Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Matthew C. Bangerter Bangerter Law,
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor BY: Jeffrey Schnatter Assistant Prosecuting
BEFORE: E.A. Gallagher, P.J., Blackmon, J., and Laster Mays,
JOURNAL ENTRY AND OPINION
A. GALLAGHER, PRESIDING JUDGE
Defendant-appellant Gary Garner appeals from his resentencing
on seven counts of gross sexual imposition in the Cuyahoga
County Court of Common Pleas. For the following reasons, we
reverse and remand.
and Procedural Background
The procedural history of this case was set forth by this
court in State v. Garner, 8th Dist.
Cuyahoga No. 102816, 2016-Ohio-2623 ("Garner
I"). In 2014, Garner was convicted of seven counts of
rape, seven counts of gross sexual imposition
("GSI"), five counts of kidnapping and one count of
intimidation. With the exception of the intimidation charge,
each count carried a sexually violent predator specification.
We explained Garner's sentence as follows:
[T]he trial court sentenced Garner to life without parole on
the rape counts (Counts 1, 2, 5, 6, 13, 16, and 19); 25 years
on the GSI counts (Counts 3, 7, 9, 11, 14, 17, and 20); life
with the possibility of parole after 25 years on the
kidnapping counts (Counts 4, 8, 15, 18, and 21); and 3 years
for the intimidation count (Count 12). Counts 1 through 9 and
11-12, which related to [the first victim], were ordered to
run concurrently to each other, as were Counts 13-21, which
related to [the second victim]. However, the court ordered
Counts 1-9 and 11-12 to run consecutively to Counts 13-21,
"for an aggregate prison term of two life sentences
(served consecutively) without parole."
We affirmed Garner's convictions on direct appeal in
Garner I but reversed the trial court's
sentences for the GSI counts as contrary to law because they
were in violation of R.C. 2971.03(A)(3)(a) and outside the
range set forth in R.C. 2929.14(A)(3)(a).
Upon remand, the trial court conducted a resentencing hearing
as to the GSI counts. Without providing Garner an opportunity
to exercise his right of allocution or making any reference
to the relevant statutory sentencing considerations under
R.C. 2929.11 and 2929.12, the trial court promptly imposed a
sentence of five years to life on each count of GSI and
ordered the GSI counts to be served consecutively. The trial
court's sentencing entry similarly failed to reflect
consideration of the relevant sentencing statutes. The trial
court also failed to incorporate Garner's undisturbed
sentences for rape, kidnapping and intimidation into a
single, cohesive sentencing entry and failed to state the
cumulative prison term on the GSI offenses that it ordered to
be served consecutively.
We review felony sentences under the standard set forth in
R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d
516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, 21-23. A
sentence may be reversed as contrary to law if the trial
court fails to consider the purposes and principles of felony
sentencing set forth in R.C. 2929.11 and the sentencing
factors set forth in R.C. 2929.12. See, e.g., State v.
Pawlak, 8th Dist. Cuyahoga No. 103444, 2016-Ohio-5926,
¶ 58; State v. Keith, 8th Dist. Cuyahoga Nos.
103413 and 103414, 2016-Ohio-5234, ¶ 8, citing State
v. Hinton, 8th Dist. Cuyahoga No. 102710,
2015-Ohio-4907, ¶ 10.
The record in this instance reflects that in its haste to
comply with this court's remand in Garner I, the
trial court failed to conduct a full and proper resentencing
hearing with appropriate consideration of the relevant
statutory sentencing authority. The state's argument that
a trial court need not consider R.C. 2929.11 and 2929.12 when
sentencing a sexually violent offender pursuant to R.C.
2971.03(A)(3)(a) is without merit. Because the trial court
had discretion to impose a minimum term from among the terms
available for a GSI offense under R.C. 2929.14(A)(3)(a),
provided that said term was not less than two years, the
trial court, in exercising that discretion, was required to
consider the principles and purposes of felony sentencing
under R.C. 2929.11 and the relevant ...