State v. Gilbreath

2019 Ohio 642

• Court: Ohio Court of Appeals
• Decided: February 22, 2019
• Docket: 2018-CA-91
• Status: Published

Opinion

[Cite as State v. Gilbreath, 2019-Ohio-642.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2018-CA-91 : v. : Trial Court Case No. 2017-CR-753 : CHRISTOPHER GILBREATH : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 22nd day of February, 2019.

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

CHRISTOPHER C. GREEN, Atty. Reg. No. 0077072, 130 West Second Street, Suite 830, Dayton, Ohio 45402 Attorney for Defendant-Appellant

............. -2-

DONOVAN, J.

{¶ 1} Defendant-appellant Christopher Gilbreath appeals his conviction and

sentence for one count of attempted felonious assault on a peace officer, in violation of

R.C. 2923.02 and R.C. 2903.11(A)(2), a felony of the second degree. Gilbreath filed a

timely notice of appeal with this Court on August 2, 2018.

{¶ 2} The incident which forms the basis for the instant appeal occurred on

November 22, 2017, when the Springfield Police Department received a call regarding a

red Chevy Tahoe being driven without its lights on in the vicinity of Sherman Avenue and

Farlow Street in Springfield, Ohio. Shortly thereafter, three cruisers arrived at the scene.

The officers observed the subject vehicle parked in front of a house located on Sherman

Avenue. Two of the cruisers parked in front of the vehicle, and the third cruiser parked

behind the vehicle. The officers observed that the vehicle was still running and that there

was a male individual sitting in the front passenger seat of the vehicle.

{¶ 3} Springfield Police Officer Calvin Burch exited his cruiser and approached the

vehicle. As Officer Burch approached, the individual, later identified as Gilbreath, moved

into the driver’s seat of the vehicle. Gilbreath, who was 18 years old at the time, put the

vehicle in reverse and accelerated backward, forcing Officer Burch to quickly reenter his

cruiser in order to avoid being hit. Gilbreath then struck Officer Burch’s cruiser. After

hitting the police cruiser, Gilbreath led the police on a chase for approximately five miles,

eventually crashing the vehicle on West Euclid Street. Gilbreath exited the vehicle and

attempted to flee on foot but was apprehended by Officer Burch. Gilbreath was arrested.

{¶ 4} On December 4, 2017, Gilbreath was indicted for the following offenses:

Count I, failure to comply with the order or signal of a police officer, in violation of R.C. -3-

2921.331(B) and R.C. 2921.331(C)(5), a felony of the third degree; Count II, vandalism,

in violation of R.C. 2909.05(B)(2), a felony of the fifth degree; Count III, obstructing official

business, in violation of R.C. 2921.31(A), a felony of the fifth degree; and Count IV,

felonious assault (peace officer), in violation of R.C. 2903.11(A)(2), a felony of the first

degree. At his arraignment held on December 5, 2017, Gilbreath pled not guilty to the

offenses contained in the indictment.

{¶ 5} On June 14, 2018, Gilbreath pled guilty to an amended count of attempted

felonious assault on a peace officer in return for dismissal of the remaining counts. The

trial court accepted Gilbreath’s guilty plea and referred the case to the adult probation

department for a presentence investigation report (PSI). On July 26, 2018, Gilbreath

was sentenced to eight years in prison for the single count of attempted felonious assault

on a peace officer.

{¶ 6} It is from this judgment that Gilbreath now appeals.

{¶ 7} Gilbreath’s sole assignment of error is as follows:

THE TRIAL COURT ERRED WHEN IT RELIED UPON THE APPELLANT’S

JUVENILE RECORD TO IMPOSE THE MAXIMUM ALLOWABLE

SENTENCE.

{¶ 8} In his assignment, Gilbreath argues that the trial court erred by, in the

absence of an adult criminal record, relying solely on his prior juvenile adjudications to

impose the maximum sentence for the offense of attempted felonious assault on a peace

officer. Gilbreath also argues that there is nothing in the record that supports imposition

of the maximum sentence “because the record is virtually silent about any findings.”

