[Cite as State v. Gibson, 2016-Ohio-1015.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


STATE OF OHIO,                                    :      OPINION

                 Plaintiff-Appellee,              :
                                                         CASE NO. 2015-L-079
        - vs -                                    :

TYRONE GIBSON,                                    :

                 Defendant-Appellant.             :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 15 CR
000086.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Alana A. Rezaee, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).

Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp,
Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For
Defendant-Appellant).



DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, Tyrone Gibson, appeals from his eight-year prison

sentence for Attempted Rape in the Lake County Court of Common Pleas. The issue to

be determined by this court is whether a trial court’s sentence is contrary to law when it

is reached after the court thoroughly explains the basis for its finding that the defendant

had a lack of remorse and states in the written judgment entry that it has considered the
requisite factors under R.C. 2929.12. For the following reasons, we affirm the judgment

of the trial court.

       {¶2}    On February 24, 2015, Gibson was indicted by the Lake County Grand

Jury for Corrupting Another with Drugs, a felony of the fourth degree, in violation of R.C.

2925.02(A)(4)(a); Gross Sexual Imposition, a felony of the fourth degree, in violation of

R.C. 2907.05(A)(5); Rape, a felony of the first degree, in violation of R.C.

2907.02(A)(1)(c); and two counts of Sexual Battery, felonies of the third degree, in

violation of R.C. 2907.03(A)(2) and (5).

       {¶3}    On April 20, 2015, a change of plea hearing was held at which Gibson

entered a guilty plea, by way of Alford, to an amended count of Attempted Rape, a

felony of the second degree, in violation of R.C. 2923.02(A) and 2907.02(A)(1)(c). In

exchange, the State agreed to recommend the remaining counts be dismissed.

According to the State’s recitation of facts, Gibson attempted to engage in sexual

conduct with a fifteen-year-old female at his home, knowing that she was substantially

impaired, since he provided alcohol that she consumed. Gibson’s counsel asserted that

he would not admit to the State’s facts, since Gibson had been mistaken about the

identity of the victim at the time the acts were attempted. The court reviewed Gibson’s

rights and the potential maximum sentence, as well as the basis for an Alford plea.

       {¶4}    A Written Plea of Guilty was filed on the same date. Gibson’s plea was

accepted and memorialized in an April 22, 2015 Judgment Entry, which referred the

matter to the probation department for a presentence investigation (PSI).

       {¶5}    A sentencing hearing was held on June 10, 2015.          Gibson’s counsel

requested that he be placed on community control.          This was based on Gibson’s




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contention that he had believed he was engaging in sexual acts with his girlfriend, not

the minor victim, on the night at issue, since it was dark. He also argued that his low

blood sugar, a result of diabetes, caused him to lack awareness of his surroundings.

Gibson explained that the victim had been trying to touch him inappropriately earlier that

day and he “had no power over” the fact that she tried to have sex with him while he

was asleep.    He believed that a witness to a portion of the events, his girlfriend’s

daughter, was lying.

      {¶6}    The State explained, as indicated in the PSI, the physical and

psychological harm suffered by the victim, who experienced physical pain, showed

mistrust of officers and other individuals who interacted with her, and subsequently had

nightmares and flashbacks. It recommended a sentence of eight years in prison.

      {¶7}    The court noted that the injury was exacerbated by the victim being

intoxicated and that she suffered serious physical and psychological harm, and that

Gibson abused his position of trust, as the adult present watching the victim. It found no

factors making the offense less serious and emphasized Gibson’s extensive criminal

record.   The court also found that there was no genuine remorse and that Gibson

placed the blame on the victim.

      {¶8}    A Judgment Entry of Sentence was filed on June 15, 2015, memorializing

these findings. The Judgment stated that the court had considered the pertinent factors

under R.C. 2929.11 and .12, and ordered Gibson to serve a term of eight years in

prison.

      {¶9}    Gibson timely appeals and raises the following assignment of error:




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       {¶10} “The trial court erred by sentencing the defendant-appellant to a

maximum, eight-year prison term.”

       {¶11} The overriding purposes of felony sentencing in Ohio “are to protect the

public from future crime by the offender and others and to punish the offender using the

minimum sanctions that the court determines accomplish those purposes without

imposing an unnecessary burden on state or local government resources.”                  R.C.

2929.11(A).    “A sentence imposed for a felony shall be reasonably calculated to

achieve the[se] * * * overriding purposes of felony sentencing * * *, commensurate with

and not demeaning to the seriousness of the offender’s conduct and its impact upon the

victim, and consistent with sentences imposed for similar crimes committed by similar

offenders.” R.C. 2929.11(B).

