[Cite as State v. Cooper, 2016-Ohio-5064.]

COURT OF APPEALS 

ASHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsDANIEL SEAN COOPER 

 Defendant-Appellant 

JUDGES: 

Hon. Sheila G. Farmer, P.J. 

Hon. William B. Hoffman, J. 

Hon. John W. Wise, J. 

Case No. 14-COA-039 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Case No. 13-CRI-055 

JUDGMENT: Affirmed in Part, Sentence Vacated, 

 and Remanded 

 

DATE OF JUDGMENT ENTRY: July 22, 2016 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

CHRISTOPHER E. BALLARD BRIAN J. HALLIGAN 

110 Cottage Street 1105 Broad Street 

Third Floor P.O. Box 455 

Ashland, OH 44805 Ashland, OH 44805 
Ashland County, Case No. 14-COA-039 2

Farmer, P.J. 

{¶1} In June 2009, appellant, Daniel Sean Cooper, pled guilty in a Summit 

County, Ohio case to one count of pandering obscenity involving a minor in violation of 

R.C. 2907.321. The Summit County trial court sentenced appellant to three years in 

prison, imposed five years of post-release control, and ordered him to register as a Tier I 

sex offender. Appellant's competency had been raised, but after evaluation, the trial court 

found appellant was competent to stand trial. 

{¶2} On May 14, 2013, a search warrant was executed on the Ashland, Ohio 

residence of appellant's mother and stepfather based on suspected downloads of child 

pornography to a computer located within the residence between April 27, and 29, 2013. 

The computer was seized and child pornography files were discovered. Appellant lived 

in Medina, Ohio, but frequently visited his mother, staying for two to three days at a time, 

and was found at the residence during the execution of the search warrant. 

{¶3} On May 24, 2013, a complaint was filed charging appellant with five counts 

of pandering sexually oriented matter involving a minor in violation of R.C.2907.322. A 

bond hearing was held on May 29, 2013, wherein appellant indicated he may want to 

represent himself. The trial court found appellant indigent and appointed Attorney Rolf 

Whitney to represent appellant. 

{¶4} On May 30, 2013, the Ashland County Grand Jury indicted appellant on 

thirteen counts of pandering sexually oriented matter involving a minor in violation of 

R.C.2907.322. Appellant was arraigned on May 31, 2013, via iVisit wherein appellant, 

through counsel, pled not guilty to the charges. On July 1, 2013, appellant appeared in 
Ashland County, Case No. 14-COA-039 3

open court and again entered pleas of not guilty and indicated he wanted to represent 

himself. 

{¶5} On September 13, 2013, the state filed a motion for hearing to lay a 

foundation for appellant's waiver of counsel. A hearing was held on October 7, 2013, 

wherein appellant again indicated he wanted to represent himself. 

{¶6} On December 9, 2013, appellant filed a motion for the appointment of 

counsel specifically, Attorney Andrew Hyde. A hearing was held on December 26, 2013, 

and Attorney Whitney was present for the hearing. By judgment entry filed December 27, 

2013, the trial court vacated the prior appointment of Attorney Whitney and appointed 

Attorney Hyde to represent appellant per appellant's request. 

{¶7} On March 27, 2014, appellant filed a motion to fire Attorney Hyde and 

proceed pro se. A hearing was held on April 2, 2014, wherein appellant indicated he 

wanted to withdraw the motion. 

{¶8} On April 16, and 28, 2014, appellant again filed motions to fire Attorney 

Hyde. A pretrial was held on April 28, 2014, one week prior to the scheduled trial date, 

wherein the trial court denied appellant's requests. 

{¶9} On April 30, 2014, Attorney Hyde filed a request for a competency 

evaluation. A hearing was held on June 5, 2014. By judgment entry filed June 23, 2014, 

the trial court found appellant was competent to stand trial. The trial court also granted 

appellant's oral request to proceed pro se, but required Attorney Hyde to remain as 

standby counsel. 

{¶10} On July 9, 2014, appellant filed a motion to remove Attorney Hyde from his 

case. By judgment entry filed September 30, 2014, the trial court denied the motion. 
Ashland County, Case No. 14-COA-039 4

{¶11} On November 5, 2014, the state filed an Evid.R. 404(B) notice of intention 

to use appellant's prior conviction for pandering obscenity involving a minor to prove 

identity. 

{¶12} A jury trial commenced on November 18, 2014. Appellant represented 

himself with Attorney Hyde present as standby counsel. The jury found appellant guilty 

as charged. 

{¶13} A sentencing hearing was held on November 25, 2014. By judgment entry 

filed same date, the trial court sentenced appellant to two years on each of the thirteen 

counts, to be served consecutively, for an aggregate term of twenty-six years in prison. 

The trial court also found appellant had violated his post-release control from Summit 

County and therefore sentenced appellant to an additional twenty-four months, to be 

served consecutively to the twenty-six year sentence. 

{¶14} Appellant filed an appeal and this matter is now before this court for 

consideration. Assignments of error are as follows: 

I 

{¶15} "APPELLANT DID NOT KNOWINGLY, INTELLIGENTLY, AND 

VOLUNTARILY WAIVE HIS RIGHT TO COUNSEL IN WRITING AS THE TRIAL COURT 

FAILED TO FULLY ADVISE THE APPELLANT OF THE CONSEQUENCES OF 

PROCEEDING PRO SE." 

