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State v. McBee

Court of Appeals of Ohio, Eleventh District, Geauga

July 22, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
BRANDON D. MCBEE, Defendant-Appellant.

          Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 2017 C 000067.

          James R. Flaiz, Geauga County Prosecutor, and Christopher J. Joyce, (For Plaintiff-Appellee).

          John Michael Buchenic, (Defendant-Appellant).

          OPINION

          THOMAS R. WRIGHT, P.J.

         {¶1} Appellant, Brandon D. McBee, appeals his sentence after pleading guilty to involuntary manslaughter. We affirm.

         {¶2} McBee's indictment charges involuntary manslaughter, corrupting another with drugs, and aggravated trafficking of drugs. Following discovery, McBee pleaded guilty to involuntary manslaughter, a first-degree felony in violation of R.C. 2903.04(A), and the other charges were dismissed. After securing a presentence investigation report, the trial court sentenced McBee to the maximum prison term, eleven years.

         {¶3} McBee's first of two assigned errors asserts:

         {¶4} "The trial court committed prejudicial error in considering the 'serious physical harm' to the victim as an aggravating factor for sentencing purposes where Defendant-Appellant Brandon McBee pleaded guilty to the crime of Involuntary Manslaughter in violation of R.C. 2903.04(A), which has as one of its elements the death of the victim."

         {¶5} Our standard of review is dictated by R.C. 2953.08(G)(2):

         {¶6} "The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.

         {¶7} "The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:

         {¶8} "(a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

         {¶9} "(b) That the sentence is otherwise contrary to law."

         {¶10} There is no dispute that McBee's 11-year sentence is within the statutory range for this first-degree felony offense. Instead, McBee claims his sentence is contrary to law because the trial court erroneously considered as a seriousness factor the fact the victim suffered "serious bodily harm," which he claims is an element of the offense that a sentencing court cannot consider when addressing the seriousness of the offense under R.C. 2929.12(B).

         {¶11} A court imposing a felony sentence is required to consider the seriousness and recidivism factors found in R.C. 2929.12 to confirm a sentence complies with the overriding purposes of felony sentencing. R. C. 2929.12(B) sets forth the following factors the trial court must consider as indicating the offender's conduct is more serious than conduct normally constituting the offense:

         {¶12} "(1) The physical or mental injury suffered by the victim of the offense due to the conduct of the offender was exacerbated because of the physical or mental condition or age of the victim.

         {¶13} "(2) The victim of the offense suffered serious physical, psychological, or economic harm as a result of the offense.

         {¶14} "(3) The offender held a public office or position of trust in the community, and the offense related to that office or position.

         {¶15} "(4) The offender's occupation, elected office, or profession obliged the offender to prevent the offense or ...


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