Opinion
CA2022-11-108
07-03-2023
STATE OF OHIO, Appellant, v. BRANDON LEVI GILBERT, Appellee.
Michael T. Gmoser, Butler County Prosecuting Attorney, and Stephen M. Wagner, Assistant Prosecuting Attorney, for appellee. Repper-Pagan Law, Ltd., and Christopher J. Pagan, for appellant.
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2018-10-1746
Michael T. Gmoser, Butler County Prosecuting Attorney, and Stephen M. Wagner, Assistant Prosecuting Attorney, for appellee.
Repper-Pagan Law, Ltd., and Christopher J. Pagan, for appellant.
OPINION
M. POWELL, J.
{¶ 1} Appellant, the state of Ohio, appeals a decision of the Butler County Court of Common Pleas granting judicial release to appellee, Brandon Gilbert.
I. FACTS AND PROCEDURE
{¶ 2} Gilbert was indicted in October 2018 on two counts of first-degree felony kidnapping, one count of first-degree felony rape, one count of second-degree felony attempted rape, and one count of second-degree felony felonious assault. The charges stemmed from an incident during which Gilbert repeatedly struck the victim in the side of her head, restrained her liberty, engaged in digital penetration, and attempted to engage in vaginal intercourse. As a result of the assault, the victim suffered serious injuries. Pursuant to plea negotiations, Gilbert pled guilty to one count of second-degree felony felonious assault, one count of fourth-degree felony gross sexual imposition ("GSI"), and one count of third-degree felony abduction. In exchange for his guilty plea, all other charges were dismissed.
{¶ 3} At sentencing, the GSI and abduction offenses were merged as allied offenses of similar import, and the state elected to proceed on the GSI offense. The trial court sentenced Gilbert to three years in prison for the felonious assault offense and 12 months in prison for the GSI offense and ordered that the prison terms be served consecutively. In imposing a consecutive sentence, the trial court made the necessary consecutive sentence findings. As relevant to this appeal, the trial court's consecutive sentence findings included a finding under R.C. 2929.14(C)(4)(b) that the harm caused by Gilbert's offenses was so great or unusual that a single term would not adequately reflect the seriousness of his conduct. We upheld Gilbert's consecutive sentence on August 16, 2021. State v. Gilbert, 12th Dist. Butler No. CA2020-11-116, 2021-Ohio-2810 (Gilbert I).
A summary of the evidence presented during the sentencing hearing may be found in State v. Gilbert, 12th Dist. Butler No. CA2020-11 -116, 2021-Ohio-2810, ¶ 3.
{¶ 4} On August 6, 2021, after serving over six months of his aggregate four-year prison term, Gilbert filed a motion for judicial release. The trial court held a hearing on the motion in February 2022; the parties each presented evidence in support of their respective positions.
{¶ 5} On February 17, 2022, the trial court entered a decision granting Gilbert's motion for judicial release. The trial court found that "a sanction other than a prison term would adequately punish [Gilbert] and protect the public from future criminal violations by [Gilbert] because the applicable factors indicating a lesser likelihood of recidivism outweigh the applicable factors indicating a greater likelihood of recidivism." The court further found that "a sanction other than a prison term would not demean the seriousness of the offense because factors indicating that [Gilbert's] conduct in committing the offense was less serious than conduct normally constituting the offense outweigh factors indicating that [his] conduct was more serious than conduct normally constituting the offense."
A summary of the evidence presented during the judicial release hearing may be found in State v. Gilbert, 12th Dist. Butler No. CA2022-02-021, 2022-Ohio-3387, ¶ 5, 7-9.
{¶ 6} Gilbert was released from prison and the trial court ordered that he be subject to five years of community control, which included one year of intensive supervision, the wearing of a SCRAM bracelet and GPS monitor, attending Corrective Thinking Classes, and "zero tolerance." Gilbert was also ordered to complete a drug and alcohol assessment and engage in all recommended treatment and obtain and maintain full-time employment.
{¶ 7} The state appealed the trial court's judgment granting Gilbert judicial release, challenging the grant of judicial release in two assignments of error. In its first assignment of error, the state argued that the trial court's findings under R.C. 2929.20(J) were clearly and convincingly not supported by the record; in its second assignment of error, the state argued that the trial court failed to list on the record and in its judgment entry the R.C. 2929.12 factors presented during the judicial release hearing as required by R.C. 2929.20(J)(2). We sustained the state's second assignment of error, rendering the first assignment of error moot. We reversed the trial court's judgment and remanded the matter for the trial court to comply with R.C. 2929.20(J)(2). State v. Gilbert, 12th Dist. Butler No. CA2022-02-021, 2022-Ohio-3387 (Gilbert II).