{¶ 9} At Gilbreath’s sentencing hearing, the trial court stated the following: -4-

I do want to look at your juvenile record for a minute. And I

understand that rehabilitation is the primary goal in juvenile court, but with

that being said, I have to say that I am just astonished at the way you have

been treated with kid gloves.

Trafficking in drugs in 2013, placed on probation for a couple of

years. Well, indefinitely. A year later, felony possession of criminal tools.

Well, let me go back. Drug trafficking in 2013, indefinite probation,

suspended commitment to the Department of Youth Services.

A little over a year later, a felony possession of criminal tools. Your

probation is not revoked, and you are not sent to DYS. Your probation is

continued. A couple months later, an assault, a misdemeanor assault

adjudication, placed on probation indefinitely.

A month later [a] probation violation, probation continued. A year

later [a] probation violation, probation continued. Suspended commitment

to DYS continued. A few months later, early 2016, probation violation,

youth shall remain on probation.

Commitment to DYS still suspended. A few months later probation

violation. Youth shall remain on probation. A couple [of] months later,

November 2016, probation violation. Youth is admonished. Sounds to

me like were told to stop violating your probation.

A month later criminal damaging. Youth shall remain on probation.

Early 2017, felony receiving stolen property. Surely by this time

your probation will be terminated, and you’ll be sent to DYS. But no. I see -5-

here where: Youth shall remain on probation.

Later in 2017, while there is a warrant out for your arrest out of

juvenile court, you commit the crime of attempted felonious assault, a felony

of the second degree with a police officer being the victim.

And then while you are under indictment in this case, you are in a

vehicle that gets pulled over by the Marshalls with other individuals with a

firearm.

So to summarize your criminal – Well, I should say juvenile

delinquency career and now adult criminal career, I don’t see any

consequences for what you have done. Oh, I take that back. You were

admonished.

I see here a total disregard for the police, [and] safety of the

community. Well, you’re not in juvenile court anymore.

The Court is going to order that you be sentenced to eight (8) years

in the Ohio State Penitentiary. Upon your release you will be placed on

mandatory three (3) years of post-release control.

Sentencing Tr. 12-14.

{¶ 10} As this Court has previously noted:

“This court no longer applies an abuse of discretion standard when

reviewing felony sentences, as the Supreme Court of Ohio has made clear

that felony sentences are to be reviewed in accordance with the standard

set forth in R.C. 2953.08(G)(2).” State v. McCoy, 2d Dist. Clark No. 2016-

CA-28, 2016-Ohio-7415, ¶ 6, citing State v. Marcum, 146 Ohio St.3d 516, -6-

2016-Ohio-1002, 59 N.E.3d 1231, ¶ 10, 16. Accord State v. Rodeffer, 2013-

Ohio-5759, 5 N.E.3d 1069, ¶ 29 (2d Dist.) Under the plain language of

R.C. 2953.08(G)(2), “an appellate court may vacate or modify a felony

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.” Marcum at ¶ 1.

“This is a very deferential standard of review, as the question is not whether

the trial court had clear and convincing evidence to support its findings, but

rather, whether we clearly and convincingly find that the record fails to

support the trial court's findings.” State v. Cochran, 2d Dist. Clark No. 2016-

CA-33, 2017-Ohio-217, ¶ 7, citing Rodeffer at ¶ 31.

Even before Marcum, we had indicated “[t]he trial court has full

discretion to impose any sentence within the authorized statutory range,

and the court is not required to make any findings or give reasons for

imposing maximum or more than minimum sentences.” (Citation omitted.)

State v. Nelson, 2d Dist. Montgomery No. 25026, 2012-Ohio-5759. Accord

State v. Terrel, 2d Dist. Miami No. 2014-CA-24, 2015-Ohio-4201, ¶ 14.

