[Cite as State v. Gore, 2016-Ohio-7667.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                   :

                 Plaintiff-Appellee,             :               No. 15AP-686
                                                             (C.P.C. No. 14CR-2828)
v.                                               :
                                                          (REGULAR CALENDAR)
Anthony K. Gore,                                 :

                 Defendant-Appellant.            :




                                           D E C I S I O N

                                    Rendered on November 8, 2016


                 On brief: Ron O'Brien, Prosecuting Attorney, and Valerie B.
                 Swanson, for appellee.

                 On brief: Yeura R. Venters, Public Defender, and Timothy E.
                 Pierce, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas

BROWN, J.
        {¶ 1} Anthony K. Gore, defendant-appellant, appeals the judgment of the
Franklin County Court of Common Pleas, in which the court found him guilty of voluntary
manslaughter with specification, a violation of R.C. 2903.03 and a first-degree felony.
        {¶ 2} At the plea hearing, counsel for the State of Ohio, plaintiff-appellee, entered
the following facts into the record:
                 Thank you, Your Honor. This incident happened back on
                 May 5, 2015, * * * Pannell Avenue in Franklin County, State
                 of Ohio. The facts that gave rise to the incident actually began
                 the day before when the victim, Mr. Roderick Davis and his
                 girl friend [Danielle Johns] had an argument. The argument
                 sort of continued into the next day, when the victim and his
No. 15AP-686                                                                           2

             girl friend went to a doctor appointment for their children, at
             which point he leaves the appointment, goes back to the house
             on Pannell Avenue.

             The defendant was staying there at that time with a couple
             other witnesses to this matter. He pulls up to the house
             quickly on the curb. There was an argument between an
             individual that came with the victim, as well as the defendant
             and some other people at the house. The argument moves into
             the back of the house, at which point there is a physical
             altercation between a witness by the name of Eric Robinson,
             as well as the defendant, I am sorry, Your Honor, the victim --
             scratch that, the victim and Mr. Robinson are similar size. Mr.
             Robinson by all accounts does not witness the physical
             altercation.

             From there, there is further fighting. At that point the victim
             kind of pushes the defendant. The defendant sort of pushes
             back and then shoots the victim two times, one time in the
             thigh, one time in the head.

             After this, some people leave the scene. Investigators were
             called. The above witnesses were interviewed. After a time, the
             defendant does turn himself in on this matter.

(Apr. 27, 2105 Tr. at 12-13.)
      {¶ 3} Appellant's counsel then recited the following additions and exceptions:
             In our view, this was a case involving a substantial
             provocation on behalf of Mr. Davis.

             As indicated earlier, he was at a doctor's office regarding his
             children. He was very irate and argumentative with the
             mother of his children. Several phone calls were made from
             that location by way of a cell phone to my client, and
             ultimately Mr. Robinson, and for reasons that still has not
             been made clear, it was clear that when Mr. Davis left the
             doctor's office, [he] told his girl friend that he was heading to
             work.

             He did otherwise. He then drove back and stopped at a
             friend's house -- I can't remember the gentleman's name --
             picked him up. That individual was very concerned about
             what was about ready to take place. Mr. Davis said to him, we
             have got work to do, work meaning fight.
No. 15AP-686                                                                     3

              They pull up to this residence, to this location, driving up on
              the curb, squealing tires, high rate of speed. Prior to that
              arrival, Mr. Davis had indicated, as was indicated, had been in
              an ongoing confrontation, verbal confrontation between he
              and his girl friend, extremely violent history with, threats by
              Mr. Davis to shoot up her and everybody else within that
              house.

              In that house is my client's girl friend and his children. My
              client's girl friend and his children, which is * * * why my
              client was there. He was concerned about the nature of the
              threats made. A physical altercation takes [place] between Mr.
              Davis and Mr. Robinson. Mr. Robinson was choked to the
              point he believes he is going to die or pass out.

              After that physical confrontation, he then turns his attention
              to Mr. Gore. Mr. Gore -- there is a substantial size difference
              both in terms of height, weight, and physicality. Mr. Gore
              made several attempts to try to back away to avoid
              confrontation.

              Mr. Davis struck my client a number of times. There is some
              dispute as to how he was struck. My client pulled out the
              weapon, displayed it to him, look, back away, I don't want
              trouble, and Mr. Davis continued to aggressively approach
              my client, and it was within that climate that my client
              ultimately then fired the shot initially in the leg, hoping that
              would bring the situation to an end. After having been shot,
              Mr. Davis got up, again went after Mr. Gore, and during this
              entire sequence makes it very clear he doesn't care that he has
              a firearm.

