State v. Gilbert , 2015 Ohio 4509 ( 2015 )

[Cite as State v. Gilbert, 2015-Ohio-4509.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2014-CA-116
:
v. : Trial Court Case No. 2014-CR-274
:
ROBERT GILBERT : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 30th day of October, 2015.
...........
RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Clark County Prosecuting Attorney, 50
East Columbia Street, Fourth Floor, Springfield, Ohio. 45502
Attorney for Plaintiff-Appellee
GREGORY LIND, Atty. Reg. No. 0055227, One South Limestone Street, Ground Floor,
Suite D, Springfield, Ohio, 45502
Attorney for Defendant-Appellant
.............
WELBAUM, J.
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{¶ 1} Defendant-appellant, Robert Gilbert, appeals from the 15-month prison
sentence he received in the Clark County Court of Common Pleas after he pled guilty to
carrying a concealed weapon. For the reasons outlined below, Gilbert’s sentence will be
affirmed.
{¶ 2} On April 21, 2014, Gilbert was indicted on one count of tampering with
evidence in violation of R.C. 2921.12(A)(1), a felony of the third degree, as well as one
count of carrying a concealed weapon in violation of R.C. 2923.12(A)(2), a felony of the
fourth degree. Pursuant to a plea agreement, on August 26, 2014, Gilbert pled guilty to
carrying a concealed weapon in exchange for the State dismissing the tampering with
evidence charge. Thereafter, on September 16, 2014, the trial court sentenced Gilbert
to serve 15 months in prison. Gilbert now appeals from his sentence, raising one
assignment of error for review.
{¶ 3} Gilbert’s sole assignment of error is as follows:
THE COURT ABUSED ITS DISCRETION BY FAILING TO IMPOSE THE
SHORTEST PRISON TERM AUTHORIZED BY SECTION 2929.14(A)(1)
AND 2929.14(B) OF THE OHIO REVISED CODE.
{¶ 4} Under his single assignment of error, Gilbert challenges his 15-month prison
sentence by claiming it is excessive and an abuse of the trial court’s discretion.
Specifically, Gilbert contends the trial court should have imposed the minimum prison
sentence of six months or, alternatively, community control sanctions, since he had no
prior felony record and his conduct was, according to Gilbert, less severe than conduct
that normally constitutes his offense.
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{¶ 5} When reviewing felony sentences, this court no longer uses an abuse-of-
discretion standard of review. State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, ¶ 29
(2d Dist.). Rather, we apply the standard of review set forth in R.C. 2953.08(G)(2), which
states:
The appellate court may increase, reduce, or otherwise modify a sentence
that is appealed under this section or may vacate the sentence and remand
the matter to the sentencing court for resentencing. The appellate court’s
standard for review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section
2929.14, or division (I) of section 2929.20 of the Revised Code, whichever,
if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶ 6} With respect to the requirement under division (a) of R.C. 2953.08(G)(2), we
note that in this case, the trial court made a finding under R.C. 2929.13(B)(1)(b) when
deciding to impose a prison term. R.C. 2929.13(B)(1)(b)(i) provides, in pertinent part,
that a trial 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 * * * [t]he offender committed the offense while
having a firearm on or about the offender’s person or under the offender’s control.”
{¶ 7} In this case, during Gilbert’s sentencing hearing and as part of the sentencing
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entry, the trial court found that Gilbert had a firearm on or about his person or under his
control while committing the offense at issue. This finding is supported by the
presentence investigation report and by the fact that Gilbert pled guilty to carrying a
concealed weapon under R.C. 2923.12(A)(2), which forbids a person from “knowingly
carry[ing] or hav[ing], concealed on the person’s person or concealed ready at hand, * * *
[a] handgun other than a dangerous ordnance[.]” (Emphasis added.) Therefore, by
pleading guilty, Gilbert admitted to having a firearm during the offense. Accordingly, we
do not clearly and convincingly find that the record does not support the trial court’s finding
under R.C. 2929.13(B)(1)(b).
{¶ 8} Next, we must determine whether Gilbert’s sentence is otherwise clearly and
convincingly contrary to law. “ ‘[C]ontrary to law’ means that a sentencing decision
manifestly ignores an issue or factor which a statute requires a court to consider.”
(Citation omitted.) State v. Lofton, 2d Dist. Montgomery No. 19852, 2004-Ohio-169,
¶ 11. “[A] sentence is not contrary to law when the trial court imposes a sentence within
the statutory range, after expressly stating that it had considered the purposes and
principles of sentencing set forth in R.C. 2929.11, as well as the factors in R.C. 2929.12.”
Rodeffer at ¶ 32, citing State v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, 896 N.E.2d
124, ¶ 18.
{¶ 9} We have held that a defendant’s sentence is not contrary to law when the
trial court expressly states in its sentencing entry that it had considered R.C. 2929.11 and
R.C. 2929.12, but did not mention those statutes at the sentencing hearing. State v.
Battle, 2d Dist. Clark No. 2014 CA 5, 2014-Ohio-4502, ¶ 15, citing State v. Miller, 2d Dist.
