State v. Gatewood

[Cite as State v. Gatewood, 2022-Ohio-2513.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2021-CA-20
:
v. : Trial Court Case No. 2020-CR-681A
:
ELIJAH GATEWOOD : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 22nd day of July, 2022.
...........
IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, Appellate Division, 50 East Columbia Street, Suite 449,
Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
LUCAS W. WILDER, Atty. Reg. No. 0074057, P.O. Box 574, Dayton, Ohio 45409
Attorney for Defendant-Appellant
.............
TUCKER, P.J.
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{¶ 1} Elijah Gatewood appeals from his conviction, following a guilty plea, of one
count of felonious assault. Gatewood’s appeal follows our setting aside of a brief filed
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967),
because we found issues with arguable merit for appeal. The trial court failed to orally
advise Gatewood of all of the R.C. 2929.19(B)(2)(c) notifications at the sentencing
hearing; therefore, the matter is remanded for the sole purpose of resentencing
Gatewood. In all other respects, the trial court’s judgment is affirmed.
{¶ 2} On December 8, 2020, Gatewood was indicted on four counts of felonious
assault and two counts of discharge of a firearm on or near prohibited premises. Count
1, the first felonious assault offense, also contained a firearm specification. Gatewood
pled not guilty on December 11, 2020.
{¶ 3} The parties entered into a plea agreement on February 23, 2021. The State
represented to the court that in exchange for a guilty plea to Count 1, it would dismiss the
attendant firearm specification and the remaining charges. The following exchange
occurred at the plea hearing:
[THE PROSECUTOR]: The facts that Mr. Gatewood would be
pleading guilty to are that on or about November 8, 2020, Clark County,
Ohio, * * * [there] was an interaction between two other individuals, an
individual who was Mr. Gatewood’s co-defendant and a Nathan Neer.
Those two individuals, and it’s not a part of this, were conducting a narcotics
transaction.
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Mr. Neer, the victim in this case, is then believed to try to steal or
leave the scene without completing the transaction * * *. At that time Mr.
Gatewood and the co-defendant did use a firearm to cause physical harm,
that being the shooting of Nathan Neer, Your Honor.
THE COURT: So both Defendants Green and Gatewood had a
firearm and both fired shots at victims?
[THE PROSECUTOR]: Correct, Your Honor. That’s my
understanding.
***
THE COURT: * * * Was the prosecutor’s statement of the plea
agreement accurate?
[DEFENSE COUNSEL]: Yes.
THE COURT: Do you understand the terms of the agreement, Mr.
Gatewood?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Is that what you want to do this morning?
THE DEFENDANT: Yes, Your Honor.
***
THE COURT: Do you understand the nature of the case and the
facts placed on record by the prosecutor?
THE DEFENDANT: Yes, Your Honor.
***
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{¶ 4} The court then explained to Gatewood that felonious assault was a felony of
the second degree with a maximum penalty of an indefinite sentence of eight to 12 years
in the Ohio State Penitentiary and a $15,000 fine, and that the court would have the option
of placing him on community control, the conditions of which could include time in the
county jail, fines, and restitution. The court also explained that if Gatewood were
sentenced to prison, the court could set his sentence “anywhere between two and eight
years,” which would become an indefinite sentencing by adding 50% to that number, with
the presumption that he would be released after the lower term of incarceration; however,
the presumption could be overcome if certain factors were established by the department
of rehabilitation and corrections. Additionally, if he were sentenced to prison, then upon
his release, he would be placed on a mandatory three years of post-release control.
Gatewood indicated that he understood all of these explanations.
{¶ 5} The court further advised Gatewood of the consequences of violating post
release control and advised him of the constitutional rights he was waiving by entering a
guilty plea. The court found that Gatewood entered his plea knowingly, voluntarily, and
intelligently. It dismissed the gun specification and remaining counts pursuant to the plea
agreement whereby Gatewood pled guilty to one count of felonious assault.
{¶ 6} The sentencing hearing occurred on March 16, 2021. Gatewood’s attorney
asked the court to impose community control sanctions. The following exchange then
occurred:
THE COURT: * * * It’s my understanding the victim was shot with a
nine millimeter; is that correct?
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[THE PROSECUTOR]: That is correct, your Honor.
THE COURT: That is the gun the co-defendant was using?
[THE PROSECUTOR]: That is correct, your Honor.
