State v. Gilbert , 2022 Ohio 3387 ( 2022 )

[Cite as State v. Gilbert, 2022-Ohio-3387.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, : CASE NO. CA2022-02-021
Appellant, : OPINION
9/26/2022
:
- vs -
:
BRANDON GILBERT, :
Appellee. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2018-10-1746
Michael T. Gmoser, Butler County Prosecuting Attorney, and Stephen M. Wagner, Assistant
Prosecuting Attorney, for appellee.
Repper-Pagan Law, Ltd., and Christopher Pagan, for appellant.
M. POWELL, P.J.
{¶ 1} Appellant, the state of Ohio, appeals a decision of the Butler County Court of
Common Pleas granting judicial release to appellee, Brandon Gilbert.
{¶ 2} Gilbert was indicted in 2018 on two counts of kidnapping and one count each
of rape, attempted rape, and felonious assault. The charges stemmed from an incident that
occurred in the early morning hours of September 29, 2018, during which Gilbert repeatedly
struck the victim in the side of her head, restrained her liberty, engaged in digital
penetration, and attempted to engage in vaginal intercourse. As a result of the assault, the
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victim suffered serious injuries. Pursuant to plea negotiations, Gilbert pled guilty to one
count of felonious assault, a felony of the second degree, one count of gross sexual
imposition ("GSI"), and one count of abduction. In exchange for his guilty plea, all other
charges were dismissed.
{¶ 3} A sentencing hearing was held on November 4, 2020. The GSI and abduction
offenses were merged as allied offenses of similar import, and the state elected to proceed
on the GSI offense. The trial court was presented with the responding police officer's body
camera recording which showed the victim's account of what had just occurred and Gilbert's
subsequent interaction with police. The court was also presented with the victim's medical
records containing her account of the offenses and documenting the injuries she suffered
during Gilbert's commission of the offenses. The trial court heard from the victim's parents
and stepmother who recounted the victim's post-assault struggle with anxiety and mental
health issues. Gilbert presented mitigating evidence that he had been compliant with
pretrial supervision and GPS monitoring during the two years the case had been pending,
that he was committed to Alcohol Anonymous ("AA"), and that he had maintained sobriety.
Gilbert submitted two psychological reports indicating that he suffered from traumatic brain
injury due to multiple sports-related concussions, and that he suffered from a mild
neurocognitive disorder and alcoholism which both contributed to the offenses. The
psychologists each expressed the opinion that Gilbert could succeed on probation if he
maintained sobriety. Gilbert declined to exercise his right to allocution.
{¶ 4} The trial court sentenced Gilbert to three years in prison for the felonious
assault offense and 12 months in prison for the GSI offense and ordered that the prison
terms be served consecutively. The trial court specifically found that consecutive sentences
were necessary to protect the public from future crime and punish Gilbert and were not
disproportionate to the seriousness of Gilbert's conduct and to the danger he posed, and
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that the harm caused by Gilbert's offenses was so great or unusual that a single term would
not adequately reflect the seriousness of his conduct. We upheld Gilbert's consecutive
sentences on August 16, 2021. State v. Gilbert, 12th Dist. Butler No. CA2020-11-116,
2021-Ohio-2810.
{¶ 5} On August 6, 2021, after serving over six months of his aggregate four-year
prison term, Gilbert filed a motion for judicial release. Several months later, on February 9,
2022, the trial court held a hearing on the motion; the parties each presented evidence in
support of their respective positions. This included evidence that while in prison, Gilbert
had completed a carpentry apprenticeship, had maintained a job as a porter, had his
security level reduced from Level 3 to Level 1, and had accrued only two prison infractions.
The trial court was also informed that Gilbert participated in AA classes and never tested
positive for drugs or alcohol while in prison, and that if he were released, he had several
job opportunities and that he would live with his mother and stepfather. Gilbert expressed
remorse for his offenses, claimed responsibility for his conduct, stated his conduct over the
last few years showed his remorse, and vowed to continue with the AA program if he were
released.