{¶ 8} On October 25, 2022, the trial court journalized an Amended Decision Granting Judicial Release in which it listed the R.C. 2929.12 factors presented during the judicial release hearing. On October 27, 2022, the trial court journalized its judgment entry granting Gilbert judicial release on the same terms as it had originally imposed.
{¶ 9} The state appeals from the trial court's judgment granting judicial release, raising one assignment of error:
{¶ 10} THE TRIAL COURT ERRED IN GRANTING GILBERT JUDICIAL RELEASE BECAUSE ITS AMENDED DECISION WAS CLEARLY AND CONVINCINGLY NOT SUPPORTED BY THE RECORD.
II. ANALYSIS
A. Judicial Release
{¶ 11} Judicial release is governed by R.C. 2929.20. Because Gilbert was sentenced to a second-degree felony, R.C. 2929.20(J)(1) applies and provides:
A court shall not grant a judicial release under this section to an eligible offender who is imprisoned for a felony of the first or second degree * * * unless the court, with reference to factors under section 2929.12 of the Revised Code, finds both of the following:
(a)That a sanction other than a prison term would adequately punish the offender and protect the public from future criminal violations by the eligible offender because the applicable factors indicating a lesser likelihood of recidivism outweigh the applicable factors indicating a greater likelihood of recidivism;
(b) That a sanction other than a prison term would not demean the seriousness of the offense because factors indicating that the eligible offender's conduct in committing the offense was
less serious than conduct normally constituting the offense outweigh factors indicating that the eligible offender's conduct was more serious than conduct normally constituting the offense.
R.C. 2929.20 has been amended twice since the version that was in effect at the time Gilbert filed his motion for judicial release and the motion was considered by the trial court. Throughout this opinion, we refer to the 2018 SB 201 version in effect from March 22, 2019, to April 3, 2023.
{¶ 12} R.C. 2953.08(B)(3) provides that a state may appeal, as a matter of right, a trial court's decision to grant judicial release to an offender sentenced for a felony of the first or second degree. State v. Ledford, 12th Dist. Clermont No. CA2016-04-021, 2017-Ohio-149, ¶ 11. "The standard of review applied by an appellate court in reviewing a trial court's decision to grant judicial release is found in R.C. 2953.08(G)(2)." Id. Pursuant to R.C. 2953.08(G)(2), an appellate court may modify or vacate a sentence on appeal "only if it determines by clear and convincing evidence that the record does not support the trial court's findings under relevant statutes or that the sentence is otherwise contrary to law." State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1.
{¶ 13} At this juncture, we briefly address and reject Gilbert's argument that the state did not have a right to appeal the trial court's judgment entry granting Gilbert judicial release because Gilbert's consecutive sentence included a prison term for a fourth-degree felony offense (the GSI offense). R.C. 2953.08(B)(3) grants the state a right to appeal modification of a sentence imposed for a felony of the first or second degree. While the plain language of the statute does not include felonies of the third, fourth, or fifth degree, we do not believe the General Assembly intended to prohibit the state from appealing the modification of a consecutive sentence that was not comprised of only prison terms for first- and second-degree felonies. We therefore find that the state properly appealed the trial court's grant of judicial release to Gilbert.
B. The Issue on Appeal
{¶ 14} The state's captioned assignment of error asserts that the trial court's judgment granting Gilbert judicial release was clearly and convincingly not supported by the record. Although the state disagrees with the trial court's consideration and weighing of the evidence presented during the judicial release hearing, it does not assert this as the basis of its appeal. Rather, the state succinctly and solely frames the issue on appeal as follows:
[T]he State asks this Court to write a bright line rule: when the trial court makes the specific consecutive sentencing finding under R.C. 2929.14(C)(4)(b) that no single prison term for any of the offenses committed as a single course of conduct adequately reflects the seriousness of the offender's conduct, the offender must serve, as a matter of law, at least the first two terms of the consecutive prison sentences.
{¶ 15} Stated differently, the state argues that if at sentencing, a trial court makes the R.C. 2929.14(C)(4)(b) finding when imposing a consecutive sentence, the offender must serve, as a matter of law, at least the first two prison terms of his consecutive sentence before he is eligible for judicial release. The state contends that "when the trial court [has] already pronounced [at sentencing] that the seriousness of the offenses mandated at least two terms," "[t]here is no rebalancing of the seriousness and recidivism factors at a judicial release hearing that can ever overcome the [R.C. 2929.14(C)(4)(b) consecutive sentence finding] that no single prison term would ever be enough to account for the seriousness of the multiple offenses." Under these circumstances, the state asserts that an offender must serve "at least the first two terms of the consecutive prison sentences." The state characterizes the issue as narrow and one of "plain statutory interpretation."
