Court of Appeals of Ohio, Eleventh District, Lake
Criminal Appeal from the Lake County Court of Common Pleas,
Case No. 2018 CR 000671.
Charles E. Coulson, Lake County Prosecutor, Teri R. Daniel,
Assistant Prosecutor, and Jenny B. Azouri, Assistant
Prosecutor, Lake County Administration (For
Vanessa R. Clapp, Lake County Public Defender, and Melissa A.
Blake, Assistant Public Defender, (For Defendant-Appellant).
JANE TRAPP, J.
Appellant, Bryan A. Anthony ("Mr. Anthony"),
appeals the judgment of the Lake County Court of Common Pleas
sentencing him to consecutive sentences of 11 years in prison
and 180 days in jail following his guilty plea to aggravated
vehicular homicide, operating a vehicle under the influence
of alcohol, a drug of abuse, or a combination of them
("OVI"), duties upon approaching stationary public
safety vehicle displaying emergency light, and stopping after
This case has many of the elements of a Greek tragedy - a
young man from a family of first responders, struggling with
an addiction to drugs and alcohol, who had maintained
sobriety for five years during his transition from a teen
into adulthood but had just recently returned to drinking and
drugging. A night of celebrating a friend's next step in
becoming a police officer ended in his high school homecoming
date cradling the body of her fellow police officer and his
paramedic stepfather responding to the scene of a horrific
crash and valiantly trying to save the life of a police
officer who had been felled by his own stepson.
Mr. Anthony raises two assignments of error. First, he argues
that his sentence, consisting of maximum, consecutive
sentences, is contrary to law for the following reasons:
(1) The trial court did not consider the enumerated purpose
of rehabilitation under R.C. 2929.11.
(2) The trial court incorrectly used the victim's death
as evidence under R.C. 2929.12(B)(2) to elevate the
seriousness of Mr. Anthony's conduct.
(3) The trial court's finding that the victim suffered
serious physical harm under R.C. 2929.12(B)(2) is not
supported by the record.
(4) The trial court erroneously relied on the psychological
harm suffered by persons other than the victim to elevate the
seriousness of Mr. Anthony's conduct under R.C.
(5) The trial court erroneously found that recidivism was
more likely pursuant to R.C. 2929.12(D)(2) based on Mr.
Anthony's "minimal" history of criminal
convictions and juvenile adjudications.
(6) The trial court erred in failing to find that Mr. Anthony
lived a law-abiding life for a significant number of years
prior to the commission of the offenses under R.C.
(7) The trial court erroneously found that the offense was
committed under circumstances likely to reoccur pursuant to
R.C. 2929.12(E)(4), and thus, erroneously found that Mr.
Anthony was likely to engage in future criminal activity.
(8) The trial court erred in failing to find that Mr. Anthony
demonstrated genuine remorse under R.C. 2929.12(E)(5).
(9) The trial court's findings with respect to
consecutive sentences pursuant to R.C. 2929.14(C) were
contrary to law and not supported by the record.
(10) Mr. Anthony's sentence was disproportionate to and
inconsistent with similar crimes committed by similar
Second, Mr. Anthony argues that the trial court abused its
discretion in imposing his misdemeanor sentence by failing to
consider the purposes of misdemeanor sentencing in R.C.
2929.21 and the sentencing factors in R.C. 2929.22.
After a careful review of the record and pertinent law, we
affirm the judgment of the Lake County Court of Common Pleas.
In light of the Supreme Court of Ohio's recent plurality
decision in State v. Gwynne, Slip Opinion No.
2019-Ohio-4761, we construe Mr. Anthony's first
assignment of error as separately challenging his individual
felony sentences and the imposition of consecutive sentences.
We first find that Mr. Anthony has not established that his
individual felony sentences are clearly and convincingly
contrary to law or not supported by the record based upon the
(1) The record shows that the trial court was
"guided" by the third purpose of felony sentencing
involving the promotion of the effective rehabilitation of
(2) The trial court did not use the victim's death as
evidence to elevate the seriousness of Mr. Anthony's
conduct under R.C. 2929.12(B)(2), and "serious physical
harm" is not an element of Mr. Anthony's offenses.
(3) Evidence in the record supports a finding under R.C.
2929.12(B)(2) that the victim suffered serious physical harm,
and thus, that Mr. Anthony's conduct was more serious
than that normally constituting the offenses.
(4) The trial court is expressly permitted to consider
psychological harm to other persons as "other relevant
factors" under R.C. 2929.12(B).
(5) The court was required to consider Mr. Anthony's
criminal history as a factor of recidivism under R.C.
(6) The trial court was not required to find that Mr. Anthony
led a law-abiding life for a significant number of years
under R.C. 2929.12(E)(3), and a five-year period in the life
of a 24-year-old is hardly "a significant number of
(7) Given Mr. Anthony's history of serious substance
abuse and his unfortunate relapse despite an outstanding
support system, the record does not compel a conclusion that
such circumstances are unlikely to recur under R.C.