II 

{¶16} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCED 

APPELLANT TO CONSECUTIVE 2 YEAR SENTENCES FOR AN AGGREGATE 28 

YEARS IN PRISON." 
Ashland County, Case No. 14-COA-039 5

III 

{¶17} "THE TRIAL COURT COMMITTED PLAIN ERROR IN ALLOWING 

APPELLANT'S PRIOR FELONY CONVICTION FOR THE SAME CHARGE INTO 

EVIDENCE DESPITE THE FACT THAT THE APPELLANT DID NOT TESTIFY." 

I 

{¶18} Appellant claims the trial court erred in failing to ensure his waiver of trial 

counsel was knowingly, intelligently, and voluntarily waived in writing pursuant to Crim.R. 

44(C). We disagree. 

{¶19} Crim.R. 44(C) states: "Waiver of counsel shall be in open court and the 

advice and waiver shall be recorded as provided in Rule 22. In addition, in serious offense 

cases the waiver shall be in writing." 

{¶20} The state concedes a written waiver of counsel was not obtained in this 

case. However, if substantial compliance with the rule is demonstrated, the failure to file 

a written waiver is harmless error. State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471. 

"A valid waiver of counsel can be either express or implied from the circumstances of the 

case." State v. Weiss, 92 Ohio App.3d 681, 684 (9th Dist.1993). Once a defendant has 

waived his or her right to counsel, the trial court is free to appoint standby counsel, even 

over the objection of the accused. Martin, supra. 

{¶21} In State v. Gibson, 45 Ohio St.2d 366 (1976), syllabus, the Supreme Court 

of Ohio held the following: 

 1. The Sixth Amendment, as made applicable to the states by the 

Fourteenth Amendment, guarantees that a defendant in a state criminal trial 
Ashland County, Case No. 14-COA-039 6

has an independent constitutional right of self-representation and that he 

may proceed to defend himself without counsel when he voluntarily, and 

knowingly and intelligently elects to do so. Faretta v. California (1975), 422 

U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. 

 2. In order to establish an effective waiver of right to counsel, the trial 

court must make sufficient inquiry to determine whether defendant fully 

understands and intelligently relinquishes that right. 

{¶22} As explained by the United States Supreme Court in Von Moltke v. Gillies,

332 U.S. 708, 723-724 (1948): 

 To discharge this duty properly in light of the strong presumption 

against waiver of the constitutional right to counsel, a judge must investigate 

as long and as thoroughly as the circumstances of the case before him 

demand. The fact that an accused may tell him that he is informed of his 

right to counsel and desires to waive this right does not automatically end 

the judge's responsibility. 

{¶23} In Iowa v. Tovar, 541 U.S. 77, 88-89 (2004), the United States Supreme 

Court acknowledged the following: 

We have not, however, prescribed any formula or script to be read 

to a defendant who states that he elects to proceed without counsel. The 
Ashland County, Case No. 14-COA-039 7

information a defendant must possess in order to make an intelligent 

election, our decisions indicate, will depend on a range of case-specific 

factors, including the defendant's education or sophistication, the complex 

or easily grasped nature of the charge, and the stage of the proceeding. 

As to waiver of trial counsel, we have said that before a defendant 

may be allowed to proceed pro se, he must be warned specifically of the 

hazards ahead. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 

L.Ed.2d 562 (1975), is instructive. The defendant in Faretta resisted 

counsel's aid, preferring to represent himself. The Court held that he had a 

constitutional right to self-representation. In recognizing that right, however, 

we cautioned: "Although a defendant need not himself have the skill and 

experience of a lawyer in order competently and intelligently to choose selfrepresentation, he should be made aware of the dangers and 

disadvantages of self-representation, so that the record will establish that 

he knows what he is doing..." Id., at 835, 95 S.Ct. 2525 (internal quotation 

marks omitted). 

{¶24} As stated by this court in State v. Horn, 5th Dist. Delaware No. 08 CAA 11 

0069, 2009-Ohio-5983, ¶ 10: 

We have recognized that although some requests for selfrepresentation "often test the patience of trial courts and prosecutors ready 

to proceed, the colloquy requirements of Gibson must apply." State v. 
Ashland County, Case No. 14-COA-039 8

Blankenship, Perry App. No. 06 CA 17, 2007-Ohio-3541, ¶ 46. Appellant 

herein maintains that precedent from this Court has "vigorously enforced" 

the Von Moltke factors set forth in Gibson. Appellant's Brief at 8. However, 

we agree with the State that Ohio law does not require a mechanistic 

checklist of factors. See, e.g., State v. Doyle, Pickaway App. No. 04CA23, 

2005-Ohio-4072, ¶ 11. We have not abrogated a "totality of the 

circumstances" approach on issues of waiver of counsel, as appellant 

seems to suggest. See, e.g., State v. Drake (May 22, 2001), Perry App. 

No. 00CA10, 2001 WL 575123. 

{¶25} During his May 29, 2013 bond hearing, appellant indicated he may want to 

represent himself, and the trial court appointed Attorney Whitney to represent appellant. 

T. at 7-9. 

{¶26} On July 1, 2013, appellant appeared in open court and the following 

exchange occurred (T. at 5-6): 

 THE COURT: And it's still your intention to represent yourself in this 

matter, Mr. Cooper? 

 MR. COOPER: Yes, sir, the way that I see it is, it's not that I don't 

feel he's sincere, I believe that - - I believe that I might be just better off to 

represent myself. 

 THE COURT: Do you understand Mr. Whitney is going to be there to 

advice (sic) you and give you - - 
Ashland County, Case No. 14-COA-039 9

 MR. COOPER: Absolutely. 

 THE COURT: - - give you whatever assistance that you need? 

 MR. COOPER: Yes, honestly, the intent was to get materials, and 

you know, maybe come to a compromise before I have to defend myself, 

but obtain the materials to realize what the Court proceeding is and how to 

go about defending myself. 

