State v. Pishner , 2017 Ohio 8689 ( 2017 )

[Cite as State v. Pishner, 2017-Ohio-8689.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2017-P-0004
- vs - :
LARRY A. PISHNER, JR., :
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2016 CR
00512.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Kristina Reilly, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Paul M. Grant, 209 South Main Street, Eighth Floor, Suite 3, Akron, OH 44308 (For
Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Larry A. Pishner, Jr., appeals his eight-year
sentence for Felonious Assault. The issue before this court is whether an eight-year
sentence is clearly and convincingly supported by the record where the court failed to
make any findings indicating that recidivism was likely or expressly state that it
considered the seriousness factors. For the following reasons, we affirm the decision of
the court below.
{¶2} On July 21, 2016, Larry A. Pishner, Jr. was indicted by the Portage County
Grand Jury for Felonious Assault (Count One), a felony of the second degree in
violation of R.C. 2903.11(A)(1); Attempted Murder (Count Two), a felony of the first
degree in violation of R.C. 2923.02, 2903.02(A), and 2929.02; Attempted Murder (Count
Three), a felony of the first degree in violation of R.C. 2923.02, 2903.02(B), and
2929.02; and Domestic Violence (Count Four), a misdemeanor of the first degree in
violation of R.C. 2919.25(A).
{¶3} The charges in the Indictment were based on events involving Pishner
and his wife, Brandy, occurring at their home on July 16, 2016.
{¶4} On August 24, 2016, the State, with leave of the trial court, entered a Nolle
Prosequi as to Attempted Murder (Count Three) of the Indictment.
{¶5} On November 30, 2016, Pishner entered a Written Plea of Guilty to
Felonious Assault, with the remaining Counts of the Indictment being dismissed on
motion of the State.
{¶6} On January 3, 2017, a sentencing hearing was held. Counsel for Pishner
urged a sentence “at the lower end of the prison range” in light of Pishner’s acceptance
of responsibility for his conduct, lack of criminal record, and “exemplary record” while in
jail.
{¶7} David George Idell spoke on Pishner’s behalf. He has known Pishner for
ten years, since they were in the military together, and had never seen him show “any
anger towards anyone.”
{¶8} Teresa Holland spoke on Pishner’s behalf. She is the mother of Pishner’s
first wife and grandmother to his only child. She has known Pishner for many years and
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has stayed in the home he shared with his current wife, Brandy. She has consistently
known him to be “a hardworking and committed family man.”
{¶9} Debra Collins, Brandy’s mother, spoke on behalf of the State. She loved
Pishner for seventeen years as if he were her son and did not initially believe Pishner
could have done what he did. She described Brandy’s condition on the night of the
incident as follows:
[S]he had half bitten-off fingers and broken fingers and a broken
nose and a broken orbital bone. And the doctor was gonna have to
build mesh up here (indicating), and bite marks all over her face
and her body. Hunks of hair – her hair was in a ball of blood that
we worked for two weeks trying to comb it out, and hunks and
hunks of hair.
{¶10} Brandy Pishner addressed the court. She loved Pishner and agreed that
he has a good side. She was “not really going to speak for or against it [sentencing]
because it doesn’t matter”: “I’m broken.”
{¶11} The prosecutor addressed the court and explained that, on the night in
question, the Pishners’ neighbors heard an escalating argument. It “sounded like rage
coming from the Defendant’s voice and all [the neighbor] could hear from Brandy was
please help and stop.” Next he heard the sound of “a body being thrown up against a
wall.” Finally, he heard the “blood-curdling scream” of Brandy’s three-year-old nephew
who was present. He summoned his wife and they immediately called 911.
{¶12} The officers who responded saw “the Defendant on top of Brandy in the
garage through the main door * * * like watching an MMA cage fight with him on top of
her just pummeling her head off the concrete garage floor.” By this time, “he had
already pulled out chunks of her hair from her head, [and] had already bitten her all
over.”
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{¶13} Pishner addressed the court and apologized for his conduct. He said he
had no intention of killing Brandy and that he deserves whatever sentence he receives.
“I’m gonna man up to it and own up to it.”
{¶14} The trial judge expressed her opinion that, if the police had not arrived,
Pishner would have killed Brandy. She noted that Brandy insinuated that “there may
have been signs of this coming about for some time” and that there are mental health
issues. She also noted that she could “not imagine” what impact witnessing the attack
has had on the child. The judge then pronounced sentence:
The Court must first consider the overriding principles of 2929.19.
First consideration is to protect the public from future crimes by the
Defendant and others in this similar situation.
The second is to severely punish the Defendant using the minimum
sanctions that the Court determines accomplishes those purposes
without imposing an unnecessary burden on the State or local
government resources.
The Court understands and has taken into consideration the need
for incapacitating the Defendant, deterring the Defendant and
others from future crimes, rehabilitating the Defendant, making
restitution to the victim of the crime or the public or both.
Weighing all the factors, a prison term is consistent with the
purpose and principles of 2929.19, and the Defendant is not
amenable to available community control sanctions.