       {¶12} In exercising its discretion “to determine the most effective way to comply

with the purposes and principles of sentencing,” a court “shall consider the factors set

forth in divisions (B) and (C) of this section relating to the seriousness of the conduct,

the factors provided in divisions (D) and (E) of this section relating to the likelihood of

the offender’s recidivism, * * * and, in addition, may consider any other factors that are

relevant to achieving those purposes and principles of sentencing.” R.C. 2929.12(A).

       {¶13} The Ohio Supreme Court has described a sentencing court’s discretion as

“full discretion to impose a prison sentence within the statutory range.” State v. Mathis,

109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, paragraph three of the syllabus.

“[T]he trial court is not obligated, in the exercise of its discretion, to give any particular

weight or consideration to any sentencing factor.” State v. Holin, 174 Ohio App.3d 1,

2007-Ohio-6255, 880 N.E.2d 515, ¶ 34.




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      {¶14} “The court hearing an appeal [of a felony sentence] shall review the

record, including the findings underlying the sentence or modification given by the

sentencing court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce, or

otherwise modify a sentence that is appealed under this section or may vacate the

sentence and remand the matter to the sentencing court for resentencing[,] * * * if it

clearly and convincingly finds * * * [t]hat the record does not support the sentencing

court’s findings under [various sections of the Ohio Revised Code] [or] * * * the sentence

is otherwise contrary to law.” R.C. 2953.08(G)(2)(a) and (b).

      {¶15} Gibson argues that the trial court’s sentence is contrary to law, in that it

“ignored or discounted factors in R.C. 2929.12 that made his behavior less serious” and

did not give weight to such factors that supported a shorter sentence.

      {¶16} While there are a variety of factors to be considered by the trial court,

which we need not restate here, the mitigating issues which Gibson asserts were

favorable to him related to his expression of remorse and the circumstances of the

crime, including his mistaken belief that he “was having sexual relations with his adult

girlfriend at the time” and his physical condition that made him “not aware of whom he

was with at the time of the sexual conduct.” See R.C. 2929.12(C).

      {¶17} The trial court stated that it considered the necessary factors under R.C.

2929.11 and .12 both at the hearing and in its Entry. It is also apparent in this case that

the court fully considered the issue of remorse and Gibson’s explanation regarding the

circumstances of the crime. Both Gibson and his counsel explained, at length, his

contentions that he was not fully aware of his conduct due to his low blood sugar and

that he believed he was attempting to have sex with his girlfriend, not the victim, given




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his condition and the darkness in the room. Although a court is not required to make

factual findings on the R.C. 2929.12 factors, the court specifically stated at the

sentencing hearing that it found Gibson lacked credibility, that the victim and witness

were credible, that the victim’s actions had been consistent with a sexual assault victim,

and that Gibson’s statements showed he was placing blame for the incident on the

victim. The court also noted that Gibson stated both that he was unaware of his actions

because of his blood sugar level and that he had believed he was having sex with his

girlfriend. The court had legitimate concerns with Gibson’s explanation of the crime.

This led to its belief that Gibson did not express genuine remorse, regardless of his

contentions that he took a plea in order to protect the victim from embarrassment at

trial.   “[A] reviewing court must defer to the trial court as to whether a defendant’s

remarks are indicative of genuine remorse because it is in the best position to make that

determination.” (Citation omitted.) State v. Davis, 11th Dist. Lake No. 2010-L-148,

2011-Ohio-5435, ¶ 15.

         {¶18} Further, other factors under R.C. 2929.12 applied to justify Gibson’s

sentence, including harm to the victim and Gibson’s extensive past criminal record and

violations of post-release control, with which the court expressed concern. We find no

grounds to second-guess the lower court’s determination as to this issue, since it was

entitled to weigh any degree of remorse expressed and other mitigating factors against

those factors in favor of granting a prison term. “Even the demonstration of genuine

remorse” does not “mandate a lesser sentence where the judge determines * * * that the

maximum * * * sentence is necessary to achieve the purposes of felony sentencing, i.e.,

protecting the public from future crime by the offender and punishing the offender.”




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State v. Karsikas, 11th Dist. Ashtabula No. 2014-A-0065, 2015-Ohio-2595, ¶ 36, citing

Davis at ¶ 17. The court was not required to give “any particular weight or emphasis to

a given set of circumstances,” including the expression of remorse, but was “merely

required to consider the statutory factors.” State v. Delmanzo, 11th Dist. Lake No.

2007-L-218, 2008-Ohio-5856, ¶ 23; State v. Deniro, 11th Dist. Lake Nos. 2012-L-121

and 2012-L-122, 2013-Ohio-2826, ¶ 30.

      {¶19} The sole assignment of error is without merit.

      {¶20} For the foregoing reasons, the judgment of the Lake County Court of

Common Pleas, sentencing Gibson to serve an eight year prison term for Attempted

Rape, is affirmed. Costs to be taxed against appellant.



CYNTHIA WESTCOTT RICE, P.J.,

THOMAS R. WRIGHT, J.,

concur.




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