 THE COURT: For purposes of negotiations, are you going to be 

utilizing Mr. Whitney to negotiate on your behalf with the State, because you 

understand that you have a right not to make any statement that could in 

the future be used against you? 

 MR. COOPER: I mean, I mean, with given the understanding that if 

a deal was offered or something, then I would have to say, yes, you know 

what I mean? I don't want him to be able to say yes for me because me 

saying yes. 

 THE COURT: Well, Mr. Whitney can not (sic) say yes without your 

consent. 

 MR. COOPER: Okay. 

 THE COURT: And if there was any deal, you would be brought into 

court and we would make sure that you understand the nature of the 

agreement and whether or not you agree to that voluntarily, so I just want 

to make sure that we are all on the same page. Anything else, Mr. Whitney? 

 MR. WHITNEY: No, sir, Dan and I had that discussion, Judge, so he 

understands that. 
Ashland County, Case No. 14-COA-039 10

{¶27} On September 13, 2013, the state filed a motion for hearing to lay a 

foundation for appellant's waiver of counsel. A hearing was held on October 7, 2013, and 

the following exchange occurred (T. at 6-7): 

 THE COURT: I am not addressing what has been happening in the 

case, I am asking if you understand the way that the case will proceed if 

you advise the Court today that you wish to represent yourself. Mr. Whitney 

will no longer be made available to you unless this matter goes to trial. My 

prior Order denying you access to the law library would be rescinded, and 

we will make arrangements for you to have access to the law library, but 

then you would no longer have the services of Attorney Whitney, and you 

would be held to the same standards in terms of Notice upon the 

Prosecuting Attorney of anything that you file with the Court, and basically 

be held in the same standard as any other attorney. 

 Do you understand all of that? 

 MR. COOPER: Yeah, I understand that, yes, absolutely. 

 THE COURT: Okay, is it your desire to represent yourself in this 

matter, and to forgo court appointed counsel except as to advise you as to 

the procedure at trial? 

 MR. COOOPER: Yes, sir. 

 THE COURT: Okay. That being the case, Mr. Whitney, you are 

excused until trial. 
Ashland County, Case No. 14-COA-039 11

{¶28} The following exchange then occurred (T. at 9-14): 

 MS. ROGERS: Judge, the only thing that I might suggest is, I don't 

know if the Court has Gibson in front of it, and I do if the Court wanted to 

follow some of the language, but in addition to representing himself, you 

know, I think that he has to be told if his questions are improper and they 

don't (inaudible) you are not here to serve as his lawyer. That he may not 

be able to ask any questions. I am intending to object if he doesn't know 

the argument and (inaudible) to my objections, et cetera, I think maybe the 

court needs to go into a little bit more detail of what is going to happen if he 

falls on his face during trial. 

 THE COURT: I can certainly do that. I just did not understand what 

you wanted the scope of this hearing to be since you referenced the Gibson 

matter (inaudible) applying that at this point, but that was before he stated 

that he wanted to represent himself. So that is where I got confused. 

 Mr. Cooper, do you understand that as the Prosecuting Attorney has 

indicated, you will be held to the same standard of any other attorney that 

would be practicing in the courtroom? 

 You have a Constitutional right to represent yourself, we will proceed 

without Counsel but you need to understand that Mr. Whitney is only going 

to be here to advise you as to procedures that there are, rules that govern 

conducting a trial as to the questioning and admission of evidence, and you 
Ashland County, Case No. 14-COA-039 12

will be expected to follow these rules if evidence is offered in a manner that 

violates the rules of evidence, then the Prosecutor objects to that evidence, 

it won't be admitted, and if you ask improper questions and the Prosecution 

objects, your questions will be stricken from the Record and the jury will be 

advised to disregard that question. 

 The fact that you represent yourself, as well, does not give you 

unfettered discretion to be disruptive in the courtroom either, and you must 

show proper respect for the Court and proceedings during the course of the 

trial, or you could be removed from the courtroom. Do you understand that? 

 MR. COOPER: Yes, sir, I just wondered, so Mr. Whitney is 

completely excused, I can't - - 

 THE COURT: He's completely excused until trial. He will be here at 

trial to advise you as to procedures, as to any questions. 

 MR. COOPER: Any motions that I want - - 

 THE COURT: You have to file those yourself and serve the 

Prosecuting Attorney a copy of anything that you file with the Court. 

 MR. COOPER: Okay. All right. I guess. 

 THE COURT: And he's not going to be discussing the motion with 

you. If the Prosecutor files a motion, you will be responsible for responding 

to any pretrial motions filed by the State, and Mr. Whitney will not be 

assisting you and preparing any response to those motions. 

 MR. COOPER: Okay. One last question, how often would I have 

access to the law library, if I might. 
Ashland County, Case No. 14-COA-039 13

 THE COURT: I am granting you access, so it's a question of what 

you need and what the Sheriff's office can provide in terms of getting you 

here and back. 

 MR. COOPER: I mean, do you think that once every two weeks 

would be - - I mean, would be doable? 

 THE COURT: I would prefer not to put a specific time schedule on 

that because if I say once every two weeks and you need to look something 

up in response to a State's motion and you already had your one for the two 

weeks, that would limit your access. 

 MR. COOPER: Well, that is kind of what I am getting at. I am kind 

of leery that they might further restrict me by saying, Ohio Revised Code we 

cannot do it today, Ohio Revised Code we cannot do it today, well, we 

cannot do it today. 

 THE COURT: If that happens then you are representing yourself, you 

can file a motion with the Court and give the Prosecuting Attorney a chance 

to respond to the motion and we will address the issue. 

