State v. Gipson

[Cite as State v. Gipson, 2022-Ohio-2069.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
OTTAWA COUNTY
State of Ohio Court of Appeals No. OT-21-001
OT-21-002
Appellee OT-21-003
Trial Court No. 20CR170
20CR074
19CR126
v.
Jody Gipson DECISION AND JUDGMENT
Appellant Decided: June 17, 2022
*****
James J. VanEerten, Ottawa County Prosecuting Attorney, and
Blake W. Skilliter, Assistant Prosecuting Attorney, for appellee.
Anthony J. Richardson, II, for appellant.
*****
MAYLE, J.
I. Introduction
{¶ 1} In these consolidated appeals, the defendant-appellant, Jody Gipson,
challenges three October 30, 2020 judgments by the Ottawa County Court of Common
Pleas. Gipson pled guilty to multiple drug-related offenses, and the trial court sentenced
him to an indefinite prison term of 14 to 18 years and $22,500 in fines. Gipson
challenges his sentence in multiple respects and claims that his guilty pleas were
involuntary, necessitating a remand and trial. As set forth below, we affirm the trial
court’s judgment.
II. Background
{¶ 2} On June 27, 2019, Gipson was indicted on five drug-related offenses: two
counts of aggravated possession of methamphetamine, trafficking in methamphetamine,
possession of criminal tools, and money laundering. (Ottawa County Court of Common
Pleas case No. 19CR126). At the change-of-plea hearing, Gipson pled guilty to a single
count of aggravated possession of methamphetamine, in violation of R.C. 2925.11(A)
and (C)(1)(c), a felony of the second degree (Count 1). The offense was subject to the
provisions of the Reagan Tokes Law, which sets forth an indefinite sentencing scheme
for certain qualifying first and second-degree felonies committed on or after March 22,
2019. Thus, Gipson was advised that his maximum sentence included an indefinite
prison term of eight to 12 years, of which between two to eight years was mandatory and
a maximum possible fine of $15,000, of which $7,500 was mandatory. In exchange for
his guilty plea, the state agreed not to prosecute the remaining offenses. The trial court
accepted the plea, found Gipson guilty and set the matter for sentencing.
2.
{¶ 3} While awaiting sentencing, Gipson was indicted on new charges of
aggravated trafficking (Counts 1-3) and aggravated possession (Count 4) of
methamphetamine. (Ottawa Co. C.C.P. case No. 20CR074). From his jail cell, Gipson
was alleged to have contacted his young son, in violation of a protective order, and was
indicted a third time. (Ottawa Co. C.C.P. case No. 20CR170).
{¶ 4} A change-of-plea hearing was held with regard to the new indictments. In
case No. 20CR74, Gipson agreed to plead guilty to two counts of aggravated trafficking
in methamphetamine, in violation of R.C. 2925.03(A)(1) and (C)(1)(b), both felonies of
the third degree (Count 1 and Count 2, as amended) and aggravated possession of
methamphetamine, in violation of R.C. 2925.11(A) and (C)(1)(b), a felony of the third
degree (Count 4, as amended). Gipson was advised that his maximum sentence, as to
each count, was a basic prison term of 36 months, of which none was mandatory and a
maximum fine of $10,000, of which $5,000 was mandatory. Gipson was also told that he
could be ordered to serve the sentences consecutively to each other and consecutively to
the sentence imposed in the other felony drug case.
{¶ 5} In case No. 20CR170, Gipson agreed to plead guilty to violating a protective
order, in violation of R.C. 2919.27(A)(2) and (B)(2), a misdemeanor of the first degree.
Gipson was advised that the maximum sentence included a basic jail term of 180 days
and a $1,000 fine, neither of which was mandatory.
3.
{¶ 6} The trial court accepted Gipson’s plea in both cases, entered findings of guilt
and ordered the preparation of a presentence investigation (“PSI”).
{¶ 7} Sentencing was held with respect to all three cases on October 29, 2020.