              There was a black bag that Mr. Davis came to that scene with.
              It is our belief that that black bag had a firearm, which would
              be consistent with Mr. Davis's behavior, and Mr. Gore saw Mr.
              Davis reach in that black bag, which also raised his level of
              fear and concern.

              As I said before, this was an extremely close call, and this is
              why an Alford plea is being entered. In other words, in regard
              at the time of sentencing, I did want to add that for purposes
              of the record for today's proceeding.

(Apr. 27, 2015 Tr. at 14-16.)
No. 15AP-686                                                                                  4

       {¶ 4} Appellant was indicted on one count of murder, in violation of R.C.
2903.02(A), and one count of murder, in violation of R.C. 2903.02(B). Both of the
murder counts included three-year firearm specifications. He was also indicted on one
count of kidnapping in regard to Justin Willis, which also included a three-year firearm
specification.
       {¶ 5} On April 27, 2015, appellant entered a guilty plea, pursuant to North
Carolina v. Alford, 400 U.S. 25 (1970), to voluntary manslaughter with a firearm
specification, and the state dismissed the kidnapping count and murder count. At the
plea hearing, the trial court stated: "The record will reflect that [the] court finds that there
is sufficient evidence presented by the state through the presentation of facts to sustain a
conviction of the offense to voluntary manslaughter." (Apr. 27, 2015 Tr. at 18.)
       {¶ 6} On June 18, 2015, a sentencing hearing was held, at which the court
reiterated: "Based on the facts as entered into the record by Mr. Simms on April 27, the
court found that there was sufficient evidence to find Mr. Gore, Jr., guilty of the charge to
which he entered an Alford plea." (June 18, 2015 Tr. at 21.)
       {¶ 7} On June 19, 2015, the trial court issued a judgment entry in which the court
sentenced appellant to terms of imprisonment of eight years on the voluntary
manslaughter count and three years on the firearm specification, to be served
consecutively. The court also ordered that appellant, either personally or through others,
must stay away from and have no contact with the victim's family. Appellant appeals the
judgment, asserting the following assignments of error:
                 [I.] The sentence imposed below violated Appellant's right to
                 due process of law under the Fifth and Fourteenth
                 Amendments of the United States Constitution, Article I,
                 Sections 1 and 16 of the Ohio Constitution, and was contrary
                 to law in violation of R.C. 2953.08(A)(4) and R.C.
                 2953.08(G)(2)(b).

                 [II.] The trial court erred when it ordered as a condition of the
                 sentence that Appellant by himself or through his family stay
                 away from and have no contact with the victim's family in
                 violation of the Fifth and Fourteenth Amendments of the
                 United States Constitution and Article I, Sections 1 and 16 of
                 the Ohio Constitution, and R.C. 2929.13, 2929.14, and
                 2929.15.
No. 15AP-686                                                                              5

       {¶ 8} Appellant argues in his first assignment of error that the sentence imposed
below violated his right to due process of law and was contrary to law. "[A]n appellate
court may vacate or modify a felony sentence on appeal only if it determines by clear and
convincing evidence that the record does not support the trial court's findings under
relevant statutes or that the sentence is otherwise contrary to law." State v. Marcum, 146
Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. Under Ohio law, "[a] sentence is not clearly and
convincingly contrary to law where [the] trial court 'considers the principles and purposes
of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly imposes postrelease
control, and sentences the defendant within the permissible statutory range.' " State v.
Julious, 12th Dist. No. CA2015-12-224, 2016-Ohio-4822, ¶ 8, quoting State v. Ahlers, 12th
Dist. No. CA2015-06-100, 2016-Ohio-2890, ¶ 8.
       {¶ 9} The voluntary manslaughter statute, R.C. 2903.03(A), provides that "[n]o
person, while under the influence of sudden passion or in a sudden fit of rage, either of
which is brought on by serious provocation occasioned by the victim that is reasonably
sufficient to incite the person into using deadly force, shall knowingly cause the death of
another." Voluntary manslaughter is an inferior degree of murder because " ' "its elements
are * * * contained within the indicted offense, except for one or more additional
mitigating elements." ' " State v. Shane, 63 Ohio St.3d 630, 632 (1992), quoting State v.
Tyler, 50 Ohio St.3d 24, 36 (1990), superseded on other grounds, quoting State v. Deem,
40 Ohio St.3d 205, 209 (1988). "Our criminal law recognizes that the provoked defendant
is less worthy of blame than the unprovoked defendant, but the law is unwilling to allow
the provoked defendant to totally escape punishment," as opposed to a killing in self-
defense. Id. at 635. State v. Lindsey, 10th Dist. No. 14AP-751, 2015-Ohio-2169, ¶ 54
       {¶ 10} Here, appellant contends the trial court failed to properly apply the
statutory seriousness and recidivism factors contained in R.C. 2929.12 while applying
appellant's sentence. Appellant points out that, at both the plea and sentencing hearings,
the trial court acknowledged the record contained sufficient evidence through the
presentation of facts by the state to sustain a conviction for voluntary manslaughter and
the three-year firearm specification. Despite such findings, contends appellant, as the
sentencing hearing progressed, the trial court rejected the provocation element of
voluntary manslaughter by finding the victim lacked any responsibility in provoking
No. 15AP-686                                                                                 6

