State v. Gannon

[Cite as State v. Gannon, 2021-Ohio-483.]

COURT OF APPEALS

ASHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

JUDGES:

STATE OF OHIO : Hon. W. Scott Gwin, P.J.

: Hon. William B. Hoffman, J.

Plaintiff-Appellee : Hon. Patricia A. Delaney, J.

:

-vs- :

: Case No. 20-COA-013

BRIAN GANNON :

:

Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Ashland County

Court of Common Pleas, Case No. 19-CRI-

076

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 19, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHRISTOPHER R. TUNNELL BRIAN A. SMITH

Ashland County Prosecutor's Office Brian Smith Law Firm

110 Cottage Street, 3rd Floor 755 White Pond Drive,, Ste. 403

Ashland, OH 44805 Akron, OH 44320

[Cite as State v. Gannon, 2021-Ohio-483.]

Gwin, P.J.

{¶1} Defendant-appellant Brian Gannon [“Gannon”] appeals his sentence after a

negotiated guilty plea in the Ashland County Court of Common Pleas.

Facts and Procedural History

{¶2} This case arises from Gannon viciously assaulting his elderly mother

causing her to be hospitalized for a frontal subdural hematoma, a broken tailbone, and

bruising to her neck, face, arms, and wrists.

{¶3} On April 12, 2019, the Ashland County Grand Jury indicted Gannon with

one count of robbery, a second-degree felony, one count of felonious assault, a second-

degree felony, one count of abduction, a third-degree felony, one count of domestic

violence, a third-degree felony, and one count of grand theft of a motor vehicle, a fourth-

degree felony.

{¶4} On August 19, 2019, Gannon’s trial counsel filed a Not Guilty by Reason of

Insanity Plea [“NGRI”]. On August 23, 2019, the trial court ordered Gannon to be

evaluated under the NGRI plea and for Gannon to be evaluated for his competency to

stand trial. On October 23, 2019, the trial court conducted an NGRI/Competency hearing.

On October 23, 2019, the trial court found Gannon competent to stand trial. On October

31, 2019, Gannon’s trial counsel requested an independent evaluation of Gannon

because some of his records were not available for the original evaluation. On November

20, 2019, the trial court ordered a supplemental evaluation and assessment report to be

done with Gannon’s additional records.

{¶5} On January 7, 2020, the trial court scheduled a change of plea hearing to

be conducted on January 13, 2020. At the January 13, 2020 change of plea hearing

Ashland County, Case No. 20-COA-013 3

Gannon’s trial counsel informed the trial court that he had received and reviewed the

additional records requested. Gannon’s trial counsel informed the trial court that after

reviewing the records it was his belief that they would not affect Gannon’s initial

evaluation. At the same hearing Gannon entered guilty pleas to the felonious assault,

domestic violence, and grand theft of a motor vehicle. After the plea was entered the state

dismissed the remaining counts. The trial court ordered a Pre-sentence Investigation

report [“PSI”] be prepared and scheduled a sentencing hearing on February 28, 2020.

{¶6} On February 28, 2020, the trial court heard from his trial counsel, Gannon,

Mrs. Gannon, and the state regarding sentencing. The trial court reviewed the PSI report,

the sentencing guidelines, and the purposes of felony sentencing as established in the

Ohio Revised Code. The parties stipulated that Counts Two and Four merged for

purposes of sentencing. The trial court sentenced Gannon to serve seven years in prison

for the felonious assault and nine months in prison for the grand theft of a motor vehicle.

The trial court ordered those two sentences to run concurrent to one another. The trial

court gave Gannon 171 days of credit for the time already served.

Assignment of Error

{¶7} Gannon raises one Assignment of Error,

{¶8} “I. THE TRIAL COURT'S SENTENCE OF APPELLANT WAS NOT

SUPPORTED BY THE RECORD.”

Law and Analysis

{¶9} In his sole Assignment of Error, Gannon argues that the trial court’s

sentence of Gannon was not consistent with the principles and purposes of felony

sentencing, due, in part, to Gannon's efforts at rehabilitation, the fact that Gannon only

Ashland County, Case No. 20-COA-013 4

had one felony conviction prior to this case, a 2004 domestic violence conviction in the

Ashland County Court of Common Pleas. He further argues that there is no evidence in

the record that, despite Gannon's mother's age, that “[t]he 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." In addition, Gannon

contends there were “substantial grounds to mitigate the offender's conduct, although the

grounds are not enough to constitute a defense," due to Gannon's mental health issues

and his mental state at the time of the offenses, and the fact that Gannon showed sincere

remorse for the offenses, tried to help his mother after the attack and wrote a letter to the trial

court claiming that his actions were not pre-meditated or intentional.

Standard of Appellate Review.