 MR. COOPER: All right. 

 THE COURT: And if it became a problem, we will try to correct the 

problem. 

 MR. COOPER: Okay. I would appreciate that. Then, yeah, I am fine 

with that, absolutely, I mean, I hate to say it, but I think that I feel, Mr. 

Whitney probably would do a fairly good, but I think that, you know, the 

Prosecution has too much support and it would overpower him. I think that 
Ashland County, Case No. 14-COA-039 14

I have to defend myself. I have to represent myself. I have to represent 

myself, there is no way around it. 

 THE COURT: And you fully understand the consequences of 

proceedings on your own? 

 MR. COOPER: Yes, sir. 

 THE COURT: And you understand the limitations that will be on Mr. 

Whitney subject to the terms of his attorney? 

 MR. COOPER: Yes, sir. 

 THE COURT: Anything else that you feel that the Court needs to 

advise the Defendant on? 

 MS. ROGERS: No, thank you, Judge. 

{¶29} On December 9, 2013, appellant filed a motion for the appointment of 

counsel specifically, Attorney Hyde. A hearing was held on December 26, 2013, and 

Attorney Whitney was present for the hearing. By judgment entry filed December 27, 

2013, the trial court vacated the prior appointment of Attorney Whitney and appointed 

Attorney Hyde to represent appellant as appellant requested. Thereafter, appellant filed 

several motions to fire Attorney Hyde which the trial court denied. 

{¶30} During the competency hearing held on June 5, 2014, the trial court found 

appellant competent to stand trial and appellant again indicated he wanted to proceed 

pro se. The following exchange occurred (T. at 7-11): 
Ashland County, Case No. 14-COA-039 15

 THE COURT: Thank you, Mr. Hyde. Mr. Cooper, you have been 

afforded the service of two of the better, if not the best criminal defense 

attorneys that do work in Ashland County on an appointed basis, that being 

Mr. Whitney and Mr. Hyde. You have previously requested that you be 

entitled to represent yourself when Mr. Whitney was representing you and 

appointed to represent you, and the Court even made available an 

opportunity for you to utilize the law library. And then got to a point where 

trial was imminent, and you requested appointed Counsel again. And you 

did not want Mr. Whitney, so we appointed Mr. Hyde, and then here we 

proceeded along, and a day before trial we have something that kicks the 

can down the road again, and now here we are again, with you requesting 

that you be permitted to represent yourself, and that you don't want Mr. 

Hyde as standby Counsel. 

 Well, Number 1, even if I let you represent yourself you are having 

standby Counsel because I am not going to give you an argument on appeal 

purposes if you are subsequently convicted in representing yourself, that 

you did not have an opportunity to consult with Counsel, and I think that you 

are entitled to that right, and at a bear (sic) minimum, the Court has to afford 

you an opportunity to when you find yourself in the midst of trial to have the 

opportunity to consult with Counsel, if you feel the need once you get into 

the process or that procedure, and Mr. Hyde, as a minimum, is going to be 

there to provide you with that support or answer your questions. 
Ashland County, Case No. 14-COA-039 16

 If you decide to proceed to represent yourself at trial, which I certainly 

would advice (sic) strongly against you at trial, I think that would place you 

at a significant disadvantage with a jury, but it's ultimately your choice. 

 Previously, under previous administration, the State took the position 

that your standby Counsel could not assist you with legal research, you 

were either standby there for trial and afforded you no assistance 

whatsoever in trial preparation and we went down that road, and I don't 

know, Mr. Tunnell, if you have the same position. I am quite frankly willing 

to have Mr. Hyde assist in legal research so we don't have to trouble with 

the jail staff with bringing Mr. Cooper up here afterhours and babysitting him 

while he rifles through documents and books in the law library, sometimes 

knowing what he wants and sometimes having no idea what he's looking 

for. 

 And at least provide that assistance in the Court of his trial 

preparation where at least if he could identify specific materials where he 

wanted them, Mr. Hyde could upon being compensated by the County, at 

least obtain those material or that information for Mr. Cooper to facilitate his 

defense preparation if he's going to represent himself. I don't know how 

you feel about that, Mr. Hyde, but I think I am not asking you to do the 

research yourself, but he has got, if you are to assist him, he has to focus 

to pretty much tell you what he's looking for. 

 MR. HYDE: I saw that as the second part of our request today, I 

was going to request that the Court allow me to assist Mr. Cooper preparing, 
Ashland County, Case No. 14-COA-039 17

to try his own case and obtain the materials, he told me that the Deputy 

would sit there for four hours at a time in the law library, I would prefer that 

the court allow me to bring what books he needs to him at jail and assist 

him at the pretrial, but that - - 

 THE COURT: Well, that is the position that I took before, the State 

objected to that, and that was fine. But like I said, we have new 

administration at the Prosecutor's office so Mr. Tunnell, what would be your 

position in that regard? 

 MR. TUNNELL: Judge, I never thought it proper to take a position on 

the status of representation of a criminal Defendant or insert myself in that 

way. My opinion is, if someone is Pro Se and has a legal advisor, they are 

an advisor in all respects, not just at trial, but throughout the process. 

 THE COURT: Okay. 

 MR. TUNNELL: And additionally, having Counsel and paying a 

deputy for four hours doesn't make sense. 

 THE COURT: It doesn't make a whole lot of sense. 

 MR. TUNNELL: It doesn't get you anywhere, and it doesn't make for 

a descent (sic) record, and is at a big enough disadvantage being Pro Se 

without that. And if there were some change of heart down the line and 

would flip flop and Mr. Hyde is back in the first chair, I would prefer that he 

be ready to go at a moment's notice if that happens and we don't have to 

continue this again. 