Therefore, based on the injuries, protection of the public and others
from crimes of this nature and from future crimes by the Defendant,
the Defendant is going to be sentenced to the Ohio Department of
Corrections for a period of eight years.
{¶15} The trial court further assessed a fine of $300 and advised Pishner that he
would be subject to three years of mandatory post-release control.
{¶16} Pishner’s sentence was memorialized on January 4, 2017.
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{¶17} On January 20, 2017, Pishner filed his Notice of Appeal. On appeal, he
raises the following assignment of error:
{¶18} “[1.] The trial court erred to the prejudice of Mr. Pishner by imposing the
maximum sentence based upon facts not contained in the record and the trial court’s
failure to consider R.C. 2929.12, in violation of Mr. Pishner’s rights under the Sixth and
Fourteenth Amendments to the United States Constitution, and Article I, Sections 10
and 16 of the Ohio Constitution.”
{¶19} For second-degree Felonious Assault, the maximum prison term that may
be imposed is eight years. R.C. 2929.14(A)(2).
{¶20} A sentencing court is not required “to make any particular ‘findings’ before
imposing a statutory maximum prison sentence.” State v. Whitt, 2d Dist. Clark No.
2014-CA-125, 2016-Ohio-843, ¶ 8; State v. Sutton, 8th Dist. Cuyahoga Nos. 102300
and 102302, 2015-Ohio-4074, ¶ 74. Rather, the court has “full discretion to impose a
prison sentence within the statutory range.” State v. Mathis, 109 Ohio St.3d 54, 2006-
Ohio-855, 846 N.E.2d 1, paragraph three of the syllabus. The court is “merely * * *
required to consider the principles and purposes of sentencing as well as the
seriousness and recidivism factors.” Whitt at ¶ 8; R.C. 2929.12(A) (“[i]n exercising that
discretion, the court shall consider the factors set forth in divisions (B) and (C) of this
section relating to the seriousness of the conduct, the factors provided in divisions (D)
and (E) of this section relating to the likelihood of the offender’s recidivism, and * * * any
other factors that are relevant to achieving those purposes and principles of
sentencing”). Moreover, “the trial court is not obligated * * * to give any particular weight
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or consideration to any sentencing factor.” State v. Holin, 174 Ohio App.3d 1, 2007-
Ohio-6255, 880 N.E.2d 515, ¶ 34 (11th Dist.).
{¶21} “The court hearing an appeal [of a felony sentence] shall review the
record, including the findings underlying the sentence or modification given by the
sentencing court.” R.C. 2953.08(G)(2). “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 * * * if it
clearly and convincingly finds * * * [t]hat 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 * * * [t]hat the sentence is otherwise contrary to law.” R.C.
2953.08(G)(2)(a) and (b).
{¶22} Where the sentence imposed does “not require the findings that R.C.
2953.08(G) specifically addresses * * *, it is fully consistent for appellate courts to
review those sentences that are imposed solely after consideration of the factors in R.C.
2929.11 and 2929.12 under a standard that is equally deferential to the sentencing
court.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23.
“That is, an appellate court may vacate or modify any sentence that is not clearly and
convincingly contrary to law only if the appellate court finds by clear and convincing
evidence that the record does not support the sentence.” Id.{¶23} Pishner argues that the trial court failed to comply with the felony
sentencing statutes by not considering the seriousness and recidivism factors set forth
in R.C. 2929.12. Although the court stated that it had considered “the overriding
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principles of 2929.191,” it never indicated that it found his conduct more serious than
conduct normally constituting the offense or that he was likely to commit future crimes,
and “never mentioned considering the factors contained in R.C. 2929.12.” Appellant’s
brief at 5.
{¶24} The trial court’s failure to expressly state that it had considered the
seriousness and recidivism factors contained in R.C. 2929.12 is not grounds for
reversing Pishner’s sentence. On the contrary, the Ohio Supreme Court has held that
“[a] silent record raises the presumption that a trial court considered the factors
contained in R.C. 2929.12.” State v. Adams, 37 Ohio St.3d 295, 525 N.E.2d 1361(1988), paragraph three of the syllabus.
{¶25} In the present case, the trial court stated that, in consideration of the
purpose and principles of felony sentencing, it was “[w]eighing all the factors,” which
may reasonably be taken to refer to the R.C. 2929.12 factors “relevant to achieving th[e]
purposes and principles of sentencing.” R.C. 2929.12(A). State v. Guth, 11th Dist.
Portage No. 2015-P-0083, 2016-Ohio-8221, ¶ 28 and 30 (affirming the sentence where
“the trial court expressly stated that it had considered the statutory purposes of felony
sentencing prior to making its decision,” and “there [was] nothing in the record to show
that the trial court did not consider the sentencing factors under R.C. 2929.12”).
Accordingly, the presumption that the court considered the relevant factors remains un-
rebutted.
{¶26} Pishner further argues that the maximum sentence of eight years is not
supported by clear and convincing evidence. He notes that everyone who testified at
1. Despite citing R.C. 2929.19, the trial court’s language during this portion of the sentencing hearing
closely follows the language of R.C. 2929.11, which statute the court unquestionably intended to
reference.
