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State v. Gibson

Court of Appeals of Ohio, Second District

July 3, 2013

STATE OF OHIO Plaintiff-Appellee
v.
JUNIOR BURL GIBSON Defendant-Appellant

(Criminal Appeal from (Common Pleas Court) Trial Court Case No. 2010-CR-39

KEVIN S. TALEBI, Atty. Reg. No. 0069198, Champaign County Prosecuting Attorney, JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee.

CATHY J. WEITHMAN, Atty. Reg. No. 002089, Attorney for Defendant-Appellant.

OPINION

WELBAUM, J.

{¶ 1} Defendant-Appellant, Junior Burl Gibson, appeals from a trial court judgment revoking Gibson's community control and imposing a prison sentence. Gibson contends that the trial court abused its discretion in sentencing him to four years of imprisonment for each of his third-degree felony convictions.

{¶ 2} We conclude that the trial court erred in sentencing Gibson to a term of four years for a violation of R.C. 2907.21. H.B. 86 was effective at the time of sentencing, and the reduced penalties in R.C. 2929.14(A)(3)(b) should have been applied. However, the trial court did not err or abuse its discretion in imposing a four-year sentence for the violation of R.C. 2907.04. Accordingly, the judgment of the trial court will be affirmed in part and reversed in part, and will be remanded for further proceedings.

I. Facts and Course of Proceedings

{¶ 3} Gibson was originally indicted on three counts of Unlawful Sexual Conduct with a Minor in violation of R.C. 2907.04; three counts of Compelling Prostitution in violation of R.C. 2907.21; and three counts of Sexual Imposition in violation of R.C. 2907.06. The charges arose from allegations that Gibson had performed oral sex on a minor child, had paid the child to let him perform oral sex, and had touched the child's breasts on various occasions from the Spring of 2009 through June 3, 2009.

{¶ 4} In August 2010, Gibson pled guilty to one count of Unlawful Sexual Conduct and one count of Compelling Prostitution, both third-degree felonies, and the remaining charges were dismissed. The trial court found Gibson to be a Tier II Sex Offender, and sentenced him to five years of community control. In addition, the court prohibited Gibson from having any contact with juvenile females, including the victim, who was 16 years of age at the time Gibson was sentenced. The trial court also stated that if Gibson violated his community control sanctions, a four-year term of imprisonment on each count would be imposed, with the terms to be served concurrently.

{¶ 5} As part of the community control sanctions, Gibson was placed on five years house arrest, with the stipulation that he could not leave the premises unless he was in the immediate presence of his wife. Additional special conditions were that Gibson could not have unsupervised contact with children under age 18, and that he must obtain permission from his supervising officer before having supervised contact with children under the age of 18. The sanctions were subsequently modified to allow Gibson to be away from his wife to go directly to a job site, and while he remained on the job site.

{¶ 6} In late July 2012, the trial court filed a notice of hearing on a community control violation. The alleged violation was that Gibson had contact with a juvenile female on July 21, 2012. A hearing was held, and Gibson did not contest the merits of the violation. The trial court then found probable cause that a violation had occurred, and set a further hearing on the merits of the violation. At the revocation hearing, Gibson admitted the merits of the supervision violation allegations, and the State asked the court to revoke Gibson's community control and impose a four-year prison term.

{¶ 7} According to the defense, Gibson lived with his wife, son, and grandson. The son also had a minor female daughter, who had been dropped off at the family home unannounced, from time to time. When this occurred, Gibson retreated to his garage workshop to avoid contact. On the day of the alleged violation, Gibson had gone to the garage and had then come to the front porch of the family home to wait for a tool that a neighbor was bringing back to him. While Gibson sat on the porch, his minor granddaughter came out of the house and immediately hopped on his lap. After pushing her off his lap, Gibson returned to the garage.

{¶ 8} Gibson admitted that the female child had been visiting about once every two weeks, and had stayed each time for one to five hours. He stated that he "usually" went to the garage when his granddaughter came to the house. August 13, 2012 Transcript of Revocation Proceedings, p. 10. At no time did Gibson inform his probation officer that any juvenile females were coming to his house. The probation officer was at the hearing, and stated that even if he had known, the visits would not have been allowed, due to the no contact order.

{¶ 9} After hearing the statements, the trial court revoked Gibson's community control and sentenced him to four years in prison on each count, with the prison terms to run concurrently. Gibson appeals from the judgment revoking his community control and imposing sentence.

II. Did the Trial Court Abuse its Discretion in Sentencing ...


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