 So no objection to that request, Your Honor. 
Ashland County, Case No. 14-COA-039 18

 THE COURT: Then that would be the Order of the Court, Mr. Hyde, 

you may assist Mr. Cooper. Mr. Cooper, I am going to go ahead and let 

you represent yourself, in this matter, Mr. Hyde will be designated as 

standby Counsel. 

{¶31} During a November 13, 2014 pretrial, the trial court notified appellant of the 

following (T. at 6-7): 

 THE COURT: ***and just so you are aware, Mr. Cooper, we are also 

making arrangements if you became disruptive during the point of the trial 

that we cannot proceed properly with the trial, the Court will at that time 

consider removing you from the courtroom and allowing your standby 

Counsel to proceed on your behalf, and we would have a camera set up so 

you can watch the proceedings from another location. 

 That is if you became too disruptive, you would be warned before 

that would ever happen, but you just need to be aware that would be a 

possibility if you became too disruptive. 

{¶32} The following exchange then occurred (T. at 7-8): 

 MR. COOPER: I mean as far as that goes, if that were to happen 

and I was represented by counsel, whatever, if I was on camera, does that 

mean that I am still making the decisions or does he automatically make all 

the decisions? 
Ashland County, Case No. 14-COA-039 19

 THE COURT: Well, we would basically have a Bailiff back with you 

and you are watching a video, and if there is something that you needed to 

communicate with your attorney on, we would have one Bailiff radio the 

Bailiff in the courtroom, it would not be disruptive because they have ear 

pieces, at which point the Bailiff would advice (sic) the Court that we needed 

to possibly pause to allow you to consult with Mr. Hyde, so, yes, you would 

be in control. 

 MR. COOPER: All right, I think that I understand how that is 

supposed to go. 

 THE COURT: Okay. 

 MR. COOPER: I guess that is good. 

{¶33} The trial commenced on November 18, 2014, and appellant represented 

himself with Attorney Hyde seated beside him at the defense table as standby counsel. 

T. at 6. 

{¶34} Based on the numerous pretrial proceedings, we find the trial court 

thoroughly investigated appellant's desire to represent himself and sufficiently advised 

him of the consequences of his waiver of the right to counsel. Appellant was informed of 

the charges against him and was advised that during trial, he would be held to the same 

procedural standards as an attorney. The record demonstrates that appellant was 

literate, competent, understanding of the consequences of self-representation, and 

exercised free will. The trial court even provided standby counsel to aid appellant at all 

times. 
Ashland County, Case No. 14-COA-039 20

{¶35} Despite the lack of a written waiver of counsel, we find the trial court 

substantially complied with Crim.R. 44(C), and appellant had sufficient understanding of 

the proceedings and the consequences of representing himself to make a voluntary, 

knowing, and intelligent waiver of the right to counsel and proceed pro se with the aid of 

standby counsel. 

{¶36} Assignment of Error I is denied. 

II 

{¶37} Appellant claims the trial court abused its discretion in imposing consecutive 

sentences for an aggregate twenty-eight year prison term. 

{¶38} Pursuant to the Supreme Court of Ohio's recent holding in State v. Marcum, 

___ Ohio St.3d ___, 2016-Ohio-1002, ¶ 7, this court will review a felony sentence using 

the standard set forth in R.C. 2953.08, and will no longer apply the abuse of discretion 

standard under State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. R.C. 2953.08 

governs appeals based on felony sentencing guidelines. Subsection (G)(2) sets forth this 

court's standard of review as follows: 

 (2) The court hearing an appeal under division (A), (B), or (C) of this 

section shall review the record, including the findings 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 
Ashland County, Case No. 14-COA-039 21

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, division (B)(2)(e) or (C)(4) of 

section 2929.14, or division (I) of section 2929.20 of the Revised Code, 

whichever, if any, is relevant; 

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

{¶39} "Clear and convincing evidence is 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. 

{¶40} R.C. 2929.11 governs overriding purposes of felony sentences and states 

the following: 

 (A) A court that sentences an offender for a felony shall be guided by 

the overriding purposes of felony sentencing. The overriding purposes of 

felony sentencing are to protect the public from future crime by the offender 

and others and to punish the offender using the minimum sanctions that the 

court determines accomplish those purposes without imposing an 

unnecessary burden on state or local government resources. To achieve 

those purposes, the sentencing court shall consider the need for 
Ashland County, Case No. 14-COA-039 22

incapacitating the offender, deterring the offender and others from future 

crime, rehabilitating the offender, and making restitution to the victim of the 

offense, the public, or both. 

 (B) A sentence imposed for a felony shall be reasonably calculated 

to achieve the two overriding purposes of felony sentencing set forth in 

division (A) of this section, commensurate with and not demeaning to the 

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

consistent with sentences imposed for similar crimes committed by similar 

offenders. 

 (C) A court that imposes a sentence upon an offender for a felony 

shall not base the sentence upon the race, ethnic background, gender, or 

religion of the offender. 

{¶41} R.C. 2929.14(C)(4) governs consecutive sentences and states the 

following: 

 (4) If multiple prison terms are imposed on an offender for convictions 

of multiple offenses, the court may require the offender to serve the prison 

terms consecutively if the court finds 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, 

and if the court also finds any of the following: 
Ashland County, Case No. 14-COA-039 23

 (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 

consecutive sentences are necessary to protect the public from future crime 

by the offender. 

