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State of Ohio v. Gregg Brimacombe

September 30, 2011

STATE OF OHIO
APPELLEE
v.
GREGG BRIMACOMBE APPELLANT



Trial Court No. CR0200903391

The opinion of the court was delivered by: Yarbrough, J.

Cite as

State v. Brimacombe,

DECISION AND JUDGMENT

{¶1} Defendant-appellant, Gregg Brimacombe appeals his conviction and sentence entered by the Lucas County Court of Common Pleas on one count of rape. For the reasons which follow, we affirm in part and reverse in part the judgment below.

{¶2} On December 17, 2009, Brimacombe was indicted on one count of rape, a first-degree felony in violation of R.C. 2907.02(A)(1)(a) and (b), and four counts of sexual battery, fourth-degree felonies, in violation of R.C. 2907.03(A)(5) and (B). The substance of the indictment charged Brimacombe with separate instances of felony sexual conduct with his stepson beginning in October 2003, when the boy was 12 years old, and continuing through July 2008. The indictment alleged that the sexual conduct occurred in Brimacombe's home in Sylvania, Ohio, where the victim and his mother also resided.

{¶3} On December 23, 2009, following Brimacombe's request for pretrial release on bond, the trial court set an aggregate monetary bond of $210,000 on the five counts. As additional conditions of release, the court ordered Brimacombe to have no contact with the victim and to "surrender all weapons and guns owned by him to the Sylvania Police Department." On January 5, 2010, he was arraigned and entered a plea of not guilty. The court granted Brimacombe's request to travel beyond Lucas County for work purposes while on release. Previous terms and conditions of the bond were ordered continued, but "with the following stipulation [that] any and all weapons in the possession of attorney [Ken] Sass, relating to this case, shall be turned over to the Sylvania Police Department; a total of seven (7) firearms shall be surrendered in all, no later than 4:30 p.m. on the 6th day of January 2010."

{¶4} Eventually, on May 28, 2010, Brimacombe pleaded guilty to the rape count charged under R.C. 2907.02(A)(1)(a) and (b). Nolle prosequi were entered on the four sexual-battery counts. The sentencing transcript indicates that after informing

Brimacombe of the consequences of his guilty plea, the court permitted the prosecutor to ask him a series of questions to which he responded in more detail about his relationship to the victim, the specific sexual conduct involved, and the dates and location where it occurred. After this questioning, the court accepted his guilty plea and reviewed defense counsel's sentencing memorandum. A presentence investigation and report were waived. The court received mitigation statements from defense counsel and Brimacombe, and a victim-impact statement from the victim's mother. The prosecutor offered no statement, but asked the court to order the surrendered weapons destroyed.

{¶5} The court then proceeded with sentencing and sexual-offender classification hearings. The court imposed the maximum term of ten years imprisonment on the rape count and ordered Brimacombe to be registered as a Tier III child-sex offender. The court also imposed five years of mandatory post-release control, and then further stated: "any and all weapons that were confiscated, those will be ordered destroyed." A judgment entry recounting Brimacombe's plea and sentence and ordering the firearms destroyed, was filed June 2, 2010.

{¶6} This appeal followed. Brimacombe now assigns two errors for review, the first of which states:

{¶7} "A. The trial court's [sic] abused its discretion when it sentenced the appellant to a maximum prison term."

{¶8} In support of the first assignment, counsel for Brimacombe asserts that the court abused its discretion in failing to articulate the specific aspects of his conduct that warranted the maximum sentence. Counsel points to Brimacombe having no prior criminal record, his steady employment for 15 years, and the numerous favorable letters that his friends and colleagues filed with the court. Balanced against these positive facts, he argues that the court misapplied the sentencing factors in R.C. 2929.12 by "fail[ing] to provide any support on the record" as to how Brimacombe's sexual abuse of his stepson was "more serious than conduct that normally constitutes the offense."

{¶9} Appellate courts review assigned errors challenging the sentencing court's application of R.C. 2929.11 and 2929.12 under the two-step approach announced in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912.*fn1 Before evaluating Brimacombe's maximum sentence under Kalish, however, we will first address his contentions regarding the general application of R.C. 2929.12 in the wake of State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856.

{¶10} After Foster, "trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." Id. at paragraph seven of the syllabus. (Emphasis added.) While trial courts are not required to make findings or give reasons for imposing such sentences, they must still carefully consider the sentencing statutes that apply to every felony case. See State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶ 38. R.C. 2929.11 and 2929.12 were left undisturbed by Foster and thus remain the two principal statutes for the trial court to employ when sentencing felony offenders. See State v. Teel, 6th Dist. No. S-06-045, 2007-Ohio-3570, ¶ 12; State v. Elswick, 11th Dist. No. 2006-L-075, 2006-Ohio-7011, ¶ 53. As well, the court must be "guided by statutes that are specific to the case itself." Mathis at ¶ 38.