After hearing from the parties and the mother of the Gipson’s young son, the trial court
sentenced Gipson to an indefinite prison term of eight to 12 years in case No. 19CR126
and 24 months as to Count 1, 2, and 4 in case No. 20CR074, all terms to be served
consecutively to one another, for a total period of incarceration of 14 to 18 years.
Additionally, the trial court ordered Gipson to pay the mandatory fine of $7,500 and to
forfeit $3,839.07 in case No. 19CR126. It ordered him to pay the mandatory fine of
$5,000 in Counts 1, 2, and 4 and to forfeit $505 and his vehicle in case No. 20CR074. In
the misdemeanor case, the court ordered Gipson to serve 180 days, concurrent to the
felony sentences, and to pay $1,000 in fines (case No. 20CR170).
{¶ 8} Gipson appealed the judgments and raises the following assignments of
error:
FIRST ASSIGNED ERROR: The trial court committed error by
sentencing appellant to consecutive terms where the sentences are
disproportionate to the seriousness of appellant’s conduct.
SECOND ASSIGNED ERROR: The trial court committed error
by not properly informing defendant about judicial release when he entered
his plea.
4.
THIRD ASSIGNED ERROR: The trial court committed error by
imposing fines on appellant without making the necessary findings.
FOURTH ASSIGNED ERROR: The trial court committed error
by failing to properly apply the plain meaning and legislative intent of
applicable statutes when sentencing appellant.
{¶ 9} For ease of discussion, we address Gipson’s assignments of error out of
order.
III. Judicial Release
{¶ 10} In his second assignment of error, Gipson argues that his guilty plea in case
No. 19CR126 was involuntary because the trial court “misadvised” him regarding his
eligibility for judicial release. Gipson seeks an order of remand to allow him to withdraw
his guilty “pleas.”
{¶ 11} A plea of guilty or no contest in a criminal case “must be made knowingly,
intelligently, and voluntarily. Failure on any of those points renders enforcement of the
plea unconstitutional under both the United States Constitution and the Ohio
Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). Crim.R.
11(C)(2) provides that “felony defendants are entitled to be informed of various
constitutional and nonconstitutional rights, prior to entering a plea.” State v. Griggs, 103
Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 6. “When a defendant seeks to have a
plea vacated on appeal because the plea was not entered in a knowing, intelligent and
5.
voluntary manner due to the trial court’s failure to comply with Crim.R. 11, ‘the
questions to be answered are simply: (1) has the trial court complied with the relevant
provision of the rule? (2) if the court has not complied fully with the rule, is the purported
failure of a type that excuses [an appellant] from the burden of demonstrating prejudice?
and (3) if a showing of prejudice is required, has the [appellant] met that burden?’” State
v. Morgan, 6th Dist. Lucas Nos. L-20-1156, L-21-1017, L-21-1018, 2021-Ohio-3996, ¶
15, quoting State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 17.
{¶ 12} As Gipson acknowledges, Crim.R. 11 “does not require courts to inform a
defendant of his eligibility for judicial release.” State v. McGill, 8th Dist. Cuyahoga No.
108469, 2020-Ohio-575, ¶ 17; see also State v. Oliver, 6th Dist. Sandusky No. S-10-040,
2011-Ohio-5305, ¶ 18 (“Under Crim.R. 11(C)(2), a trial court is not required to advise a
defendant regarding eligibility for judicial release.”); State v. Kinney, 1st Dist. Hamilton
No. C-160415, 2018-Ohio-404, ¶ 22 (“[T]he trial court is under no obligation to inform a
defendant regarding his eligibility for judicial release.”). Therefore, the failure to include
such information in the court’s colloquy does not violate a defendant’s Crim.R. 11 rights.
However, if a defendant who pleads guilty is misled as to whether he would be eligible
for judicial release or when he becomes eligible to apply for judicial release, the guilty
plea may be invalidated if the defendant can show that he prejudiced by the misstatement.
Kinney at ¶ 25. The test for prejudice is “whether the plea would have otherwise been
made.” Dangler at ¶ 16.
