Login | November 15, 2018

9th District overturns robbery sentence in light of state’s appeal

TRACEY BLAIR
Legal News Reporter

Published: November 6, 2018

In an unusual reversal, the 9th District Court of Appeals has ruled that a Summit County trial court erred by deviating from the statutory presumption in favor of prison in a robbery case.

Charlesten Emanuel Gordon attacked a 15-year-old boy over a grudge he had held for several years, causing serious physical harm, according to appellate records.

He pleaded guilty to an amended count of robbery and felonious assault, both second-degree felonies, and was sentenced to three years of community control after the judge heard from both attorneys, Gordon and the defendant’s family members.

The state, which asked for at least two years in prison, appealed from the trial court’s decision to grant community control due to the severity of the offense.

The appellate panel cited R.C. 2929.13(D)(1), which found a prison term is necessary if an offender commits a first- or second-degree felony and a community control sanction would not demean the seriousness of the offense.

At sentencing, the state stressed that the victim was a juvenile and as a result of the incident suffered a broken jaw and had to have metal plates and screws placed in his head. The defense argued Gordon lacked a significant criminal history, showed remorse for the attack and was focusing on getting his life back on track.

The trial court described Gordon’s behavior as “heinous,” “childish, immature and impulsive.”

However, the trial judge added that he “wanted to believe he had changed,” and so would give him “once chance to prove that.”

The judge warned Gordon that if he violated community control, he would be sentenced to consecutive prison terms due to the “serious physical harm that he caused.” In the judgment entry, the court wrote that consecutive terms were not “disproportionate to the seriousness of his conduct and to the danger he poses to the public.”

The state claimed the sentence was contrary to law because the trial court deviated from the presumption in favor of prison without making the findings set forth in R.C. 2929.13(D)(2)(a) and (D)(2)(b). In addition, the court never found that a community control sanction would not demean the seriousness of the offense.

The state also argued the lower court was inconsistent by finding community control would not demean the seriousness of the offense, but, if he violated its terms, the seriousness of his conduct warranted consecutive prison terms.

Writing for the panel, Ninth District Judge Donna J. Carr found the record does not support the state’s allegation that the trial court failed to make the required findings under R.C. 2929.13(D)(2).

“When addressing Gordon, the court made a point of indicating that there were items it had to consider in order to overcome the presumption of prison that his offenses carried,” Judge Carr wrote, adding that the record also supports the findings it had to make to overcome the presumption.

However, the panel did find merit, in the state’s alternative argument that Gordon’s sentence rests upon wholly inconsistent statutory findings.

“The court’s finding that a deviation from the presumption in favor of prison would not demean the seriousness of Gordon’s offense is inconsistent with its finding that the seriousness of his conduct warranted the imposition of consecutive prison terms,” Judge Carr said in the opinion. “Both findings rested upon the seriousness of Gordon’s conduct, particularly in light of the serious physical harm to the victim. Thus, the two statutory findings are irreconcilable, and we cannot conclude that Gordon’s sentence is sound as a matter of law.”

Gordon’s sentence was vacated and remanded to allow the trial court to apply the correct statutory factors and resentence him with the applicable law.

Appellate judges Thomas Teodosio and Lynne Callahan concurred.

The case is cited State v. Gordon, 2018-Ohio-4196.


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