{¶ 16} As indicated above, we typically review an appeal from a judgment granting judicial release by determining whether the record clearly and convincingly does not support the trial court's R.C. 2929.20(J) findings. However, the state's appeal does not involve a review of whether the evidence presented during the judicial release hearing provides a basis for the trial court's decision, but whether the trial court was authorized to consider judicial release before Gilbert has served the first two prison terms of his consecutive sentence in light of the trial court's R.C. 2929.14(C)(4)(b) finding at sentencing. This is purely a legal issue. Therefore, we will apply a de novo review in determining whether an offender serving a consecutive sentence based upon an R.C. 2929.14(C)(4)(b) finding is eligible for judicial release prior to serving the first two prison terms of the consecutive sentence. See State v. Rupp, 12th Dist. Preble No. CA2012-11-014, 2013-Ohio-1847, ¶ 6, citing State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-163, ¶ 8.
R.C. 2929.14(C)(9) provides that "[w]hen consecutive prison terms are imposed * * *, the term to be served is the aggregate of all the terms so imposed." Although there are exceptions not applicable here, the General Assembly in enacting R.C. 2929.14(C)(9), has generally provided that the prison terms comprising a consecutive sentence are not served separately or sequentially, but as a single prison term. Thus, absent an exception, an offender serving consecutive prison terms completes none of the prison terms until he has completed the entire consecutive sentence. Therefore, adopting the state's position would render offenders serving a consecutive sentence based upon a R.C. 2929.14(C)(4)(b) finding ineligible for judicial release.
C. Restrictions and Limitations in R.C. 2929.20
{¶ 17} In ordering the felonious assault and GSI prison terms to be served consecutively, the trial court found under R.C. 2929.14(C)(4)(b) that "[a]t 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." The state asserts that this finding precluded the trial court from granting Gilbert judicial release before he had served at least the first two prison terms of the consecutive sentence. In essence, the state is arguing that the language of R.C. 2929.14(C)(4)(b) implicitly imposes a restriction on judicial release eligibility.
{¶ 18} Pursuant to R.C. 2929.20(B), an "eligible offender" may seek judicial release. However, the availability of judicial release is subject to numerous restrictions and limitations. For instance, the judicial release statute excludes from the definition of "eligible offender" those serving prison terms for the commission of certain felony offenses while holding a public office. See R.C. 2929.20(A)(1)(b). Therefore, these individuals may not seek judicial release. The statute further provides that mandatory prison terms are not subject to reduction. R.C. 2929.13(F) also makes judicial release unavailable to offenders serving prison terms for numerous specified offenses and for offenses committed under certain circumstances. For example, a prison term imposed for rape, an offense with which Gilbert was originally indicted, is not subject to reduction under R.C. 2929.20. See R.C. 2929.13(F)(2).
{¶ 19} In addition to the judicial release statute's restrictions on the availability of judicial release, R.C. 2929.20(C) also sets forth limitations on when judicial release may be sought based upon the duration of the prison term originally imposed. As applicable here, R.C. 2929.20(C)(2) provides, "If the aggregated nonmandatory prison term or terms is at least two years but less than five years, the eligible offender may file the motion not earlier than one hundred eighty days after the offender is delivered to a state correctional institution or, if the prison term includes a mandatory prison term or terms, not earlier than one hundred eighty days after the expiration of all mandatory prison terms." (Emphasis added.) The statutory reference to "aggregated * * * prison term or terms" plainly includes a consecutive sentence. Thus, this statutory language indicates that the General Assembly intended to make judicial release available to offenders serving a consecutive sentence.
As mentioned in fn. 4, R.C. 2929.14(C)(9) provides that "[w]hen consecutive prison terms are imposed * * *, the term to be served is the aggregate of all the terms so imposed."
{¶ 20} R.C. 2929.20(C) further specifies the portion of the prison term which must be served before judicial release may be sought. If the General Assembly had intended to limit the ability of those like Gilbert from seeking judicial release until after he had served at least the first two prison terms of his consecutive sentence, it could have done so and R.C. 2929.20(C) would be the logical place to find such a restriction. "Under the general rule of statutory construction expressio unius est exclusio alterius, the expression of one or more items of a class implies that those not identified are to be excluded." State v. Droste, 83 Ohio St.3d 36, 39 (1998). That timing limitations on seeking judicial release are found in R.C. 2929.20(C), but the limitation claimed by the state is not, demonstrates that the General Assembly did not intend such a restriction.
{¶ 21} Finally, R.C. 2929.14, the statute providing for consecutive sentences and the findings necessary for imposition of a consecutive sentence, does not include a restriction on offenders seeking judicial release from a consecutive prison sentence based upon a R.C. 2929.14(C)(4)(b) finding. Significantly, R.C. 2929.14 includes 15 provisions specifically providing that certain prison terms cannot or "shall not be reduced" pursuant to R.C. 2929.20. See R.C. 2929.14(B)(1)(b), (c)(i) and (ii), (d), (f)(i) and (ii), (2)(d), (3), (5), (6), (7)(b), (9)(b), (10), (11), and (K)(1). A consecutive sentence based upon a R.C. 2929.14(C)(4)(b) finding is not included among the prison terms in R.C. 2929.14 which may not be reduced pursuant to R.C. 2929.20.
