State of Ohio v. Jody Gipson
Court of Appeals No. OT-21-001, OT-21-002, OT-21-003
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT OTTAWA COUNTY
June 17, 2022
[Cite as State v. Gipson, 2022-Ohio-2069.]
MAYLE, J.
Trial Court No. 20CR170, 20CR074, 19CR126
Anthony J. Richardson, II, for appellant.
DECISION AND JUDGMENT
MAYLE, J.
I. Introduction
{¶ 1} In these consolidated appeals, the defendant-appellant, Jody Gipson, challenges three October 30, 2020 judgments by the Ottawa County Court of Common
II. Background
{¶ 2} On June 27, 2019, Gipson was indicted on five drug-related offenses: two counts of aggravated possession of methamphetamine, trafficking in methamphetamine, possession of criminal tools, and money laundering. (Ottawa County Court of Common Pleas case No. 19CR126). At the change-of-plea hearing, Gipson pled guilty to a single count of aggravated possession of methamphetamine, in violation of
{¶ 4} A change-of-plea hearing was held with regard to the new indictments. In case No. 20CR74, Gipson agreed to plead guilty to two counts of aggravated trafficking in methamphetamine, in violation of
{¶ 5} In case No. 20CR170, Gipson agreed to plead guilty to violating a protective order, in violation of
{¶ 7} Sentencing was held with respect to all three cases on October 29, 2020. After hearing from the parties and the mother of the Gipson‘s young son, the trial court sentenced Gipson to an indefinite prison term of eight to 12 years in case No. 19CR126 and 24 months as to Count 1, 2, and 4 in case No. 20CR074, all terms to be served consecutively to one another, for a total period of incarceration of 14 to 18 years. Additionally, the trial court ordered Gipson to pay the mandatory fine of $7,500 and to forfeit $3,839.07 in case No. 19CR126. It ordered him to pay the mandatory fine of $5,000 in Counts 1, 2, and 4 and to forfeit $505 and his vehicle in case No. 20CR074. In the misdemeanor case, the court ordered Gipson to serve 180 days, concurrent to the felony sentences, and to pay $1,000 in fines (case No. 20CR170).
{¶ 8} Gipson appealed the judgments and raises the following assignments of error:
FIRST ASSIGNED ERROR: The trial court committed error by sentencing appellant to consecutive terms where the sentences are disproportionate to the seriousness of appellant‘s conduct.
SECOND ASSIGNED ERROR: The trial court committed error by not properly informing defendant about judicial release when he entered his plea.
THIRD ASSIGNED ERROR: The trial court committed error by imposing fines on appellant without making the necessary findings. FOURTH ASSIGNED ERROR: The trial court committed error by failing to properly apply the plain meaning and legislative intent of applicable statutes when sentencing appellant.
{¶ 9} For ease of discussion, we address Gipson‘s assignments of error out of order.
III. Judicial Release
{¶ 10} In his second assignment of error, Gipson argues that his guilty plea in case No. 19CR126 was involuntary because the trial court “misadvised” him regarding his eligibility for judicial release. Gipson seeks an order of remand to allow him to withdraw his guilty “pleas.”
{¶ 11} A plea of guilty or no contest in a criminal case “must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).
{¶ 12} As Gipson acknowledges,
{¶ 14} At the change-of-plea hearing involving the first indictment, Gipson entered a guilty plea with respect to a single offense, i.e. aggravated possession of drugs. Gipson was advised that he faced a maximum basic prison term of eight to twelve years, of which between two to eight years was mandatory (case No 19CR126; hereinafter referred to as “the first case“). The trial court advised Gipson that “[y]ou are, however, or would be eligible for Judicial Release. Now when you became eligible for Judicial Release would depend on your initial sentence.”
{¶ 15} On appeal, Gipson makes no mention of the court‘s misstatement. However, the state “concedes that the Court misspoke when it stated [that] Gipson would be[come] eligible” at some point during his mandatory sentence.
{¶ 16} In support of his claim—that his plea in the first case was involuntary—Gipson cites the September 15, 2020 change-of-plea hearing, which concerned the
{¶ 17} None of the offenses that he pled guilty to at that September hearing required a mandatory sentence. That is, in the second case, Gibson faced a maximum penalty of 36 months, as to each of the three felony offenses, but none was mandatory.1 Relative to judicial release, the court told Gibson,
[The court]: Okay. When it comes to sentencing, I will have two options. One is to send you to prison and the other is to place you on probation.
