[Cite as State v. Gibson, 2015-Ohio-3479.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 102391



                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                    KENNETH GIBSON
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CR-12-563845

        BEFORE:           McCormack, J., Keough, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: August 27, 2015
ATTORNEY FOR APPELLANT

Richard Agopian
1415 West Ninth Street
2nd Floor
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Marc D. Bullard
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, P.J.:

       {¶1} Defendant-appellant Kenneth Gibson appeals from his resentencing. For the

reasons that follow, we affirm.

       {¶2} In July 2012, Gibson was indicted for one count of kidnapping with a

sexual motivation specification, a felony of the first degree, and two counts of gross

sexual imposition, felonies of the fourth degree. The charges stemmed from allegations

that Gibson forcibly engaged in sexual contact with his 29-year-old niece.          Gibson

waived his right to a jury trial, and the matter was tried before the bench.

       {¶3} On October 9, 2013, the court found Gibson guilty on all charges and

referred the matter for a presentence investigation hearing.     At the sentencing hearing,

the court determined that the charges were not allied offenses and, therefore, it did not

merge the sentences.    The trial court sentenced Gibson to three years in prison for the

kidnapping with the sexual motivation specification and one year for each charge of gross

sexual imposition.   The court ordered all counts to be served concurrently.

       {¶4} Gibson appealed his conviction and sentence. On August 7, 2014, this

court affirmed Gibson’s conviction. Having found the charges to be allied offenses,

however, we reversed his sentence and remanded for a new sentencing hearing,

instructing the state to elect which allied offense it would pursue against the defendant.

See State v. Gibson, 8th Dist. Cuyahoga No. 100727, 2014-Ohio-3421.
        {¶5} On remand, the trial court held a resentencing hearing on November 14,

2014.    At resentencing, the state elected to pursue sentencing on the charge of

kidnapping with sexual motivation.        Thereafter, the court sentenced Gibson to three

years imprisonment on the kidnapping with sexual motivation count and ordered Gibson

to serve the balance of his sentence, with credit for time served.     The court also imposed

three years mandatory postrelease control.

        {¶6} Gibson appeals his sentence upon resentencing, raising two assignments of

error: ineffective assistance of counsel during resentencing and the trial court’s failure to

consider the nature of the defendant at the time of resentencing.

        {¶7} In his first assignment of error, Gibson contends that defense counsel was

ineffective in failing to “educate the court” on sentencing factors and failing to “advocate

for his client.”

        {¶8} In order to establish a claim of ineffective assistance of counsel, Gibson

must prove (1) his counsel was deficient in some aspect of his representation, and (2)

there is a reasonable probability that, were it not for counsel’s errors, the result of the trial

would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984).       In Ohio, every properly licensed attorney is presumed to be

competent, and therefore, a defendant claiming ineffective assistance of counsel bears the

burden of proof.    State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). And

counsel’s performance will not be deemed ineffective unless and until the performance is

proven to have fallen below an objective standard of reasonable representation and, in
addition, prejudice arises from counsel’s performance. State v. Iacona, 93 Ohio St.3d

83, 105, 752 N.E.2d 937 (2001).

        {¶9} As previously stated, this court concluded that the kidnapping and gross

sexual imposition charges were allied offenses.     We therefore reversed the sentence and

remanded “for a new hearing at which the state will elect which allied offense it will

pursue against the defendant.”            Gibson, 8th Dist. Cuyahoga No. 100727,

2014-Ohio-3421, at ¶ 45, citing State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922

N.E.2d 182, ¶ 25.    “When the state elects which of the allied offenses to seek sentencing

for, the trial court must accept the state’s choice and merge the crimes into a single

conviction for sentencing * * * and impose a sentence that is appropriate for the merged

offense.”   Whitfield at ¶ 24.

        {¶10}   When a matter is remanded in order to correct an allied-offenses

sentencing error, the trial court must hold a new sentencing hearing for the offenses that

remain after the state selects which allied offense or offenses to pursue. State v. Wilson,

129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, paragraph one of the syllabus.

The guilty verdicts underlying a defendant’s sentences remain the law of the case and are

not subject to review.   Id. at ¶ 15, citing Whitfield at ¶ 26-27.   And “only the sentences

for the offenses that were affected by the appealed error are reviewed de novo.” Wilson at

¶ 15.   The scope of the new hearing “will include the trial court’s consideration of R.C.

2929.11 when fashioning the new sentence.”       Id. at ¶ 31.
       {¶11} Upon remand, the trial court, in its discretion, may reimpose the original

penalty for the offense that remains after merger or impose a new or different penalty.

See State v. Clay, 12th Dist. Madison No. CA2011-12-016, 2012-Ohio-5011, ¶ 21; see

also State v. Quinones, 8th Dist. Cuyahoga No. 97054, 2012-Ohio-1939, ¶ 3 (finding that

on remand, the “trial court is free to impose the identical sentence that was originally

imposed, or a greater or lesser sentence within its discretion”).

