State v. GipsonState v. Gipson
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 6, 2023
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Benjamin Fuchs, Assistant Prosecuting Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and Aaron T. Baker, Assistant Public Defender, for appellant.
MICHAEL JOHN RYAN, J.:
{¶ 1} Defendant-appellant Evelyn Gipson appeals the consecutive nature of her sentence after she pleaded guilty to two counts of passing bad checks and one
{¶ 2} In December 2021, Gipson was charged in a 15-count indictment with seven counts of forgery, pursuant to
{¶ 3} In August 2022, Gipson entered into a plea agreement with the state of Ohio and pleaded guilty to two counts of passing bad checks, in violation of
{¶ 4} The court referred the case to the probation department for a presentence investigation report (“PSI”) and to the court psychiatric clinic for a mitigation of penalty report. At the sentencing hearing, the court emphasized Gipson’s criminal history, which included 36 prior convictions, most of which were for theft-related offenses, and multiple probation violations. The court noted that Gipson had been convicted in both Cuyahoga and Summit County and in the cities of Cleveland, Akron, and Bedford.
{¶ 5} The trial court sentenced Gipson to 12 months in prison on each count, to run consecutive, for a total of three years in prison, a $250 fine, and restitution.
{¶ 6} Gipson raises one assignment of error for our review:
I. The trial court record does not support the imposition of three consecutive sentences in the aggregate.
{¶ 7} The presumption is that prison sentences will be served concurrently.
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction * * *, 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 prison 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.
{¶ 8} In her sole assignment of error, Gipson argues that the trial court record does not support the imposition of three consecutive sentences. Gipson can challenge her consecutive sentences in two ways. Gipson can argue that her
{¶ 9} Pursuant to
{¶ 10} In Gwynne, the Ohio Supreme Court addressed (1) “whether trial courts must consider the overall aggregate prison term to be imposed when making the consecutive-sentence findings under
{¶ 11} The trial court made the following findings at the sentencing hearing when it imposed Gipson’s sentences consecutively:
That consecutive sentences are necessary to protect the public from future crimes, that consecutive sentences are necessary to punish the offender. The court finds that consecutive sentences are not disproportionate to the seriousness of the conduct, and the court finds that the offender’s history of criminal conduct of the same nature demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. * * * There’s a high chance of recidivism.
{¶ 12} Although the trial court is required to make the statutory findings both at the sentencing hearing and in the sentencing entry, the court is not obligated to state reasons in support of its findings. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 37.
{¶ 13} Gipson does not contest that the trial court made the requisite statutory findings under
{¶ 14} Our next step is to consider if the record clearly and convincingly does not support the trial court’s consecutive-sentence findings. Gipson argues that the trial court failed to consider the overall number of consecutive sentences and the aggregate sentence imposed when it decided to run all three counts consecutively for a three-year prison term.
{¶ 15} We recognize that the trial court did not state on the record it was considering the length of each of Gipson’s sentences or the total sentence. The Gwynne court did not impose such a requirement:
[E]ach count that a trial court imposes consecutively and the overall aggregate prison term that results is integral to the necessity and proportionality finding. * * * While there are no “magic words” that need to be made by the trial court, those considerations are integral to the consecutive-sentence findings that are made, and each stacked prison term and the overall prison term is wholly reviewable under the standard set forth in
R.C. 2953.08(G)(2) .
Gwynne, Slip Opinion No. 2022-Ohio-4607, at ¶ 17, fn. 3.
{¶ 16} Thus, contrary to Gipson’s argument, the trial court was not required to affirmatively set forth on the record that it had considered the length of each of her sentences as well as her aggregate sentence; the record must reflect, however, that the court did in fact make that consideration.1
{¶ 17} We do not agree with Gipson that the record is devoid of evidence to support the imposition of consecutive sentences. The trial court record is but one
{¶ 18} According to Gipson’s PSI, she used seven different names, six addresses, two P.O. boxes, 31 phone numbers, and 14 different driver’s licenses to forge and pass bad checks at Staples stores in Ohio and Alabama from 2013 through August 3, 2021. The total loss to Staples was $67,056.91.2
{¶ 19} Gipson’s lengthy criminal record dates back to 1981 and includes 36 convictions, most of which are for theft-related crimes at Northeast Ohio stores. Gipson has been placed on probation numerous times and frequently violated the terms of her probation. She has been repeatedly incarcerated, either as part of her sentence or for violating the terms of her probation. Prior to this case, Gipson was sentenced to one year in prison for passing bad checks and theft. See State v. Gipson, Lake C.P. No. 17CR001118 (Jun. 19, 2018). Within months after her release for serving time in that case, Gipson recommenced passing bad checks at Staples, committing the crimes that form the basis of the indictment in this case. Even after Gipson was indicted in this case, she continued to pass bad checks and was indicted in two area municipal courts.
{¶ 21} After reviewing the entire record de novo, we do not clearly and convincingly find that the evidence in the record did not support Gipson’s consecutive sentences. There was ample evidentiary support for the trial court’s findings that consecutive service was necessary to protect the public from future crime and to punish Gipson, that consecutive sentences were not disproportionate to the seriousness of Gipson’s conduct and to the danger she posed to the public, and that Gipson’s extraordinary criminal history demonstrated that consecutive sentences are necessary to protect the public from future crime. We further find that the evidence in the record supports three consecutive 12-month sentences for a total of three years in prison. Accordingly, the trial court’s decision to impose consecutive sentences was not contrary to law.
{¶ 22} The sole assignment of error is overruled.
{¶ 23} Judgment affirmed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant’s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MICHAEL JOHN RYAN, JUDGE
KATHLEEN ANN KEOUGH, P.J., and EMANUELLA D. GROVES, J., CONCUR