(8) The trial court is in the best position to determine the
genuineness of the remorse expressed by a defendant under
(9) The trial court properly considered the statutory
guidelines and factors, which determines consistency in
Second, we find the trial court made all required statutory
findings for consecutive felony sentences under R.C.
2929.14(C)(4), and its statutory findings are supported by
Finally, we find Mr. Anthony has not established that the
trial court abused its discretion in imposing his misdemeanor
sentence because he has not rebutted the presumption that the
trial court properly considered all relevant factors.
and Procedural History
Mr. Anthony, while operating a vehicle under the influence of
alcohol and drugs, struck Mentor Police Officer Mathew Mazany
("Officer Mazany") while Officer Mazany was
assisting a fellow officer in a traffic stop on State Route 2
in Mentor, Ohio. After the initial blow, Officer Mazany was
pinned in between the police cruiser and Mr. Anthony's
vehicle and then hurled against the vehicle that was the
subject of the traffic stop. Despite heroic efforts to save
him, Officer Mazany died as a result of his multiple
The evening of drinking and drugging began when Mr. Anthony,
then 24 years old, drank alcohol to the point of intoxication
with a group of friends in Lakeline, Ohio, at a tragically
ironic celebration of a friend's graduation from the
police academy. Mr. Anthony previously received treatment for
substance abuse and remained sober for approximately 5 years.
He had relapsed a few months prior to this event and resumed
abusing alcohol and drugs.
Eventually, Mr. Anthony and his friends arranged for an Uber
rideshare to transport them to downtown Willoughby where Mr.
Anthony continued to drink alcohol at various bars. At one of
the bars, someone gave Mr. Anthony contact information for an
individual from whom he could purchase cocaine. Mr. Anthony
arranged for a different Uber driver to transport him back to
his car in Lakeline. According to the Uber driver, Mr.
Anthony exhibited several signs of intoxication.
After being dropped off in Lakeline, Mr. Anthony drove his
vehicle to Euclid. Surveillance video showed Mr.
Anthony's vehicle travel off the roadway for at least ten
feet, nearly strike a chain-link fence, and then go back on
the roadway. Video also showed that Mr. Anthony stopped at a
BP station, where he withdrew $100 from the ATM machine, and
Mr. Anthony met with the individual, purchased what he
believed to be cocaine, and ingested it in his vehicle. The
substance turned out to be heroin containing fentanyl. Mr.
Anthony then drove his vehicle eastbound on I-90 toward State
Officer Mazany was assisting his fellow officer, Maryann
Chaloupka ("Officer Chaloupka"), on a traffic stop
on Route 2 in Mentor. Both of their police cruisers were
parked on the right-side berm with emergency lights flashing
behind a Toyota Camry that Officer Chaloupka has stopped for
a traffic violation. Officer Chaloupka was sitting in her
cruiser speaking with Officer Mazany as he stood outside her
driver's side window.
Mr. Anthony was driving his vehicle in the right-hand lane of
State Route 2 at 60 miles per hour. He did not move over as
he approached the two police cruisers and the Toyota Camry.
As he approached, he struck Officer Mazany at highway speed
and sideswiped Officer Chaloupka's cruiser and the Toyota
At the point of impact, Officer Mazany's body became
pinned between Mr. Anthony's vehicle and the police
cruiser. He was thrust forward and to the right in a
cartwheel fashion and upside down. His body struck the rear
of the Toyota Camry, denting its trunk fully inward and
causing the vehicle to jump with significant force, and then
Officer Mazany landed on the ground. Officer Chaloupka exited
her cruiser, called for help, and attempted to revive Officer
Mazany. The entire event was captured by Officer
Chaloupka's dash cam.
Officer Mazany ultimately died from his injuries, which
included multiple blunt force trauma with a skull fracture
and crush injuries to the thorax.
After the collision, Mr. Anthony slowed down but did not stop
his vehicle, instead continuing eastbound on State Route 2.
The Mentor Police Department and other law enforcement
agencies began investigating the collision to identify and
locate Mr. Anthony and his vehicle.
Mr. Anthony eventually arrived at Mentor Lagoons, where he
struck and damaged an automatic entrance gate as he drove in.
After parking, Mr. Anthony texted the drug dealer and then
was joined by a friend in inspecting the exterior damage to
his vehicle. He told a friend that he had hit something but
did not know what. Mr. Anthony's friends described him as
being "blackout drunk." He eventually passed out in
a hammock outside and woke up the next morning.
Mr. Anthony's vehicle was located at Mentor Lagoons, and
the police arrived. Mr. Anthony surrendered without incident.
Blood and urine samples were collected, which showed the
presence of alcohol and 6-Monoacetylmorphine, a heroin
The Lake County Grand Jury indicted Mr. Anthony on aggravated
vehicular homicide, a felony of the second degree, in
violation of R.C. 2903.06(A)(1)(a) (Count 1), OVI, a
misdemeanor of the first degree, in violation of R.C.
