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State v. Anthony

Court of Appeals of Ohio, Eleventh District, Lake

December 31, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
BRYAN A. ANTHONY, Defendant-Appellant.

          Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2018 CR 000671.

         Judgment: Affirmed.

          Charles E. Coulson, Lake County Prosecutor, Teri R. Daniel, Assistant Prosecutor, and Jenny B. Azouri, Assistant Prosecutor, Lake County Administration (For Plaintiff-Appellee).

          Vanessa R. Clapp, Lake County Public Defender, and Melissa A. Blake, Assistant Public Defender, (For Defendant-Appellant).

          OPINION

          MARY JANE TRAPP, J.

         {¶1} 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 accident.

         {¶2} 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.

         {¶3} 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:

         {¶4} (1) The trial court did not consider the enumerated purpose of rehabilitation under R.C. 2929.11.

         {¶5} (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.

         {¶6} (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.

         {¶7} (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. 2929.12(B)(2).

         {¶8} (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.

         {¶9} (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. 2929.12(E)(3).

         {¶10} (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.

         {¶11} (8) The trial court erred in failing to find that Mr. Anthony demonstrated genuine remorse under R.C. 2929.12(E)(5).

         {¶12} (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.

         {¶13} (10) Mr. Anthony's sentence was disproportionate to and inconsistent with similar crimes committed by similar offenders.

         {¶14} 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.

         {¶15} After a careful review of the record and pertinent law, we affirm the judgment of the Lake County Court of Common Pleas.

         {¶16} 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.

         {¶17} 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 following:

         {¶18} (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 the offender.

         {¶19} (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.

         {¶20} (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.

         {¶21} (4) The trial court is expressly permitted to consider psychological harm to other persons as "other relevant factors" under R.C. 2929.12(B).

         {¶22} (5) The court was required to consider Mr. Anthony's criminal history as a factor of recidivism under R.C. 2929.12(D)(2).

         {¶23} (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 years."

         {¶24} (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. 2929.12(E)(4).

         {¶25} (8) The trial court is in the best position to determine the genuineness of the remorse expressed by a defendant under R.C. 2929.12(E)(5).

         {¶26} (9) The trial court properly considered the statutory guidelines and factors, which determines consistency in sentencing.

         {¶27} 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 the record.

         {¶28} 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.

         Substantive and Procedural History

         {¶29} 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 injuries.

         {¶30} 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.

         {¶31} 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.

         {¶32} 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 resumed driving.

         {¶33} 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 Route 2.

         {¶34} 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.

         {¶35} 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 Camry.

         {¶36} 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.

         {¶37} Officer Mazany ultimately died from his injuries, which included multiple blunt force trauma with a skull fracture and crush injuries to the thorax.

         {¶38} 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.

         {¶39} 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.

         {¶40} 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 metabolite.

         {¶41} 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).

         {¶42} Mr. Anthony waived his right to be present at arraignment and entered pleas of not guilty.

         {¶43} 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.

         {¶44} 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 sentencing.

         {¶45} 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.

         {¶46} 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.

         {¶47} The state presented statements from Officer Mazany's wife, his brother, and his son.

         {¶48} 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.

         {¶49} 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.

         {¶50} The trial court stated it did not find any applicable "less serious" factors under R.C. 2929.12(C).

         {¶51} 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.

         {¶52} The trial court stated it did not find any factors indicating recidivism is less likely under R.C. 2929.12(E).[1] 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 sobriety.

         {¶53} 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 accident.

         {¶54} 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 Count 3.

         {¶55} The trial court subsequently issued a sentencing entry memorializing Mr. Anthony's sentences.

         {¶56} Mr. Anthony raises the following two assignments of error:

         {¶57} "[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.

         {¶58} "[2.] The trial court committed an abuse of discretion when it imposed a maximum sentence of 180-days in jail on count two."

         Individual Felony Sentences

         {¶59} 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 jail."

         {¶60} 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 ΒΆ16-18. Thus, we will review Mr. ...


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