State v. BrodyState v. Brody
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Mark E. Mulligan, Ottawa County Prosecuting Attorney, and Andrew M. Bigler, Assistant Prosecuting Attorney, for appellee.
William A. Settina, for appellant.
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JENSEN, J.
{¶ 1} This is an appeal from a judgment of the Ottawa County Court of Common Pleas sentencing appellant, Zachary Brody, to maximum consecutive sentences for the beating death of Phil Masterson. For the reasons that follow, we affirm the judgment of the trial court.
{¶ 3} The sentencing hearing was held May 23, 2012. The parties were given an opportunity to review the PSI. On page two, the PSI indicates: “The State of Ohio and Defendant have in their possession a copy of all reports regarding this matter, a copy of which is attached to the Court‘s copy of this report.” The trial court engaged Brody‘s counsel in the following colloquy:
THE COURT: Mr. Settina, has the defense had the opportunity to review the pre-sentence report?
MR. SETTINA: I have, Your Honor.
THE COURT: Are there any material changes that need to be made?
MR. SETTINA: No, Your Honor.
THE COURT: Any reason not to proceed to sentencing?
MR. SETTINA: No, Your Honor.
{¶ 4} Thereafter, statements were made by the state, the victim‘s parents, the attorney for the victim‘s family, Brody, Brody‘s counsel, and Brody‘s parents. The trial
I want to note in specific some of the issues that I have considered in fashioning a sentence, I have considered those factors in
2929.11 ,2929.12 аnd, as I said, police reports, witness statements and the rest.Some things that stuck out in my mind, some things that gave me concern. You never called the police. You never called to report an intruder, or a disturbance or an altеrcation. You never call the E.M.S. or the first responders to aid Mr. Masterson, not even anonymously.
You secluded the victim, I am thinking in order to inhibit his discovery by others. You took his wallet and his I.D. presumably to prevent his identification.
You went home and then returned to the island to further hide what was then Phil Masterson‘s body.
After you returned home, you gathered your essentials, your money, your passport. You acquired a cell phone that you believed couldn‘t be traced, presumably in anticipation of fleeing.
My review of the autopsy, the photographs, reveal, frankly, the worst beating I have ever seen inflicted without a weapon in my 37 years in this business.
I also noted that you had very little, if any, injury as a result of this altercаtion.
I think most disturbing is that after the beating, you checked on Phil Masterson repeatedly and left him to die. Each time, you chose to disregard the value of a human life. Each time, you checked on him and walked away and did nothing.
This was not onе instance of bad judgment, not an instance of bad judgment made in the heat of rage, but a series of judgments made over an extended period of time which, by my view, speaks less to your judgment and more to your character and your disregard for human life.
{¶ 5} The trial court sentenced Brody to consecutive prison terms of 10 years on the involuntary manslaughter charge and 36 months for each of the tampering with evidence charges, for a total of 16 years in prison. Apрellant filed a timely notice of appeal.
FIRST ASSIGNMENT OF ERROR
{¶ 6} Appellant sets forth three assignments of error, the first of which provides:
The sentencing Judge conducted an ex parte independent investigation into facts and evidence nоt contained within presentence report or evidence properly presented by either party when sentencing the Appellant, contrary to the Ohio Rules of Professional Responsibility 2.9 and therefore was disqualified аs an adjudicatory body.
{¶ 7} Under his first assignment of error, Brody asserts the trial court violated Rule 2.9(C) of the Code of Judicial Conduct prior to sentencing by independently investigating circumstances surrounding the underlying offense and by considering evidencе not properly presented to the court. Specifically, Brody contends the trial court went beyond the contents of the presentence investigation report by seeking and reviewing discovery provided by the proseсution.
{¶ 8} Preliminarily, we note this court is without jurisdiction to determine whether the sentencing judge violated the Code of Judicial Conduct by engaging in an ex parte independent investigation. “Allegations of judicial misconduct are not cognizablе on appeal but are matters properly within the jurisdiction of Disciplinary Counsel.” Parker v. Elsass, 10th Dist. Nos. 01AP-1306, 02AP-15, 02AP-144, 2002-Ohio-3340, ¶ 25, citing Szerlip v. Szerlip, 5th Dist. No. 01CA09, 2002-Ohio-2541, ¶ 18. See also State v. Richard, 8th Dist. No. 85407, 2005-Ohio-3723, ¶ 8.
{¶ 9} With that being said, there is no evidence contained in the record submitted by appellant that the trial judge erred by engaging in an independent invеstigation. As to the propriety of the PSI‘s contents, appellant conceded, at oral argument, that all of the
{¶ 10} Furthermore, by failing to object in the trial court, appellant has not properly preserved as error on appeal any issue regarding the items the trial court considered in fashioning appellant‘s sentence. “It is a gеneral rule that an appellate court will not consider any error which counsel for a party complaining of the trial court‘s judgment could have called but did not call to the trial court‘s attention at a time when such error could have been avoided or corrected by the trial court.” State v. Childs, 14 Ohio St.2d 56, 236 N.E.2d 545 (1968), paragraph three of the syllabus, citing State v. Glaros, 170 Ohio St. 471, 166 N.E.2d 379 (1960). See State v. Keefe, 6th Dist. No. E-12-014, 2013-Ohio-629 (appellant failed to preserve error by objecting to the trial court‘s use of another jurisdiction‘s PSI).
{¶ 11} For the foregoing reasons, appellant‘s first assignmеnt of error is found not well-taken.
SECOND ASSIGNMENT OF ERROR
{¶ 12} Appellant‘s second assignment of error contends:
Under
R.C. 2929.11(A) the sentencing Judge erred in imposing maximum sentences upon the Appellant contrary to law.
{¶ 13} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the Supreme Court of Ohio created a two-step analysis for reviewing felony sentences on aрpeal. First, the reviewing court is required to “examine the sentencing court‘s
{¶ 14} Here, the trial court stated in its sentencing judgment entry that it “considered the record, oral statements, all victim impact statements, and the pre sentence report prepared, as well as the principles and purposes of sentencing under
{¶ 15} The trial cоurt‘s ten year sentence for the first degree felony and three year sentences for each of the third degree felonies are within the statutory ranges and are not clearly and convincingly contrary to law.
{¶ 16} As to the secоnd inquiry—abuse of discretion—the appellate court must determine whether the trial court‘s attitude “was either unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
THIRD ASSIGNMENT OF ERROR
{¶ 17} Appellant‘s third assignment of error contends:
Under
R.C. 2929.14(C) the sentenсing Judge erred in imposing consecutive sentences upon the Appellant contrary to law.
{¶ 18} An appellate court must “review the record, including the findings underlying the sentence or modification given by the sentencing court.”
{¶ 19} According to
If multiple prison terms are imрosed on an offender for convictions of multiple offense, the court may require the offender to serve the prison terms consecutively if the court find that the consecutive service is
necessary to protect thе public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses was awaiting trial or sentencing, was under a sanction imposed pursuant to
section 2929.16 ,2929.17 , or2929.18 of the Revised Code , or was under post-release control for a prior offense.(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 20} “A trial court satisfies this statutory requirement when the record reflects that the court has engaged in the required analysis and has selected the appropriate statutory criteria.” State v. Goins, 8th Dist. No. 98256, 2013-Ohio-263, ¶ 10, citing State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). Here, the trial court considered the factors set forth in
{¶ 21} For the foregoing reasons, the judgment of the Ottawa County Court of Common Pleas is аffirmed. Costs of this appeal are assessed to appellant pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J. _______________________________
James D. Jensen, J. JUDGE
CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.