State v. Cann , 2012 Ohio 309 ( 2012 )


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  • [Cite as State v. Cann, 
    2012-Ohio-309
    .]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    PUTNAM COUNTY
    STATE OF OHIO,
    PLAINTIFF-APPELLEE,                               CASE NO. 12-11-09
    v.
    MICHAEL J. CANN,                                          OPINION
    DEFENDANT-APPELLANT.
    Appeal from Putnam County Common Pleas Court
    Trial Court No. 2011 CR 36
    Judgment Affirmed
    Date of Decision: January 30, 2012
    APPEARANCES:
    Esteban R. Callejas for Appellant
    Todd C. Schroeder for Appellee
    Case No. 12-11-09
    WILLAMOWSKI, J.
    {¶1} Defendant-appellant Michael J. Cann (“Cann”) brings this appeal from
    the judgment of the Court of Common Pleas of Putnam County convicting him of
    one count of gross sexual imposition.         For the reasons set forth below, the
    judgment is affirmed.
    {¶2} On June 4, 2010, Cann was indicted in case number 11-CR-22 for one
    count of rape in violation of R.C. 2907.02(A)(2). On April 12, 2011, the State
    filed a Bill of Information alleging that Cann had committed one count of gross
    sexual imposition in violation of R.C. 2907.05(A)(4), a felony of the fourth
    degree. This charge was assigned case number 11-CR-36. Cann, on that same
    date, waived indictment and entered a guilty plea to the bill of information. In
    exchange for the guilty plea, the State agreed to dismiss case number 11-CR-22
    and to recommend a sentence of eighteen months. The matter was continued for
    sentencing and preparation of a presentence investigation report.
    {¶3} On May 19, 2011, the State filed a motion to revoke Cann’s bond
    alleging that he had attempted to intimidate the victim of the offense.         A
    misdemeanor charge of Intimidation of a Victim was also filed. The trial court
    then revoked Cann’s bond on May 24, 2011.
    -2-
    Case No. 12-11-09
    {¶4} On June 6, 2011, a sentencing hearing was held. The trial court
    sentenced Cann to eighteen months in prison. Cann appeals from this judgment
    and raises the following assignments of error.
    First Assignment of Error
    The trial court erred when it imposed the maximum sentence
    upon [Cann].
    Second Assignment of Error
    The trial court erred when it admitted evidence that should have
    been suppressed.
    {¶5} Cann alleges in the first assignment of error that the trial court erred in
    sentencing him to the maximum sentence. Cann argues that the trial court did not
    consider the appropriate sentencing factors. Trial courts have discretion to impose
    a prison sentence within the statutory range for the offense from which the
    conviction stems. State v. Foster, 
    109 Ohio St.3d 1
    , 
    2006-Ohio-856
    , 
    845 N.E.2d 470
    .
    {¶6} Here, the case arose from a charge of rape. It was later recharged as
    gross sexual imposition in a new case and the original case was dismissed. Cann
    entered a guilty plea at the hearing on April 12, 2011.
    [The Court]: The charge states that on or about the 30th of April
    2010, which is about one year ago, Mr. Cann, that you did have
    sexual contact with somebody, and that you knew that she was
    unable to understand because of her mental or physical
    -3-
    Case No. 12-11-09
    condition, that she was unable to resist or consent; do you
    understand what that says?
    [Mr. Cann]: Yes.
    Q.     All right. Did you have sexual contact with somebody?
    A.     Yes.
    Q.    And did you know that she had difficulties in
    understanding because of mental disabilities?
    A.     Yes.
    Q.     All right. Tell me what you did?
    A.     Had sex.
    Q.     All right. When you say you had sex, you had sexual
    intercourse with her?
    A.     Yes.
    Q.     All right. And you knew that she wasn’t agreeing to that
    either because she was saying no or because she was unable to
    understand; is that correct?
    A.     Yes.
    April 12, 2011, Tr. 16-17. At sentencing, the trial court recognized that Cann had
    admitted to raping the victim though the charge was only gross sexual imposition.
    As to the within case, the Court will point out that the defendant
    has benefitted from what appears to be a significant reduction in
    what is the charge here, that being from a first degree felony
    rape count to the count being the fourth degree felony that is
    before the Court, facing a maximum period of 18 months. As
    indicated by the Court, it appears that the defendant did
    -4-
    Case No. 12-11-09
    understand the wrongfulness of the acts here as shown by the
    misrepresentations that the defendant made during the period
    that he was being questioned by the sheriff’s department.
    Clearly during that period there were statements made by the
    defendant that he knew to be untrue in an attempt to avoid what
    may be sanctions and penalties imposed by others or the
    prosecution that would be involved here.
    The defendant’s mental challenges, notwithstanding, it is clear to
    the Court that the defendant committed here an aggressive,
    violent sexual act, and that the defendant made
    misrepresentations about that, that he knew were
    misrepresentations upon being questioned.
    At this time, given the factual basis of the charge, the Court is
    making a determination that this is the worst form of the
    offense, being the gross sexual imposition.
    June 30, 2011, Tr. 13-14. The sentence imposed by the trial court is within the
    statutory range for a fourth degree felony.        The facts presented support the
    findings made by the trial court. Thus, the first assignment of error is overruled.
    {¶7} In the second assignment of error, Cann alleges that the trial court
    erred in overruling his motion to suppress in case number 11-CR-22. This appeal
    is brought from case number 11-CR-36, not 11-CR-22. Additionally, the State
    agreed to dismiss case number 11-CR-22 in exchange for the guilty plea in case
    number 11-CR-36. April 12, 2011 Tr. 2. Even if we were to consider the motion
    to suppress as part of this case, a guilty plea waives any possible error in the denial
    of a motion to suppress. State v. Gadd, 6th Dist. No. OT-08-053, 
    2010-Ohio-3072
    ,
    ¶5; State v. Smith, 3d Dist. No. 1-04-06, 
    2004-Ohio-4004
    , ¶8, State v. McQueeney,
    -5-
    Case No. 12-11-09
    
    148 Ohio App.3d 606
    , 
    2002-Ohio-3731
    , ¶13, 
    774 N.E.2d 1228
    . Cann entered a
    guilty plea, so any error in denying the motion to suppress was waived. The
    second assignment of error is overruled.
    {¶8} The judgment of the Court of Common Pleas of Putnam County is
    affirmed.
    Judgment Affirmed
    ROGERS, P.J. and PRESTON, J., concur.
    /jlr
    -6-
    

Document Info

Docket Number: 12-11-09

Citation Numbers: 2012 Ohio 309

Judges: Willamowski

Filed Date: 1/30/2012

Precedential Status: Precedential

Modified Date: 10/30/2014