{¶ 6} On February 17, 2022, the trial court entered a decision granting Gilbert's
motion for judicial release. The trial court found that "a sanction other than a prison term
would adequately punish [Gilbert] and protect the public from future criminal violations by
[Gilbert] because the applicable factors indicating a lesser likelihood of recidivism outweigh
the applicable factors indicating a greater likelihood of recidivism." The court further found
that "a sanction other than a prison term would not demean the seriousness of the offense
because factors indicating that [Gilbert's] conduct in committing the offense was less
serious than conduct normally constituting the offense outweigh factors indicating that [his]
conduct was more serious than conduct normally constituting the offense."
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{¶ 7} In support of its decision, the trial court stated the following: Gilbert was 21
years old at the time of the offenses; had no prior juvenile adjudication or adult criminal
convictions and had lead a law-abiding life; was compliant with pretrial supervision when
he was placed on electronically monitored house arrest during the 766 days between
making bond and sentencing; and had obtained employment while on pretrial supervision,
a job that remained available to him should he be granted judicial release. The trial court
also stated that Gilbert had been incarcerated for 15 months during which time "he had no
doubt gained valuable insight into his behavior," had accrued only two minor prison
infractions, was classified as a Level 1 inmate, and had attended carpentry classes. The
court noted Gilbert's remorse and apology for his actions and that he had taken
responsibility for his actions by pleading guilty.
{¶ 8} The trial court noted that although Gilbert's alcoholism was a contributing
factor to the offenses, he had taken steps to address his alcoholism prior to sentencing and
during his incarceration; further, the offenses were committed under circumstances unlikely
to recur. The court stated its belief that supervision by the county probation department,
including one year of intensive supervision and the wearing of a SCRAM bracelet and GPS
monitor, would afford more supervision than the state prison system or the Adult Parole
Authority, and that the numerous comprehensive treatment options available outside the
prison system would provide Gilbert "greater opportunity to ensure that a repeat of his
behavior will not occur."
{¶ 9} The trial court found that the only applicable seriousness factor under R.C.
2929.12(B) was the "serious physical and psychological harm" suffered by the victim, and
that "substantial grounds exist to mitigate [Gilbert's] conduct, even if they don't constitute a
defense" under R.C. 2929.12(C).
{¶ 10} The trial court, therefore, ordered Gilbert be subject to five years of community
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control, which included one year of intensive supervision, the wearing of a SCRAM bracelet
and GPS monitor, attending Corrective Thinking Classes, and "zero tolerance." Gilbert was
also ordered to complete a drug and alcohol assessment and follow all recommended
treatment, and obtain and maintain full-time employment.
{¶ 11} The state now appeals, raising two assignments of error which will be
addressed in reverse order.
{¶ 12} Assignment of Error No. 2:
{¶ 13} THE TRIAL COURT CLEARLY AND CONVINCINGLY ERRED IN
GRANTING GILBERT JUDICIAL RELEASE WHERE IT FAILED TO LIST WHICH R.C.
2929.12 FACTORS IT RELIED UPON AS SPECIFICALLY COMMANDED BY STATUTE.
{¶ 14} The state argues that the trial court erred in granting Gilbert judicial release.
Specifically, the state asserts that the trial court failed to comply with R.C. 2929.20(J)(2) in
granting Gilbert judicial release because it failed to list all the R.C. 2929.12 factors that were
presented at the hearing.
{¶ 15} R.C. 2953.08(B)(3) provides that a state may appeal, as a matter of right, a
trial court's decision to grant judicial release to an offender sentenced for a felony of the first
or second degree. State v. Ledford, 12th Dist. Clermont No. CA2016-04-021, 2017-Ohio-
149, ¶ 11. "The standard of review applied by an appellate court in reviewing a trial court's
decision to grant judicial release is found in R.C. 2953.08(G)(2)." Id. Pursuant to R.C.
2953.08(G)(2), an appellate court may modify or vacate a sentence on appeal "only if it
determines by clear and convincing evidence that the record does not support the trial
court's findings under relevant statutes or that the sentence is otherwise contrary to law."
