State v. Gibson

2018 Ohio 5034

Opinion

[Cite as State v. Gibson, 2018-Ohio-5034.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 106696

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

STEPHAUN GIBSON

DEFENDANT-APPELLANT

JUDGMENT: DISMISSED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-619169-B

BEFORE: McCormack, J., Kilbane, P.J., and Stewart, J.

RELEASED AND JOURNALIZED: December 13, 2018 ATTORNEY FOR APPELLANT

Allison S. Breneman 1220 W. 6th Street, Ste. 203 Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor

By: Frank Romeo Zeleznikar Assistant Prosecuting Attorney 1200 Ontario Street, 8th Floor Cleveland, OH 44113

TIM McCORMACK, J.:

{¶1} Defendant-appellant Stephaun Gibson (“Gibson”) appeals his sentence, arguing

that the trial court abused its discretion by imposing a prison sentence. Because we find that

Gibson’s sentence is not subject to appellate review, we dismiss this appeal.

Procedural and Substantive History

{¶2} On July 18, 2017, Gibson and his brother, codefendant Eric Gibson (“E. Gibson”),

were indicted in a multiple-count indictment. Gibson was charged with Count 2, carrying a

concealed weapon, in violation of R.C. 2923.12(A)(2), and Count 3, improperly handling

firearms in a motor vehicle, in violation of R.C. 2923.16(B). E. Gibson was charged with

Count 1, having weapons while under disability, in violation of R.C. 2923.13(A)(2), and Count 2

described above.

{¶3} On November 28, 2017, both codefendants pleaded guilty to an amended Count 2,

attempted carrying a concealed weapon, in violation of R.C. 2923.02 and 2923.12(A)(2), a felony of the fifth degree. The remaining counts of the indictment were nolled. E. Gibson, who was

on postrelease control at the time of the offense in this case, was sentenced to 12 months in

prison.

{¶4} On December 20, 2017, the trial court held a sentencing hearing for Gibson. At

sentencing, the court heard from the prosecutor and the arresting officer in the case, as well as

Gibson’s counsel. The parties addressed the court with respect to whether the appropriate

sentence for Gibson was mandatory community control, pursuant to R.C. 2929.13(B)(1)(a), or

whether a relevant exception applied to give the court discretion to impose a prison term,

pursuant to R.C. 2929.13(B)(1)(b). After some discussion, the court stated that it believed it

overcame the presumption of mandatory community control and sentenced Gibson to 12 months

in prison. Specifically, the court found that Gibson had committed the offense while having a

firearm on or about his person or under his control, satisfying R.C. 2929.13(B)(1)(b)(i).

{¶5} Gibson appeals his sentence, presenting one assignment of error for our review.

Law and Analysis

{¶6} In his sole assignment of error, Gibson argues that the trial court abused its

discretion by imposing a prison sentence contrary to R.C. 2929.13.

{¶7} Generally, a reviewing court may increase, reduce, or otherwise modify a felony

sentence if it clearly and convincingly finds that either (a) the record does not support certain

required statutory findings or (b) the sentence is otherwise contrary to law. R.C. 2953.08(G)(2).

{¶8} R.C. 2953.08(A)(2) specifically provides that a defendant may appeal as a matter

of right where he or she was sentenced to a prison for a felony of the fourth- or fifth-degree

pursuant to R.C. 2929.13(B), as Gibson was here. Subsection (A)(2) goes on, though, to state

that: If the court specifies that it found one or more of the factors in division (B)(1)(b) of section 2929.13 of the Revised Code to apply relative to the defendant, the defendant is not entitled under this division to appeal as a matter of right the sentence imposed upon the offender.

{¶9} While Gibson argues that the court did not utilize the required language in order

to sentence him to prison, and moreover, that the court’s conclusion was not supported by the

record, he acknowledges that the court utilized R.C. 2929.13(B)(1)(b)(i) and found that he

committed the offense while having a firearm on his person or under his control. Further, our

independent review of the record shows that the court made this finding prior to sentencing

Gibson to a prison term. Because the court made the required statutory finding to sentence

Gibson to a prison term, and Gibson did not file a motion for leave, he is not entitled to an appeal

of his sentence. State v. Torres, 8th Dist. Cuyahoga No. 104905, 2017-Ohio-938, ¶ 8; State v.

Payne, 8th Dist. Cuyahoga No. 84770, 2005-Ohio-3578, ¶ 7.

{¶10} Because Gibson’s sentence is not subject to appellate review, we dismiss the

appeal.

It is ordered that appellee recover of appellant costs herein taxed.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

______________________________________________ TIM McCORMACK, JUDGE

MARY EILEEN KILBANE, P.J., and MELODY J. STEWART, J., CONCUR