Clark No. 09-CA-28, 2010-Ohio-2138. We have also emphasized that “[t]he court is not
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required to make specific findings or to use the exact wording of the statute[s].” (Citation
omitted.) State v. Wilson, 2d Dist. Montgomery No. 24978, 2012-Ohio-4756, ¶ 8.
{¶ 10} Here, Gilbert’s 15-month prison sentence for carrying a concealed weapon
falls within the prescribed statutory sentencing range for fourth-degree felonies. See
R.C. 2929.14(A)(4). In addition, the trial court expressly stated in its sentencing entry
that it had considered “the principles and purposes of sentencing under Ohio Revised
Code Section 2929.11, and then balanced the seriousness and recidivism factors under
Ohio Revised Code Section 2929.12.” Judgment Entry of Conviction (Sept. 17, 2014),
Clark County Court of Common Pleas Case No. 14-CR-274, Docket No. 19, p. 1-2.
Moreover, the record, including the presentence investigation report, supports the trial
court’s considerations.
{¶ 11} Because the trial court stated that it had considered the required statutory
factors—being the principles and purposes of sentencing under R.C. 2929.11 and the
seriousness and recidivism factors under R.C. 2929.12—and because Gilbert’s 15-month
prison term is within the prescribed statutory range for fourth-degree felonies, we do not
find that his prison sentence is contrary to law.
{¶ 12} We reiterate that we have reviewed Gilbert’s sentence under the standard
of review set forth in Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, in which we held that this
court would no longer use an abuse-of-discretion standard of review for felony sentences,
but rather apply the standard of review set forth in R.C. 2953.08(G)(2). Since then,
opinions from this court have expressed reservations as to whether our decision in
Rodeffer is correct. See, e.g., State v. Garcia, 2d Dist. Greene No. 2013-CA-51, 2014-
Ohio-1538, ¶ 9, fn. 1; State v. Johnson, 2d Dist. Clark No. 2013-CA-85, 2014-Ohio-2308,
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¶ 9, fn. 1; State v. Byrd, 2d Dist. Montgomery No. 25842, 2014-Ohio-2553, ¶ 44.
However, in the case before us, we find no error in the sentence imposed under either
standard of review.
{¶ 13} For the foregoing reasons, Gilbert’s sole assignment of error is overruled
and the judgment of the trial court is affirmed.
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FROELICH, P.J., concurring:
{¶ 14} I concur that the sentence is not an abuse of discretion. I understand the
dissent’s point that to apply R.C. 2929.13(B)(1)(b)(i) generally to offenses that are
specifically defined by the possession of a firearm (e.g., carrying a concealed weapon,
having a weapon under disability, unlawful transportation of a firearm, etc.) is not the most
clear legislative draftmanship. However, it appears that the statute’s purpose is to grant
trial courts sentencing discretion for any offense committed while having a firearm; and
this would include “definitional” firearm offenses. But, rather than try to list every such
offense in R.C. 2929.13(B)(1)(b) and then amend it with any future offenses, the statute
utilized a blanket provision.
{¶ 15} Moreover, we have, in perhaps semi-dicta, previously found carrying a
concealed weapon to be controlled by R.C. 2929.13(B)(1)(b)(i). State v. Hill, 2d Dist.
Montgomery No. 26455, 2015-Ohio-3916; State v. Taylor, 2014-Ohio-2821, 15 N.E.3d
900 (2d Dist.).
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DONOVAN, J., dissenting:
{¶ 16} I disagree. Possession of a concealed firearm is the singular criminal
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conduct. Thus, it is simply bootstrapping for the trial court and majority to conclude that
Gilbert committed “the offense” while having a firearm on or about his person or under his
control. The trial court imposed a 15-month sentence by means of a tautology, namely
that Gilbert committed possession of a concealed firearm while also having a firearm on
or about his person or under his control. Gilbert did not commit an offense independent
of the concealed possession of a firearm. The statute may be interpreted to contemplate
a distinct and separate offense, e.g., breaking and entering or failure to comply amongst
a host of other offenses which may be committed while the perpetrator is in possession
of a firearm. Any ambiguity should be resolved in favor of Gilbert. “Where there are
doubts in a statute, ambiguities are resolved in favor of the defendant.” State v. Young,
62 Ohio St. 2d 370, 374, 406 N.E.2d 499 (1980), quoting United States v. Bass, 404 U.S.
336, 348, 92 S. Ct. 515, 30 L. Ed. 2d 488 (1971). Furthermore, R.C. 2901.04(A) provides
that sections of the Revised Code that define penalties “shall be strictly construed against
the State and liberally construed in favor of the accused.”
{¶ 17} Gilbert has a minimal misdemeanor record and no prior felonies. Hence,
his case is one which warrants mandatory community control. I would find the 15-month
sentence is contrary to law and an abuse of discretion, warranting reversal.
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Copies mailed to:
Ryan A. Saunders
Gregory K. Lind
Hon. Douglas M. Rastatter