State v. Gatewood

2022 Ohio 2513

• Court: Ohio Court of Appeals
• Decided: July 22, 2022
• Docket: 2021-CA-20
• Status: Published

Opinion

[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 : :

...........

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. -2-

{¶ 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. -3-

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 COURT: Do you understand the nature of the case and the

facts placed on record by the prosecutor?

*** -4-

{¶ 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? -5-

[THE PROSECUTOR]: That is correct, your Honor.

THE COURT: That is the gun the co-defendant was using?

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, -6-

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. -7-

{¶ 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. -8-

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. -9-

(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.

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 -10-

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 -11-

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 -12-

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 -13-

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 -14-

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 -15-

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 -16-

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 -17-

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 -18-

{¶ 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. -19-

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 -20-

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