State v. Brimacombe, 195 Ohio App. 3d 524

Brimacombe was indicted on one count of rape and four counts of sexual battery, alleging abuse of his stepson from 2003 to 2008 in his home in Sylvania, Ohio.
Prior to trial, Brimacombe’s bond included no-contact and weapon-surrender provisions; seven firearms were ordered surrendered by January 6, 2010.
In May 2010 Brimacombe pled guilty to rape; four sexual-battery counts were nolled; sentencing included a maximum ten-year term and Tier III sex-offender designation with five years of postrelease control.
The court ordered that all surrendered weapons be destroyed and provided a sentencing-scene discussion including victim impact and defense mitigation.
On appeal Brimacombe argues (1) the maximum sentence was an abuse of discretion and (2) the court lacked authority to destroy the firearms as forfeiture.
The court affirms the sentence in part and reverses in part, remanding to determine proper disposition of the firearms.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was Brimacombe's maximum sentence an abuse of discretion?	Brimacombe claims no on-record justification for the maximum term.	Brimacombe contends factors in R.C. 2929.12 were not properly weighed.	No abuse; within range and supported by record
Was the firearms destruction a legally proper forfeiture?	Destruction order lacked statutory basis and notice; constitutes improper forfeiture.	State asserts statutory authority to destroy as instrumentality.	Forfeiture order invalid; remand for proper disposition; severable from sentencing

Kalish, 120 Ohio St.3d 23 (2008) (two-pronged Kalish framework for reviewing felon sentences)
State v. Harris, 2008-Ohio-5873 (8th Dist. 2008) (discretionary review of sentence within range)
State v. Kase, 187 Ohio App.3d 590 (2010) (recognizes Kalish factors and review standards in this district)