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State v. Forney

Court of Appeals of Ohio, Second District

July 12, 2013

STATE OF OHIO, Plaintiff-Appellee
v.
ANDREW P. FORNEY, Defendant-Appellant

(Criminal Appeal from (Common Pleas Court) Trial Court Case No. 2012-CR-91.

KEVIN S. TALEBI, Atty. Reg. #0069198, by JANE A. NAPIER, Atty. Reg. #0061426, Champaign County Prosecutor's Office, Attorney for Plaintiff-Appellee.

BRIAN A. SMITH, Atty. Reg. #0083620, Brian A. Smith, Attorney at Law, Attorney for Defendant-Appellant

OPINION

HALL, J.

{¶ 1} Andrew P. Forney appeals from his conviction and sentence following a guilty plea to charges of failure to report a crime, abuse of a corpse, gross abuse of a corpse, obstructing justice, and complicity to evidence tampering.

{¶ 2} Forney advances four assignments of error on appeal. First, he contends the trial court erred in imposing partially consecutive sentences. Second, he claims the trial court erred in imposing maximum sentences on all counts. Third, he asserts that the trial court erred in failing to merge gross abuse of a corpse and obstructing justice as allied offenses. Fourth, he argues that the trial court erred in failing to merge complicity to evidence tampering and obstructing justice as allied offenses.

{¶ 3} The charges against Forney stemmed from his role, along with others, in helping his friend, Matthew Puccio, dismember and dispose of the body of Jessica Sacco. The record reflects that Puccio stabbed and suffocated Sacco in a residence they shared. Forney was in the residence at the time. After Sacco's death, Forney helped move her body into a bathtub. He then helped dismember her body with pliers, a knife, and a sword. The dismemberment occurred in multiple sessions lasting hours. Forney and his wife later transported Puccio and Sacco's dismembered body to Butler County in Forney's van. Forney and his wife slept in the van with the dismembered body before disposing of it. Police ultimately arrested Forney, Puccio, and others in connection with the death and dismemberment of Sacco. As part of a plea agreement, Forney pled guilty to the charges set forth above in exchange for the dismissal of other charges. After merging two counts as allied offenses but declining to merge others, the trial court imposed an aggregate ten-year prison sentence This appeal followed.

{¶ 4} Forney's first two assignments of error challenge the trial court's imposition of partially consecutive sentences and its imposition of maximum sentences. Specifically, Forney contests the trial court's decision to impose consecutive sentences on counts three (gross abuse of a corpse), six (obstructing justice), eight (complicity to evidence tampering), and nine (obstructing justice). He also contests the trial court's decision to impose statutory maximum prison terms on all counts.

{¶ 5} Forney does not dispute that the trial court complied with the applicable sentencing statutes. Therefore, he does not argue that his sentence is contrary to law. Instead, he contends the trial court abused its discretion when considering the statutory "principles and purposes of sentencing" and the statutory "seriousness" and "recidivism" factors and finding partially consecutive and maximum sentences appropriate. Forney stresses his lack of any criminal record, his expression of remorse, and his cooperation with law enforcement. He contends the trial court overweighted the seriousness of his conduct while giving too little weight to the mitigating factors mentioned in his brief He also faults the trial court for not specifically analyzing any of the statutory "seriousness" factors. Forney asserts that none of them apply. He additionally argues that the trial court scarcely considered the "recidivism" factors, which he claims show little likelihood of him re-offending. Forney also claims the trial court improperly dismissed other mitigating factors, including his claim that his offenses occurred under circumstances unlikely to occur and that he acted under strong provocation in the form of "direction" from Puccio.

{¶ 6} We review a felony sentence using a two-step procedure. State v. Kalish , 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶4. "The first step is to 'examine the sentencing court's compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law.'" State v. Stevens, 179 Ohio App.3d 97, 2008-Ohio-5775, 900 N.E.2d 1037, ¶4 (2d Dist.), quoting id. "If this step is satisfied, the second step requires that the trial court decision be 'reviewed under an abuse-of-discretion standard.'" Id., quoting Kalish at ¶4.

{¶ 7} "The trial court has full discretion to impose any sentence within the authorized statutory range, and the court is not required to make any findings or give its reasons for imposing maximum or more than minimum sentences. * * * However, the trial court must comply with all applicable rules and statutes, including R.C. 2929.11 and R.C. 2929.12." (Citations omitted) State v. King, 2013-Ohio-2021, ___ N.E.2d ___, ¶45 (2d. Dist.).

{¶ 8} Effective September 30, 2011, Ohio law requires judicial fact-finding for consecutive sentences. Id. at ¶46. Specifically, a trial court must find "that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public[.]" R.C. 2929.14(C)(4). A trial court also must find at least one of the following:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

Id.

{¶ 9} Here the trial court considered the statutory principles and purposes of sentencing, as well as the seriousness and recidivism factors. (Sentencing Tr. at 29-30; Judgment Entry, Doc. #41, at 3, 5). It also made the requisite findings for consecutive sentences. (Sentencing Tr. at 33-34; Judgment Entry, Doc. #41, at 5). The issue raised in Forney's appellate brief is whether the trial court abused its discretion in applying the statutory sentencing criteria.[1] We conclude that it did not.

{¶ 10} With regard to consecutive sentencing, the trial court made the following findings pursuant to R.C. 2929.14(C)(4):

The Court finds that consecutive service is necessary to protect the public from future crime and to punish the Defendant and that consecutive sentences are not disproportionate to the seriousness of the Defendant's conduct and to the danger the Defendant poses to the public[, ] and at least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm cause by two or more of the multiple offenses was so great or unusual that no single prison term for any of the offenses adequately reflects the seriousness of the Defendant's conduct.

(Doc. #41 at 5).

{¶ 11} The record before the trial court supports its findings. As Forney notes on appeal, the trial court gave great weight to what it perceived as the relative seriousness of his conduct. The trial court recognized Forney's lack of a prior criminal record, and it agreed with him that recidivism appeared "less likely" under the statutory factors. (Hearing Tr. at 29-30). With regard to the statutory "seriousness" factors, however, the trial court ...


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