State v. Gross

2017 Ohio 2986

• Court: Ohio Court of Appeals
• Decided: May 25, 2017
• Docket: 104851
• Status: Published

Opinion

[Cite as State v. Gross, 2017-Ohio-2986.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104851

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

LERASHAD D. GROSS DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-603472-A

BEFORE: S. Gallagher, J., Kilbane, P.J., and Boyle, J.

RELEASED AND JOURNALIZED: May 25, 2017 ATTORNEY FOR APPELLANT

Myriam A. Miranda P.O. Box 40222 Bay Village, Ohio 44140

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor By: Andrea N. Isabella Assistant Prosecuting Attorney Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 SEAN C. GALLAGHER, J.:

{¶1} Lerashad Gross appeals his separate convictions for gross sexual imposition

and abduction that resulted in an aggregate sentence of 42 months in prison. We affirm.

{¶2} Gross did not provide a recitation of the facts as required under App.R.

16(A)(6). We take this omission to mean that the facts of Gross’s criminal conduct are

not dispositive of or necessary to resolving the assigned error. App.R. 16(A)(6). (“The

appellant shall include in its brief * * * [a] statement of facts relevant to the assignments

of error presented for review, with appropriate references to the record.”) The state has

not presented any facts of the underlying criminal conduct either. Both parties are

apparently under the impression that a recitation of the procedural history of the case,

along with references to the sentencing transcript, is enough to enable our review of the

legal issues advanced in the sole assignment of error.

{¶3} Gross claims that the trial court erred at the sentencing hearing by not

providing reasons in support of the trial court’s findings under R.C. 2929.14(C)(4), and

that the imposition of consecutive sentences totaling 42 months is clearly and

convincingly contrary to law because it is inconsistent with sentences imposed upon

similarly situated offenders and is disproportionate to the crime. We find no merit to

either argument, but also note that the legal arguments in Gross’s brief are identical to the

ones advanced in State v. Watkins, 8th Dist. Cuyahoga No. 104507, 2017-Ohio-964. As

a result, our decision is largely limited to the conclusions reached in Watkins. {¶4} R.C. 2929.14(C)(4) permits the court to order consecutive service of multiple

sentences that (1) is necessary to protect the public from future crime or to punish the

offender; (2) is not disproportionate to the seriousness of the offender’s conduct and to

the danger the offender poses to the public; and additionally, (3) if (a) the offender

committed the offense while awaiting trial or sentencing, under community control

monitoring, or under postrelease control for a prior offense; (b) at least two of the

offenses caused harm so great and unusual that no single term for any offense adequately

reflects the seriousness of the offender’s conduct; or (c) the offender’s history of criminal

conduct demonstrates the necessity of consecutive sentences to protect the public from

future crime. Watkins at ¶ 5, citing State v. Jones, 8th Dist. Cuyahoga No. 104152,

2016-Ohio-8145, ¶ 10, and State v. Smeznik, 8th Dist. Cuyahoga Nos. 103196 and

103197, 2016-Ohio-709, ¶ 6.

{¶5} We must affirm an order imposing consecutive service of the prison terms,

once the findings are made, unless it can be clearly and convincingly found that the

record does not support the sentencing judge’s findings. R.C. 2953.08(G)(2). This is an

“extremely deferential” standard of review and one written in the negative. State v.

Kirkman, 8th Dist. Cuyahoga No. 103683, 2016-Ohio-5326, ¶ 6.

{¶6} The crux of Gross’s argument is that he believes the 42-month aggregate

sentence is inconsistent with sentences imposed on similarly situated offenders and is

disproportionate to the crimes Gross committed. Despite this claim, no comparative

sentencing data, to show how this sentence was inconsistent or disproportionate to others, was offered for the trial court’s consideration. This issue was not raised during the

sentencing hearing, and simply claiming that a 42-month aggregate sentence is

disproportionate to the offender’s conduct and the danger he poses to the public is not

sufficient under the Rules of Appellate Procedure. App.R. 16(A)(7); Watkins, 8th Dist.

Cuyahoga No. 104507, 2017-Ohio-964, at ¶ 6. In addition, Gross has not provided a

factual basis demonstrating that his conduct in committing the crimes was

disproportionate to his 42-month aggregate sentence. Id.

{¶7} Gross also believes the trial court should have offered reasons or additional

analysis in justifying the sentence imposed. It is well settled that a trial court need not

provide reasons in support of its consecutive-sentence findings. State v. Bonnell, 140

Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37; Watkins at ¶ 7. Although not

required, the trial court did offer a fairly detailed account of the reasons for imposing the

sentence. Tr. 44:1-46:18. In addition to the required findings, the trial court noted (1)

the debilitating effect of the sexual assault on the 17-year-old victim’s psyche, (2) Gross’s

substance abuse problems, and (3) the fact that Gross was arrested for operating a vehicle

while intoxicated and endangering a child the day after pleading guilty to the crimes in

this case, all of which weighed heavily in favor of the prison terms imposed. The trial

court also considered statements from the victim’s family, the presentence investigation

report, the report prepared by the court’s psychiatric clinic, Gross’s expression of

remorse, and arguments by counsel for the state and the defendant. {¶8} The trial court considered all that the law requires and made the findings

under R.C. 2929.14(C)(4), and there is no argument that the record does not factually

support the consecutive-sentence findings. Watkins at ¶ 9. The sole assignment of error

must be overruled.

{¶9} We affirm.

It is ordered that appellee recover from appellant costs herein taxed. The

court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

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

the Rules of Appellate Procedure.

SEAN C. GALLAGHER, JUDGE

MARY EILEEN KILBANE, P.J., CONCURS; MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY