State v. GurtoState v. Gurto
Colleen M. O’Toole, Ashtabula County Prosecutor, and Michael J. Bodyke, Assistant Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
Jerri Mitchell-Tharp, P.O. Box 1126, Fairport Harbor, OH 44077 (For Defendant-Appellant).
EUGENE A. LUCCI, J.
{¶1} Appellant, Joshua Dale Gurto, appeals his sentence following his guilty pleas to two counts of aggravated burglary, one count of rape, and one count of felonious assault. We affirm.
{¶2} On December 18, 2004, between midnight and 1:00 a.m., a woman returned home alone from her job as a bartender. After falling asleep watching television, she awoke to a noise in her home. She disregarded the noise and returned to sleep. She later awoke to a stranger holding his hand around her throat and a hammer to her head. After attempting to plead with the intruder, the victim lost consciousness on the bed. At
{¶3} Thereafter, an indictment was filed charging Gurto with two counts of aggravated burglary, a first-degree felony, in violation of
{¶4} Gurto initially entered not guilty pleas to all counts. However, he thereafter changed his plea to guilty on all counts. The parties waived a presentence investigation, and the trial court proceeded to sentencing shortly thereafter on the same date. The court determined that the two aggravated burglary counts merged for purposes of sentencing. In an entry dated May 16, 2022, the trial court sentenced Gurto to ten years of incarceration on the first count of aggravated burglary, ten years of incarceration on the
{¶5} In his first and second assigned errors, Gurto argues:
{¶6} “[1.] Defendant-Appellant’s Constitutional rights to Due Process and fair trial under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution were prejudiced by the ineffective assistance of tr[ia]l counsel.”
{¶7} “[2.] The trial court committed prejudicial error when it denied Defendant-Appellant’s Right to Remain Silent as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.”
{¶8} Gurto’s first and second assigned errors pertain to trial counsel’s failure to present a mitigating argument at sentencing and Gurto’s election to waive allocution, respectively. At sentencing, the following exchange occurred:
THE COURT: All right. I would like to hear now from the defense, [defense counsel], if you would, on behalf of the Defendant.
[DEFENSE COUNSEL]: Well, ma’am, at this time, I have spoken with my client and he doesn’t feel that there’s anything else to say here today.
THE COURT: Okay. Mr. Gurto, the Court has to аsk you by statute, is there anything that you want to say prior to sentencing in this case?
THE DEFENDANT: No, there’s not, Your Honor.
THE COURT: You know, ’cause I think the victim would really like to know, how did you pick out her house? Ah, was it by chance? Had you stalked the residence?
[DEFENSE COUNSEL]: Ma’am, I’m going to object. I don’t -- my client, we have the option of giving this Court information, and my client has indicated that he -- THE COURT: He don’t want to give any information; is that what you’re saying?
[DEFENSE COUNSEL]: That is correct.
THE COURT: No. I want to hear it from him. There’s nothing you want to say on your behalf in mitigation; is that what you are saying?
THE DEFENDANT: There’s nothing that I wаnt to say, Your Honor.
{¶9} Despite Gurto’s waiver of allocution and the absence of a presentence investigation report, the trial court thereafter specifically determined that Gurto lacked remorse, stating that the harm caused by the offenses was “so great and beyond anyone’s comprehension that another human being could do this to another human being without remorse[.]”
{¶10} In his first assigned error, Gurto argues that trial counsel was ineffective for failing to offer mitigating factors during Gurto’s sentencing.
{¶11} To prevail on an ineffective assistance of counsel argument, the accused must demonstrate “(1) his counsel was deficient in some aspect of his representation, and (2) there is a reasonable probability, were it not for counsel’s errors, the result of the proceedings would have been different.” State v. Hope, 2019-Ohio-2174, 137 N.E.3d 549, ¶ 88 (11th Dist.), citing Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶12} Although defense counsel did not offer any argument in mitigation of the offenses, Gurto does not direct us to any evidence contained in the rеcord that would
{¶13} Accordingly, Gurto’s first assigned error lacks merit. Moreover, we note that, although the state further maintains that the record implies Gurto competently authorized counsel to waive an argument in support of mitigation, we need not, and do not, address this issue.
{¶14} In his second assigned error, Gurto contends that the trial court erred by using Gurto’s right to remain silent against him during sentencing by inferring that Gurto lacked remorse.
{¶15} This argument implicates the trial court’s consideration of the sentencing factor contained in
{¶16} In Mitchell v. United States, 526 U.S. 314, 317, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999), the United States Supreme Court held that a sentencing court may not draw an adverse inference from a defendant’s silence “in determining facts about the crime which bear upon the severity of the sentence[.]” However, Mitchell “did not address whether a defendant’s ‘silence bears upon the determination of a lack of remorse, or upon the acceptance of responsibility for the purposes of the downward adjustment provided in [the federal sentencing guidelines].’” Brunson at ¶ 76, quoting Mitchell at 330.
