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State v. Dash

Court of Appeals of Ohio, Seventh District, Mahoning

November 30, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
ROBERT C. DASH, JR. DEFENDANT-APPELLANT

         Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 15 CR 851

          For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney

          For Defendant-Appellant: Attorney Cynthia L. Henry

          JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Carol Ann Robb Dated

          OPINION

          WAITE, J.

         {¶1} Appellant Robert C. Dash, Jr. appeals the sentence entered by the Mahoning County Common Pleas Court following his convictions on pandering obscenity involving a minor and pandering sexually oriented matter involving a minor. Appellant argues that the trial court erred in sentencing him to prison and imposing consecutive sentences. Based on this record, we find that the trial court did not err in sentencing Appellant. Appellant's assignment of error is without merit and the judgment of the trial court is affirmed.

         Factual and Procedural Background

         {¶2} On August 27, 2015, Appellant was indicted on nine criminal counts: one count of pandering obscenity involving a minor, in violation of R.C. 2907.321(A)(2), (C), a felony of the second degree; two counts of pandering sexually oriented matter involving a minor, in violation of R.C. 2907.322(A)(2), (C), a felony of the second degree; and six counts of pandering sexually oriented matter involving a minor, in violation of R.C. 2907.322(A)(5), (C), felonies of the fourth degree.

         {¶3} On April 1, 2016, Appellant and the state entered into a Crim.R. 11 agreement. Due to this, the state dismissed counts four through nine of the indictment. Appellant pleaded guilty to counts one, two and three. The state agreed to recommend a nine year sentence and that Appellant be required to register as a Tier II sex offender.

         {¶4} Sentencing was held on May 25, 2016. The state followed the plea agreement and recommended that Appellant receive a nine year sentence. (5/25/16 Sentencing Hrg. Tr., p. 3.) In support of this recommendation, the state argued that there were fifteen pages of search terms where Appellant specifically typed in terms used in child pornography, including "pthc" (meaning preteen hardcore) as well as "lolita" and "13 year old brother and sister." (Id. at pp. 5-7.) The state also noted that one video included a close up of a little girl who is visibly crying. The videotaped victims included a six year old, a nine year old and a ten year old. The state noted that Appellant ran a computer repair business, and had a higher level of knowledge than most regarding deleting files and removing evidence of downloads utilizing a Linux operating system. (Id. at pp. 4, 6-8.) Appellant asked the court to impose a lesser term due to the fact that he was fifty-seven years old and suffered from some health issues. He also highlighted the fact that he had no prior criminal record. (Id. at pp. 10-12.)

         {¶5} The trial court sentenced Appellant to three years of incarceration on each count to run consecutively, for a total prison term of nine years. (Id. at pp. 19-20.) Appellant timely appeals his sentence.

         ASSIGNMENT OF ERROR

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE APPELLANT TO PRISON AND CONSECUTIVE SENTENCES.

         {¶6} The Ohio Supreme Court in State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 10, held that "appellate courts may not apply the abuse-of-discretion standard in sentencing-term challenges." Instead, "appellate courts must adhere to the plain language of R.C. 2953.08(G)(2)." Id. at ΒΆ 7. Accordingly, "an appellate court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that the record does not support the trial ...


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