{¶42} In its judgment entry filed November 25, 2014, the trial court sentenced 

appellant to two years on each of the thirteen counts, to be served consecutively, for a 

total aggregate term of twenty-six years in prison. The trial court also imposed a twentyfour month sentence for violating post-release control, to be served consecutively to the 

twenty-six year term. 

{¶43} During the sentencing hearing held on November 25, 2014, the trial court 

found the following regarding consecutive sentences (T. at 20-21): 

 THE COURT: ***I am finding that consecutive service of the 

sentence is necessary to protect the public from future crime, and 
Ashland County, Case No. 14-COA-039 24

consecutive sentencings are certainly not disproportionate to the 

seriousness of your conduct, and the danger that you pose to the public. 

And that you committed those offenses while you were subject to PostRelease Control and you are under specific prohibitions not to do that 

conduct over and above what the statute in the State of Ohio required. 

 I am further finding that you are in violation of that Post-Release 

Control Supervision and I am going to impose an additional 24 months of 

Post-Release Control time consecutive to the 26 years that I am imposing 

on the 13 counts, so your aggregate sentence is going to be 28 years, that 

is two years on each of the 13 Counts, both imposed consecutive, and 24 

months imposed on the Post-Release Control Violation. 

{¶44} The trial court complied with R.C. 2929.14(C)(4) in ordering consecutive 

service during the sentencing hearing. 

{¶45} In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 29-31, the 

Supreme Court of Ohio held the following: 

 When imposing consecutive sentences, a trial court must state the 

required findings as part of the sentencing hearing, and by doing so it 

affords notice to the offender and to defense counsel. See Crim.R. 

32(A)(4). And because a court speaks through its journal, State v. Brooke,

113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, ¶ 47, the court 

should also incorporate its statutory findings into the sentencing entry. 
Ashland County, Case No. 14-COA-039 25

However, a word-for-word recitation of the language of the statute is not 

required, and as long as the reviewing court can discern that the trial court 

engaged in the correct analysis and can determine that the record contains 

evidence to support the findings, consecutive sentences should be upheld. 

 A trial court's inadvertent failure to incorporate the statutory findings 

in the sentencing entry after properly making those findings at the 

sentencing hearing does not render the sentence contrary to law; rather, 

such a clerical mistake may be corrected by the court through a nunc pro 

tunc entry to reflect what actually occurred in open court. See State v. 

Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 15 (where 

notification of postrelease control was accurately given at the sentencing 

hearing, an inadvertent failure to incorporate that notice into the sentence 

may be corrected by a nunc pro tunc entry without a new sentencing 

hearing). But a nunc pro tunc entry cannot cure the failure to make the 

required findings at the time of imposing sentence. See State v. Miller, 127 

Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 16 ("a nunc pro tunc 

order cannot cure the failure of a judge to impose restitution in the first 

instance at sentencing"). 

 And a sentencing entry that is corrected by a nunc pro tunc entry 

incorporating findings stated on the record at the sentencing hearing does 

not extend the time for filing an appeal from the original judgment of 

conviction and does not create a new final, appealable order. See State v. 

Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 20 ("a nunc 
Ashland County, Case No. 14-COA-039 26

pro tunc judgment entry issued for the sole purpose of complying with 

Crim.R. 32(C) to correct a clerical omission in a final judgment entry is not 

a new final order from which a new appeal may be taken"). 

{¶46} Although the trial court made the statutorily required findings during the 

sentencing hearing, a review of the judgment entry on sentencing reveals it failed to 

incorporate these findings into the sentencing entry contrary to Bonnell.

{¶47} Upon review, we vacate the sentence and remand the matter to the trial 

court to issue a nunc pro tunc judgment entry on sentencing to include the requisite 

findings.

{¶48} We note in his appellate brief at 4, appellant argues his twenty-eight year 

sentence is "greatly excessive and manifestly disproportionate to the actual crime."

{¶49} As explained by this court in State v. Ewert, 5th Dist. Muskingum No. 

CT2012-0002, 2012-Ohio-2671, ¶ 32-33:

As relevant to this appeal, under R.C. 2929.11(B), a felony sentence 

must be "consistent with sentences imposed for similar crimes committed 

by similar offenders." "To support a claim that a 'sentence is 

disproportionate to sentences imposed upon other offenders, a defendant 

must raise this issue before the trial court and present some evidence, 

however minimal, in order to provide a starting point for analysis and to 

preserve the issue for appeal.' " State v. Searles, 8th Dist. No. 96549, 
Ashland County, Case No. 14-COA-039 27

2011-Ohio-6275, ¶ 25, quoting State v. Edwards, 8th Dist. No. 89181, 

2007-Ohio-6068, ¶ 11. 

A felony sentence should be proportionate to the severity of the 

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

community." State v. Chafin, 30 Ohio St.2d 13, 17. See also R.C. 

2929.11(B). A defendant alleging disproportionality in felony sentencing 

has the burden of producing evidence to "indicate that his sentence is 

directly disproportionate to sentences given to other offenders with similar 

records who have committed these offenses * * *." State v. Breeden, 8th 

Dist. No. 84663, 2005-Ohio-510, ¶ 81. 

{¶50} Appellant did not raise this issue in the trial court, and has not provided this 

court with any explanation or evidence as to why or how his sentence is disproportionate. 

{¶51} While the sentence imposed is lengthy, appellant committed thirteen acts 

of pandering sexually oriented matter involving a minor in violation of R.C. 2907.322. In 

2009, appellant pled guilty to one count of pandering obscenity involving a minor in 

violation of R.C. 2907.321, and was sentenced to three years in prison and ordered to 

register as a Tier I sex offender. After his release from prison, appellant went right back 

to engaging in the same behaviors as before. 