State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, ¶ 1.
{¶ 16} A hearing on a motion for judicial release is "a new hearing that requires by
statute a new evaluation of the [R.C. 2929.12] factors." Ledford at ¶ 16. When addressing
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a motion for judicial release, the trial court is authorized to look beyond the seriousness and
recidivism factors in determining whether to exercise its discretion in favor of judicial
release. Id. at ¶ 17.
{¶ 17} Judicial release is governed by R.C. 2929.20. Because Gilbert was
sentenced to a second-degree felony, R.C. 2929.20(J)(1) applies and provides:
A court shall not grant a judicial release under this section to an
eligible offender who is imprisoned for a felony of the first or
second degree * * * unless the court, with reference to factors
under section 2929.12 of the Revised Code, finds both of the
following:
(a) That a sanction other than a prison term would adequately
punish the offender and protect the public from future criminal
violations by the eligible offender because the applicable factors
indicating a lesser likelihood of recidivism outweigh the
applicable factors indicating a greater likelihood of recidivism;
(b) That a sanction other than a prison term would not demean
the seriousness of the offense because factors indicating that
the eligible offender's conduct in committing the offense was
less serious than conduct normally constituting the offense
outweigh factors indicating that the eligible offender's conduct
was more serious than conduct normally constituting the
offense.
{¶ 18} R.C. 2929.20(J)(2) provides that "[a] court that grants a judicial release to an
eligible offender under [R.C. 2929.20(J)(1)] shall specify on the record both findings
required in that division and also shall list all the factors described in that division that were
presented at the hearing." (Emphasis added.)
{¶ 19} After reviewing the record, we find that the trial court failed to comply with the
requirements of R.C. 2929.20(J)(2). The trial court articulated on the record the findings
required by R.C. 2929.20(J)(1)(a) and (b), but it did not list all the factors described in that
division that were presented at the judicial release hearing. Although the record of the
hearing demonstrates that evidence relating to the likelihood of recidivism and the
seriousness of Gilbert's conduct was presented by the parties and considered by the court,
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nowhere in the transcript of the judicial release hearing does the trial court specifically list
the factors that were presented, as required by R.C. 2929.20(J)(2). Furthermore, although
the trial court's entry granting judicial release provides an analysis of the applicable R.C.
2929.12 factors regarding Gilbert's likelihood of recidivism and the seriousness of his
conduct, the court did not specifically list all the factors that were presented, as required by
R.C. 2929.20(J)(2). See State v. Orms, 10th Dist. Franklin No. 13AP-698, 2014-Ohio-2732;
State v. Edwards, 3d Dist. Marion No. 9-04-67, 2005-Ohio-2246.
{¶ 20} We therefore sustain the state's second assignment of error, reverse the
judgment of the trial court, and remand the matter to the trial court to list all the factors
described in R.C. 2929.20(J)(1) that were presented at the hearing related to Gilbert's
likelihood of recidivism and the seriousness of his conduct in compliance with R.C.
2929.20(J)(2) and to reissue a decision on Gilbert's motion for judicial release. We express
no opinion as to whether the trial court properly granted Gilbert judicial release.
{¶ 21} Assignment of Error No. 1:
{¶ 22} THE TRIAL COURT ERRED IN GRANTING GILBERT JUDICIAL RELEASE
AS ITS FINDINGS UNDER R.C. 2929.20 WERE CLEARLY AND CONVINCINGLY NOT
SUPPORTED BY THE RECORD.
{¶ 23} The state argues that the trial court erred in granting Gilbert judicial release
because the trial court's findings under R.C. 2929.20(J) "were clearly and convincingly not
supported by the record." Our ruling on the second assignment of error renders this
assignment of error moot and it need not be considered. App.R. 12(A)(1)(c).
{¶ 24} Judgment reversed and remanded for further proceedings consistent with this
opinion.
PIPER and BYRNE, JJ., concur.
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