4511.19(A)(1)(a) (Count 2), duties upon approaching
stationary public safety vehicle displaying emergency light,
a minor misdemeanor, in violation of R.C. 4511.213(A) (Count
3), stopping after accident, a felony of the second degree,
in violation of R.C. 4549.02(A) (Count 4), and stopping after
accident, a felony of the third degree, in violation of R.C.
4549.02(A) (Count 5).
Mr. Anthony waived his right to be present at arraignment and
entered pleas of not guilty.
At a subsequent plea hearing, the state moved to dismiss
Count 4 of the indictment (stopping after accident, a felony
of the second degree) because it could not be substantiated
by the evidence. The trial court granted the state's
motion, the charge was dismissed, and Count 5 of the
indictment was renumbered as Count 4. Mr. Anthony then
withdrew his previous pleas of not guilty and entered a
written and oral plea of guilty to all four remaining counts
in the indictment.
The trial court accepted Mr. Anthony's plea of guilty,
ordered a presentence investigation report, a drug and
alcohol evaluation, a victim impact statement, and a
psychological examination, and scheduled the matter for
At sentencing the defense presented statements from Mr.
Anthony's mother, his father, his stepmother, his
stepfather (a first responder who coincidentally tried to
save Officer Mazany's life after the accident), and his
uncle (a retired police officer). Mr. Anthony also addressed
the court. The defense also submitted a detailed sentencing
memorandum along with numerous letters of support.
Defense counsel spoke on Mr. Anthony's behalf, and the
trial court engaged him in a lengthy discussion regarding the
applicability of several of the sentencing factors set forth
in R.C. 2929.12.
The state presented statements from Officer Mazany's
wife, his brother, and his son.
The trial court stated that it had reviewed and considered
the presentence investigation and report, the drug and
alcohol evaluation, the letters in support of Mr. Anthony,
the victim impact statements, the statements in court, and
the sentencing memorandum and addendum. The trial court also
stated it had considered the overriding purposes and
principles of felony sentencing set forth in R.C. 2929.11 and
recited them. However, the trial court did not reference
"the promotion of the effective rehabilitation of the
offender," which the General Assembly added to the
statute effective October 29, 2018.
The trial court also made specific findings under R.C.
2929.12. With respect to the "more serious" factors
under R.C. 2929.12(B), the trial court found that Officer
Mazany suffered serious physical harm that resulted in his
death and that Officer Chaloupka suffered serious
psychological harm from witnessing the accident.
The trial court stated it did not find any applicable
"less serious" factors under R.C. 2929.12(C).
With respect to factors under R.C. 2929.12(D) making
recidivism more likely, the trial court found that Mr.
Anthony had a history of two juvenile adjudications, one
consisting of two counts of attempted petty theft, five
counts of petty theft, and criminal damaging and endangering,
and one for possession of alcohol. He also had a criminal
conviction in 2012 for underage consumption or possession of
alcohol and another in 2013 for criminal trespass.
The trial court stated it did not find any factors indicating
recidivism is less likely under R.C.
2929.12(E). It expressly found that the factor in R.C.
2929.12(E)(4) regarding whether the offense was committed
under circumstances not likely to recur to be inapplicable
based on Mr. Anthony's relapse after a period of
The trial court told Mr. Anthony that his family bears no
responsibility for his situation. The trial court also
engaged in a discussion with Mr. Anthony and had him confirm
the series of conscious choices he made on the evening of the
The trial court ultimately sentenced Mr. Anthony to a prison
term of eight years on Count 1, a prison term of 36 months on
Count 4, and a jail term of 180 days on Count 2, to be served
consecutively. The trial court also imposed a mandatory fine
of $375 on Count 2. It expressly did not impose a fine on
The trial court subsequently issued a sentencing entry
memorializing Mr. Anthony's sentences.
Mr. Anthony raises the following two assignments of error:
"[1.] The trial court erred by sentencing the
defendant-appellant to the maximum consecutive sentences
totaling a prison term of 11 years consecutive to 180 days of
jail, when that sentence was contrary to law.
"[2.] The trial court committed an abuse of discretion
when it imposed a maximum sentence of 180-days in jail on
In his first assignment of error, Mr. Anthony sets forth
several arguments involving R.C. 2929.11 and R.C. 2929.12 to
support his assertion that his "sentence" was
"contrary to law." Mr. Anthony describes his
"sentence" as "maximum consecutive sentences
totaling a prison term of 11 years consecutive to 180 days of
In Gwynne, supra, a plurality of the Supreme Court
of Ohio held that an appellate court may only review
individual felony sentences under R.C. 2929.11 and R.C.
2929.12, while R.C. 2953.08(G)(2) is the exclusive means of
appellate review of consecutive felony sentences. See
id. at ¶16-18. Thus, we will review Mr.