But “in exercising its 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 R.C. 2929.12.” (Citations omitted.) State v. Castle, 2016-Ohio-

4974, 67 N.E.3d 1283, ¶ 26 (2d Dist.). * * *

State v. Folk, 2d Dist. Montgomery No. 27375, 2017-Ohio-8105, ¶ 5-6.

{¶ 11} Initially, we note that in its judgment entry of conviction, the trial court stated -7-

as follows:

* * * The Adult Probation Department tendered to the Court the PSI

report and the Court reviewed the same.

***

The Court considered the record, oral statements of counsel, the

defendant’s statement, 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.

{¶ 12} Gilbreath argues that the trial court erred in relying solely on his prior

juvenile adjudications to impose the maximum sentence for the offense of attempted

felonious assault on a peace officer. In support of his argument, Gilbreath cites to State

v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448. In Hand, the Supreme

Court of Ohio held that it is unconstitutional to use a juvenile adjudication as the equivalent

of an adult conviction to enhance a penalty for a later crime, because, unlike an adult

conviction, a juvenile adjudication does not involve the right to a trial by jury. Hand at

paragraph two of the syllabus and ¶ 38. In so holding, the court struck down R.C.

2901.08(A), a statute which specifically provided that a prior “adjudication as a delinquent

child or as a juvenile traffic offender is a conviction for a violation of the law or ordinance

for purposes of determining the offense with which the person should be charged and, if

the person is convicted of or pleads guilty to an offense, the sentence to be imposed[.]”

Hand at paragraph one of the syllabus and ¶ 37. Therefore, the Supreme Court stated

in Hand that “a juvenile adjudication is not a conviction of a crime and should not be -8-

treated as one.” Id. at ¶ 38. Here, Gilbreath contends that “[t]he trial court, in violation of

the precedent set forth in Hand, increased Mr. Gilbreath’s sentence beyond the

mandatory minimum” by imposing a sentence of eight years rather than two years.1

{¶ 13} Although a consecutive sentencing case, the First District Court of Appeals

has rejected a similar Hand argument on the subject of the use of juvenile adjudications,

stating:

This court rejected that argument in State v. Bromagen, 1st Dist.

Hamilton No. C-120148, 2012-Ohio-5757. We noted that the applicable

statutes specifically allowed the sentencing court to consider the

defendant's history of criminal conduct. We stated,

As Bromagen correctly notes, a juvenile-delinquency

adjudication is not a criminal conviction. * * * But it does not

necessarily follow from that statement that juvenile

adjudications cannot be used to demonstrate a history of

criminal conduct. If, as Bromagen argues, the General

Assembly had intended to limit a sentencing court's review of

prior actions to criminal convictions, it could have done so.

But the legislature, in both former R.C. 2929.14(E)(4)(c) and

newly enacted R.C. 2929.14(C)(4)(c), at issue here, has, [sic]

stated that “an offender's history of criminal conduct” can

support the imposition of consecutive sentences. We must

1 R.C. 2929.14(A)(2) states that “[f]or a felony of the second degree, the prison term shall

be two, three, four, five, six, seven, or eight years.” -9-

give effect to the words the General Assembly actually used.

In determining legislative intent, we are not free to delete

words or insert words not used.

(Emphasis sic.) Id. at ¶ 8.

We also noted that the applicable statutes “mandate that a

sentencing court is required to consider juvenile adjudications when it

determines the likelihood of an adult offender's recidivism.” Id. at ¶ 10[,

citing R.C. 2929.12(D)(2) & (3)]. We further stated,

Clearly an offender's prior criminal conduct bears

directly on a sentencing court's decision on the length of

sentence to impose. And a sentencing court is entitled to rely

on a defendant's juvenile history of criminal conduct in

deciding whether consecutive sentences are necessary.

Id. at ¶ 9.

State v. Carney, 1st Dist. Hamilton No. C-160660, 2017-Ohio-8585, ¶18-20.