{¶17} Although Mitchell did not address whether lack of remorse could be inferred from a defendant’s silence at sentencing, the Ohio Supreme Court has found a subsequent United States Supreme Court decision instructive on this issue:
While Mitchell did not answer whether a negative inference about a defendant’s silence may bear upon a remorse or responsibility determination, the Supreme Court’s decision in White v. Woodall, 572 U.S. 415, 422, 134 S.Ct. 1697, 188 L.Ed.2d 698 (2014), is informative. In Woodall, the Supreme Court commented that Mitchell, in fact, may permit some negative inferences regarding a defendant’s silence at sentencing because it declined to adopt a “blanket no-adverse-inference instruction” in that case. Woodall at 422, 134 S.Ct. 1697. The Woodall dissent criticized the majority for that statement, noting that the court in Mitchell specifically “‘express[ed] no view on it.’” Woodall at 430, 134 S.Ct. 1697 (Breyer, J., dissenting), quoting Mitchell at 330, 119 S.Ct. 1307. Nevertheless, the Supreme Court’s discussion of Mitchell in Woodall implies that it may be reasonable for a court to consider а defendant‘s silence at sentencing as a demonstration of that defendant’s lack of remorse.
{¶18} In Brunson, the Ohio Supreme Court held that “a trial court errs in its evaluation of a defendant’s lack of remorse when it considers that defendant’s decision to waive allocution and remain silent at sentencing if the defendant pleaded not guilty and exercised his or her right to a jury trial.” (Emphasis added.) Brunson, 2022-Ohio-4299, at ¶ 4. In making this determination, the Ohio Supreme Court stated that the “focus in determining whether a negative inference from a defendant’s silence may be considered as a demonstration of that defendant’s lack of remorse is on whether the inference affects the factual determinations in the case.” Id. at ¶ 78. The court explained:
Because “remorse” is a loaded term and showing remorse requires a person to acknowledge that he or she committed an offense, a finding of a lack of remorse necessarily goes “to factual determinations respecting the circumstances and details of the crime” (emphasis sic), Mitchell, 526 U.S. at 328, 119 S.Ct. 1307, 143 L.Ed.2d 424, because it implicates the defendant‘s role in the crime. For a criminal defendant who pleaded not guilty and took the case to trial, thus maintaining his or her innocence, a finding of a lack of remorse based on the defendant’s silence is to use that silence to infer the defendant‘s involvement in the crime. If the trial court is permitted to use the defendant’s silence to infer his or her involvement in the crime, the defendant “might reasonably feel compelled to trade the certainty of incrimination by silence for the possibility of incrimination by statement.” State v. Leach, 102 Ohio St.3d 135, 2004-Ohio-2147, 807 N.E.2d 335, ¶ 40 (O‘Connor, J., concurring). Such an inference would violate the Fifth Amendment. See Mitchell at 326-327, 119 S.Ct. 1307 (any effort by the state to compel a defendant to testify at sentencing would clearly contravene the Fifth Amendment). And such an inference would go against the essential purpose of the right to remain silent—“to protect a defendant from being the unwilling instrument of his or her own condemnation,” id. at 329, 119 S.Ct. 1307.
This conclusion is also supported by our оwn precedent discussing allocution. The defendant has a right to allocute in Ohio under
Crim.R. 32(A)(1) for the purposes of making astatement on his or her own behalf or presenting information, like a statement of remorse, in mitigation of punishment. See State v. Green, 90 Ohio St.3d 352, 359, 738 N.E.2d 1208 (2000) (the trial court erred in failing to ask the defendant whether he had anything to say prior to being sentenced). But this court has stated that “renewed challenges to the adjudication of guilt are not a proper part of allocution.” State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 204. It is easy to see why a defendant who maintаins his or her innocence may waive allocution, since allocution is not meant to serve as a time to renew challenges to guilt and a defendant cannot express remorse for a crime that he or she denies committing. State v. Campbell, 90 Ohio St.3d 320, 325, 738 N.E.2d 1178 (2000) (a defendant may waive the right to allocute). For a defendant to engage in allocution and express remorse, he or she necessarily acknowledges wrongdoing. For these reasons, we conclude that when a defendant has maintained his or her innocence by pleading not guilty and has taken the case to trial, the trial court errs when it considers the defendant’s silence to be a demonstration of that defendant’s lack of remorse for purposes of sentencing under
R.C. 2929.12(D)(5) . To consider the defendant’s silence as a lack of remorse in this context would create a negative inference regarding the factual determinations in the case—an inference that is prohibited under Mitchell. See, e.g., State v. Burgess, 156 N.H. 746, 756, 943 A.2d 727 (2008) (collecting cases); State v. Willey, 163 N.H. 532, 545, 44 A.3d 431 (2012); People v. Young, 987 P.2d 889, 894 (Colo.App.1999), as modified on denial of rehearing (Apr. 15, 1999) (a trial court may not consider a lack of expression of remorse as an aggravating circumstance when a defendant maintains his innocence and invokes his Fifth Amendment right to remain silent); Brake v. State, 113 Nev. 579, 585, 939 P.2d 1029 (1997); State v. Shreves, 313 Mont. 252, 2002 MT 333, 60 P.3d 991, ¶ 19. Therefore, the trial court’s consideration of Brunson’s decision to waive allocution and remain silent at sentencing when assessing his lack of remorse for its recidivism determination was error.
