STATE OF OHIO, Plaintiff-Appellee, v. LARRY A. PISHNER, JR., Defendant-Appellant.
CASE NO. 2017-P-0004
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
December 29, 2017
[Cite as State v. Pishner, 2017-Ohio-8689.]
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2016 CR 00512.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Kristina Reilly, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Paul M. Grant, 209 South Main Street, Eighth Floor, Suite 3, Akron, OH 44308 (For Defendant-Appellant).
DIANE V. GRENDELL, J.
{1} Defendant-appellant, Larry A. Pishner, Jr., appeals his eight-year sentence for Felonious Assault. The issue before this court is whether an eight-year sentence is clearly and convincingly supported by the record where the court failed to make any findings indicating that recidivism was likely or expressly state that it considered the seriousness factors. For the following reasons, we affirm the decision of the court below.
{3} The charges in the Indictment were based on events involving Pishner and his wife, Brandy, occurring at their home on July 16, 2016.
{4} On August 24, 2016, the State, with leave of the trial court, entered a Nolle Prosequi as to Attempted Murder (Count Three) of the Indictment.
{5} On November 30, 2016, Pishner entered a Written Plea of Guilty to Felonious Assault, with the remaining Counts of the Indictment being dismissed on motion of the State.
{6} On January 3, 2017, a sentencing hearing was held. Counsel for Pishner urged a sentence “at the lower end of the prison range” in light of Pishner‘s acceptance of responsibility for his conduct, lack of criminal record, and “exemplary record” while in jail.
{7} David George Idell spoke on Pishner‘s behalf. He has known Pishner for ten years, since they were in the military together, and had never seen him show “any anger towards anyone.”
{8} Teresa Holland spoke on Pishner‘s behalf. She is the mother of Pishner‘s first wife and grandmother to his only child. She has known Pishner for many years and
{9} Debra Collins, Brandy‘s mother, spoke on behalf of the State. She loved Pishner for seventeen years as if he were her son and did not initially believe Pishner could have done what he did. She described Brandy‘s condition on the night of the incident as follows:
[S]he had half bitten-off fingers and broken fingers and a broken nose and a broken orbital bone. And the doctor was gonna have to build mesh up here (indicating), and bite marks all over her face and her body. Hunks of hair - her hair was in a ball of blood that we worked for two weeks trying to comb it out, and hunks and hunks of hair.
{10} Brandy Pishner addressed the court. She loved Pishner and agreed that he has a good side. She was “not really going to speak for or against it [sentencing] because it doesn‘t matter“: “I‘m broken.”
{11} The prosecutor addressed the court and explained that, on the night in question, the Pishners’ neighbors heard an escalating argument. It “sounded like rage coming from the Defendant‘s voice and all [the neighbor] could hear from Brandy was please help and stop.” Next he heard the sound of “a body being thrown up against a wall.” Finally, he heard the “blood-curdling scream” of Brandy‘s three-year-old nephew who was present. He summoned his wife and they immediately called 911.
{12} The officers who responded saw “the Defendant on top of Brandy in the garage through the main door * * * like watching an MMA cage fight with him on top of her just pummeling her head off the concrete garage floor.” By this time, “he had already pulled out chunks of her hair from her head, [and] had already bitten her all over.”
{14} The trial judge expressed her opinion that, if the police had not arrived, Pishner would have killed Brandy. She noted that Brandy insinuated that “there may have been signs of this coming about for some time” and that there are mental health issues. She also noted that she could “not imagine” what impact witnessing the attack has had on the child. The judge then pronounced sentence:
The Court must first consider the overriding principles of
2929.19 . First consideration is to protect the public from future crimes by the Defendant and others in this similar situation.The second is to severely punish the Defendant using the minimum sanctions that the Court determines accomplishes those purposes without imposing an unnecessary burden on the State or local government resources.
The Court understands and has taken into consideration the need for incapacitating the Defendant, deterring the Defendant and others from future crimes, rehabilitating the Defendant, making restitution to the victim of the crime or the public or both.
Weighing all the factors, a prison term is consistent with the purpose and principles of
2929.19 , and the Defendant is not amenable to available community control sanctions.Therefore, based on the injuries, protection of the public and others from crimes of this nature and from future crimes by the Defendant, the Defendant is going to be sentenced to the Ohio Department of Corrections for a period of eight years.
{15} The trial court further assessed a fine of $300 and advised Pishner that he would be subject to three years of mandatory post-release control.
{16} Pishner‘s sentence was memorialized on January 4, 2017.
{18} “[1.] The trial court erred to the prejudice of Mr. Pishner by imposing the maximum sentence based upon facts not contained in the record and the trial court‘s failure to consider
{19} For second-degree Felonious Assault, the maximum prison term that may be imposed is eight years.