{¶ 14} Relying on the First District’s holding in Carney, we recently held in State v.

Ward, 2d Dist. Clark No. 2015-CA-115, 2018-Ohio-1230, that Hand does not preclude a

trial court from considering an offender's juvenile adjudications when determining whether

a defendant's “history of criminal conduct demonstrates that consecutive sentences are

necessary to protect the public from future crime by the offender.” Id. at ¶ 35. Based

upon review of Ward's history of criminal conduct, including both his juvenile and adult

record, we found that the trial court's finding was not clearly and convincingly unsupported

by the record. Id. -10-

{¶ 15} Relying on our holding in Ward, the Third District Court of Appeals recently

rejected an argument similar to the one advanced by Gilbreath in the instant case. State

v. Watkins, 3rd Dist. Logan No. 8-18-21, 2018-Ohio-4921. Specifically, Watkins stated

Contrary to Watkins' arguments, no juvenile adjudication was used

here to enhance the degree of the charge, or to change a non-mandatory

prison term to a mandatory prison term as was done in Hand. In fact, this

case does not involve R.C. 2901.08(A) at all, which the Supreme Court of

Ohio found unconstitutional in Hand as it related to juveniles. Watkins thus

attempts to misapply Hand to the situation before us, where it is clearly

inapplicable. “Hand does not bar trial courts from considering an offender's

juvenile record in crafting an appropriate sentence. In fact, the serious and

recidivism factors set forth in R.C. 2929.12 require trial courts to consider

an offender's juvenile adjudications.” State v. Walton, 8th Dist. Cuyahoga

No. 106103, 2018-Ohio-1963, ¶ 25; State v. Ward, 2d Dist. Clark No. 2015-

CA-115, 2018-Ohio-1230, ¶ 35.

As the Walton and Ward courts stated, a trial court is actually

directed to consider whether an offender was previously adjudicated a

delinquent child when sentencing a criminal defendant under R.C.

2929.12(D)(2), which reads as follows.

(D) 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 likely -11-

to commit future crimes:

(2) The offender previously was adjudicated a

delinquent child pursuant to Chapter 2151. of the Revised

Code prior to January 1, 2002, or pursuant to Chapter 2152.

of the Revised Code, or the offender has a history of criminal

convictions.

Watkins at ¶ 11-12; see also R.C. 2929.12(D)(3) (“[t]he offender has not been

rehabilitated to a satisfactory degree after previously being adjudicated a delinquent child

pursuant to Chapter 2151. of the Revised Code prior to January 1, 2002, or pursuant to

Chapter 2152. of the Revised Code, or the offender has not responded favorably to

sanctions previously imposed for criminal convictions”). Based upon the foregoing

rationale, the Watkins court held that the trial court did not violate Hand by considering

the defendant’s juvenile record when imposing sentence.

{¶ 16} Upon review, we agree with the Watkins court and hold that Hand did not

bar the trial court from considering Gilbreath’s juvenile record when it imposed a sentence

within the applicable statutory range. As previously stated, Gilbreath pled guilty to a

felony of the second degree, and the trial court imposed a sentence of eight years.

Although the trial court imposed the maximum sentence, the sentence was within the

range authorized by statute. Furthermore, pursuant to R.C. 2929.12(D)(2) and (3), the

trial court was permitted to consider Gilbreath’s extensive juvenile record and apparent

lack of rehabilitation when it imposed sentence. Therefore, we conclude that Hand is

inapplicable to the instant case, and the sentence imposed by the trial court is not clearly -12-

and convincingly unsupported by the record.

{¶ 17} Gilbreath’s sole assignment of error is overruled.

{¶ 18} Gilbreath’s assignment of error having been overruled, the judgment of the

trial court is affirmed.

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FROELICH, J. and HALL, J., concur.

Copies sent to:

Andrew P. Pickering Christopher C. Green Hon. Douglas M. Rastatter