{¶52} As stated by our brethren from the Eighth District in State v. Duhamel, 8th 

Dist. Cuyahoga No. 102346, 2015-Ohio-3145, ¶ 54 and 61, respectively: 
Ashland County, Case No. 14-COA-039 28

***In New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 

1113 (1982), the U.S. Supreme Court recognized the government's interest 

in safeguarding the physical and psychological well-being of children and in 

preventing their sexual exploitation. Id. at 756-757. Every video or image 

of child pornography on the internet constitutes a permanent record of that 

particular child's sexual abuse. The harm caused by these videos is 

exacerbated by their circulation. Id. 

*** 

Moreover, the children depicted in the images or videos are the 

victims of pandering sexually oriented material involving a minor offenses. 

State v. Meadows, 28 Ohio St.3d 43, 49, 503 N.E.2d 697 (1986). Each 

video presents a different child or group of children. Individuals who view 

or circulate child pornography harm the child in several ways (1) by 

perpetuating the abuse initiated by the creator of the material, (2) by 

invading the child's privacy, and (3) by providing an economic motive for 

producers of child pornography. U.S. v. Norris, 159 F.3d 926 (5th Cir.1998). 

As previously stated, the dissemination of child pornography exacerbates 

and continues the exploitation and victimization of the individual child. 

Ferber, 458 U.S. 747 at 759, 102 S.Ct. 3348, 73 L.Ed.2d 1113; See also 

U.S. v. Sherman, 268 F.3d 539, 545 (7th Cir.2001) (even a "passive 

consumer who merely receives or possesses the images directly 

contributes to this continuing victimization."). 
Ashland County, Case No. 14-COA-039 29

See also State v. Starcher, 5th Dist. Stark No. 2015CA00058, 2015-Ohio-5250. 

{¶53} "Each child pornography file or image that is downloaded is 'a new and 

distinct crime.' State v. Eal, 10th Dist. No. 11AP-460, 2012-Ohio-1373, ¶ 93." State v. 

Mannarino, 8th Dist. Cuyahoga No. 98727, 2013-Ohio-1795, ¶ 53. 

{¶54} The quantity of appellant's offenses, coupled with his prior conviction for a 

similar offense, clearly and convincingly support the trial court's sentence. R.C. 

2953.08(G)(2). 

{¶55} Assignment of Error II is granted as to the sentencing entry and denied as 

to the consecutive nature and length of the sentence. 

III 

{¶56} Appellant claims the trial court committed plain error in admitting into 

evidence his prior felony conviction for pandering obscenity involving a minor despite the 

fact that he did not testify at trial. We disagree. 

{¶57} The admission or exclusion of evidence lies in the trial court's sound 

discretion. State v. Sage, 31 Ohio St.3d 173 (1987). In order to find an abuse of that 

discretion, we must determine the trial court's decision was unreasonable, arbitrary or 

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 

Ohio St.3d 217 (1983). 

{¶58} As set forth above, the state filed a pretrial Evid.R. 404(B) notice of intent 

to introduce appellant's prior conviction at trial. Evid.R. 404(B) states the following: 
Ashland County, Case No. 14-COA-039 30

 (B) Other Crimes, Wrongs or Acts. Evidence of other crimes, 

wrongs, or acts is not admissible to prove the character of a person in order 

to show action in conformity therewith. It may, however, be admissible for 

other purposes, such as proof of motive, opportunity, intent, preparation, 

plan, knowledge, identity, or absence of mistake or accident. In criminal 

cases, the proponent of evidence to be offered under this rule shall provide 

reasonable notice in advance of trial, or during trial if the court excuses 

pretrial notice on good cause shown, of the general nature of any such 

evidence it intends to introduce at trial. 

{¶59} Identity was at issue at trial. Appellant was arrested for pandering sexually 

oriented matter involving a minor while visiting the home of his mother and stepfather. 

During opening statement, appellant stated, "[a]s far as the residence goes, there is two 

people that live there, my mom and stepdad, and yeah, I went there sometimes, still, I 

mean, so I don't know, it just goes to show that any one of them have an interest, all of 

them have knowledge." November 18, 2014 T. at 132-133. Appellant further stated, "as 

far as like my mom or stepdad, I don't know what stepdad was into, but I know that my 

mom gets porn." Id. at 137-138. 

{¶60} During appellant's cross-examination of Detective Dave Rohn, appellant 

asked the following: "All right. Aside from the fact that I was at the residence when you 

collected the evidence, was there any evidence to suggest or know from your evidence 

that proves that I was at the residence, other than any days that you were at the 
Ashland County, Case No. 14-COA-039 31

residence, video, phone calls, or pictures that says that I was there any other days at the 

residence?" Id. at 163-164. The detective responded in the negative. Id. at 164. 

{¶61} Also during opening statement, appellant mentioned his prior conviction for 

pandering obscenity. Id. at 135-139. In its case-in-chief, the state moved to admit 

appellant's prior conviction into evidence (State's Exhibit 6) and the following exchange 

occurred on the record during a sidebar (Id. at 181-182): 

 

 MR. LANGE: Your Honor, at this point in time, I move the Court to 

accept into evidence the Defendant's prior conviction, pandering 

obscenities. He raised the issue of identify and Detective Rohn laid the 

foundation, identified the person, gave the date of birth, 11-9-73, and three 

people drove to the house and identify is at issue in the case, and the 

Defendant raised that issue of identify in the Opening Statement. 

 THE COURT: Mr. Cooper? 

 MR. COOPER: I don't mind about that. 

 THE COURT: You are okay to that? Okay. The Certified copy of the 

prior conviction is admitted without objection. 