6.
{¶ 13} A trial court may grant judicial release and modify a sentence only as
provided for by statute. State v. Cunningham, 113 Ohio St.3d 108, 2007-Ohio-1245, 863
N.E.2d 120, ¶ 23, citing R.C. 2929.20. When a defendant’s entire sentence is mandatory,
he is ineligible for judicial release. State v. Ware, 141 Ohio St.3d 160, 2014-Ohio-5201,
22 N.E.3d 1082, ¶ 11. However, when a defendant is sentenced to mandatory prison
term(s) and non-mandatory term(s), judicial release is not foreclosed. Thus, a prisoner
“cannot apply for judicial release until a period of time ‘after the expiration of all
mandatory prison terms’ in the stated prison sentence.” Id., quoting R.C. 2929.20(C).
{¶ 14} At the change-of-plea hearing involving the first indictment, Gipson
entered a guilty plea with respect to a single offense, i.e. aggravated possession of drugs.
Gipson was advised that he faced a maximum basic prison term of eight to twelve years,
of which between two to eight years was mandatory (case No 19CR126; hereinafter
referred to as “the first case”). The trial court advised Gipson that “[y]ou are, however,
or would be eligible for Judicial Release. Now when you became eligible for Judicial
Release would depend on your initial sentence.”
{¶ 15} On appeal, Gipson makes no mention of the court’s misstatement.
However, the state “concedes that the Court misspoke when it stated [that] Gipson would
be[come] eligible” at some point during his mandatory sentence.
{¶ 16} In support of his claim—that his plea in the first case was involuntary—
Gipson cites the September 15, 2020 change-of-plea hearing, which concerned the
7.
second and third cases (case Nos. 20CR74 and 20CR170). Gipson complains that the
trial court “confused” him because it indicated that he “could be eligible for judicial
release, when in fact he would have to serve his entire mandatory prison term.”
{¶ 17} None of the offenses that he pled guilty to at that September hearing
required a mandatory sentence. That is, in the second case, Gibson faced a maximum
penalty of 36 months, as to each of the three felony offenses, but none was mandatory.1
Relative to judicial release, the court told Gibson,
[The court]: Okay. When it comes to sentencing, I will have two
options. One is to send you to prison and the other is to place you on
probation.
If you are sent to prison, you could shorten your prison time in a
couple of ways.
***
You could be eligible for Judicial Release. When you become
eligible for Judicial Release would be dependent upon what your original
sentence was. The final decision about Judicial Release remains with the
Court. Do you understand that?
[Gipson]: Yes sir. (Sept. 15, 2020 Tr. at 15).
1
Likewise Gibson faced a non-mandatory sentence in the misdemeanor case (violating a
protective order). However, the judicial release statute does not apply to misdemeanor
offenses.
8.
{¶ 18} Had the trial court’s explanation been limited to the felony offenses to
which Gipson was actually pleading guilty to that day—all of which provided for
nonmandatory prison time—then it would have been correct. Under to R.C.
2929.20(C)(4), an eligible offender-serving an “aggregated nonmandatory prison term or
terms [of] more than five years but not more than ten years * * * may file the motion [for
judicial release] not earlier than the date on which the eligible offender has served five
years of the offender’s stated prison term * * *.” In Gipson’s case, the maximum
aggregated nonmandatory prison terms amounted to three 36-month sentences, or 9
years. But, also pending at that hearing was the first case and its mandatory sentence.
Because of the mandatory prison term in that case, Gipson would have been eligible to
apply for judicial release “no[] earlier than five years after the expiration of [the]
mandatory prison term[].” R.C. 2929.20(C)(4).
{¶ 19} We find that the trial court’s explanations failed to fully comply with
Crim.R. 11(C)(2). That is, the trial court initially failed to explain to Gipson that he was
ineligible for judicial release (in the first case) and subsequently failed to explain (in the
second case) that he would not be eligible to apply for judicial release until a certain
amount of time had elapsed and only then, after serving his mandatory sentence.