appellant. Appellant points out that the trial court's findings under the R.C. 2929.12
factors strongly implied that the shooting was less the result of sudden passion or sudden
fit of rage generated by the victim's actions but, instead, was an indication of purposeful
choice on appellant's part. Although appellant concedes a trial court can sentence a
defendant according to the "real facts" of the case instead of the elements of a reduced
offense arrived via plea bargain, here, appellant asserts the trial court specifically found at
the time of the plea that the "real facts" supported appellant's conviction for voluntary
manslaughter and its provocation element.
       {¶ 11} We disagree with appellant. As stated above, this court's standard of review
in determining if a trial court's sentence is clearly and convincingly contrary to law is
whether the court considered the principles and purposes of R.C. 2929.11, as well as the
factors listed in R.C. 2929.12, and sentenced the defendant within the permissible
statutory range. Julious at ¶ 8. Here, the trial court clearly considered the principles and
purposes of R.C. 2929.11 and engaged in a thoughtful and thorough analysis of the R.C.
2929.12 factors during the sentencing hearing. There is also no dispute that the court
sentenced appellant within the permissible statutory range. Thus, the trial court's
sentence was not clearly and convincingly contrary to law.
       {¶ 12} Appellant's main contention that the trial court was required to find
provocation because the court was constrained by its express finding that there was
sufficient evidence to support the plea of voluntary manslaughter is without merit. Where
a defendant has pled guilty to a lesser crime than originally charged as part of a plea
bargain, "the trial court is permitted to consider the original charge when sentencing."
State v. Dari, 8th Dist. No. 99367, 2013-Ohio-4189, ¶ 15. Thus, the sentencing court is
free to consider the underlying facts when considering what sentence would be
appropriate where the defendant has entered a plea to a lesser charge. Id. at ¶ 17; see also
State v. Bowser, 186 Ohio App.3d 162, 2010-Ohio-951, ¶ 17 (2d Dist.) (court may consider
underlying facts in imposing sentence where defendant pleaded guilty to unindicted
charge as part of plea bargain), citing State v. Mayor, 7th Dist. No. 07 MA 177, 2008-
Ohio-7011, ¶ 17 (sentencing court may consider the circumstances of the offense for which
the defendant was indicted, even if he negotiated a plea at odds with the indicted
elements). " '[N]o caselaw * * * would prohibit a trial judge from taking into account
No. 15AP-686                                                                             7

charges that are reduced or dismissed as a result of a plea bargain, [and] in fact, the
history of Ohio law indicates that the sentencing judge may consider such factors.' " State
v. Watson, 7th Dist. No. 09 MA 62, 2011-Ohio-1178, ¶ 15, quoting State v. Starkey, 7th
Dist. No. 06 MA 110, 2007-Ohio-6702, ¶ 19.
      {¶ 13} Furthermore, pursuant to the concept of "real offense" sentencing:
             [J]udges have been accustomed to sentence an offender based
             on the judge's perception of the true facts even though such
             facts may be inconsistent with a plea bargain. For example, a
             robbery charge may be plea bargained to an attempted
             robbery. A charge of grand theft of a motor vehicle may be
             plea bargained to attempted grand theft of a motor vehicle.
             Notwithstanding the plea bargain the judge may sentence the
             offender within the statutory parameters of the plea bargained
             offense based upon what the record shows to have been the
             real facts of the offense. Thus, seriousness of the offense will
             generally be based upon the judge's perception of the real
             facts of what occurred, and the plea bargained offense will
             simply set a ceiling on what the judge can impose.