{¶ 22} As can be seen, the General Assembly has chosen to make judicial release unavailable where certain offenses are involved, based upon the status of the offender or the nature of the prison term. Absent from these numerous restrictions on the availability of judicial release is one based upon a R.C. 2929.14(C)(4)(b) consecutive sentence finding. Because the General Assembly has enacted numerous explicit restrictions on judicial release, we decline the state's invitation to find one implicit in the language of R.C. 2929.14(C)(4)(b). See Hall v. Banc One Mgt. Corp., 114 Ohio St.3d 484, 2007-Ohio-4640, ¶ 24 (in interpreting a statute, a court is bound by the language enacted by the General Assembly and must give effect to the words used in a statute, neither disregarding or deleting portions of the statute through interpretation, nor inserting language not present).
{¶ 23} Moreover, the grant of judicial release does not result in the vacation of the original sentence. When judicial release is granted, the offender is placed on community control subject to the supervision of the probation department and the sentencing court reserves the right to reimpose the sentence it reduced if the offender violates the community control sanction. R.C. 2929.20(K). Thus, Gilbert remains subject to the consecutive sentence originally imposed upon him should he violate the terms of community control.
D. State v. Ledford
{¶ 24} This case is Ledford redux. In Ledford, the state argued that the trial court erred in granting judicial release because the record clearly and convincingly did not support the trial court's determination that the offender's conduct was "less serious" under R.C. 2929.20(J)(1)(b) when the trial court had previously found at sentencing that the offender's conduct was "more serious." In rejecting this argument and affirming the trial court's judgment granting judicial release, we held
In its brief, the state cites three opinions of this court addressing a trial court's grant of judicial release, including State v. Ledford, 12th Dist. Clermont No. CA2016-04-021, 2017-Ohio-149. The state asserts, without analysis or explanation, that these cases are distinguishable.
[A] hearing on a motion for judicial release is a new hearing that requires by statute a new evaluation of the factors, regardless of the trial court's earlier findings under R.C. 2929.12(B) and (C) as to the seriousness of the offense. To hold otherwise would effectively negate any potential for judicial release in cases where an otherwise "eligible offender" was found to have committed conduct that was more serious than the conduct normally constituting the offense at a prior sentencing hearing. That is clearly not what the General Assembly intended for there would be no need for the trial court to make any findings regarding the seriousness of the offense at a subsequent judicial release hearing in accordance with R.C. 2929.20(J)(1)(b).Ledford, 2017-Ohio-149 at ¶ 16.
{¶ 25} R.C. 2929.14(C)(4)(b) and R.C. 2929.12(B) and (C) each involve a determination of the seriousness of the offender's conduct. The former determines how multiple prison terms are to be served, and the latter determines whether a prison term should be imposed, and if so, its duration. The state's argument that a finding under R.C. 2929.14(C)(4)(b) that no single prison term reflects the seriousness of the offender's conduct when imposing a consecutive sentence cannot be changed or reevaluated at a subsequent hearing on a motion for judicial release, is the same argument made and rejected in Ledford. As we stated, a judicial release hearing is "a new hearing that requires by statute a new evaluation of the [R.C. 2929.12] factors, regardless of the trial court's earlier findings under R.C. 2929.12(B) and (C) as to the seriousness of the offense." Ledford at ¶ 16. We further noted that when addressing a motion for judicial release, the trial court is authorized to look beyond the seriousness factors in determining whether to exercise its discretion in favor of judicial release. Id. at ¶ 17. Although the case at bar involves a seriousness finding under R.C. 2929.14(C)(4)(b) as opposed to a seriousness finding under R.C. 2929.12(B) and (C), the reasoning in Ledford that a sentencing court is not bound by its sentencing findings when considering a motion for judicial release is equally applicable in this case.
III. CONCLUSION
{¶ 26} There is no case law supporting the state's position. There is no statute which explicitly provides that an offender serving a consecutive sentence based upon a R.C. 2929.14(C)(4)(b) finding may not seek judicial release until he has served at least the first two prison terms of the consecutive sentence. The judicial release statutory scheme, including its many explicit restrictions on the availability of judicial release, does not indicate that an additional restriction may be found implicit in the language of R.C. 2929.14(C)(4)(b).
{¶ 27} In light of the foregoing, we find the assignment of error lacks merit and it is hereby overruled.
{¶ 28} Judgment affirmed.
HENDRICKSON, P.J., and PIPER, J., concur.