Therefore, we agree with Gipson that the trial court misstated the law regarding judicial
release as applicable to him, establishing that the court did not fully comply with Crim.R.
11.
9.
{¶ 20} But, Gipson must also show that prejudice occurred, i.e., that “but for the
misrepresentation regarding judicial release, he would not have entered the plea.” State
v. Mitchell, 11th Dist. Trumball No. 2004-T-0139, 2006-Ohio-618, ¶ 15; Dangler at ¶ 23.
Moreover, prejudice must be established “on the face of the record.” Dangler at ¶ 24,
quoting Hayward v. Summa Health Sys./Akron City Hosp., 139 Ohio St.3d 238, 2014-
Ohio-1913, 11 N.E.3d 243, ¶ 26.
{¶ 21} Gipson claims that he would not have entered into the plea agreement had
he known the trial court “misadvised” him, but he offers no facts from the record to show
that that is actually the case.
{¶ 22} By contrast, the state points to the written plea agreements from the felony
cases, both of which contain a proper explanation of the law. Thus, Gipson
acknowledged in the first agreement that “[i]f I am sentenced to prison, I understand that
I may be eligible to apply for judicial release after serving the mandatory time, if any, and
a certain amount of prison time and the earliest date that I may apply depends on the total
length of my prison sentence. ORC §2929.20.” According to the record, Gipson
discussed the agreement for “about an hour,” before the change-of-plea hearing. Gipson
executed a similarly-worded plea agreement in the second case.
{¶ 23} Upon review, we find no facts in the record to suggest that the possibility
of judicial release factored, in any way, in Gipson’s decision to plead guilty in any of the
cases and specifically in case No. 19CR126. Therefore, we cannot say that Gipson’s
10.
pleas were entered unknowingly, unintelligently or involuntarily. Accordingly, we find
Gipson’s second assignment of error not well-taken.
IV. Sentencing Challenges
{¶ 24} We review a challenge to a felony sentence under R.C. 2953.08(G)(2),
which provides that an appellate court may increase, reduce, or otherwise modify a
sentence or may vacate the sentence and remand the matter to the sentencing court for
resentencing 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.
{¶ 25} A sentence is not clearly and convincingly contrary to law where the trial
court has considered the purposes and principles of sentencing under R.C. 2929.11 and
the seriousness and recidivism factors under R.C. 2929.12, properly applied postrelease
control, and imposed a sentence within the statutory range. State v. Tammerine, 6th Dist.
Lucas No. L-13-1081, 2014-Ohio-425, ¶ 15-16, citing State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124.
11.
A. Mandatory Prison Time
{¶ 26} In his fourth assignment of error, Gipson argues that only two years of the
eight to 12-year sentence imposed in case No. 19-CR-126 should have been deemed
mandatory and, therefore, his sentence was contrary to law.
{¶ 27} Again, Gipson was convicted of aggravated possession of
methamphetamine, in violation of R.C. 2925.11(A), in that case. The penalty for that
offense “shall be determined as follows: (c) If the amount of the drug involved equals or
exceeds five times the bulk amount but is less than fifty times the bulk amount,
aggravated possession of drugs is a felony of the second degree, and the court shall
impose as a mandatory prison term a second degree felony mandatory prison term.
(Emphasis added.) R.C. 2925.11(C)(1)(c).
{¶ 28} Consistent with the Reagan Tokes Act, the prison range for Gibson’s
second degree felony offense required an “indefinite prison term with a stated minimum
term selected by the court of two, three, four, five, six, seven, or eight years and a
maximum term that is determined pursuant to section 2929.144 of the Revised Code.”
(Emphasis added.) R.C. 2929.14(A)(2). See, e.g. State v. Searls, 2d Dist. Montgomery
No. 28995, 2022-Ohio-858, ¶ 23, citing R.C. 2929.14(A)(1)(a); R.C. 2929.14(A)(2)(a);
R.C. 2929.144 (“The [Reagan Tokes Act] requires the trial court to impose an indefinite
prison term with a stated minimum term and a calculated maximum term.”). Here, based
upon Gibson’s offense, his maximum sentence included an indefinite prison term of eight
12.
to 12 years, of which between two to eight years was mandatory—a fact that he
acknowledged in writing and when he pled guilty.
