State v. McBee
2019 Ohio 2967
Ohio Ct. App.2019Background
- Brandon D. McBee was indicted for involuntary manslaughter, corrupting another with drugs, and aggravated drug trafficking; he pleaded guilty to involuntary manslaughter and other counts were dismissed.
- The plea and PSI preceded sentencing; the trial court imposed the maximum statutory term of 11 years for a first-degree felony.
- At plea, the prosecutor stated McBee sold fentanyl to Thomas Gardner, who died from an overdose.
- In sentencing, the court cited several factors: victim suffered "serious physical harm," the victim induced/facilitated the offense, McBee committed the offense while on post-release control, had prior trafficking convictions and other violent offenses, a poor response to prior sanctions, and lack of genuine remorse.
- McBee appealed, arguing (1) the court improperly used "serious physical harm" as a seriousness factor when death is an element of involuntary manslaughter and (2) the court’s finding of no genuine remorse was unsupported by the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court improperly relied on the victim's "serious physical harm" as a R.C. 2929.12(B) seriousness factor when death is an element of involuntary manslaughter | State: court may consider R.C. 2929.12 factors; serious physical harm can be distinct from death depending on facts | McBee: death is an element of involuntary manslaughter; using "serious physical harm" elevates an element and is improper | Court: "serious physical harm" is not synonymous with death; reliance on that factor was improper here because record lacked detail of pre-death serious harm, but error was harmless given other valid factors supporting the maximum term |
| Whether the court's finding that McBee showed no genuine remorse is unsupported by the record | State: credibility and sincerity of apology are for the sentencing court to assess | McBee: he apologized at sentencing, so the court's no-remorse finding is not supported | Court: sentencing court may disbelieve an apology; lack of genuine remorse finding supported by credibility determination; no error |
Key Cases Cited
- None: the opinion does not rely on authorities with official reporter citations for its primary holdings (appellate decisions cited in the text are unpublished or reported only in regional-district slip opinions).