[Cite as State v. Gossman, 2020-Ohio-5135.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

WYANDOT COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 16-20-03 

 v. 

MICHAEL L. GOSSMAN, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Wyandot County Common Pleas Court 

Trial Court No. 19-CR-0082 

Judgment Affirmed 

Date of Decision: November 2, 2020 

 

APPEARANCES: 

 

Todd A. Workman for Appellant 

 Douglas D. Rowland for Appellee 
Case No. 16-20-03 

-2- 

WILLAMOWSKI, J.

{¶1} Defendant-appellant Michael L. Gossman (“Gossman”) brings this 

appeal from the judgment of the Court of Common Pleas of Wyandot County 

finding Gossman guilty of one count of rape. On appeal, Gossman claims that he 

was denied the effective assistance of counsel, that his plea was not voluntarily 

entered, and that the sentence should be set aside. For the reasons set forth below, 

the judgment is affirmed. 

{¶2} On July 24, 2019, the Wyandot County Grand Jury indicted Gossman 

on two counts of raping a child under the age of thirteen in violation of R.C. 

2907.02(A)(1)(b), felonies of the first degree. Doc. 1. Gossman filed a motion for 

a competency evaluation to determine whether he was competent to stand trial. Doc. 

9. The competency hearing was held on October 21, 2019. Doc. 22. The trial court 

determined that Gossman was competent to stand trial. Id. Pursuant to a plea 

negotiation, Gossman agreed to enter a plea of guilty to one count of rape and the 

State agreed to dismiss the second count of rape. Doc. 25. As part of the agreement, 

the State would recommend that the trial court impose an indefinite prison sentence 

of a minimum sentence of fifteen years to a maximum term of life imprisonment. 

Id. 

{¶3} A change of plea hearing was held on January 31, 2020. Doc. 26. 

During the dialogue with Gossman, the trial court advised Gossman that there was 
Case No. 16-20-03 

-3- 

a presumption that the trial court would impose an indefinite prison term. Id. at 2. 

The trial court also recited the State’s sentence recommendation as set forth in the 

plea agreement. Id. at 3. Following the State’s motion to dismiss count two of the 

indictment, the trial court conditionally did so. Id. Gossman then withdrew his plea 

of not guilty to count one and entered a plea of guilty to that count of rape, signing 

the written plea of guilty in open court. Id. When questioned, Gossman admitted 

the circumstances and allegations supporting count one of the indictment. Id. at 4. 

The trial court then found the plea to be knowingly, voluntarily, and intelligently 

given and accepted the plea, thus finding Gossman guilty of rape. Id. 

{¶4} On March 18, 2020, a sentencing hearing was held. Doc. 32. At the 

hearing, counsel for Gossman spoke in mitigation and requested the minimum 

sentence. Id. at 2. Gossman and his mother also spoke on his behalf. Id. The State 

reiterated the recommendation made in the plea agreement and advised the trial 

court of the amount of time served. Id. Although the victim and her mother were 

present in the courtroom, they chose to have the victim advocate speak for them. 

Id. The trial court also considered the pre-sentence investigation report (“PSI”) and 

the victim impact statement. Id. at 2-3. The trial court then imposed an indefinite 

prison term of a minimum sentence of twenty-five years to a maximum sentence of 

life imprisonment. Id. at 4. Gossman filed a timely notice of appeal from this 

judgment. Doc. 36. On appeal, Gossman raises the following assignments of error. 
Case No. 16-20-03 

-4- 

First Assignment of Error 

[Gossman’s] sentence should be set aside due to ineffective 

assistance of counsel in violation of the Sixth Amendment of the 

Constitution. 

Second Assignment of Error 

[Gossman’s] sentence should be set aside as the sentence imposed 

by the court was disproportionate and not consistent with 

sentences for similar offenses and it [is in] violation of the Eighth 

Amendment’s prohibition against cruel and unusual punishment. 

Third Assignment of Error 

[Gossman’s] sentence should be set aside due to the failure of the 

trial court to apply [R.C. 2929.11 and 2929.12]. 

Fourth Assignment of Error 

[Gossman’s] plea should be set aside [as] it was not knowingly and 

intelligently made as the court violated [Gossman’s] Sixth 

Amendment and due process rights by not adequately advising 

him that the court was not bound by the terms of the [plea] 

agreement. 

For the purposes of clarity, we will address the assignments of error out of order. 