{¶10} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶22;

State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31. R.C.

2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence

and remand for resentencing where we clearly and convincingly find that either the record

does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.

See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659, ¶28.

{¶11} Clear and convincing evidence is that evidence “which will provide 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, 120 N.E.2d 118(1954), paragraph three of the

syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the

Ashland County, Case No. 20-COA-013 5

degree of proof required to sustain an issue must be clear and convincing, a reviewing

court will examine the record to determine whether the trier of facts had sufficient

evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477

120 N.E.2d 118.

{¶12} Recently, the Ohio Supreme Court reviewed the issue of “whether a

sentence is “contrary to law” under R.C. 2953.08(G)(2)(b) when an appellate court finds

that the record does not support a sentence with respect to R.C. 2929.11 and 2929.12.”

State v. Jones, Oh. Sup. Ct. No. 2018-0444, 2020-Ohio-6729, 2020 WL 7409669(Dec.

18, 2020).1 A plurality of the Court in Jones found,

Nothing in R.C. 2953.08(G)(2) permits an appellate court to

independently weigh the evidence in the record and substitute its judgment

for that of the trial court concerning the sentence that best reflects

compliance with R.C. 2929.11 and 2929.12. In particular, R.C.

2953.08(G)(2) does not permit an appellate court to conduct a freestanding

inquiry like the independent sentence evaluation this court must conduct

under R.C. 2929.05(A) when reviewing a death penalty-sentence. See

State v. Hundley, ––– Ohio St.3d ––––, 2020-Ohio-3775, ––– N.E.3d ––, ¶

128 (recognizing that R.C. 2929.05(A) requires de novo review of findings

and other issues within its scope).

2020-Ohio-6729, 2020 WL 7409669, ¶ 42. The Court in Jones noted that,

1 We note that Jones was decided after briefs were filed in the case at bar. However, Jones does

not change the law; rather, Jones simply clarifies existing law and precedents.

Ashland County, Case No. 20-COA-013 6

R.C. 2953.08(G)(2)(a) permits an appellate court to modify or vacate

a sentence if it clearly and convincingly finds that “the record does not

support the sentencing court’s findings under” certain specified statutory

provisions. But R.C. 2929.11 and 2929.12 are not among the statutory

provisions listed in R.C. 2953.08(G)(2)(a). Only R.C. 2929.13(B) and (D),

2929.14(B)(2)(e) and (C)(4), and 2929.20(I) are specified.

2020-Ohio-6729, 2020 WL 7409669, ¶ 28. The plurality concluded,

R.C. 2953.08(G)(2)(b) therefore does not provide a basis for an

appellate court to modify or vacate a sentence based on its view that the

sentence is not supported by the record under R.C. 2929.11 and 2929.12.

2020-Ohio-6729, 2020 WL 7409669, ¶39. The Court clarified,

The statements in Marcum at ¶ 23 suggesting that it would be “fully

consistent” with R.C. 2953.08(G) for an appellate court to modify or vacate

a sentence when the record does not support the sentence under R.C.

2929.11 or 2929.12 were made only in passing and were not essential to

this court’s legal holding. The statements are therefore dicta.

2020-Ohio-6729, 2020 WL 7409669, ¶ 27.

Issue for Appellate Review: Whether the record clearly and convincing does

not support Gannon’s sentence under 2929.13(B) and (D), 2929.14(B)(2)(e) and (C)(4),

and 2929.20(I).

R.C. 2929.13(B).

{¶13} R.C. 2929.13(B) applies to one convicted of a fourth or fifth degree felony.

Gannon was convicted of a fourth-degree felony grand theft of a motor vehicle.

Ashland County, Case No. 20-COA-013 7

{¶14} In relevant part the statute provides,

(B)(1)(a) Except as provided in division (B)(1)(b) of this section, if an

offender is convicted of or pleads guilty to a felony of the fourth or fifth

degree that is not an offense of violence or that is a qualifying assault

offense, the court shall sentence the offender to a community control

sanction or combination of community control sanctions if all of the following

apply:

(i) The offender previously has not been convicted of or pleaded

guilty to a felony offense.

(ii) The most serious charge against the offender at the time of

sentencing is a felony of the fourth or fifth degree.

(iii) If the court made a request of the department of rehabilitation and

correction pursuant to division (B)(1)(c) of this section, the department,

within the forty-five-day period specified in that division, provided the court

with the names of, contact information for, and program details of one or

more community control sanctions that are available for persons sentenced

by the court.

Emphasis added. R.C. 2929.13(B)(1)(b) further provides,

(b) The court has discretion to impose a prison term upon an offender

who is convicted of or pleads guilty to a felony of the fourth or fifth degree

that is not an offense of violence or that is a qualifying assault offense if any

of the following apply:

Ashland County, Case No. 20-COA-013 8

(i) The offender committed the offense while having a firearm on or

about the offender’s person or under the offender’s control.

