State v. Garner ( 2017 )

[Cite as State v. Garner, 2017-Ohio-8405.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105387
STATE OF OHIO
DEFEDANT-APPELLANT
vs.
GARY GARNER
PLAINTIFF-APPELLEE
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-575481-A
BEFORE: E.A. Gallagher, P.J., Blackmon, J., and Laster Mays, J.
RELEASED AND JOURNALIZED: November 2, 2017
ATTORNEY FOR APPELLANT
Matthew C. Bangerter
Bangerter Law, L.L.C.
P.O. Box 148
Mentor, Ohio 44061
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Jeffrey Schnatter
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:
{¶1} Defendant-appellant Gary Garner appeals from his resentencing on seven
counts of gross sexual imposition in the Cuyahoga County Court of Common Pleas. For
the following reasons, we reverse and remand.
Facts and Procedural Background
{¶2} The procedural history of this case was set forth by this court in State v.
Garner, 8th Dist. Cuyahoga No. 102816, 2016-Ohio-2623 (“Garner I”). In 2014,
Garner was convicted of seven counts of rape, seven counts of gross sexual imposition
(“GSI”), five counts of kidnapping and one count of intimidation. With the exception of
the intimidation charge, each count carried a sexually violent predator specification. We
explained Garner’s sentence as follows:
[T]he trial court sentenced Garner to life without parole on the rape counts
(Counts 1, 2, 5, 6, 13, 16, and 19); 25 years on the GSI counts (Counts 3, 7,
9, 11, 14, 17, and 20); life with the possibility of parole after 25 years on the
kidnapping counts (Counts 4, 8, 15, 18, and 21); and 3 years for the
intimidation count (Count 12). Counts 1 through 9 and 11-12, which related
to [the first victim], were ordered to run concurrently to each other, as were
Counts 13-21, which related to [the second victim]. However, the court
ordered Counts 1-9 and 11-12 to run consecutively to Counts 13-21, “for an
aggregate prison term of two life sentences (served consecutively) without
parole.”
{¶3} We affirmed Garner’s convictions on direct appeal in Garner I but reversed
the trial court’s sentences for the GSI counts as contrary to law because they were in
violation of R.C. 2971.03(A)(3)(a) and outside the range set forth in R.C.
2929.14(A)(3)(a).
{¶4} Upon remand, the trial court conducted a resentencing hearing as to the GSI
counts. Without providing Garner an opportunity to exercise his right of allocution or
making any reference to the relevant statutory sentencing considerations under R.C.
2929.11 and 2929.12, the trial court promptly imposed a sentence of five years to life on
each count of GSI and ordered the GSI counts to be served consecutively. The trial
court’s sentencing entry similarly failed to reflect consideration of the relevant sentencing
statutes. The trial court also failed to incorporate Garner’s undisturbed sentences for
rape, kidnapping and intimidation into a single, cohesive sentencing entry and failed to
state the cumulative prison term on the GSI offenses that it ordered to be served
consecutively.
Law and Analysis
{¶5} We review felony sentences under the standard set forth in R.C.
2953.08(G)(2). State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,
¶ 1, 21-23. A sentence may be reversed as contrary to law if the trial court fails to
consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and
the sentencing factors set forth in R.C. 2929.12. See, e.g., State v. Pawlak, 8th Dist.
Cuyahoga No. 103444, 2016-Ohio-5926, ¶ 58; State v. Keith, 8th Dist. Cuyahoga Nos.
103413 and 103414, 2016-Ohio-5234, ¶ 8, citing State v. Hinton, 8th Dist. Cuyahoga No.
102710, 2015-Ohio-4907, ¶ 10.
{¶6} The record in this instance reflects that in its haste to comply with this court’s
remand in Garner I, the trial court failed to conduct a full and proper resentencing
hearing with appropriate consideration of the relevant statutory sentencing authority.
The state’s argument that a trial court need not consider R.C. 2929.11 and 2929.12 when
sentencing a sexually violent offender pursuant to R.C. 2971.03(A)(3)(a) is without merit.
Because the trial court had discretion to impose a minimum term from among the terms
available for a GSI offense under R.C. 2929.14(A)(3)(a), provided that said term was not
less than two years, the trial court, in exercising that discretion, was required to consider
the principles and purposes of felony sentencing under R.C. 2929.11 and the relevant
sentencing factors under R.C. 2929.12. The trial court’s failure to do so in this instance,
as well as the other defects raised above, rendered Garner’s GSI sentence’s
appropriateness contrary to law.
{¶7} Lastly, we note our concern that the trial court did not consider the merger of
Garner’s GSI offenses in counts 7, 9 and 11 that pertained to the same victim and time
period.
{¶8} Garner’s sole assignment of error is sustained.
{¶9} The judgment of the trial court is reversed and this case is remanded for
resentencing on the GSI charges and subsequent thereto a single cohesive sentencing
entry encompassing all charges for which he was convicted.
It is ordered that appellant recover from appellee the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
_______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE
PATRICIA A. BLACKMON, J., and
ANITA LASTER MAYS, J., CONCUR