Court of Appeals of Ohio, Eleventh District, Geauga
Criminal Appeal from the Geauga County Court of Common Pleas,
Case No. 2017 C 000067.
R. Flaiz, Geauga County Prosecutor, and Christopher J. Joyce,
Michael Buchenic, (Defendant-Appellant).
R. WRIGHT, P.J.
Appellant, Brandon D. McBee, appeals his sentence after
pleading guilty to involuntary manslaughter. We affirm.
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
McBee's first of two assigned errors asserts:
"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
Our standard of review is dictated by R.C. 2953.08(G)(2):
"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
"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:
"(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;
"(b) That the sentence is otherwise contrary to
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.
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:
"(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.
"(2) The victim of the offense suffered serious
physical, psychological, or economic harm as a result of the
"(3) The offender held a public office or position of
trust in the community, and the offense related to that
office or position.
"(4) The offender's occupation, elected office, or
profession obliged the offender to prevent the offense or