(ii) If the offense is a qualifying assault offense, the offender caused

serious physical harm to another person while committing the offense, and,

if the offense is not a qualifying assault offense, the offender caused

physical harm to another person while committing the offense.

(iii) The offender violated a term of the conditions of bond as set by

the court.

(iv) The court made a request of the department of rehabilitation and

correction pursuant to division (B)(1)(c) of this section, and the department,

within the forty-five-day period specified in that division, did not provide the

court with the name of, contact information for, and program details of any

community control sanction that is available for persons sentenced by the

court.

(v) The offense is a sex offense that is a fourth- or fifth-degree felony

violation of any provision of Chapter 2907. of the Revised Code.

(vi) In committing the offense, the offender attempted to cause or

made an actual threat of physical harm to a person with a deadly weapon.

(vii) In committing the offense, the offender attempted to cause or

made an actual threat of physical harm to a person, and the offender

previously was convicted of an offense that caused physical harm to a

person.

Ashland County, Case No. 20-COA-013 9

(viii) The offender held a public office or position of trust, and the

offense related to that office or position; the offender’s position obliged the

offender to prevent the offense or to bring those committing it to justice; or

the offender’s professional reputation or position facilitated the offense or

was likely to influence the future conduct of others.

(ix) The offender committed the offense for hire or as part of an

organized criminal activity.

(x) The offender at the time of the offense was serving, or the

offender previously had served, a prison term.

(xi) The offender committed the offense while under a community

control sanction, while on probation, or while released from custody on a

bond or personal recognizance.

Emphasis added.

{¶15} In the case at bar, in addition to grand theft of a motor vehicle, Gannon also

plead guilty to felonious assault, a second-degree felony. Accordingly, the court had

discretion to impose a prison term for the fourth-degree felony. R.C. 2929.13(B)(1)(a)(ii).

R.C. 2929.13(C).

{¶16} R.C. 2929.13(C) applies to one convicted of a third-degree felony. This

provision therefore does not apply in Gannon’s case.

R.C. 2929.13(D).

{¶17} R.C. 2929.13(D) (1) applies to one convicted of a felony of the first or

second degree, for a felony drug offense that is a violation of any provision of Chapter

2925., 3719., or 4729. of the Revised Code for which a presumption in favor of a prison

Ashland County, Case No. 20-COA-013 10

term is specified as being applicable, and for a violation of division (A)(4) or (B) of section

2907.05 of the Revised Code for which a presumption in favor of a prison term is specified

as being applicable. Gannon plead guilty to one count of felonious assault, a second-

degree felony.

{¶18} R.C. 2929.13(D)(1) provides that when sentencing for a first or second-

degree felony “it is presumed that a prison sentence is necessary in order to comply with

the purposes and principles of sentencing.” Nonetheless, R.C. 2929.13(D)(2) provides

that “[n]otwithstanding the presumption * * * the sentencing court may impose a

community control sanction,” (emphasis added), but only if the sentencing court finds that

a community control sanction would (1) adequately punish the offender and protect the

public from future crime, and (2) not demean the seriousness of the offense because the

statutory less serious sentencing factors outweigh the more serious factors.

{¶19} Thus, in order to impose a community control sanction in the instant case,

the trial court would have been required to find that such a sanction would adequately

punish Gannon, that Gannon was less likely to re-offend, and that such a sanction would

not demean the seriousness of the offense because Gannon’s conduct was less serious

than conduct normally constituting the offense. State v. Morin, 5th Dist. Fairfield No.

2008–CA–10, 2008–Ohio–6707, 2008 WL 5265857, ¶ 27.

{¶20} In the case at bar, the trial court weighed and considered R.C. 2929.13(D)

in Gannon’s case and found Gannon failed to overcome the presumption of

imprisonment. Sent. T. at 15-16. The trial court found that Gannon’s actions constituted

a more serious form of the offense. Sent. T. at 16. The PSI report and the statements

made during the sentencing hearing indicate Gannon viciously attacked his own elderly

Ashland County, Case No. 20-COA-013 11

mother by slamming her head against a wall three to four times, throwing her to the

ground, banging her head against the floor, threatening to cause her more harm, and then

going to get tape to tape her arms in order to throw her in her car. Gannon’s attack caused

his mother a frontal subdural hematoma, a broken tailbone, and multiple bruising which

resulted in her being hospitalized.

R.C. 2929.14 (B)(2)(e).

{¶21} R.C. 2929.14(B)(2)(e) concerns additional prison sentences that a trial court

can impose upon a defendant under specified circumstances. Gannon was not given an

additional prison sentence.