THE COURT: This defendant had in his possession a .22?
[THE PROSECUTOR]: That is what we found out.
THE COURT: I read in the police report there were eleven .22
caliber casings found at the scene?
[THE PROSECUTOR]: Correct, your Honor.
THE COURT: And then, also, it’s my understanding that as these
victims were trying to flee from the gas station, this defendant and his co-
defendant were following them in a car, apparently, got alongside of them
enough to fire. I believe the co-defendant maybe fired some shots into the
car; is that correct?
[THE PROSECUTOR]: That is our understanding from what Mandy
Likens tells us, yes.
THE COURT: It’s my understanding that this defendant was the
one driving this car?
[THE PROSECUTOR]: That is correct.
THE COURT: So that doesn’t make you just there, Mr. Gatewood,
doing nothing. It sounds like you fired multiple shots because there’s 11
casings - - eleven .22 casings at the scene. And as the victims were trying
to flee from the gas station, you could have drove the other way and,
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instead, you drove and got right up alongside of that car so that your co-
defendant could fire shots.
I know you said you were just driving home, but I don’t believe that.
You were pursuing these people and you were the driver and you were
setting up this co-defendant so he could fire more shots. And that’s not
just being there not doing anything. That’s being actively involved in this
shooting.
You should be thankful that this victim didn’t die. He got shot in the
head. If he had died, you would have been - - even though you weren’t the
one that fired the shot, perhaps, that hit him in the head, you would have
been charged and convicted of felony murder. That’s 15 to life. I mean,
no questions asked. That’s just what it is.
I do believe the prosecutor took into account a lot of mitigating factors
here by dismissing the gun specification, which would have been a
mandatory three years right before you even got sentenced on the felonious
assault, dismissed other counts.
I have a responsibility to protect the community. A guy was shot.
You don’t get a free pass for that. I don’t care what your prior record is or
isn’t.
{¶ 7} The court then sentenced Gatewood to seven to ten and a half years in
prison, with a mandatory three years of post-release control upon his release, and credit
for time served.
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{¶ 8} The trial court’s judgment entry of conviction stated, in pertinent part:
B. Findings
The Court considered the PSI, the defendant’s sentencing
memorandum, record, oral statements of counsel, the defendant’s
statement, numerous letters from family and friends of the victims, several
letters in support of the defendant, and 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.
The Court finds that felonious assault is a qualifying offense pursuant
to Ohio Revised Code Section 2929.144(A) because it is a felony of the
second degree that was committed on or after March 22, 2019.
Since the defendant is being sentenced for one qualifying felony, and
that is a felony of the second degree, the maximum prison term for that
offense shall be equal to the minimum term imposed on the defendant plus
fifty percent (50%) of that term.
***
D. Rebuttable Presumption
The Court has notified the defendant that, pursuant to Ohio Revised
Code Section 2967.271(B), it is presumed that he will be released from
prison upon the expiration of the minimum prison term imposed, which is
seven * * * years.
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The Court further notified the defendant that, pursuant to Ohio
Revised Code Section 2967.271(C), ODRC may rebut the presumption at
a hearing and, if rebutted, he may remain in prison after the expiration of
the minimum prison term for a period of time up to the maximum term, which
is ten and one-half * * * years.
ODRC may rebut the presumption only if it determines, at a hearing,
that one or more of the following applies:
(1) Regardless of the security level in which the defendant is
classified at the time of the hearing, both of the following apply:
(a) During the defendant’s incarceration, he committed institutional
rule infractions that involved compromising the security of a state
corrections institution, compromising the safety of the staff of a state
correctional institution or its inmates, or physical harm or the threat of
physical harm to the staff of a state correctional institution or its inmates, or
committed a violation of law that was not prosecuted, and the infractions or
violations demonstrate that he has not been rehabilitated.
(b) The defendant’s behavior while incarcerated demonstrates that
he continues to pose a threat to society.
(2) Regardless of the security level in which the defendant is
classified at the time of the hearing, he has been placed by ODRC in
extended restrictive housing at any time within the year preceding the date
of the hearing.
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(3) At the time of the hearing, the defendant is classified by the
department as a security level three, four, or five, or at a higher security
level.
{¶ 9} The judgment entry further set forth several statutory provisions pursuant to
which Gatewood’s sentence could be reduced, and it contained provisions regarding
post-release control.