{¶19} Here, Gurto argues that the trial court’s inference of a lack of remorse based upon Gurto’s silence at sentencing violates the Mitchell holding. However, as recognized
{¶20} Here, Gurto pleaded guilty to all charges against him. Under these circumstances, we cannot discern how an inference of lack of remorse pertains to facts of the case, as Gurto already acknowledged wrongdoing through his guilty plea.
{¶21} Accordingly, we conclude that the trial court was not precluded from inferring a lack of remorse from Gurto’s silence at sentencing.
{¶22} Therefore, Gurto’s second assigned error lacks merit.
{¶23} In his third assigned error, Gurto maintains:
{¶24} “The trial court committed revers[i]ble and plain error when it sentenced Defendant-Appellant to consecutive, maximum terms without strictly complying with the Ohio Revised Code[.]”
{¶25} As addressed in our discussion of Gurto’s second assigned error,
The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing
court for resentencing. The appellate court’s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following: (a) That the record does not support the sentencing court’s findings under division (B) or (D) of seсtion 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶26} “Clear and convincing evidence is that ‘which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.’” State v. Briggs, 10th Dist. Franklin No. 21AP-144, 2022-Ohio-1950, ¶ 9, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶27} In his third assigned error, Gurto first argues that the trial court erred by imposing maximum sentences without making proper findings pursuant to
{¶28}
{¶29} This court has frequently noted that “even though a trial court is required to consider the
{¶30} Here, nothing in the transcript affirmatively indicates that the court failed to consider the principles and purposes of sentencing. To the contrary, the trial court specifically indicated at sentencing:
The Court has considered the purposes and principles of sentencing. To not sentence you to prison would demean the seriousness of the offense and not adequately protect society from future criminal conduct by yourself and others, pursuant to 2929.11 and 2929.12.
{¶31} Nonetheless, Gurto further maintains that the trial court could not have considered the factors contained in
{¶32} Accordingly, to the extent that Gurto argues that the trial court erred by failing to make findings as to, and failing to consider, the factors contained in
If multiple prison terms are impоsed 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 аlso finds any of the following:
* * *
(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.
{¶34} “[A] trial court is required to make the findings mandated by
{¶35} Here, at sentencing, the trial court stated:
The court finds that consecutive sentences are necessary to protect the public from future criminal conduct by yourself and others.
The harm caused in these two offenses, actually, three offenses -- the aggravated burglary, the rape and the bludgeoning of the victim with a hammer -- is so great and beyond anyone’s comprehension that another human being could do this to another human being without remorse, the court finds that no single prison sentence is adequate to protect society from future criminal conduct by yourself and others.
The Court has determined that the Defendant shall serve prison terms consecutively pursuant to
R.C. 2929.14 and that consecutive sentences are necessary to protect the public from future crime and to punish the Defendant, and that consecutive sentences will not be disproportionate to the seriousness of the Defendant’s conduct and to the danger the Defendant poses to the public. The Court further finds that these offenses were committed as part of one or more courses of conduct, and the harm caused by these 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 Defendant’s conduct.
{¶37} Gurto maintains that, although the sentencing entry recites the proper findings relative to
{¶38} “However, a word-for-word recitation of the language of [
{¶39} Accordingly, we look to whether we can discern from the record that the trial court engaged in the correct analysis of whether the offenses were committed as one or more courses of conduct. “The Supreme Court has held in another setting that in order to find that two offenses were part of a single course of conduct, a trial court ‘must * * *
{¶40} Here, at sentencing, when discussing whether any of the offenses merged for purposes of sentencing, an issue addressed below, the trial court stated that “there is nothing worse than being in your bed at night and a stranger gets into your house, and not only do they rape you but they hit you repeatedly with a hammer.” This statement reflects that the court appropriately considered that the offenses were connected, as the court’s statement implicates that each offense involved the same victim, on the same date, at the same location.
{¶41} We cannot say the triаl court erred in failing to specifically state that the offenses were part of a course of conduct at the sentencing hearing. Accordingly, to this extent, Gurto’s third assigned error lacks merit.
{¶42} In his fourth assigned error, Gurto contends:
{¶43} “The trial court committed revers[i]ble and plain error when it used the wrong standard when determining whether certain counts of the Indictment merge for purposes of sentencing.”
{¶44}
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similаr import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶45} Accordingly, “[u]nder
{¶46} Here, at sentencing, the trial court merged the two aggravated burglary counts, but, with respect to the remaining counts, concluded that they did not merge as they were committed with separate animus. In making its merger determinations, the trial court referenced Johnson.
{¶47} Gurto maintains that the trial court erred in relying on Johnson instead of Ruff. However, the court found that the sentences in the remaining counts did not merge because the offenses were committed with separate animus. Ruff itself holds that sentences for offenses do not merge when “the conduct shows that the offenses were committed with separate animus.” Ruff at paragraph three of the syllabus. Accordingly,
{¶48} Accordingly, Gurto’s fourth assigned error lacks merit.
{¶49} The judgment is affirmed.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.