If you are sent to prison, you could shorten your prison time in a couple of ways.
* * *
You could be eligible for Judicial Release. When you become eligible for Judicial Release would be dependent upon what your original sentence was. The final decision about Judicial Release remains with the Court. Do you understand that?
[Gipson]: Yes sir. (Sept. 15, 2020 Tr. at 15).
{¶ 19} We find that the trial court‘s explanations failed to fully comply with
{¶ 21} Gipson claims that he would not have entered into the plea agreement had he known the trial court “misadvised” him, but he offers no facts from the record to show that that is actually the case.
{¶ 22} By contrast, the state points to the written plea agreements from the felony cases, both of which contain a proper explanation of the law. Thus, Gipson acknowledged in the first agreement that “[i]f I am sentenced to prison, I understand that I may be eligible to apply for judicial release after serving the mandatory time, if any, and a certain amount of prison time and the earliest date that I may apply depends on the total length of my prison sentence.
{¶ 23} Upon review, we find no facts in the record to suggest that the possibility of judicial release factored, in any way, in Gipson‘s decision to plead guilty in any of the cases and specifically in case No. 19CR126. Therefore, we cannot say that Gipson‘s
IV. Sentencing Challenges
{¶ 24} We review a challenge to a felony sentence under
- That the record does not support the sentencing court‘s findings under division (B) or (D) of section
2929.13 , division (B)(2)(e) or (C)(4) of section2929.14 , or division (I) of section2929.20 of the Revised Code, whichever, if any, is relevant; - That the sentence is otherwise contrary to law.
{¶ 25} A sentence is not clearly and convincingly contrary to law where the trial court has considered the purposes and principles of sentencing under
{¶ 26} In his fourth assignment of error, Gipson argues that only two years of the eight to 12-year sentence imposed in case No. 19-CR-126 should have been deemed mandatory and, therefore, his sentence was contrary to law.
{¶ 27} Again, Gipson was convicted of aggravated possession of methamphetamine, in violation of
{¶ 28} Consistent with the Reagan Tokes Act, the prison range for Gibson‘s second degree felony offense required an “indefinite prison term with a stated minimum term selected by the court of two, three, four, five, six, seven, or eight years and a maximum term that is determined pursuant to section
{¶ 29} At sentencing, the trial court selected a minimum term of eight years, the maximum amount allowed under
{¶ 30} On appeal, Gibson challenges only the mandatory term of his sentence. He contends that “only 2 years of the imposed prison term should be deemed mandatory,” not the full eight years. We disagree.
{¶ 31} Pursuant to the express terms of
(F) * * * [T]he court shall impose a prison term or terms under * * * section
2929.14 * * * of the Revised Code and except as specifically provided in section2929.20 , divisions (C) to (I) of section2967.19 , or section2967.191 of the Revised Code or when parole is authorized for the offense under section2967.13 of the Revised Code shall not reduce the term or terms pursuant to section2929.20 , section2967.19 , section2967.193 , or any other provision of Chapter 2967 or Chapter 5120 of the Revised Code for any of the following offenses: (5) A * * * second * * * degree felony drug offense for which section * * *2925.11 * * * of the Revised Code * * * requires the imposition of a mandatory prison term. (Emphasis added.)
{¶ 33} By its terms,
{¶ 34} For these reasons, Gipson‘s sentence was not contrary to law, and his first assignment of error is overruled.
B. Mandatory Fines
{¶ 35} Next, we address Gibson‘s third assignment of error, in which he argues that the trial court erred in imposing $22,500 in fines because it failed to consider his present and future ability to pay.
{¶ 36} In reviewing a trial court‘s imposition of costs and financial sanctions as part of a felony sentence, we apply the standard set forth in
{¶ 37}
{¶ 38} Here, Gipson was convicted of four offenses under R.C. Chapter 2925: one (1) second-degree offense and three (3) third-degree offenses. Thus, the trial court was required to impose a fine of at least $7,500 as to the second degree offense and at least $5,000 as to the third degree felony offenses, which are exactly the fines that the trial court imposed.