{¶ 10} Gatewood appeals from his conviction.
{¶ 11} Gatewood raises two assignments of error on appeal:
GATEWOOD’S SENTENCE IS CONTRARY TO LAW BECAUSE
THE TRIAL COURT DID NOT CONSIDER R.C. 2929.11 AND 2929.12.
GATEWOOD’S SENTENCE IS CONTRARY TO LAW BECAUSE
THE TRIAL COURT DID NOT ADVISE GATEWOOD OF ALL THE
2929.19(B)(2)(c) NOTIFICATIONS.
{¶ 12} We will first consider Gatewood’s second assignment of error. R.C.
2929.19(B)(2)(c), which is part of the Reagan Tokes Act, provides:
* * * [I]f the sentencing court determines at the sentencing hearing
that a prison term is necessary or required, the court shall do all of the
following:
(c) If the prison term is a non-life felony indefinite prison term, notify
the offender of all of the following:
(i) That it is rebuttably presumed that the offender will be released
from service of the sentence on the expiration of the minimum prison term
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imposed as part of the sentence or on the offender's presumptive earned
early release date, as defined in section 2967.271 of the Revised Code,
whichever is earlier;
(ii) That the department of rehabilitation and correction may rebut the
presumption described in division (B)(2)(c)(i) of this section if, at a hearing
held under section 2967.271 of the Revised Code, the department makes
specified determinations regarding the offender's conduct while confined,
the offender's rehabilitation, the offender's threat to society, the offender's
restrictive housing, if any, while confined, and the offender's security
classification;
(iii) That if, as described in division (B)(2)(c)(ii) of this section, the
department at the hearing makes the specified determinations and rebuts
the presumption, the department may maintain the offender's incarceration
after the expiration of that minimum term or after that presumptive earned
early release date for the length of time the department determines to be
reasonable, subject to the limitation specified in section 2967.271 of the
Revised Code;
(iv) That the department may make the specified determinations and
maintain the offender's incarceration under the provisions described in
divisions (B)(2)(c)(i) and (ii) of this section more than one time, subject to
the limitation specified in section 2967.271 of the Revised Code;
(v) That if the offender has not been released prior to the expiration
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of the offender's maximum prison term imposed as part of the sentence, the
offender must be released upon the expiration of that term.
{¶ 13} We recently concluded that the trial court is statutorily required at a
sentencing hearing to orally inform a defendant of all of the above-noted R.C.
2929.19(B)(2)(c) notifications. We also concluded that a trial court’s failure to do so
requires reversal of the sentence and a remand to the trial court for the sole purpose of
conducting a new sentencing hearing consistent with R.C. 2929.19(B)(2)(c). State v.
Massie, 2d Dist. Clark No. 2020-CA-50, 2021-Ohio-3376. In coming to these
conclusions, we rejected the State’s argument that the “trial court sufficiently notified
Massie of all the information in R.C. 2929.19(B)(2)(c) by simply including the information
in the judgment entry of conviction.” Id. at ¶ 20.
{¶ 14} Gatewood argues that the trial court did not sufficiently advise him of all the
R.C. 2929.19(B)(2)(c) notifications at his sentencing hearing. In light of Massie, the
State concedes that the trial court’s failure to orally advise Gatewood of the R.C.
2929.19(B)(2)(c) notifications requires reversal of the sentence and a remand to the trial
court for the sole purpose conducting a new sentencing hearing compatible with R.C.
2929.19(B)(2)(c). The second assignment of error is sustained.
{¶ 15} In his first assignment of error, Gatewood asserts that his sentence is
contrary to law because, in coming to its sentencing decision, the trial court did not
consider the “not likely to commit future crimes” sentencing factors set forth in R.C.
2929.12(E). Gatewood supports this argument by pointing to the trial judge’s comment
at the sentencing hearing that “I don’t care what your prior record is or isn’t.” By
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Gatewood’s reckoning, this comment indicates a failure to consider the R.C. 2929.12(E)
recidivism factors. We disagree.
{¶ 16} R.C. 2929.12(E) states as follows:
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.