Voluntariness of the Plea

{¶5} In the fourth assignment of error, Gossman claims that his guilty plea 

was not voluntary because he was not adequately advised that the trial court was not 

bound by the terms of the plea agreement and that he could be given a prison 

sentence of more than the fifteen years to life that was recommended. “[I]t is a wellestablished tenet in Ohio that a sentencing court is not bound to accept the 
Case No. 16-20-03 

-5- 

prosecution's recommended sentence as part of a negotiated plea agreement.” State 

v. Liles, 3d Dist. Allen No. 1-10-28, 2010-Ohio-5799, ¶ 22 quoting State v. Crable, 

7th Dist. Belmont No. 04 BE 17, 2004-Ohio-6812, ¶ 11.

{¶6} A review of the record shows that the written plea agreement stated 

as follows: 

I understand that the Court does not take part in any Sentence 

Recommendation, and may sentence me today or refer my case 

for a presentence investigation and may impose the maximum 

sentence for this offense. 

Doc. 25 at 3. At the change of plea hearing on January 31, 2020, the trial court read 

the sentence recommendation by the State to Gossman and he agreed that was the 

recommendation. The trial court also advised Gossman of what the various 

sentences could be and informed Gossman that the trial court was not required to 

follow the recommendation. Jan. 31 Tr. 5, 11. Gossman indicated to the trial court 

that he understood all of this. Id. The trial court then asked Gossman if he was 

entering the plea voluntarily, to which Gossman responded, “Yes, Your Honor.” 

Jan. 31 Tr. 11-12. The trial court then had Gossman sign the guilty plea and asked 

him what he did. Jan. 31 Tr. 12. After Gossman admitted that he had raped a nine 

year old victim, the trial court accepted the change of plea and found Gossman guilty 

of rape. Jan. 31 Tr. 12-13. The record shows that Gossman was informed by the 

trial court that it was not bound by the recommended sentence and indicated he 

understood. He then informed the trial court that he still wished to enter the plea 
Case No. 16-20-03 

-6- 

agreement. Thus, the record shows that the plea was voluntarily, intelligently, and 

knowingly made. The fourth assignment of error is overruled. 

R.C. 2929.11 and R.C. 2929.12

{¶7} Gossman claims in the third assignment of error that the trial court 

erred by failing to consider and apply the factors set forth in R.C. 2929.11 and R.C. 

2929.12. Prior to imposing a sentence, the trial court is required by statute to 

consider the underlying principles of sentencing set forth in R.C. 2929.11 and the 

seriousness and recidivism factors set forth in R.C. 2929.12. 

(A) A court that sentences an offender for a felony shall be 

guided by the overriding purposes of felony sentencing. The 

overriding purposes of felony sentencing are to protect the public 

from future crime by the offender and others, to punish the 

offender, and to promote the effective rehabilitation of the 

offender using the minimum sanctions that the court determines 

accomplish those purposes without imposing an unnecessary 

burden on state or local government resources. To achieve those

purposes, the sentencing court shall consider the need for 

incapacitating the offender, deterring the offender and others 

from future crime, rehabilitating the offender, and making 

restitution to the victim of the offense, the public, or both. 

(B) A sentence imposed for a felony shall be reasonably 

calculated to achieve the three overriding purposes of felony 

sentencing set forth in division (A) of this section, 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. 

(C) A court that imposes a sentence upon an offender for a felony 

shall not base the sentence upon the race, ethnic background, 

gender, or religion of the offender. 
Case No. 16-20-03 

-7- 

R.C. 2929.11. 

(A) Unless otherwise required by section 2929.13 or 2929.14 of 

the Revised Code, a court that imposes a sentence under this 

chapter upon an offender for a felony has discretion to determine 

the most effective way to comply with the purposes and principles 

of sentencing set forth in section 2929.11 of the Revised Code. In 

exercising that discretion, the 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 the factors set forth in division (F) of this section 

pertaining to the offender's service in the armed forces of the

United States and, in addition, may consider any other factors 

that are relevant to achieving those purposes and principles of

sentencing. 

(B) The sentencing court shall consider all of the following that 

apply regarding the offender, the offense, or the victim, and any 

other relevant factors, as indicating that the offender’s conduct is 

more serious than conduct normally constituting the offense: 

(1) The physical or mental injury suffered by the victim of the 

offense due to the conduct of the offender was exacerbated 

because of the physical or mental condition or age of the victim. 

