not permit us to substitute our
judgment for that of the trial court in assessing the weight and credibility of matters in the
record. Burton. The trial court here applied the proper statutory framework, considered
No. 13AP-74 19

the appropriate factors, and the record provides the requisite measure of support for the
trial court's findings. Under the standard of review imposed by statute, it is not the role of
this court to substitute its judgment for the trial court simply because members of this
court might have made a different decision. Potter v. Baker, 162 Ohio St. 488 (1955);
State v. Dawson, 10th Dist. No. 00AP-1052 (Dec. 11, 2001); State v. Weaver, 10th Dist.
No. 84AP-937 (Dec. 12, 1985).
{¶ 34} In sum, because we find that the record does not present clear and
convincing evidence that the trial court's R.C. 2929.13(D)(2) findings are unlawful or
unsupported by the evidence, the state's first assignment of error is overruled.
{¶ 35} The state's second assignment of error urges us to find that, as a matter of
law, the trial court could not, on these facts, have found that a downward deviation was
appropriate. Our conclusion with respect to the first assignment of error renders this
assignment of error moot. Moreover, as we have observed in comparable cases, "we have
consistently rejected similar arguments by the state and we do so here." Fisher at ¶ 10.
We decline to infringe upon the trial court's domain as the initial finder of fact and
decider of issues that the statute clearly places as a matter of original jurisdiction before
the trial court. See, generally, Milhoan I at ¶ 9. The state's second assignment of error is
overruled.
{¶ 36} In accordance with the foregoing, the state's two assignments of error are
overruled, and the judgment of the Franklin County Court of Common Pleas sentencing
appellee to a period of community control for his convictions is affirmed.
Judgment affirmed.

SADLER, P.J., and DORRIAN, J., concur.

GREY, J., retired of the Fourth Appellate District, assigned to
active duty under authority of the Ohio Constitution, Article
IV, Section 6(C).
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