{¶ 39}
{¶ 41} Moreover,
{¶ 42} Accordingly, because Gipson did not file an affidavit alleging that he was indigent and unable to pay the mandatory fines prior to sentencing, the trial court was not required to consider Gipson‘s ability to pay those fines, and it did not err when it imposed the mandatory fines pursuant to
{¶ 43} Gipson‘s final sentencing challenge involves the trial court‘s decision to impose consecutive sentences.
{¶ 44} In general, it is presumed that prison terms will be served concurrently.
(4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the 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 while the offender 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 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.
{¶ 45} Thus, to impose consecutive sentences for convictions of multiple offenses, a trial court must make three statutory findings. State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 252. First, the court must find that “consecutive sentences are necessary to protect the public or to punish the offender.” Id. Second, the court must find that consecutive sentences “are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public.” Id.. Third, the court must find that
{¶ 46} Gipson acknowledges that the trial court made all of the required findings under
The Court finds that consecutive sentences are necessary to protect the 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 the danger that he poses to the public.
The Court finds the offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. (Oct. 29, 2020 Tr. at 16-17.)
{¶ 47} Those findings are also reflected in the trial court‘s October 30, 2020 judgment entries.
{¶ 48} On appeal, Gipson argues that the record does not support one of the court‘s findings, specifically that consecutive sentences are not disproportionate to the seriousness of Gibson‘s conduct. Pursuant to
{¶ 50}
{¶ 51} “When imposing a felony sentence, a trial court is required to consider certain factors established in
{¶ 52} We also specifically reject Gipson‘s portrayal of his drug offenses as “victimless crimes.” Gipson argues that the only person, besides himself, who was harmed in these cases was the confidential informant, whom Gipson describes as “not a victim.”
{¶ 53} Gipson acknowledged that he first sold methamphetamine to a man looking for “some drugs” and that Gipson “got him what drugs he wanted.” A few weeks later, the man called again, but this time, “he was working off some of his charges with the Drug Task Force.” In other words, Gipson did victimize the buyer, who faced his own addiction and legal problems that were, at a minimum, exacerbated by Gipson. Further, and more broadly, the possession, use, and distribution of illegal drugs “represent one of the greatest problems affecting the health and welfare of our population.” Treasury Emps. v. Von Raab, 489 U.S. 656, 668, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). By his actions, Gibson directly contributed to that problem by repeatedly polluting his community with illicit drugs. His was not a victimless crime. Accord State v. Allen, 2d Dist. Montgomery No. 29273, 2022-Ohio-1419, ¶ 14 (Finding trial court‘s conclusion—
{¶ 54} Finally, we add that the record contains ample evidence to support the trial court‘s finding that consecutive sentences “are not disproportionate to the seriousness of the offender‘s conduct.” Gipson was found with a “significant” amount of methamphetamine, twice, in June of 2019. However, not even the threat of mandatory prison time deterred Gipson from continuing to traffic in drugs, which he engaged in no fewer than three times in April and May of 2020. No doubt Gipson is, as he describes himself, an “addict,” but he is also a “menace” to his community, as he was described at sentencing. Upon review, we find no evidence, much less clear and convincing evidence, that the record does not support the trial court‘s finding that the imposition of consecutive sentences is not disproportionate to the seriousness of Gipson‘s conduct in these cases.
{¶ 55} “As long as the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record contains evidence to support the findings, consecutive sentences should be upheld.” State v. Smith, 6th Dist. Wood No. WD-19-082, 2021-Ohio-150, ¶ 15, quoting Bonnell at ¶ 29. Here, the trial court engaged in the correct analysis, and Gipson has failed to meet his burden of identifying clear and convincing evidence that the trial court‘s findings are not supported by the record. Accordingly, we find Gipson‘s first assignment of error not well-taken.
{¶ 56} For the reasons set forth above, Gipson‘s assignments of error are found not well-taken, and the October 30, 2020 judgments of the Ottawa County Court of Common Pleas in case Nos. 19CR126, 20CR074, and 20CR170 are hereby affirmed. Costs are assessed to Gipson pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J.
JUDGE
Christine E. Mayle, J.
Myron C. Duhart, P.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.supremecourt.ohio.gov/ROD/docs/.