R.C. 2929.14 (C)(4) Consecutive Sentences.

{¶22} This factor is not applicable to Gannon’s case.

R.C. 2929.20.

{¶23} R.C. 2929.20 (I) is inapplicable, as Gannon was not applying to the court

for judicial release.

{¶24} In State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124,

the court discussed the effect of the State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856,

845 N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court

severed the judicial-fact-finding portions of R.C. 2929.14, holding that “trial courts have

full discretion to impose a prison sentence within the statutory range and are no longer

required to make findings or give their reasons for imposing maximum, consecutive, or

more than the minimum sentences.” Kalish at ¶ 1 and ¶ 11, citing Foster at ¶ 100, See

also, State v. Payne, 114 Ohio St.3d 502, 2007–Ohio–4642, 873 N.E.2d 306; State v.

Firouzmandi, 5th Dist. Licking No. 2006–CA–41, 2006–Ohio–5823.

Ashland County, Case No. 20-COA-013 12

{¶25} “Thus, a record after Foster may be silent as to the judicial findings that

appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶ 12.

However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C.

2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶

13, see also State v. Mathis, 109 Ohio St.3d 54, 2006–Ohio–855, 846 N.E.2d 1; State v.

Firouzmandi supra at ¶ 29.

{¶26} Thus, post-Foster, “there is no mandate for judicial fact-finding in the

general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster

at ¶ 42. State v. Rutter, 5th Dist. No. 2006–CA–0025, 2006–Ohio–4061; State v. Delong,

4th Dist. No. 05CA815, 2006–Ohio–2753 at ¶ 7–8. Therefore, post-Foster, trial courts

are still required to consider the general guidance factors in their sentencing decisions.

{¶27} There is no requirement in R.C. 2929.12 that the trial court states on the

record that it has considered the statutory criteria concerning seriousness and recidivism

or even discussed them. State v. Polick, 101 Ohio App.3d 428, 431(4th Dist. 1995); State

v. Gant, 7th Dist. Mahoning No. 04 MA 252, 2006–Ohio–1469, ¶ 60 (nothing in R.C.

2929.12 or the decisions of the Ohio Supreme Court imposes any duty on the trial court

to set forth its findings), citing State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d

94(1992); State v. Hughes, 6th Dist. Wood No. WD–05–024, 2005–Ohio–6405, ¶10 (trial

court was not required to address each R.C. 2929.12 factor individually and make a

finding as to whether it was applicable in this case), State v. Woods, 5th Dist. Richland

No. 05 CA 46, 2006–Ohio–1342, ¶ 19 (“... R.C. 2929.12 does not require specific

language or specific findings on the record in order to show that the trial court considered

Ashland County, Case No. 20-COA-013 13

the applicable seriousness and recidivism factors”) (citations omitted); State v. Taylor, 5th

Dist. Richland No. 17CA29, 2017-Ohio-8996, ¶23. In State v. Bump, this Court observed,

The failure to indicate at the sentencing hearing the court has

considered the factors in R.C. 2929.11 and 2929.12 does not automatically

require reversal. State v. Reed, 10th Dist. No. 09AP–1163, 2010–Ohio–

5819, ¶ 8. “When the trial court does not put on the record its consideration

of R.C. 2929.11 and 2929.12, it is presumed that the trial court gave proper

consideration to those statutes.” Id., citing Kalish at ¶ 18, fn. 4. 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. State v.

Arnett, 88 Ohio St.3d 208, 215, 2000–Ohio–302.

Bump, 5th Dist. Ashland No. 11-COA-028, 2012-Ohio-337, ¶12. See, also, State v.

Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d 94(1992) (“Nothing in the statute or the

decisions of this court imposes any duty on the trial court to set forth its reasoning.”).

{¶28} In the case at bar, the trial court considered the PSI and the statements

made during the sentencing hearing by Gannon and his mother.

{¶29} We conclude that the trial court did not commit error when it sentenced

Gannon. Upon review, we find that the trial court’s sentencing on the charges complies

with applicable rules and sentencing statutes. While Gannon may disagree with the

weight given to these factors by the trial judge, Gannon’s sentence was within the

applicable statutory range and therefore, we have no basis for concluding that it is

contrary to law. R.C. 2953.08(G)(2)(b) does not provide a basis for an appellate court to

Ashland County, Case No. 20-COA-013 14

modify or vacate a sentence based on its view that the sentence is not supported by the

record under R.C. 2929.11 and 2929.12. State v. Jones, Oh. Sup. Ct. No. 2018-0444,

2020-Ohio-6729, 2020 WL 7409669(Dec. 18, 2020), ¶39.

{¶30} Gannon’s sole Assignment of Error is overruled.

{¶31} The Judgment of the Ashland County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Delaney, J., concur