[Cite as State v. Cann, 2012-Ohio-309.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              PUTNAM COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 12-11-09

        v.

MICHAEL J. CANN,                                          OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Putnam County Common Pleas Court
                            Trial Court No. 2011 CR 36

                                      Judgment Affirmed

                           Date of Decision: January 30, 2012




APPEARANCES:

        Esteban R. Callejas for Appellant

        Todd C. Schroeder for Appellee
Case No. 12-11-09



WILLAMOWSKI, J.

      {¶1} Defendant-appellant Michael J. Cann (“Cann”) brings this appeal from

the judgment of the Court of Common Pleas of Putnam County convicting him of

one count of gross sexual imposition.         For the reasons set forth below, the

judgment is affirmed.

      {¶2} On June 4, 2010, Cann was indicted in case number 11-CR-22 for one

count of rape in violation of R.C. 2907.02(A)(2). On April 12, 2011, the State

filed a Bill of Information alleging that Cann had committed one count of gross

sexual imposition in violation of R.C. 2907.05(A)(4), a felony of the fourth

degree. This charge was assigned case number 11-CR-36. Cann, on that same

date, waived indictment and entered a guilty plea to the bill of information. In

exchange for the guilty plea, the State agreed to dismiss case number 11-CR-22

and to recommend a sentence of eighteen months. The matter was continued for

sentencing and preparation of a presentence investigation report.

      {¶3} On May 19, 2011, the State filed a motion to revoke Cann’s bond

alleging that he had attempted to intimidate the victim of the offense.         A

misdemeanor charge of Intimidation of a Victim was also filed. The trial court

then revoked Cann’s bond on May 24, 2011.




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       {¶4} On June 6, 2011, a sentencing hearing was held. The trial court

sentenced Cann to eighteen months in prison. Cann appeals from this judgment

and raises the following assignments of error.

                            First Assignment of Error

       The trial court erred when it imposed the maximum sentence
       upon [Cann].

                           Second Assignment of Error

       The trial court erred when it admitted evidence that should have
       been suppressed.

       {¶5} Cann alleges in the first assignment of error that the trial court erred in

sentencing him to the maximum sentence. Cann argues that the trial court did not

consider the appropriate sentencing factors. Trial courts have discretion to impose

a prison sentence within the statutory range for the offense from which the

conviction stems. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d

470.

       {¶6} Here, the case arose from a charge of rape. It was later recharged as

gross sexual imposition in a new case and the original case was dismissed. Cann

entered a guilty plea at the hearing on April 12, 2011.

       [The Court]: The charge states that on or about the 30th of April
       2010, which is about one year ago, Mr. Cann, that you did have
       sexual contact with somebody, and that you knew that she was
       unable to understand because of her mental or physical


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Case No. 12-11-09



      condition, that she was unable to resist or consent; do you
      understand what that says?

      [Mr. Cann]: Yes.

      Q.     All right. Did you have sexual contact with somebody?

      A.     Yes.

      Q.    And did you know that she had difficulties in
      understanding because of mental disabilities?

      A.     Yes.

      Q.     All right. Tell me what you did?

      A.     Had sex.

      Q.     All right. When you say you had sex, you had sexual
      intercourse with her?

      A.     Yes.

      Q.     All right. And you knew that she wasn’t agreeing to that
      either because she was saying no or because she was unable to
      understand; is that correct?

      A.     Yes.

April 12, 2011, Tr. 16-17. At sentencing, the trial court recognized that Cann had

admitted to raping the victim though the charge was only gross sexual imposition.

      As to the within case, the Court will point out that the defendant
      has benefitted from what appears to be a significant reduction in
      what is the charge here, that being from a first degree felony
      rape count to the count being the fourth degree felony that is
      before the Court, facing a maximum period of 18 months. As
      indicated by the Court, it appears that the defendant did

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Case No. 12-11-09



       understand the wrongfulness of the acts here as shown by the
       misrepresentations that the defendant made during the period
       that he was being questioned by the sheriff’s department.
       Clearly during that period there were statements made by the
       defendant that he knew to be untrue in an attempt to avoid what
       may be sanctions and penalties imposed by others or the
       prosecution that would be involved here.

       The defendant’s mental challenges, notwithstanding, it is clear to
       the Court that the defendant committed here an aggressive,
       violent sexual act, and that the defendant made
       misrepresentations about that, that he knew were
       misrepresentations upon being questioned.

       At this time, given the factual basis of the charge, the Court is
       making a determination that this is the worst form of the
       offense, being the gross sexual imposition.

June 30, 2011, Tr. 13-14. The sentence imposed by the trial court is within the

statutory range for a fourth degree felony.        The facts presented support the

findings made by the trial court. Thus, the first assignment of error is overruled.

       {¶7} In the second assignment of error, Cann alleges that the trial court

erred in overruling his motion to suppress in case number 11-CR-22. This appeal

is brought from case number 11-CR-36, not 11-CR-22. Additionally, the State

agreed to dismiss case number 11-CR-22 in exchange for the guilty plea in case

number 11-CR-36. April 12, 2011 Tr. 2. Even if we were to consider the motion

to suppress as part of this case, a guilty plea waives any possible error in the denial

of a motion to suppress. State v. Gadd, 6th Dist. No. OT-08-053, 2010-Ohio-3072,

¶5; State v. Smith, 3d Dist. No. 1-04-06, 2004-Ohio-4004, ¶8, State v. McQueeney,

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Case No. 12-11-09



148 Ohio App.3d 606, 2002-Ohio-3731, ¶13, 774 N.E.2d 1228. Cann entered a

guilty plea, so any error in denying the motion to suppress was waived. The

second assignment of error is overruled.

       {¶8} The judgment of the Court of Common Pleas of Putnam County is

affirmed.

                                                        Judgment Affirmed

ROGERS, P.J. and PRESTON, J., concur.

/jlr




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