{¶11} R.C. 2929.12 is a guidance statute. It sets forth the seriousness and recidivism criteria that a trial court "shall consider" in fashioning a felony sentence. Id. at ¶ 38. Subsections (B) and (C) establish the factors indicating whether the offender's conduct is more serious or less serious than conduct normally constituting the offense. Subsections (D) and (E) contain the factors bearing on whether the offender is likely or not likely to commit future crimes. While the phrase "shall consider" is used throughout R.C. 2929.12, the sentencing court is not obligated to give a detailed explanation of how it algebraically applied each seriousness and recidivism factor to the offender. Indeed, no specific recitation is required. State v. Arnett (2000), 88 Ohio St.3d 208, 215. Merely stating that the court considered the statutory factors is enough. Id. See, also, State v. Friess, 6th Dist. No. L-05-1307, 2007-Ohio-2030, ¶ 7.*fn2

{¶12} We turn now to Brimacombe's argument regarding the trial court's choice of the maximum sentence for his rape conviction. In Kalish, supra, the Supreme Court established a "two-prong" approach for appellate review of felony sentences, stating:

{¶13} "First, [appellate courts] must examine the sentencing court's compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court's decision shall be reviewed under an abuse-of-discretion standard." Kalish at ¶ 4.

{¶14} Here our review of Brimacombe's sentence is abbreviated, for he concedes that it "was not contrary to law." A choice of sentence from within the permissible statutory range cannot, by definition, be contrary to law. Id. at ¶ 15. Thus, Kalish's first prong is satisfied.

{¶15} The second prong directs us to review the trial court's "exercise of its discretion in selecting a sentence within the permissible statutory range," using the sentencing record as the context. Kalish at ¶ 17. This prong employs the traditional language for assessing discretion--that is, whether in selecting a specific prison term the court's decision was "unreasonable, arbitrary or unconscionable." Id. at ¶ 20. Brimacombe argues that his receipt of the maximum sentence was an abuse of discretion because he did not meet any of the statutory criteria for likely recidivism and, further, the court failed "to explain on the record" how the admitted conduct was more egregious than comparative behavior in other child-rape cases. These two points, he insists, indicate that the court must have ignored the criteria set forth in R.C. 2929.12(B) and (D)(1)-(4). We find no merit in these contentions.

{¶16} Brimacombe's plea of guilty operated as a judicial admission of factual guilt. Crim.R. 11(B)(1); State v. Barnett (1991), 73 Ohio App.3d 244, 248. As a complete admission of guilt, it embraced not only the discreet acts alleged, but the totality of the substantive conduct involved in committing the crime. Id. We have thoroughly reviewed the transcript of the sentencing hearing.*fn3 The statements at the hearing graphically informed the court that Brimacombe's stepson suffered exacerbated psychological harm from the sexual abuse. The abuse began when the boy was twelve and continued over four years. The admitted conduct included anal and oral penetration. The court specifically noted how Brimacombe's acts had inflicted severe, if not irreparable, mental and emotional harm on his victim. As described, the boy had been a "bright and happy A-B student," but the abuse rendered him depressed and angry and he began failing in school.

{¶17} Statements taken at the hearing also indicated how Brimacombe's method of manipulation and control, combined with overt threats, verbal abuse and his physically intimidating stature, were an aggravating part of the total conduct. To monitor access and movement, he installed cameras and warning buzzers throughout the home, including the boy's bedroom. Additional statements indicated that the boy had been threatened "not to tell his mother," implying that harm might ensue if the abuse were revealed. Finally, the court stated its belief that the psychological and emotional damage suffered would be "lifelong" and that cruelty was indicated by Brimacombe's "demonstrated pattern of abuse."

{¶18} A sentencing court has broad discretion to determine the relative weight to assign the sentencing factors in R.C. 2929.12. Arnett at 215 (citing State v. Fox (1994), 69 Ohio St.3d 183, 193). R.C. 2929.12(B)(1) requires the court to consider whether the victim's age made Brimacombe's conduct more serious than conduct that would normally constitute the offense. That section explicitly recognizes that "offenses against children are especially serious." Arnett at 216.

{¶19} As the sentencing transcript reflects, the court also considered Brimacombe's lack of a criminal record, acknowledged his employment history and discussed the supportive letters it received on his behalf. However, the court could reasonably assign this evidence little or no mitigating weight as compared to the aggravating circumstances. Fox at 193. As we have said, the court is required only to consider these factors, not explain how it considered or assigned weight to any of them. Kalish.

{¶20} Nonetheless, that the court weighed the sentencing factors is clear. The transcript reveals the court's explicit reference to R.C. 2929.11 and to balancing the seriousness and recidivism factors under R.C. 2929.12. These references, which were repeated in the sentencing entry, only further confirm that the court considered those factors. See State v. Kase, 187 Ohio App.3d 590, 2010-Ohio-2688, ¶ 17-18. Nothing in the sentencing record otherwise suggests that the court's selection of the maximum sentence was "unreasonable, arbitrary or unconscionable." Under Kalish's second prong, no more is required. See State v. Harris, supra, at ¶ 26.

{¶21} Accordingly, the first assignment of error is not well-taken.

{¶22} The second assignment of error states:

{ΒΆ23} "B. The trial court without legal authority confiscate [sic] weapons or guns ...


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