***
{¶ 17} In State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649,
the Supreme Court of Ohio “clarified an appellate court's review of a felony sentence
under R.C. 2953.08(G)(2).” State v. Litteral, 2d Dist. Clark No. 2021-CA-10, 2022-Ohio-
1187, ¶ 21. “In Jones, the court held that ‘R.C. 2953.08(G)(2)(b) * * * does not provide
a basis for an appellate court to modify or vacate a sentence based on its view that the
sentence is not supported by the record under R.C. 2929.11 and 2929.12.’ ” State v.
Dorsey, 2d Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 17, quoting Jones at ¶ 39.
{¶ 18} “In so holding, the Supreme Court explained that ‘an appellate court's
determination that the record does not support a sentence does not equate to a
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determination that the sentence is ‘otherwise contrary to law’ as that term is used in R.C.
2953.08(G)(2)(b).’ ” Id., quoting Jones at ¶ 32. “Therefore, pursuant to Jones, an
appellate court errs if it relies on the dicta in Marcum and modifies or vacates a sentence
‘based on the lack of support in the record for the trial court's findings under R.C. 2929.11
and R.C. 2929.12.’ ” Id., quoting Jones at ¶ 29, and referencing State v. Marcum, 146
Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231.
{¶ 19} We also stressed in Dorsey that, due to “the Supreme Court's holding in
Jones, when reviewing felony sentences that are imposed solely after considering the
factors in R.C. 2929.11 and R.C. 2929.12, we shall no longer analyze whether those
sentences are unsupported by the record. We simply must determine whether those
sentences are contrary to law.” Dorsey at ¶ 18. Consequently, “ ‘[a] sentence is
contrary to law when it does not fall within the statutory range for the offense or if the trial
court fails to consider the purposes and principles of felony sentencing set forth in R.C.
2929.11 and the sentencing factors set forth in R.C. 2929.12.’ ” Id., quoting State v.
Brown, 2017-Ohio-8416, 99 N.E.3d 1135, ¶ 74 (2d Dist.).
{¶ 20} Gatewood had a minimal juvenile record and no adult criminal convictions.
Thus, the comment at issue was made within the context of this minimal criminal history
and the seriousness of Gatewood’s conduct. In our view, read in context, the comment,
while unartfully phrased, expressed the trial court’s conclusion that the seriousness of
Gatewood’s criminal conduct outweighed his minimal criminal history. And, based upon
the record, as discussed below, this conclusion cannot be faulted.
{¶ 21} According to the presentence investigation report (PSI), Gatewood and his
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co-defendant, Douglas Green, were at a gas station at around 2:30 a.m. on November 8,
2020. PSI, p. 3. While there, they assisted the victim (Nate) and his girlfriend (Mandee)
in getting their car started. During this process, a conversation about marijuana ensued,
and Nate agreed to purchase marijuana. However, Nate did not fully pay for the drugs,
and shooting ensued at the gas station, resulting in Nate’s being wounded in the head
and sustaining serious injury. PSI, p. 1-3. While Green’s shots were the ones that
appear to have injured Nate, Gatewood admitted to the police on November 30, 2020,
that he had fired a .22 caliber rifle during the incident, and 11 casings from that gun were
found at the gas station. November 8, 2020 Springfield Police Division Inter-Office
Communication of Det. Massie, p. 7.
{¶ 22} Later, when Gatewood discussed the incident with the probation officer
conducting the PSI, Gatewood portrayed himself as an innocent bystander to Green’s
drug transaction and bad conduct. According to Gatewood, Green had agreed to sell
marijuana to Nate and had gone over to Nate’s car. Gatewood claimed he had told
Green that something did not feel “right,” but he did not know what went on after that.
PSI p. 2. While waiting for Green, Gatewood was sitting in his car listening to the radio
and scratching off lottery tickets. PSI p. 4. Gatewood then heard gun fire and looked
over to see Green firing shots. Because Gatewood did not know what was going on, he
grabbed Green’s AR, which was in the car. Gatewood stated to the probation officer that
he did not recall firing the AR. PSI p. 2. He also denied shooting the AR and claimed
he had told the police that he shot the gun in order to stop their interrogation. PSI p. 3.
{¶ 23} When Nate’s vehicle left the gas station, Gatewood also left. He said that
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he floored his car toward home to get rid of Green, which also “happened” to be the way
Nate’s car had gone. PSI p. 2. According to Gatewood, Green “got out of” Gatewood’s
window and fired an AK at the other car. Id. Gatewood became upset at Green for
endangering Gatewood’s own life and told Green that when they got back home, Green
should get as far away from him as possible. PSI p. 3. Notably, Gatewood did not
express any concern about injury to the occupants of the other car. Gatewood also
claimed Green was very apologetic for having involved him in this incident. PSI p. 3.