{20} A sentencing court is not required “to make any particular ‘findings’ before imposing a statutory maximum prison sentence.” State v. Whitt, 2d Dist. Clark No. 2014-CA-125, 2016-Ohio-843, ¶ 8; State v. Sutton, 8th Dist. Cuyahoga Nos. 102300 and 102302, 2015-Ohio-4074, ¶ 74. Rather, the court has “full discretion to impose a prison sentence within the statutory range.” State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, paragraph three of the syllabus. The court is “merely required to consider the principles and purposes of sentencing as well as the seriousness and recidivism factors.” Whitt at ¶ 8;
{21} “The court hearing an appeal [of a felony sentence] shall review the record, including the findings underlying the sentence or modification given by the sentencing court.”
{22} Where the sentence imposed does “not require the findings that
{23} Pishner argues that the trial court failed to comply with the felony sentencing statutes by not considering the seriousness and recidivism factors set forth in
{24} The trial court‘s failure to expressly state that it had considered the seriousness and recidivism factors contained in
{25} In the present case, the trial court stated that, in consideration of the purpose and principles of felony sentencing, it was “[w]eighing all the factors,” which may reasonably be taken to refer to the
{26} Pishner further argues that the maximum sentence of eight years is not supported by clear and convincing evidence. He notes that everyone who testified at
{27} Pishner‘s characterization of these mitigating factors is misleading. Pishner did not expressly apologize to either Brandy or her family; rather, he apologized to the court, his family, and his daughter. Also, Brandy did not testify that Pishner‘s conduct was out of character for him. She intimated, albeit darkly, that, unlike the others who spoke at the hearing: “I * * * know what sixteen-and-a-half years has been. I know, not them. And he knows.”
{28} More compelling is the brutal nature of the assault. The trial judge expressed her reasonable belief that, if the case had proceeded to trial, Pishner would have been found guilty of Attempted Murder as charged in the Indictment, and that, if the police had not arrived, Pishner would have killed Brandy. Unlike Pishner, the trial court also noted the trauma caused the three-year-old witness of the assault, whose screams ultimately induced the neighbors to summon the police. These aspects of Pishner‘s case clearly and convincing support the court‘s imposition of an eight-year sentence.
{29} The sole assignment of error is without merit.
{30} For the foregoing reasons, the eight-year prison sentence imposed by the Portage County Court of Common Pleas is affirmed. Costs to be taxed against appellant.
CYNTHIA WESTCOTT RICE, P.J., concurs,
COLLEEN MARY O‘TOOLE, J., dissents with a Dissenting Opinion.
{31} I respectfully dissent.
{32} In this writer‘s opinion appellant is entitled to a resentencing hearing.
{33} When reviewing if an imposed sentence is supported by the record, we are required to use the standard set forth in
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 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;(b) That the sentence is otherwise contrary to law.
{34} This court has held that a sentence is contrary to law if the sentence is in excess of the statutory range for the offense, or the trial court failed to consider the purpose and principles of felony sentencing contained in
{35}
“(A) A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.
“(B) A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender‘s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.”
{36} The guidelines contained in
“(E) The sentencing court shall consider all of the following that apply regarding the offender, and any other relevant factors, as factors indicating that the offender is not likely to commit future crimes:
“(1) Prior to committing the offense, the offender had not been adjudicated a delinquent child.
“(2) Prior to committing the offense, the offender had not been convicted of or pleaded guilty to a criminal offense.
“(3) Prior to committing the offense, the offender had led a law-abiding life for a significant number of years.
“(4) The offense was committed under circumstances not likely to recur.
“(5) The offender shows genuine remorse for the offense.”
{37} The court is required under the above statutes to consider the seriousness and recidivism factors in each specific case. This is not merely advisory. In this
{38} Appellant‘s undisputed act of senseless and horrific violence appears, from all accounts, to be an anomaly. Appellant is a military veteran who, up until this time, had led a law-abiding life. If punishment were the only sentencing factor required by
{39} However, the purposes of the legislation and the required considerations under the statute are to insure fairness and a statutory basis for expending tax-payer dollars, not vengeance. The statute serves to focus the jurist to be thoughtful and mindful when imposing a sentence. The statute requires a properly considered, measured, thoughtful and transparent process by which the victim, the defendant, the public and other justice system partners can observe and understand that the sentence imposed was just and thoroughly thought out.
{40} Justice and the Constitution require mindfulness, transparency and fairness to all, not just a simple rote restatement of the statutory “magic words.” In this case the trial court failed to satisfy that basic requirement, therefore I would remand for resentencing.
{41} Respectfully, I dissent.
COLLEEN MARY O‘TOOLE
JUDGE, ELEVENTH APPELLATE DISTRICT