[Cite as State v. Flannery, 2015-Ohio-388.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                        ERIE COUNTY


State of Ohio                                         Court of Appeals No. E-14-017

        Appellee                                      Trial Court No. 2012-CR-338

v.

Danielle Flannery                                     DECISION AND JUDGMENT

        Appellant                                     Decided: January 30, 2015

                                              *****

        Kevin J. Baxter, Erie County Prosecuting Attorney, and
        Mary Ann Barylski, Chief Assistant Prosecuting Attorney,
        for appellee.

        Loretta Riddle, for appellant.

                                              *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a February 27, 2014 sentencing judgment of the Erie

County Court of Common Pleas, which sentenced appellant to a maximum term of 11

years of incarceration on appellant’s conviction on one count of permitting child abuse, in

violation of R.C. 2903.15, a felony of the first degree. For the reasons set forth below,

this court affirms the judgment of the trial court.
         {¶ 2} Appellant, Danielle Flannery, sets forth the following two assignments of

error:

               NO. I. A TRIAL COURT ERRORS [SIC] WHEN IT

         SENTENCED APPELLANT TO THE MAXIMUM PRISON TERM FOR

         ONLY ONE FELONY OFFENSE.

               NO. II. THE TRIAL COURT COMMITTED AN ABUSE OF

         DISCRETION WHEN IT REFUSED TO CONTINUE THE

         SENTENCING HEARING, AND THAT DECISION DENIED

         APPELLANT DUE PROCESS OF LAW.

         {¶ 3} This case arises from the beating death of a young boy in Sandusky, Ohio.

On July 30, 2012, the Sandusky Police Department was called to the Firelands Hospital

emergency room at the request of the Sandusky Fire Department in connection to a badly

injured boy who had just been transported to the hospital.

         {¶ 4} The three-year-old male victim resided in a Sandusky apartment with his

mother and her live-in boyfriend. The Sandusky Fire Department had received a call

initially claiming that the boy had fallen and been injured. The child was at home with

appellant’s boyfriend at the time. The responding firemen discovered the boy to be cold

to the touch, not breathing, and had blue lips. They further observed that the boy had

extensive bruising and abrasions on his face, head, and chest. They immediately

transported the severely injured boy to Firelands Hospital and requested that the police

department come to the emergency room in order to investigate the matter.




2.
       {¶ 5} The boy died as a result of the severe injuries that he sustained. The Lucas

County Coroner’s Office conducted an investigation and ruled the death a homicide by

multiple blunt force trauma via beating by another person. The extensive injuries

precipitating the boy’s death included a perforated right atrium of the heart, a lacerated

liver, a lacerated mesentery artery, bilateral pulmonary contusions, multiple contusions

and abrasions on the boy’s face and head, and abrasions on the boy’s genitalia.

       {¶ 6} Notably, during the course of the investigation, appellant and her live-in

boyfriend, a co-defendant who was ultimately indicted for aggravated murder, furnished

investigators a series of inconsistent and untenable explanations for the boy’s fatal

injuries. The proffered explanations for the boy’s violent death ranged from the boy

falling and hitting his head on a plastic toy truck to the boy passing out and falling down

to claims that the three year old somehow severely beat himself.

       {¶ 7} Significantly, the record reflects that there was a history of child abuse

investigations by personnel from children services involving the boy and the co-

defendant, his mother’s live-in boyfriend. The record reflects that the co-defendant has a

lengthy history of domestic violence incidents including prior injuries to the deceased

necessitating hospital visits and triggering investigations. The record further reflects that

appellant failed to fully cooperate in these prior abuse investigations. The record also

shows the opinion of treating medical personnel of the probability that the boy was

deceased for several hours or more prior to emergency medical assistance being sought.

Lastly, the record shows that even after appellant’s boyfriend was indicted for aggravated




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murder in the death of her three-year-old son and she was ordered by the trial court to

have no further communication with him, appellant continued to surreptitiously

correspond with the co-defendant despite his killing her son. Appellant drafted letters

under a false name and sent them to him in prison. Appellant wrote to the co-defendant,

“I’m worried about you. I hurried and sent this letter in Nikki’s name to try and ease

your mind and mine * * * They’re going to be watching us both very closely * * * Just

because I don’t wave or talk back doesn’t mean I don’t love you * * * [I]t’s because I

can’t lose my bond.”

       {¶ 8} On August 15, 2012, appellant was indicted on one count of involuntary

manslaughter, in violation of R.C. 2903.04(A), a felony of the first degree, one count of

permitting child abuse, in violation of R.C. 2903.15(A), a felony of the first degree, one

count of obstructing justice, in violation of R.C. 2921.32, a felony of the third degree, and

one count of child endangerment, in violation of R.C. 2919.22, a felony of the third

degree.

       {¶ 9} On December 6, 2013, pursuant to a voluntarily negotiated plea agreement,

appellant pled guilty to the count of permitting child abuse, in violation of R.C.

2903.15(A), a felony of the first degree. In exchange, the remaining three felony counts

were dismissed. A presentence investigation report was ordered and the matter was

continued for sentencing.