       {¶12} Here, the state elected to proceed on the kidnapping with sexual motivation

specification and requested that the court impose “the identical sentence as previously

imposed” at the original hearing.    The prosecutor noted that the sentencing range for the

kidnapping is 3 to 11 years. In response, defense counsel asked the court to consider

community control for the remainder of Gibson’s sentence:

       The only thing I ask this court to consider is he’s basically — he’s almost at
       two and a half years of that three year sentence. I understand that this
       court originally didn’t feel community control sanctions was appropriate but
       I would submit that it’s appropriate to consider it now.

       He’s already done a substantial amount of time in prison and that would
       give this court an opportunity to ensure that his transition back into the
       community was a successful one, so I ask this court consider that at this
       point in time.

       {¶13} Thereafter, Gibson addressed the court as follows:

       The only thing I want to say is none of this could have never happened. I
       never got up on that stand and said what happened that day. All she said
       was a lie.

       She came in. She took my money while I was sleeping. I’m back in my
       house. It didn’t make sense, you know, this is what she do. She go to
       say oh, this guy, I’m glad they have the DNA. I didn’t pay any attention.
       She do somebody else this way? Like I said, it never happened.          Door
       locks proof, none of that came up in court.

       * * * I don’t have nothing really to say.        That I want to go home.

       Whether you’re going to send me back to the penitentiary and do the time or

       send me home.

       {¶14} After providing Gibson an opportunity to address the court, the court

sentenced Gibson to three years on the kidnapping with sexual motivation and remanded

Gibson to serve the balance of his sentence, stating that Gibson will receive credit for

time served.     In its sentencing entry, the court stated that it considered all required

factors of law and finds that prison is consistent with the purpose of R.C. 2929.11.

       {¶15} In light of the above, we find that Gibson has failed to demonstrate that his

counsel’s performance was deficient or that he was prejudiced.      We note, initially, that

first-degree felonies carry with them a presumption in favor of prison. R.C.

2929.13(D)(1).     It is therefore “presumed that a prison term is necessary in order to

comply with the purposes and principles of sentencing under [R.C.] 2929.11.”             Id.

Defense counsel, while acknowledging that the court initially rejected community control

for Gibson at his original sentencing, made a second request for community control at the

resentencing and asked that the court allow the defendant to serve out his remaining

sentence (approximately six months) through community control.           Rejecting defense

counsel’s request, the court imposed a prison term.     The trial court, however, granted

defense counsel’s request that court costs be waived.
      {¶16} Additionally, the record shows that Gibson received three years on the

kidnapping with sexual motivation and one year for each charge of gross sexual

imposition at his original sentencing. Ordering all counts to be served concurrently,

Gibson’s total time in prison amounted to three years.     At the resentencing, the court,

once again, imposed a sentence of three years on the kidnapping and gave credit for time

served.   At this time, because of the merger instructed upon remand, Gibson was

sentenced solely on the kidnapping.    Thus, the term of imprisonment after resentencing

was the same three-year term.

      {¶17} Finally, we find that the court had considered the sentencing factors prior to

imposing its sentence.    We may generally presume a trial court has considered the

sentencing factors outlined in R.C. 2929.12 and the purposes of felony sentencing

outlined in R.C. 2929.11 “absent an affirmative demonstration by a defendant to the

contrary.” State v. Holmes, 8th Dist. Cuyahoga No. 99783, 2014-Ohio-603, ¶ 8. Here,

Gibson fails to affirmatively show that the court failed to consider all of the sentencing

factors required by these statutes.   Moreover, the court heard statements from Gibson

and his attorney, and the court provided in its sentencing entry that it considered all

required sentencing factors as well as the purpose of R.C. 2929.11.

      {¶18} Given the record, the presumption of prison, and defense counsel’s attempt

at obtaining a reduced prison term for his client, as well as the fact that the trial court

reimposed the minimum prison term of three years on the sole charge of kidnapping with
sexual motivation, Gibson has not demonstrated that counsel’s performance was

ineffective.

       {¶19} Gibson’s first assignment of error is overruled.

       {¶20} In his second assignment of error, Gibson argues that the trial court did not

consider his nature at the time of resentencing.    As previously demonstrated, however,

the record shows that the trial court did, in fact, consider Gibson’s nature at the time of

resentencing.   Defense counsel, in his request for community control for the remainder

of Gibson’s sentence, provided that the “substantial amount of time in prison” presented

this court “with an opportunity to ensure that [Gibson’s] transition back into the

community” would be successful.        The record also shows that the court heard from

Gibson, wherein he expressed no remorse for his actions and suggested, rather, that the

victim lied about the incident and “took [his] money while [he] was sleeping.” Finally,

the court’s sentencing entry provides that the court considered “all required factors of the

law” and it found that prison is consistent with the purposes of felony sentencing.

       {¶21} Gibson’s second assignment of error is overruled.

       {¶22} Judgment is affirmed.

       It is ordered that appellee recover of 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. 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.


______________________________________________
TIM McCORMACK, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
MELODY J. STEWART, J., CONCUR