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the sentencing hearing agreed that his “conduct was out of character for him.” He
“expressly apologized to the victim and his family.” Pishner concedes that drinking was
a factor in his conduct but asserts that he has “successfully completed the Sober
Success program offered in the jail.” Appellant’s brief at 6-7.
{¶27} Pishner’s characterization of these mitigating factors is misleading.
Pishner did not expressly apologize to either Brandy or her family; rather, he apologized
to the court, his family, and his daughter. Also, Brandy did not testify that Pishner’s
conduct was out of character for him. She intimated, albeit darkly, that, unlike the
others who spoke at the hearing: “I * * * know what sixteen-and-a-half years has been. I
know, not them. And he knows.”
{¶28} More compelling is the brutal nature of the assault. The trial judge
expressed her reasonable belief that, if the case had proceeded to trial, Pishner would
have been found guilty of Attempted Murder as charged in the Indictment, and that, if
the police had not arrived, Pishner would have killed Brandy. Unlike Pishner, the trial
court also noted the trauma caused the three-year-old witness of the assault, whose
screams ultimately induced the neighbors to summon the police. These aspects of
Pishner’s case clearly and convincing support the court’s imposition of an eight-year
sentence.
{¶29} The sole assignment of error is without merit.
{¶30} For the foregoing reasons, the eight-year prison sentence imposed by the
Portage County Court of Common Pleas is affirmed. Costs to be taxed against
appellant.
CYNTHIA WESTCOTT RICE, P.J., concurs,
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COLLEEN MARY O’TOOLE, J., dissents with a dissenting opinion.
________________________________________________________
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
{¶31} I respectfully dissent.
{¶32} In this writer’s opinion appellant is entitled to a resentencing hearing.
{¶33} When reviewing if an imposed sentence is supported by the record, we
are required to use the standard set forth in R.C. 2953.08(G)(2), which states:
The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying
the sentence or modification given by the sentencing court.
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.
{¶34} This court has held that a sentence is contrary to law if the sentence is in
excess of the statutory range for the offense, or the trial court failed to consider the
purpose and principles of felony sentencing contained in R.C. 2929.11 and the
sentencing factors outlined in R.C. 2929.12.
{¶35} R.C. 2929.11, “Purposes of felony sentencing,” states in part:
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“(A) A court that sentences an offender for a felony shall be
guided by the overriding purposes of felony sentencing. The
overriding purposes of felony sentencing are to protect the public
from future crime by the offender and others and to punish the
offender using the minimum sanctions that the court determines
accomplish those purposes without imposing an unnecessary
burden on state or local government resources. To achieve
those purposes, the sentencing court shall consider the need for
incapacitating the offender, deterring the offender and others
from future crime, rehabilitating the offender, and making
restitution to the victim of the offense, the public, or both.
“(B) A sentence imposed for a felony shall be reasonably
calculated to achieve the two overriding purposes of felony
sentencing set forth in division (A) of this section, commensurate
with and not demeaning to the seriousness of the offender’s
conduct and its impact upon the victim, and consistent with
sentences imposed for similar crimes committed by similar
offenders.”
{¶36} The guidelines contained in R.C. 2929.12, “Seriousness of crime and
recidivism factors,” specifically at (E), state:
“(E) The sentencing court shall consider all of the following that
apply regarding the offender, and any other relevant factors, as
factors indicating that the offender is not likely to commit future
crimes:
“(1) Prior to committing the offense, the offender had not been
adjudicated a delinquent child.
“(2) Prior to committing the offense, the offender had not been
convicted of or pleaded guilty to a criminal offense.
“(3) Prior to committing the offense, the offender had led a law-
abiding life for a significant number of years.
“(4) The offense was committed under circumstances not likely
to recur.
“(5) The offender shows genuine remorse for the offense.”
{¶37} The court is required under the above statutes to consider the seriousness
and recidivism factors in each specific case. This is not merely advisory. In this
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instance the only evidence is the pre-sentence investigation which is lacking any
specific indication or information as to the seriousness and recidivism factors necessary
to sustain the sentence imposed.
{¶38} Appellant’s undisputed act of senseless and horrific violence appears,
from all accounts, to be an anomaly. Appellant is a military veteran who, up until this
time, had led a law-abiding life. If punishment were the only sentencing factor required
by R.C. 2929.12 then there is no doubt that a maximum sentence would be justified.
{¶39} However, the purposes of the legislation and the required considerations
under the statute are to insure fairness and a statutory basis for expending tax-payer
dollars, not vengeance. The statute serves to focus the jurist to be thoughtful and
mindful when imposing a sentence. The statute requires a properly considered,
measured, thoughtful and transparent process by which the victim, the defendant, the
public and other justice system partners can observe and understand that the sentence
imposed was just and thoroughly thought out.
{¶40} Justice and the Constitution require mindfulness, transparency and
fairness to all, not just a simple rote restatement of the statutory “magic words.” In this
case the trial court failed to satisfy that basic requirement, therefore I would remand for
resentencing.
{¶41} Respectfully, I dissent.
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