(2) The victim of the offense suffered serious physical, 

psychological, or economic harm as a result of the offense. 

(3) The offender held a public office or position of trust in the 

community, and the offense related to that office or position. 

(4) The offender’s occupation, elected office, or profession 

obliged the offender to prevent the offense or bring others 

committing it to justice. 

(5) The offender’s professional reputation or occupation, elected 

office, or profession was used to facilitate the offense or is likely 

to influence the future conduct of others. 
Case No. 16-20-03 

-8- 

(6) The offender’s relationship with the victim facilitated the 

offense. 

(7) The offender committed the offense for hire or as a part of 

an organized criminal activity. 

(8) In committing the offense, the offender was motivated by 

prejudice based on race, ethnic background, gender, sexual 

orientation, or religion. 

(9) If the offense is a violation of section 2919.25 or a violation of 

section 2903.11, 2903.12, or 2903.13 of the Revised Code involving 

a person who was a family or household member at the time of 

the violation, the offender committed the offense in the vicinity of 

one or more children who are not victims of the offense, and the 

offender or the victim of the offense is a parent, guardian, 

custodian, or person in loco parentis of one or more of those 

children. 

(C) The sentencing court shall consider all of the following that 

apply regarding the offender, the offense, or the victim, and any 

other relevant factors, as indicating that the offender’s conduct is 

less serious than conduct normally constituting the offense: 

(1) The victim induced or facilitated the offense. 

(2) In committing the offense, the offender acted under strong 

provocation. 

(3) In committing the offense, the offender did not cause or 

expect to cause physical harm to any person or property. 

(4) There are substantial grounds to mitigate the offender’s 

conduct, although the grounds are not enough to constitute a 

defense. 

(D) The sentencing court shall consider all of the following that 

apply regarding the offender, and any other relevant factors, as 
Case No. 16-20-03 

-9- 

factors indicating that the offender is likely to commit future

crimes: 

(1) At the time of committing the offense, the offender was under 

release from confinement before trial or sentencing; was under a 

sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 

of the Revised Code; was under post-release control pursuant to

section 2967.28 or any other provision of the Revised Code for an 

earlier offense or had been unfavorably terminated from postrelease control for a prior offense pursuant to division (B) of

section 2967.16 or section 2929.141 of the Revised Code; was 

under transitional control in connection with a prior offense; or 

had absconded from the offender’s approved community 

placement resulting in the offender’s removal from the 

transitional control program under section 2967.26 of the Revised 

Code. 

(2) The offender previously was adjudicated a delinquent child 

pursuant to Chapter 2151. of the Revised Code prior to January 

1, 2002, or pursuant to Chapter 2152. of the Revised Code, or the 

offender has a history of criminal convictions. 

(3) The offender has not been rehabilitated to a satisfactory 

degree after previously being adjudicated a delinquent child 

pursuant to Chapter 2151. of the Revised Code prior to January 

1, 2002, or pursuant to Chapter 2152. of the Revised Code, or the 

offender has not responded favorably to sanctions previously 

imposed for criminal convictions. 

(4) The offender has demonstrated a pattern of drug or alcohol 

abuse that is related to the offense, and the offender refuses to 

acknowledge that the offender has demonstrated that pattern, or

the offender refuses treatment for the drug or alcohol abuse. 

(5) The offender shows no genuine remorse for the offense. 

(E) The sentencing court shall consider all of the following that 

apply regarding the offender, and any other relevant factors, as 

factors indicating that the offender is not likely to commit future 

crimes: 
Case No. 16-20-03 

-10- 

(1) Prior to committing the offense, the offender had not been 

adjudicated a delinquent child. 

(2) Prior to committing the offense, the offender had not been 

convicted of or pleaded guilty to a criminal offense. 

(3) Prior to committing the offense, the offender had led a lawabiding life for a significant number of years. 

(4) The offense was committed under circumstances not likely to

recur. 

(5) The offender shows genuine remorse for the offense. 

(F) The sentencing court shall consider the offender’s military

service record and whether the offender has an emotional, mental, 

or physical condition that is traceable to the offender's service in 

the armed forces of the United States and that was a contributing 

factor in the offender’s commission of the offense or offenses.

R.C. 2929.12. A trial court is required to consider the factors set forth in these 

statutes, but the trial court is not required to discuss the considerations on the record. 