{¶ 24} Gatewood’s account contrasts significantly with the statement of Nate’s
friend, Mandee, who was driving the car in which Nate was riding. Mandee indicated
that both “the males” (Gatewood and Green) talked to Nate about the drug purchase.
After negotiating a price of $390, “the males weighed the weed out on a scale.” Massie
Memo at p 1-2. After this occurred, Nate got back in the car, and Mandee began to pull
off, thinking the transaction was done. Nate told her he had not given them all the
money, and “the suspects began firing several shots at her vehicle.” Id. at p. 2. Mandee
told Nate she was not going to stop at that point, and as she drove southbound on N.
Belmont Avenue, “shots continued to strike her vehicle.” Id. Mandee thought she had
been struck but later realized that this must have been glass hitting her neck. Id.
{¶ 25} After Mandee turned right on another street, the suspects were chasing
them, and several more shots were fired at her car. Id. At one point, the other car drove
up beside them and continued firing, and “[t]he males” stated, “I kill you.” Id. at p. 2 and
November 8, 2020 Springfield Police Division Inter-Office Communication of Off. E.B.
Taylor, p. 2. Mandee was crouched down while driving to avoid being shot and hit a
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parked car. Massie Memo at p. 2. Mandee’s car had cracks in the front windshield and
both doors had been shattered by bullets. Id. During her account, Mandee referred
repeatedly to plural individuals committing these actions – not just to Green.
{¶ 26} The crime investigation also uncovered videos of Gatewood with guns in
his vehicle. In addition, when Gatewood’s home was searched, the police found a .22
caliber rifle and ammunition, although Gatewood stated that it was not the gun he shot
the night of the crime. Massie Memo at p. 5-6.
{¶ 27} These facts were in the PSI, which the trial court read and which, in part,
informed its sentencing decision. Unquestionably, the actions of Gatewood and Green
caused serious injury to Nate and endangered the life of another person. As the trial
court stressed, Nate, having been shot in the head, could have died. In that event, the
sentence would have been 15 years to life. Moreover, Mandee could easily have died
as well. The fact that more serious outcomes were luckily avoided does not lessen the
degree of peril in which the occupants of the other car were placed.
{¶ 28} The court’s comment discounting Gatewood’s history was also made as
part of the trial court’s discussion that it had a responsibility to protect the community.
Again, while the court’s statement could have been better phrased, it must be read in
context of Gatewood’s very serious conduct. Furthermore, we have stressed that “[i]t is
within the discretion of the individual judge ‘to determine the weight to assign a particular
statutory factor.’ ” State v. Fields, 2d Dist. Clark No. 2020-CA-19, 2020-Ohio-5538, ¶ 41,
quoting State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000). Implicit in this
discretion is that the court could have chosen to give no weight to Gatewood’s lack of
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adult criminal history (bearing in mind that Gatewood had only been an adult for a short
time before engaging in these crimes).
{¶ 29} Finally, while the above discussion disposes of the issue, we also note that
the trial court made the appropriate findings under R.C. 2929.11 and R.C. 2929.12 in its
journal entry. “The journalized order is what controls the sentence because a court
speaks only through its journal.” State v. Meister, 76 Ohio App.3d 15, 19, 600 N.E.2d
1103 (1st Dist.1991), citing State v. Ellington, 36 Ohio App.3d 76, 521 N.E.2d 504 (9th
Dist.1987). Moreover, “[w]here the journalized order and the trial judge's comments from
the bench conflict, the journalized order is controlling.” Id., citing Economy Fire & Cas.
Co. v. Craft Gen. Contractors, Inc., 7 Ohio App.3d 335, 337, 455 N.E.2d 1037 (10th
Dist.1982) (noting that the trial court stated from the bench that the sentence would be
conditional, but it did not include this in its judgment entry; as a result, the entry
controlled). See also State v. Lowe, 2d Dist. Clark No. 2016-CA-18, 2017-Ohio-27, ¶ 7
(court did not err by failing to cite R.C. 2929.11 and R.C. 2929.12 at the sentencing
hearing; the court included the statutes in judgment entry, and a court speaks through its
journal).