       {¶ 10} The record reflects that during the plea colloquy counsel for appellant

clearly conveyed to the court, “As to sentencing, no promises or agreements have been




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made between defense and the State of Ohio or defense and the Court. No

representations, promises, or guarantees have been made to Ms. Flannery at all.”

       {¶ 11} Subsequently, the trial court consistently stated to appellant, “Do you

understand that any recommendation made at sentencing the court will consider, but is

not required to follow? * * * Under the law, it’s the court or the judge that determines

your sentence. Do you understand that?” Appellant responded affirmatively. The trial

court proceeded to advise appellant, “You’re pleading guilty to one felony of the first

degree. That carries a possible prison term of three years all the way up to eleven years.”

Appellant again affirmed her understanding.

       {¶ 12} On February 27, 2014, the matter proceeded to sentencing. Counsel for

appellant requested a “short” continuance in order to review approximately 20 minutes of

grand jury testimony of a witness in order to prepare a response and rebuttal to that

testimony for sentencing purposes. Accordingly, the trial court continued sentencing

from 10:00 a.m. to 11:30 a.m.

       {¶ 13} At sentencing, the trial court engaged in a lengthy colloquy given the

seriousness of the matter involving the beating death of a three-year-old child. The trial

court proceeded to carefully and thoroughly examine the R.C. 2929.11 and 2929.12

sentencing factors and systematically found them to be overwhelmingly aggravating

rather than mitigating in consideration of an appropriate sentence. The trial court

imposed a maximum term of incarceration of eleven years upon appellant. This appeal

ensued.




5.
       {¶ 14} In the first assignment of error, appellant maintains that it was improper for

the trial court to impose a maximum term of incarceration. In support, appellant

concludes without evidentiary support, “Ms. Flannery’s offense is not the worst form of

the crime and her sentencing is contrary to law.” We do not concur.

       {¶ 15} As a preliminary matter, we note that appellant incorrectly states that this

court does not conduct felony sentencing review pursuant to the R.C. 2953.08(G)

statutory standard and appellant, “[A]rgues that the standard should be that by R.C.

2953.08(G).”

       {¶ 16} However, as unambiguously stated by this court at ¶ 16 in State v.

Tammerine, 6th Dist. No. L-13-1081, 2014-Ohio-425, “Based upon all of the foregoing,

we now likewise apply the statutory standard of review rather than the former Kalish

approach to our review of felony sentences * * * [W]e now will consider the propriety of

the disputed sentence in this case pursuant to the new R.C. 2953.08(G)(2) statutory

parameters.”

       {¶ 17} As applied to the instant case, we first note that the permissible statutory

sentencing range for a felony of the first degree, such as the conviction underlying this

case, is between three and eleven years. R.C. 2929.14(A)(1). Thus, we find that the 11-

year term of incarceration imposed in this case clearly falls within the permissible range.

In addition, as discussed above, the record contains ample evidence establishing that the

trial court properly considered the R.C. 2929.11 purposes and principles of sentencing

and the R.C. 2929.12 seriousness and recidivism factors. The record further reflects that




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the trial court properly applied postrelease control. Accordingly, the record does not

show that appellant’s sentence is clearly and convincingly contrary to law.

       {¶ 18} Next, we must consider any of the statutory findings potentially relevant to

our review of this case. The record reveals that none of the R.C. 2953.08(G)(2) findings

are applicable to the instant case.

       {¶ 19} R.C. 2929.13(B) pertains to fourth or fifth degree felony cases. This case

entails a first degree felony offense and thus the statutory findings are not relevant. R.C.

2929.14(B)(2)(e) pertains to offenders who are repeat violent offenders. This case does

not involve a repeat violent offender and thus those findings are not relevant. R.C.

2929.14(C)(4) pertains to multiple convictions on multiple offenses. This case does not

involve multiple convictions on multiple offenses and thus those findings are not

relevant. Lastly, R.C. 2929.20(I) pertains to judicial release hearings. Accordingly, it is

not relevant in this case.

       {¶ 20} Based upon the foregoing and pursuant to R.C. 2953.08(G)(2), we find that

the disputed sentence was not shown to be based upon applicable statutory findings not

supported by the record and was not otherwise clearly and convincingly contrary to law.

Wherefore, we find appellant’s first assignment of error not well-taken.

       {¶ 21} In appellant’s second assignment of error, it is alleged that the trial court

abused its discretion in refusing to continue the sentencing hearing. The record in this

matter refutes this assertion.




7.
       {¶ 22} Contrary to appellant’s claim, the record shows that appellant requested a

“short” continuance immediately prior to sentencing in order to review approximately 20

minutes of grand jury testimony so as to respond to it for sentencing purposes. The

record shows that the 10:00 a.m. sentencing was continued until 11:30 a.m. to

accommodate this request. The record reflects that appellant did not object to the ruling

on the motion for continuance as it was not denied. Wherefore, we find appellant’s

second assignment of error not well-taken.

       {¶ 23} On consideration whereof, we find that substantial justice has been done in

this matter. The judgment of the Erie County Court of Common Pleas is hereby

affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.


                                                                       Judgment affirmed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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