State v. Agnew, 3d Dist. Allen No. 1-19-84, 2020-Ohio-4260, ¶ 11. The mere 

statement that the trial court considered the statutory factors alone is sufficient to 

satisfy the statutory obligations. Id. 

{¶8} Here, the trial court indicated that it had considered the information 

contained in the PSI and the victim impact statements. Mar. 18 Tr. 13. The trial 

court also indicated that it had considered the information presented at the hearing 

and had considered the circumstances surrounding the charge. Id. “[A]fter 

considering the factors pertaining to the seriousness of the offense, whether the 
Case No. 16-20-03 

-11- 

Defendant is likely to recidivate that the offender is not amenable to community 

control and prison is consistent with the purposes of and principles of sentencing.” 

Id. at 13-14. The trial court then proceeded to discuss the underlying facts of this 

case and how the actions of Gossman had affected the victim. Id. at 14. 

{¶9} In the judgment entry, the trial court noted that a prison term was 

consistent with the purposes and principles of sentencing set forth in R.C. 2929.11. 

Doc. 32 at 3. The trial court also noted in the judgment entry that it had considered 

the PSI and discussed the likelihood of recidivism, and discussed several of the 

seriousness factors, such as Gossman’s position of trust and the trauma inflicted on 

the victim. Id. A review of the PSI shows that the statutory factors set forth in R.C. 

2929.12 were addressed and the trial court stated it considered the contents of the 

PSI. Id. at Ex. 1. Since the sentence imposed by the trial court was within the 

statutory range, the record reflects that the trial court did consider the purposes and 

principles of sentencing set forth in R.C. 2929.11 and the sentencing factors set forth 

in R.C. 2929.12, and the factors mentioned by the trial court are supported by the 

record, the trial court did not err in imposing the sentence. The third assignment of 

error is overruled. 

Disproportionate Sentence 

{¶10} In the second assignment of error, Gossman claims that his sentence 

was disproportionate and violated the Eighth Amendment’s prohibition against 
Case No. 16-20-03 

-12- 

cruel and unusual punishment. A sentence within the statutory range generally will 

not be found to be in violation of the Eighth Amendment’s prohibition against cruel 

and unusual punishment. U.S. v. Newsome, 898 F.2d 119 (10th Cir.1990). The 

Eighth Amendment only forbids extreme sentences that are “grossly 

disproportionate” to the crime. Ewing v. California, 538 U.S. 11, 12, 123 S.Ct. 

1179, 155 L.Ed.2d 108 (2003). “A defendant alleging disproportionality in felony 

sentencing has the burden of producing evidence that his sentence is 

disproportionate to sentences given to other offenders with similar records who have 

committed these offenses. State v. McMillan, 8th Dist. Cuyahoga No. 105296, 

2017-Ohio-8872, ¶ 16, 100 N.E.3d 1222. Here, Gossman claims that the State, at 

sentencing stated that fifteen years to life was a harsh sentence for a first time 

offender. However, Gossman takes that statement out of context and in his 

reference to the statement, failed to finish it. The complete statement of the State 

was as follows. 

While the recommendation of 15 to life might seem a little bit 

harsh for a first time offender, which apparently Defendant 

doesn’t have any type of criminal history that I’m aware of, 

nothing was pointed out in the PSI, he’s earned such a harsh say 

– sentence given the cruel details of this, of the investigation. 

Mar. 18 Tr. at 11. Taken in context, the State did not say that the sentence was 

harsh in this case. This court also notes that the fifteen years to life sentence was 
Case No. 16-20-03 

-13- 

recommended by the State and requested by Gossman. The trial court considered 

all of this, but also considered the underlying facts of this case. 

Pursuant to the presentence investigation, Defendant appears to

be a vile, disgusting human being who took pleasure in torturing 

a nine-year-old child for his own selfish pleasure. Her little fist 

hit him. She cried; she screamed; she bled, and yet Defendant 

continued to rape her over and over. Defendant’s victim suffered 

physical and emotional trauma which is exasperated by her young

age. Defendant was in a position of trust with his victim and he 

was supposed to be her caregiver; instead, he was her monster. 

Defendant took pictures of this victim while she was naked and 

would hit the victim with a belt if she threatened to tell someone 

of his abuse. 

The dread this child must have felt every time she knew she would 

be placed in his care is almost unimaginable. Defendant’s victim 

still lives in fear. She’s afraid Defendant will break out of jail. 

