[Cite as State v. Gannon, 2016-Ohio-7610.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                               Nos. 103909, 103910, and 103911




                                     STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                MICHAEL J. GANNON
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                              Criminal Appeal from the
                       Cuyahoga County Court of Common Pleas
           Case Nos. CR-15-596883-A, CR-15-597503-A, and CR-15-596543-A

        BEFORE: S. Gallagher, J., McCormack, P.J., and Boyle, J.

        RELEASED AND JOURNALIZED: November 3, 2016
ATTORNEY FOR APPELLANT

Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Melissa Riley
          Daniel T. Van
Assistant Prosecuting Attorneys
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

       {¶1}   Michael Gannon challenges his conviction for aggravated robbery with

notice of prior conviction and repeat violent offender specifications and the resulting

22-year aggregate sentence.       The trial court exercised its discretion under R.C.

2929.14(B)(2)(a) and sentenced Gannon to a term of 11 years on the aggravated robbery,

and an additional eight years for the repeat violent offender specification. The remaining

three years were consecutively imposed in another case; however, no arguments were

advanced challenging that aspect of Gannon’s aggregate sentence. Although Gannon

filed a notice of appeal in three separate cases, which were consolidated on appeal, his

appellate brief only addresses his aggravated robbery conviction and the associated

19-year prison sentence.

       {¶2} The factual record of the underlying crime is relatively sparse in light of the

plea deal reached between the state and Gannon. For the purposes of this appeal, it

suffices that Gannon accosted and robbed a victim of her purse by hitting her in the head

with a hammer. The incident happened at 2:00 a.m., when the victim was returning to

her Lakewood apartment from the airport after a flight related to her job. Gannon ran up

behind her with the hammer and struck her without warning.                 The victim was

hospitalized and received eight staples in her head. In 2007, Gannon was also convicted

or pleaded guilty to another robbery. The state used that earlier conviction as its basis for

the repeat violent offender specification.
       {¶3} Gannon complains that the trial court failed to adequately inform him of the

maximum potential sentence for the purposes of his decision to plead guilty or, in the

alternative, that his trial counsel improperly advised him of the potential sentence.

Disregarding the fact that Gannon has not presented anything in the record demonstrating

his counsel’s advisement one way or the other, Gannon’s arguments are built upon an

underlying presumption that is true only in the vacuous sense — that Gannon was not

advised of the implications of R.C. 2929.14(B)(2)(b). R.C. 2929.14(B)(2)(b) requires

the trial court to impose the maximum sentence on the felony offense and an additional

term for the repeat violent offender specification if, among other things, the offender has

three prior convictions for an offense of violence or aggravated murder in a 20-year

period. Gannon was not sentenced, or even indicted, under R.C. 2929.14(B)(2)(b).

       {¶4} Gannon pleaded guilty to aggravated robbery and a repeat violent offender

specification predicated upon a single prior conviction.      As a result, the trial court

correctly advised during the plea colloquy that Gannon could be sentenced to an

additional definite term of prison ranging from one to ten years if (1) he pleaded guilty to

the R.C. 2941.149 repeat violent offender specification and the aggravated robbery; (2)

the court imposed the maximum sentence on the underlying felony offense; and (3) the

trial court found that the underlying felony sentence was (a) “inadequate to punish the

offender and protect the public from future crime” because the R.C. 2929.12 recidivism

factors predominated, and (b) “demeaning to the seriousness of the offense.”           R.C.
2929.14(B)(2)(a). At the sentencing hearing, the trial court made the required findings,

and the orally imposed sentence otherwise complied with R.C. 2929.14(B)(2)(a).

       {¶5} The trial court acknowledged, several times in fact, that although a prison

term was required based on the notice of prior conviction specification, the court was not

required to impose a specific term, much less the maximum sentence on the underlying

felony offense. Tr. 5:2-24;1 11:8-12:11;2 and 22:15-22.3 As the trial court repeatedly

informed Gannon, if the maximum term was imposed, an additional term under the repeat

violent offender specification could be imposed. At all times, the trial court correctly

acknowledged that the length of the possible prison term was entirely up to the court’s

discretion and could potentially range from three to 21 years. This demonstrates that the

trial court was not under the impression that the maximum penalty on the underlying


       1
        The trial court clarified that the length of the prison term was discretionary even though the
notice of prior conviction specification mandated that a term of prison must be imposed, as the
prosecutor recited the terms of the plea deal.
       2
        The trial court asked Gannon if he understood that

       [t]he notice of prior conviction specification[, under R.C. 2929.13(F)(6)] requires me
       to impose a prison term somewhere between those two numbers, between 3 and 11. *
       * * The repeat violent offender specification means that if I impose on you the highest
       level of punishment of the crime of 11 years, I also have the discretion of imposing an
       additional one, two, three, four, five, six, seven, eight, nine or ten additional years on
       top of that.

Gannon answered in the affirmative.
       3
           In summarizing the proceedings at the sentencing hearing, the trial court reiterated that in
light of the notice of prior conviction, a 3- to 11-year term in prison was mandatory, but the repeat
violent offender specification provided for an additional discretionary term if the 11-year sentence was
imposed by the trial court.
felony offense and an additional term were required under R.C. 2929.14(B)(2)(b). If the

trial court had been under the impression that Gannon had been indicted under R.C.

2929.14(B)(2)(b), the sentencing range would have been 12 to 21 years, not the 3- to

21-year range consistently discussed.

       {¶6} In his appeal, Gannon attempted to shift the narrative and argue that the trial

court was under the impression that the maximum sentence on the underlying felony was

mandatory. Gannon’s confusion stems from the final sentencing entry, which does not

accurately reflect the trial court’s oral pronouncements at the sentencing hearing or the

nature of the final sentence that was imposed. The final sentencing entry provides that

       [t]he court imposes a prison sentence at the Lorain Correctional Institution
       of 19 year(s). 11 years on count 1; RVOs = additional 8 years for total of 19
       years. The basic ten is inadequate to protect and demeans the seriousness
       of the offense and there was serious physical harm plus 3 violent offenses in
       the last 20 years.

In referencing the three violent offenses in the last 20 years, the sentencing entry mimics

the elements of R.C. 2929.14(B)(2)(b). As already explained, R.C. 2929.14(B)(2)(b)

was not the applicable sentencing guideline; the trial court did not make those findings at

the sentencing hearing, and nothing in the record demonstrates that the trial court believed

that section to be applicable. The trial court made the findings as required under R.C.

2929.14(B)(2)(a) and used Gannon’s extensive history of criminal conduct as a basis to

conclude that the base sentence was inadequate to protect the public.4 Nothing in the


       4
        The trial court noted that Gannon had previously been sentenced to prison on at least four
separate occasions, totaling 19 years’ worth of prison sentences served. Gannon’s record was
extensive and included convictions for aggravated burglary, burglary, robbery, and theft. Tr.
record demonstrates that the trial court harbored any misunderstanding of the sentencing

laws. The final entry is a product of a simple clerical mistake and can be corrected

through a nunc pro tunc entry to reflect that which actually occurred.

       {¶7} In light of the foregoing, we find no merit to either of Gannon’s assigned

errors. His convictions in all three appealed cases are affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.     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.



SEAN C. GALLAGHER, JUDGE

TIM McCORMACK, P.J., and
MARY J. BOYLE, J., CONCUR

.




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