{¶ 29} At sentencing, the trial court selected a minimum term of eight years, the
maximum amount allowed under R.C. 2929.14(A)(2), which, by operation of R.C.
2929.144, resulted in a maximum term of twelve years. Consistent with that decision,
Gipson was sentenced to an “indefinite prison term of eight (8) to twelve (12) years.”
(Oct. 20, 2020 J.E. at 3).
{¶ 30} On appeal, Gibson challenges only the mandatory term of his sentence. He
contends that “only 2 years of the imposed prison term should be deemed mandatory,”
not the full eight years. We disagree.
{¶ 31} Pursuant to the express terms of R.C. 2929.14(A)(2), “the trial court first
must select, for each offense, a stated minimum term from the appropriate statutory
range.” (Emphasis added.) Searls at ¶ 26. In other words, the trial court was required to
select a minimum term, which it did. “A trial court has full discretion to levy any
sentence within the authorized statutory range.” Id. Here, the eight-year term that the
court chose was within the sentencing range for Gibson’s offense. And, while the trial
court was authorized to select any of the terms provided for in Section (A)(2), including
Gibson’s preferred term of two years, once it selected an eight-year term, the entirety of
that stated minimum term was mandatory, by operation of law. State v. Ware, 141 Ohio
St.3d 160, 2014-Ohio-5201, 22 N.E.3d 108, ¶ 14.
13.
{¶ 32} Gipson cites R.C. 2929.13(F)(5) to support his claim that only two years of
the eight-year term is mandatory. But, that statute undercuts, rather than supports, his
argument. It provides, in relevant part,
(F) * * * [T]he court shall impose a prison term or terms under * * *
section 2929.14 * * * of the Revised Code and except as specifically
provided in section 2929.20, divisions (C) to (I) of section 2967.19, or
section 2967.191 of the Revised Code or when parole is authorized for the
offense under section 2967.13 of the Revised Code shall not reduce the
term or terms pursuant to section 2929.20, section 2967.19, section
2967.193, or any other provision of Chapter 2967 or Chapter 5120 of the
Revised Code for any of the following offenses: (5) A * * * second * * *
degree felony drug offense for which section * * * 2925.11 * * * of the
Revised Code * * * requires the imposition of a mandatory prison term.
(Emphasis added.)
{¶ 33} By its terms, R.C. 2929.13(F)(5) “instructs that a court ‘shall not reduce’ [a
mandatory prison term],” through judicial release or parole, for a violation of R.C.
2925.11. See, e.g. State v. Ballard, 12th Dist. Butler No. CA2014-09-197, 2015-Ohio-
2084, ¶ 10. In short, and contrary to Gipson’s theory, R.C. 2929.13(F) simply does not
allow a trial court to reduce a mandatory prison term. State v. Lausin, 11th Dist. Geauga
No. 2016-G-0055, 2016-Ohio-5184, ¶ 20-21, quoting Ware at ¶ 13-14. Once the trial
14.
court selected a minimum term, it became indivisible. Indeed, “[n]o sentencing statute
allows a court to divide a singular ‘mandatory prison term’ into a hybrid of mandatory
and discretionary sub-terms. Ware at ¶ 17. Despite Gibson’s claim, the trial court had
“no power to substitute a different sentence for that provided for by statute.” Ware at ¶
17, quoting Colegrove v. Burns, 175 Ohio St. 437, 438, 195 N.E.2d 811 (1964).
{¶ 34} For these reasons, Gipson’s sentence was not contrary to law, and his first
assignment of error is overruled.
B. Mandatory Fines
{¶ 35} Next, we address Gibson’s third assignment of error, in which he argues
that the trial court erred in imposing $22,500 in fines because it failed to consider his
present and future ability to pay.
