State v. Brandenburg
2016 Ohio 4918
Ohio Ct. App.2016Background
- Jonathan Brandenburg and a co-defendant committed multiple robberies at I-75 rest areas by luring travelers out of their vehicles and stealing their money; Brandenburg was arrested after one victim chased him into a rest-area bathroom.
- Brandenburg was indicted on two counts of robbery and later charged with failure to appear; he pleaded guilty to one count of robbery (third-degree felony) and an amended charge of attempted failure to appear (fifth-degree felony).
- The trial court ordered a presentence investigation and sentenced Brandenburg to three years for robbery and one year for attempted failure to appear, to be served concurrently.
- Brandenburg appealed his sentence; this court originally affirmed, but the Ohio Supreme Court remanded to apply the sentencing-review standard set forth in State v. Marcum.
- On remand, the Twelfth District reapplied the Marcum / R.C. 2953.08(G)(2) standard, reviewed the record, and again affirmed the sentence as not clearly and convincingly contrary to law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper standard for appellate review of felony sentences | State: R.C. 2953.08(G)(2) governs and restricts appellate relief to sentences that are clearly and convincingly contrary to law | Brandenburg: (implicit) trial court erred by imposing a prison sentence and appellate review should reverse/modify | Court applied Marcum and R.C. 2953.08(G)(2): appellate relief only if sentence is clearly and convincingly contrary to law or record does not support sentence |
| Whether trial court properly considered R.C. 2929.11/2929.12 and whether sentence is supported by the record | State: trial court considered PSI, criminal history, and factors supporting prison within statutory range | Brandenburg: trial court erred in imposing prison (claimed improper consideration or lack of support) | Held: Although the trial court did not orally cite R.C. 2929.11/2929.12 at sentencing, the record (and the court's judgment entry) shows proper consideration; sentence within statutory ranges and supported by the record, so not clearly and convincingly contrary to law |
Key Cases Cited
- State v. Marcum, 2016-Ohio-1002 (Ohio 2016) (sets R.C. 2953.08(G)(2) as the controlling standard for appellate review of felony sentences)
- State v. Elliott, 2009-Ohio-5926 (Ohio App. 2009) (sentence not clearly contrary to law where court considered statutory sentencing factors and imposed a term within the statutory range)
- State v. Ballard, 2015-Ohio-2084 (Ohio App. 2015) (judgment entry stating consideration of R.C. 2929.11/2929.12 can cure omission at the sentencing hearing)
- State v. Lancaster, 2008-Ohio-1665 (Ohio App. 2008) (same principle regarding sentencing-entry recital of statutory consideration)