State v. Gannon

[Cite as State v. Gannon, 2016-Ohio-7610.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 103909, 103910, and 103911
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHAEL J. GANNON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-15-596883-A, CR-15-597503-A, and CR-15-596543-A
BEFORE: S. Gallagher, J., McCormack, P.J., and Boyle, J.
RELEASED AND JOURNALIZED: November 3, 2016
ATTORNEY FOR APPELLANT
Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Melissa Riley
Daniel T. Van
Assistant Prosecuting Attorneys
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} Michael Gannon challenges his conviction for aggravated robbery with
notice of prior conviction and repeat violent offender specifications and the resulting
22-year aggregate sentence. The trial court exercised its discretion under R.C.
2929.14(B)(2)(a) and sentenced Gannon to a term of 11 years on the aggravated robbery,
and an additional eight years for the repeat violent offender specification. The remaining
three years were consecutively imposed in another case; however, no arguments were
advanced challenging that aspect of Gannon’s aggregate sentence. Although Gannon
filed a notice of appeal in three separate cases, which were consolidated on appeal, his
appellate brief only addresses his aggravated robbery conviction and the associated
19-year prison sentence.
{¶2} The factual record of the underlying crime is relatively sparse in light of the
plea deal reached between the state and Gannon. For the purposes of this appeal, it
suffices that Gannon accosted and robbed a victim of her purse by hitting her in the head
with a hammer. The incident happened at 2:00 a.m., when the victim was returning to
her Lakewood apartment from the airport after a flight related to her job. Gannon ran up
behind her with the hammer and struck her without warning. The victim was
hospitalized and received eight staples in her head. In 2007, Gannon was also convicted
or pleaded guilty to another robbery. The state used that earlier conviction as its basis for
the repeat violent offender specification.
{¶3} Gannon complains that the trial court failed to adequately inform him of the
maximum potential sentence for the purposes of his decision to plead guilty or, in the
alternative, that his trial counsel improperly advised him of the potential sentence.
Disregarding the fact that Gannon has not presented anything in the record demonstrating
his counsel’s advisement one way or the other, Gannon’s arguments are built upon an
underlying presumption that is true only in the vacuous sense — that Gannon was not
advised of the implications of R.C. 2929.14(B)(2)(b). R.C. 2929.14(B)(2)(b) requires
the trial court to impose the maximum sentence on the felony offense and an additional
term for the repeat violent offender specification if, among other things, the offender has
three prior convictions for an offense of violence or aggravated murder in a 20-year
period. Gannon was not sentenced, or even indicted, under R.C. 2929.14(B)(2)(b).
{¶4} Gannon pleaded guilty to aggravated robbery and a repeat violent offender
specification predicated upon a single prior conviction. As a result, the trial court
correctly advised during the plea colloquy that Gannon could be sentenced to an
additional definite term of prison ranging from one to ten years if (1) he pleaded guilty to
the R.C. 2941.149 repeat violent offender specification and the aggravated robbery; (2)
the court imposed the maximum sentence on the underlying felony offense; and (3) the
trial court found that the underlying felony sentence was (a) “inadequate to punish the
offender and protect the public from future crime” because the R.C. 2929.12 recidivism
factors predominated, and (b) “demeaning to the seriousness of the offense.” R.C.
2929.14(B)(2)(a). At the sentencing hearing, the trial court made the required findings,
and the orally imposed sentence otherwise complied with R.C. 2929.14(B)(2)(a).
{¶5} The trial court acknowledged, several times in fact, that although a prison
term was required based on the notice of prior conviction specification, the court was not
required to impose a specific term, much less the maximum sentence on the underlying
felony offense. Tr. 5:2-24;1 11:8-12:11;2 and 22:15-22.3 As the trial court repeatedly
informed Gannon, if the maximum term was imposed, an additional term under the repeat
violent offender specification could be imposed. At all times, the trial court correctly
acknowledged that the length of the possible prison term was entirely up to the court’s
discretion and could potentially range from three to 21 years. This demonstrates that the
trial court was not under the impression that the maximum penalty on the underlying
1
The trial court clarified that the length of the prison term was discretionary even though the
notice of prior conviction specification mandated that a term of prison must be imposed, as the
prosecutor recited the terms of the plea deal.
2
The trial court asked Gannon if he understood that
[t]he notice of prior conviction specification[, under R.C. 2929.13(F)(6)] requires me
to impose a prison term somewhere between those two numbers, between 3 and 11. *
* * The repeat violent offender specification means that if I impose on you the highest
level of punishment of the crime of 11 years, I also have the discretion of imposing an
additional one, two, three, four, five, six, seven, eight, nine or ten additional years on
top of that.
Gannon answered in the affirmative.
3
In summarizing the proceedings at the sentencing hearing, the trial court reiterated that in
light of the notice of prior conviction, a 3- to 11-year term in prison was mandatory, but the repeat
violent offender specification provided for an additional discretionary term if the 11-year sentence was
imposed by the trial court.
felony offense and an additional term were required under R.C. 2929.14(B)(2)(b). If the
trial court had been under the impression that Gannon had been indicted under R.C.
2929.14(B)(2)(b), the sentencing range would have been 12 to 21 years, not the 3- to
21-year range consistently discussed.
{¶6} In his appeal, Gannon attempted to shift the narrative and argue that the trial
court was under the impression that the maximum sentence on the underlying felony was
mandatory. Gannon’s confusion stems from the final sentencing entry, which does not
accurately reflect the trial court’s oral pronouncements at the sentencing hearing or the
nature of the final sentence that was imposed. The final sentencing entry provides that
[t]he court imposes a prison sentence at the Lorain Correctional Institution
of 19 year(s). 11 years on count 1; RVOs = additional 8 years for total of 19
years. The basic ten is inadequate to protect and demeans the seriousness
of the offense and there was serious physical harm plus 3 violent offenses in
the last 20 years.
In referencing the three violent offenses in the last 20 years, the sentencing entry mimics
the elements of R.C. 2929.14(B)(2)(b). As already explained, R.C. 2929.14(B)(2)(b)
was not the applicable sentencing guideline; the trial court did not make those findings at
the sentencing hearing, and nothing in the record demonstrates that the trial court believed
that section to be applicable. The trial court made the findings as required under R.C.
2929.14(B)(2)(a) and used Gannon’s extensive history of criminal conduct as a basis to
conclude that the base sentence was inadequate to protect the public.4 Nothing in the
4
The trial court noted that Gannon had previously been sentenced to prison on at least four
separate occasions, totaling 19 years’ worth of prison sentences served. Gannon’s record was
extensive and included convictions for aggravated burglary, burglary, robbery, and theft. Tr.
record demonstrates that the trial court harbored any misunderstanding of the sentencing
laws. The final entry is a product of a simple clerical mistake and can be corrected
through a nunc pro tunc entry to reflect that which actually occurred.
{¶7} In light of the foregoing, we find no merit to either of Gannon’s assigned
errors. His convictions in all three appealed cases are affirmed.
It is ordered that appellee recover from appellant 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 common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
TIM McCORMACK, P.J., and
MARY J. BOYLE, J., CONCUR
.
45:16-47:10.