State v. Frankos, 8th Dist. No. 78072 (Aug. 23, 2001), citing Griffin & Katz, Ohio Felony
Sentencing Law (2000 Ed.) 450-51. Accordingly, in the present case, the trial court could
consider the "real facts" as the trial judge perceived them, despite the original murder
charge being plea bargained to voluntary manslaughter.
      {¶ 14} Appellant's contention that the "real facts" included provocation because
the trial court found sufficient evidence of the charge of voluntary manslaughter is
without merit. Appellant's underlying premise is that provocation is an element of
voluntary manslaughter; thus, a finding of sufficient evidence of voluntary manslaughter
also includes a finding of sufficient evidence for provocation. However, courts have held
that serious provocation, as contemplated in R.C. 2903.03, is not an element of the crime
of voluntary manslaughter, but is rather a circumstance, the establishment of which
mitigates a defendant's criminal culpability. See, e.g., State v. Wallace, 1st Dist. No. C-
950465 (Dec. 31, 1996), citing Shane at 638; State v. Heaston, 9th Dist. No. 15138
(Jan. 29, 1992) (finding "[p]rovocation is not an element of the crime of voluntary
manslaughter"). In State v. Rhodes, 63 Ohio St.3d 613, 618 (1992), the Supreme Court of
Ohio found that if a defendant:
No. 15AP-686                                                                             8

              [I]s on trial for voluntary manslaughter, neither party is
              required to establish either of the mitigating circumstances.
              Rather, the court presumes (to the benefit of the defendant)
              the existence of one or both of the mitigating circumstances as
              a result of the prosecutor's decision to try the defendant on
              the charge of voluntary manslaughter rather than murder. In
              that situation, the prosecution needs to prove, beyond a
              reasonable doubt, only that the defendant knowingly caused
              the death of another, and it is not a defense to voluntary
              manslaughter that neither party is able to demonstrate the
              existence of a mitigating circumstance.

       {¶ 15} Applying Rhodes to the case before us, because the state was not required to
prove provocation as an element of voluntary manslaughter, the trial court's finding that
there was sufficient evidence to find appellant guilty of voluntary manslaughter did not
implicitly include a finding that there was sufficient evidence to support provocation, and
the trial court was free to find the victim did not provoke appellant in analyzing the
sentencing factors.
       {¶ 16} Based on the same analysis as above, we also reject appellant's arguments
that the trial court misapplied R.C. 2929.12(C)(1) (that the "victim induced or facilitated
the offense") and R.C. 2929.12(C)(2) ("[i]n committing the offense, the offender acted
under strong provocation") when it found that the victim did not induce the offense and
appellant did not act under strong provocation. The trial court was free to make the
findings it did and was not constrained by its prior finding that there was sufficient
evidence to sustain a conviction for voluntary manslaughter.
       {¶ 17} Based on the same argument as above, appellant also argues that the trial
court's finding under R.C. 2929.12(E)(4)—that appellant was likely to engage in such
conduct in the future—was highly questionable because the trial court had already found
that he was provoked when it found that there was sufficient evidence to demonstrate
voluntary manslaughter. However, as we have found that the trial court did not implicitly
make a finding of provocation by finding sufficient evidence of voluntary manslaughter,
this argument is also without merit.
       {¶ 18} Appellant also argues that the trial court erred by taking "under strong
advisement" the factor found in R.C. 2929.12(B)(9), which provides that an offense is
more serious if it involves a family or household member and the offender committed the
No. 15AP-686                                                                                9

offense in the vicinity of children of the offender or victim. (June 18, 2015 Tr. at 53.) The
trial court explained it was taking this factor under strong advisement because appellant's
children were in the basement at the time of the offense and heard the gunshots.
Appellant argues that R.C. 2929.12(B)(9) is only applicable when the defendant has been
convicted of one of the listed predicate offenses, which are domestic violence, assault,
aggravated assault, and felonious assault. However, R.C. 2929.12(A) provides that, in
addition to the factors listed in (B), (C), (D), and (E), the court "may consider any other
factors that are relevant to achieving those purposes and principles of sentencing," and
R.C. 2929.12(B) provides that the sentencing court may consider "any other relevant
factors, as indicating the offender's conduct is more serious than conduct normally
constituting the offense." Thus, the trial court could take this factor under advisement.
       {¶ 19} For all of the foregoing reasons, appellant's first assignment of error is
overruled.
       {¶ 20} Appellant argues in his second assignment of error that the trial court erred
when it ordered as a condition of the sentence that appellant by himself or through his
family stay away from and have no contact with the victim's family, citing State v.
Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089. In Anderson, the court held that "[a]
trial court cannot impose a prison term and a no-contact order for the same felony
offense." Id. at ¶ 1. The state concedes error. Therefore, we sustain appellant's second
assignment of error.
       {¶ 21} Accordingly, appellant's first assignment of error is overruled, appellant's
second assignment of error is sustained, the judgment of the Franklin County Court of
Common Pleas is affirmed in part and reversed in part, and this matter is remanded to
that court for further proceedings in accordance with the law, consistent with this
decision.
                                         Judgment affirmed in part and reversed in part;
                                                                       cause remanded.

                             TYACK and KLATT, JJ., concur.

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