She has anxiety and depression and anger. She has trouble 

sleeping and when she does sleep, she has nightmares featuring 

the Defendant. This child should not have to continue to worry

about Defendant ever being a part of her young life anymore, and 

let all be warned this Defendant should never be around children 

ever again. 

Id. at 14-15. Gossman has not presented any evidence that his sentence was not 

proportionate to similarly situated offenders. A review of the record shows that the 

sentence was within the statutory range and was not even the maximum sentence. 

Even though the sentence was greater than that recommended and requested, there 

is nothing in the record to indicate it is grossly disproportionate and thus violates 

the Eighth Amendment. The second assignment of error is overruled. 
Case No. 16-20-03 

-14- 

Ineffectiveness of Counsel

{¶11} Gossman argues in the first assignment of error that he was denied the 

effective assistance of counsel for failing to have mental health experts testify at the 

sentencing hearing. 

In evaluating whether a petitioner has been denied effective 

assistance of counsel, this court has held that the test is “whether 

the accused, under all the circumstances, * * * had a fair trial and 

substantial justice was done.” State v. Hester (1976), 45 Ohio St.2d 

71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of the syllabus. 

When making that determination, a two-step process is usually 

employed. “First, there must be a determination as to whether 

there has been a substantial violation of any of defense counsel’s 

essential duties to his client. Next, and analytically separate from 

the question of whether the defendant’s Sixth Amendment rights 

were violated, there must be a determination as to whether the 

defense was prejudiced by counsel's ineffectiveness.” State v. Lytle

(1976), 48 Ohio St.2d 391, 396–397, 2 O.O.3d 495, 498, 358 N.E.2d 

623, 627, vacated on other grounds (1978), 438 U.S. 910, 98 S.Ct. 

3135, 57 L.Ed.2d 1154. 

On the issue of counsel’s ineffectiveness, the petitioner has the 

burden of proof, since in Ohio a properly licensed attorney is 

presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio 

St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; State v. Jackson, 64 

Ohio St.2d [107] at 110–111, 18 O.O.3d [348] at 351, 413 N.E.2d

[819] at 822. 

State v. Calhoun, 86 Ohio St.3d 279, 289, 1999-Ohio-102, 714 N.E.2d 905. “The 

failure to prove either 1) a substantial violation or 2) prejudice caused by the 

violation makes it unnecessary for a court to consider the other prong of the test.” 

State v. Walker, 3d Dist. Seneca No. 13-15-42, 2016-Ohio-3499, 66 N.E.3d 349, ¶ 

20. “To show prejudice, the defendant must show a reasonable probability that, but 
Case No. 16-20-03 

-15- 

for counsel's errors, the result of the proceeding would have been different.” State 

v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. “The 

prejudice inquiry, thus, focuses not only on outcome determination, but also on 

‘whether the result of the proceeding was fundamentally unfair or unreliable.’” 

State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180 quoting 

Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). 

{¶12} Gossman claims that counsel was ineffective for failing to call a 

mental health expert to testify in mitigation at the sentencing hearing. The Ohio 

Supreme Court has addressed the failure to call a mitigation witness in State v. 

Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930. In Maxwell, counsel 

was allegedly ineffective for failing to call an expert witness to present evidence of 

the defendant’s low intelligence. The Court held that as follows. 

The defense decision to call or not call a mitigation witness is a 

matter of trial strategy. * * * Debatable trial tactics generally do 

not constitute ineffective assistance of counsel. 

Id. at ¶180 quoting State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, ¶ 116, 

857 N.E.2d 547. The Court found that although it did not know why counsel did 

not call the witness, it was not ineffective assistance of counsel to not do so. 

Gossman’s attorney did raise the fact that Gossman was suffering from mental 

health issues including substance abuse, anxiety disorder and depression. Mar. 18 

Tr. 9. These statements were also supported by the PSI and by the prior competency 
Case No. 16-20-03 

-16- 

hearing. However, there is nothing in the record to support Gossman’s claim that 

such testimony would have affected the sentence. Since there is nothing to show 

that counsel violated his essential duties or that there was any resulting prejudice, 

the ineffective assistance of counsel claim fails. The first assignment of error is 

overruled. 

{¶13} Having found no prejudicial errors in the particulars assigned and 

argued, the judgment of the Court of Common Pleas of Wyandot County is affirmed. 

Judgment Affirmed 

SHAW, P.J. and ZIMMERMAN, J., concur. 

/jlr