{¶ 36} In reviewing a trial court’s imposition of costs and financial sanctions as
part of a felony sentence, we apply the standard set forth in R.C. 2953.08(G)(2)(b),
inquiring whether the imposition of costs and financial sanctions is clearly and
convincingly contrary to law. State v. Kelly, 6th Dist. Wood No. WD-16-015, 2017-
Ohio-674, ¶ 10; see also State v. Hayes, 1st Dist. Hamilton No. C-190461, 2020-Ohio-
5322, ¶ 57 (Reviewing an order of restitution under R.C. 2929.18(A)).
{¶ 37} R.C. 2929.18(B)(1) provides that, for second and third degree felony
violations of R.C. Chapter 2925, “the sentencing court shall impose upon the offender a
mandatory fine of at least one-half of, but not more than, the maximum statutory fine
15.
amount authorized for the level of the offense pursuant to R.C. 2929.18(A)(3).” For a
felony of the second degree, R.C. 2929.18(A)(3)(b) allows a fine of “not more than
[$15,000].” For a felony of the third degree, Section (A)(3)(c) allows a fine of “not more
than [$10,000].”
{¶ 38} Here, Gipson was convicted of four offenses under R.C. Chapter 2925: one
(1) second-degree offense and three (3) third-degree offenses. Thus, the trial court was
required to impose a fine of at least $7,500 as to the second degree offense and at least
$5,000 as to the third degree felony offenses, which are exactly the fines that the trial
court imposed. R.C. 2925.11(E)(1)(a) and 2929.18(B)(1),
{¶ 39} R.C. 2929.18(B)(1) does allow a defendant to challenge the imposition of a
mandatory fine. Thus, “[i]f an offender alleges in an affidavit filed with the court prior to
sentencing that the offender is indigent and unable to pay the mandatory fine and if the
court determines the offender is an indigent person and is unable to pay the mandatory
fine * * *, the court shall not impose the mandatory fine upon the offender.” Id. To
avoid imposition of a mandatory fine, two things must occur: “(1) the offender must
submit an affidavit of indigency prior to sentencing, and (2) the trial court must make a
determination that the offender is an indigent person and is unable to pay the mandatory
fines.” State v. Gipson, 80 Ohio St.3d 626, 633, 687 N.E.2d 750 (1998). See also State
v. Carriger, 12th Dist. Butler No. CA2016-06-198, 2017-Ohio-1330, ¶ 7.
16.
{¶ 40} In this case, no affidavit of indigency was filed in connection with the
mandatory fines. Although Gipson was found to be indigent for purposes of appointing
him trial counsel, it is well-established that a determination that a defendant is indigent
for purposes of appointed counsel is separate and distinct from a determination of being
indigent for purposes of paying a mandatory fine. See, e.g., State v. Banks, 6th Dist.
Wood Nos. WD-06-094, WD-06-095, 2007-Ohio-5311, ¶ 15, State v. Bolden, 12th Dist.
Preble No. 35, 2004-Ohio-184, ¶ 35.
{¶ 41} Moreover, R.C. 2929.18(B)(1) “clearly requires” the offender to file the
affidavit “with the court prior to the filing of a journal entry reflecting the trial court’s
sentencing decision.” Gipson at 631. Where an affidavit of indigency is not properly
filed prior to sentencing, that fact “is, standing alone, a sufficient reason to find that the
trial court committed no error by imposing the statutory fine.” Id. at 633.
{¶ 42} Accordingly, because Gipson did not file an affidavit alleging that he was
indigent and unable to pay the mandatory fines prior to sentencing, the trial court was not
required to consider Gipson’s ability to pay those fines, and it did not err when it imposed
the mandatory fines pursuant to R.C. 2929.18(B)(1). Carriger at ¶ 9, citing State v.
Parsley, 10th Dist. Franklin No. 09AP-612, 2010-Ohio-1689, ¶ 54; Gipson at 633.
Indeed, the imposition of the fines was mandated by law. Bolden at ¶ 37. Accordingly,
Gipson’s third assignment of error is found not well-taken.