{¶ 30} Viewed in context, we conclude that the trial court’s comment, though a bit
injudicious, was isolated and of little import. Moreover, the judgment entry reflects that
the trial court appropriately considered the relevant statutory provisions, and that is all
that is required.
{¶ 31} For the reasons stated, Gatewood’s first assignment of error is overruled.
Conclusion
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{¶ 32} The first assignment of error is overruled, and the second assignment of
error is sustained. The judgment of the trial court is affirmed in part and reversed in part,
and the case is remanded to the trial court for it to conduct a new sentencing hearing in
compliance with R.C. 2929.19(B)(2)(c).
.............
WELBAUM, J., concurs.
DONOVAN, J., dissents:
{¶ 33} I would reverse the trial court’s judgment and order an entirely new
sentencing hearing. The majority finds that the trial court’s proclamation “I don’t care what
your prior record is or isn’t” was simply a “bit injudicious” and “inartfully phrased” when
considered in context. I strongly disagree. When exercising its sentencing discretion, a
trial court must consider the statutory policies that apply to every felony offense, including
those set out in R.C. 2929.11 and 2929.12. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855,
846 N.E.2d 1, at ¶ 38.
{¶ 34} “From the moment that a person enters the criminal justice system, their
prior record is their destiny.” The Paradox of Criminal History, 42 Cardozo Law Review,
1373, 1384 (July 2021). R.C. 2929.12 requires the court to consider and weigh juvenile
adjudications and adult criminal convictions. Here, the court pronounced “I don’t care”
about Gatewood’s record. This evinced an abandonment of legislative mandatory
sentencing considerations. A trial judge should not be “consciously indifferent” to the
legislative mandatory language in R.C. 2929.12. Black’s Law Dictionary 891 (10th ed.
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2019) defines conscious indifference as “a lack of interest or concern.”
{¶ 35} Additionally, we cannot rely on the judgment entry as it is unequivocally
contradicted by the trial court’s statement on the record at sentencing. Gatewood’s
record was entirely juvenile: criminal damaging (a second-degree misdemeanor) and
possession of criminal tools (a first-degree misdemeanor). Although he was young, he
had no adult criminal history. Granted, the trial court could ascribe minimal weight or no
weight to his history, and the trial court was not required to justify its balancing. However,
a dismissive “I don’t care” is a refusal to consider exactly what the Ohio legislature and
case law mandate. A trial judge cannot give R.C. 2929.12(E) no weight by excluding it
from consideration. “A sentence is contrary to law when it fails to consider * * * the
sentencing factors” set forth in R.C. 2929.12. Brown, 2017-Ohio-8416, 99 N.E.3d 1135,
at ¶ 74.
{¶ 36} As Justice Fischer noted in his concurrence in Jones, 163 Ohio St.3d 242,
2020-Ohio-6729, 169 N.E.3d 649, at ¶ 47:
There is also no reason to believe that a trial court’s consideration
under R.C. 2929.11 and 2929.12 is wholly unreviewable. First, although, as
the majority opinion explains, R.C. 2929.11 and 2929.12 do not require a
trial court to make any specific findings on the record, those statutes are not
optional. Both statutes use the term “shall” multiple times in relation to
other matters. For example, R.C. 2929.11(A) and 2929.12(A) through (F)
set forth matters that a sentencing court “shall consider,” and R.C.
2929.11(A) provides that the trial court “shall be guided by” the three
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overriding purposes of felony sentencing. R.C. 2929.11(B) further states
that the sentence imposed by the trial court “shall” meet certain specific
criteria. This court construes the word “shall” as “ ‘mandatory unless there
appears a clear and unequivocal legislative intent that [it] receive a
construction other than [its] ordinary usage.’ ” (Emphasis and brackets
added in Morgan.) State v. Morgan, 153 Ohio St.3d 196, 2017-Ohio-7565,
103 N.E.3d 784, ¶ 22, quoting Dorrian v. Scioto Conservancy Dist., 27 Ohio
St.2d 102, 271 N.E.2d 834 (1971), paragraph one of the syllabus.
{¶ 37} We should not encourage, condone, or accept any judge, under any facts,
no matter how egregious, refusing to consider R.C. 2929.12(E) factors.
{¶ 38} I would reverse.
Copies sent to:
Ian A. Richardson
Lucas W. Wilder
Hon. Douglas M. Rastatter