{¶62} Appellant did not object to the admission of the evidence, in fact he 

acquiesced when specifically asked. An error not raised in the trial court must be plain 

error for an appellate court to reverse. State v. Long, 53 Ohio St.2d 91 (1978); Crim.R. 

52(B). In order to prevail under a plain error analysis, appellant bears the burden of 

demonstrating that the outcome of the trial clearly would have been different but for the 
Ashland County, Case No. 14-COA-039 32

error. Long. Notice of plain error "is to be taken with the utmost caution, under 

exceptional circumstances and only to prevent a manifest miscarriage of justice." Id. at 

paragraph three of the syllabus. 

{¶63} Appellant has not demonstrated error, let alone plain error. Given that 

appellant mentioned his prior conviction during his opening statement, consented to the 

introduction of his prior conviction, and placed identity at issue, we find the trial court did 

not abuse its discretion in admitting the evidence. 

{¶64} Assignment of Error III is denied. 

{¶65} The judgment of the Court of Common Pleas of Ashland County, Ohio is 

affirmed in part and the sentence is vacated, and the matter is remanded to said court for 

the limited purpose of issuing a nunc pro tunc sentencing entry in accordance with the 

law and this opinion. 

By Farmer, P.J. 

Wise, J. concurs. 

Hoffman, J. dissents. 

 

SGF/db 76 
Ashland County, Case No. 14-COA-039 33

Hoffman, J., concurring in part and dissenting in part 

{¶66} I concur in the majority’s analysis and disposition of Appellant’s first and 

third assignments of error except for the standard of review utilized in reviewing the trial 

court’s admission of Appellant’s prior conviction.1 

{¶67} I further concur in that part of the majority’s analysis and disposition of 

Appellant’s second assignment of error vacating Appellant’s sentence and remanding the 

matter for resentencing pursuant to State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio3177. 

{¶68} However, I respectfully dissent from the majority’s analysis and decision 

finding the record clearly and convincingly supports the trial court’s decision to impose all 

of Appellant’s sentences consecutively. 

{¶69} I believe the majority’s reliance on this Court’s opinion in State v. Ewert, 5th

Dist. Muskingum No. CT2012-0002, 2012-Ohio-2671, is misplaced. I find the pertinent 

issue herein is whether the imposition of consecutive sentences is disproportionate to the 

seriousness of the offender’s conduct under R.C. 2929.14(C)(4), not whether Appellant’s 

sentence on each count is consistent with sentences imposed for similar crimes 

committed by similar offenders under R.C. 2929.11(B). Appellant’s sentence on each 

offense is not excessive on its own apart from the trial court’s order the sentences run 

consecutive for a total of twenty-six years in prison. Accordingly, I find lack of evidence 

of sentences given to other offenders with similar records who committed the same 

offense as Appellant committed does not end the analysis. I find the record is sufficient 

 

1 For further explanation, see my concurring opinion in State v. Baughman, 5th District 

Fairfield App. No. 13-CA-49, 2014-Ohio-1821. 
Ashland County, Case No. 14-COA-039 34

to analyze whether the imposition of consecutive sentences is disproportionate to the 

seriousness of Appellant’s conduct in this case. The analysis is between Appellant’s 

sentence and his conduct in this case, not between Appellant’s sentence on a particular 

offense and that of other offenders of that same offense.2 

{¶70} The record demonstrates Appellant downloaded [and presumably viewed] 

thirteen videos of child pornography on his mother’s computer over a three day period. 

Although Appellant committed thirteen separate offenses, it appears to have been one 

continuing course of conduct. There is no indication in the record Appellant ever 

distributed or attempted to forward any of the videos to anyone else. There is no record 

evidence Appellant ever “acted out” on his sexual predilection by contacting or attempting 

to contact a juvenile for sexual purposes. 

{¶71} I certainly do not mean to suggest the viewing of child pornography is not a 

serious offense. It is a morally reprehensible, offensive crime. Material involving the 

sexual exploitation of juveniles is both shocking and disgusting. 

{¶72} Yet the legal question remains: Is 26 years in prison a proportionate 

sentence in light of the seriousness of Appellant’s conduct? 

{¶73} There was no direct, immediate harm done to any person (with the possible 

exception of Appellant himself) as a result of Appellant downloading the videos.3

 

{¶74} I offer the following hypothetical for purpose of illustration. 

 

2 R.C. 2929.14(C)(4), “the court may require the offender serve the prison terms 

consecutively if the court finds...the consecutive sentences are not disproportionate to 

the offense. 3 I acknowledge an indirect harm results in that Appellant and others like him who 

download such pornography create a market for the production of such material, thereby 

victimizing children. 
Ashland County, Case No. 14-COA-039 35

{¶75} Had Appellant downloaded 56 videos of child pornography over those same 

three days would 112 years in prison be proportionate to the seriousness of the crime? 

Would such justify what would, in effect, constitute a life sentence to prison? 

{¶76} An offender who commits gross sexual imposition against a juvenile victim 

is subject to a maximum of five years in prison. Should such offender commit gross 

sexual imposition against one victim on five separate occasions, or once against five 

different victims, the maximum consecutive sentence such offender could receive would 

be a total of 25 years in prison. Here, Appellant received 26 years in prison for conduct 

which many, if not most or all, would view less serious than the actual direct harm caused 

to a juvenile victim(s) by commission of gross sexual imposition. 

{¶77} While I do not find it inappropriate to impose an additional 24 months in 

prison for violation of his Post-Release Control consecutive to the sentence for the 

offenses for which Appellant was convicted in this case, I find the 26 year consecutive 

sentence is disproportionate to the seriousness of Appellant’s conduct.