17.
C. Consecutive Sentencing
{¶ 43} Gipson’s final sentencing challenge involves the trial court’s decision to
impose consecutive sentences.
{¶ 44} In general, it is presumed that prison terms will be served concurrently.
R.C. 2929.41(A). However, after determining the sentence for a particular crime, a
sentencing judge has discretion to order a defendant to serve individual counts of a
sentence consecutively to each other or to sentences imposed by other courts. R.C.
2929.14(C)(4) provides,
(4) If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the offender to serve
the prison terms consecutively if the court finds that the consecutive service
is necessary to protect the public from future crime or to punish the
offender and that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses
to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
18.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶ 45} Thus, to impose consecutive sentences for convictions of multiple offenses,
a trial court must make three statutory findings. State v. Beasley, 153 Ohio St.3d 497,
2018-Ohio-493, 108 N.E.3d 1028, ¶ 252. First, the court must find that “consecutive
sentences are necessary to protect the public or to punish the offender.” Id. Second, the
court must find that consecutive sentences “are not disproportionate to the seriousness of
the offender’s conduct and to the danger that the offender poses to the public.” Id. Third,
the court must find that R.C. 2929.14(C)(4)(a), (b), or (c) is applicable. Id. “[A] trial
court must state the required findings as part of the sentencing hearing, * * * [a]nd
because a court speaks through its journal, the court should also incorporate its statutory
findings into the sentencing entry.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-
3177, 16 N.E.3d 659, ¶ 29. While the sentencing court is required to make findings
under R.C. 2929.14(C)(4) before imposing consecutive sentences, it is not required to
19.
give reasons explaining the findings. State v. Kubat, 6th Dist. Sandusky No. S-13-046,
2015-Ohio-4062, ¶ 33. However, the record must contain evidence to support the trial
court’s findings. Bonnell at ¶ 29, citing R.C. 2953.08(G)(2)(a).
{¶ 46} Gipson acknowledges that the trial court made all of the required findings
under R.C. 2929.14(C)(4). Indeed, the court explained,
The Court finds that consecutive sentences are necessary to protect
the public from future crime, or to punish the offender, and that consecutive
sentences are not disproportionate to the seriousness of the offender’s
conduct and the danger that he poses to the public.
The Court finds the offender’s history of criminal conduct
demonstrates that consecutive sentences are necessary to protect the public
from future crime by the offender. (Oct. 29, 2020 Tr. at 16-17.)
{¶ 47} Those findings are also reflected in the trial court’s October 30, 2020
judgment entries.
{¶ 48} On appeal, Gipson argues that the record does not support one of the
court’s findings, specifically that consecutive sentences are not disproportionate to the
seriousness of Gibson’s conduct. Pursuant to R.C. 2953.08(G), the burden is on Gipson
to identify clear and convincing evidence in the record that the court’s finding is not
supported by the record. State v. Kiefer, 6th Dist. Ottawa No. OT-21-005, 2021-Ohio-
3059, ¶ 8 citing State v. Torres, 6th Dist. Ottawa No. OT-18-008, 2019-Ohio-434, ¶ 6.
20.
{¶ 49} Gipson argues that the trial court “could not” have found—under R.C.
2929.14(C)(4)—that consecutive sentences are not disproportionate to the seriousness of
his conduct, in light of its other finding—under R.C. 2929.12—that “the more serious
factors do not outweigh the less serious factors.” (October 30, 2020 J.E. at 3).
{¶ 50} R.C. 2929.12, entitled “Factors to consider in felony sentencing,” requires a
trial court, in part, to determine whether the defendant’s conduct is more, or less, serious
than conduct normally constituting the offense. R.C. 2929.12(B) and (C). In his brief,
Gipson addresses each factor set forth in R.C. 2929.12(B) and (C) as a means of
demonstrating that the trial court’s proportionality determination, under R.C.
2929.14(C)(4), is unsupported by the record. We reject Gipson’s attempt to conflate the
two statutes.
{¶ 51} “When imposing a felony sentence, a trial court is required to consider
certain factors established in R.C. 2929.12 to determine the appropriate sentence for each
conviction.” (Emphasis added.) Kiefer at ¶ 17, citing State v. Gwynne, 158 Ohio St.3d
279, 2019-Ohio-4761, 141 N.E.3d 169, ¶ 17. In Gwynne, the Ohio Supreme Court
specified that R.C. 2929.12 applies “only to individual sentences.” (Emphasis in the
original.) Id. Moreover, a sentencing judge “must first impose a sentence for each count
by considering the purposes and principles of felony sentencing under R.C. 2929.11 and
2929.12” before it orders “consecutive service * * * under R.C. 2929.14(C)(4).”
(Emphasis added.) Id. A court of appeals “err[s] by reviewing [a challenge to the
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imposition of] consecutive sentences under R.C. 2929.11 and 2929.12.” Id. at ¶ 18.
Accordingly, Gipson’s reference to, and reliance upon, the factors set forth in R.C.
2929.12(B) and (C)—as a means of demonstrating error by the trial court under R.C.
2929.14(C)(4)—is not well-taken.
{¶ 52} We also specifically reject Gipson’s portrayal of his drug offenses as
“victimless crimes.” Gipson argues that the only person, besides himself, who was
harmed in these cases was the confidential informant, whom Gipson describes as “not a
victim.”
{¶ 53} Gipson acknowledged that he first sold methamphetamine to a man looking
for “some drugs” and that Gipson “got him what drugs he wanted.” A few weeks later,
the man called again, but this time, “he was working off some of his charges with the
Drug Task Force.” In other words, Gipson did victimize the buyer, who faced his own
addiction and legal problems that were, at a minimum, exacerbated by Gipson. Further,
and more broadly, the possession, use, and distribution of illegal drugs “represent one of
the greatest problems affecting the health and welfare of our population.” Treasury
Emps. v. Von Raab, 489 U.S. 656, 668, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). By his
actions, Gibson directly contributed to that problem by repeatedly polluting his
community with illicit drugs. His was not a victimless crime. Accord State v. Allen, 2d
Dist. Montgomery No. 29273, 2022-Ohio-1419, ¶ 14 (Finding trial court’s conclusion—
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that defendant’s possession of marijuana was a victimless crime—to be both “incorrect
and misleading.”).
{¶ 54} Finally, we add that the record contains ample evidence to support the trial
court’s finding that consecutive sentences “are not disproportionate to the seriousness of
the offender’s conduct.” Gipson was found with a “significant” amount of
methamphetamine, twice, in June of 2019. However, not even the threat of mandatory
prison time deterred Gipson from continuing to traffic in drugs, which he engaged in no
fewer than three times in April and May of 2020. No doubt Gipson is, as he describes
himself, an “addict,” but he is also a “menace” to his community, as he was described at
sentencing. Upon review, we find no evidence, much less clear and convincing evidence,
that the record does not support the trial court’s finding that the imposition of consecutive
sentences is not disproportionate to the seriousness of Gipson’s conduct in these cases.
{¶ 55} “As long as the reviewing court can discern that the trial court engaged in
the correct analysis and can determine that the record contains evidence to support the
findings, consecutive sentences should be upheld.” State v. Smith, 6th Dist. Wood No.
WD-19-082, 2021-Ohio-150, ¶ 15, quoting Bonnell at ¶ 29. Here, the trial court engaged
in the correct analysis, and Gipson has failed to meet his burden of identifying clear and
convincing evidence that the trial court’s findings are not supported by the record.
Accordingly, we find Gipson’s first assignment of error not well-taken.
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V. Conclusion
{¶ 56} For the reasons set forth above, Gipson’s assignments of error are found
not well-taken, and the October 30, 2020 judgments of the Ottawa County Court of
Common Pleas in case Nos. 19CR126, 20CR074, and 20CR170 are hereby affirmed.
Costs are assessed to Gipson pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Myron C. Duhart, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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