[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 AppelleeCase 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 Wyando t County finding Gossman guilty of one count of rape. On appeal, Gossma n claims that he was denied the effective assistance of counsel, that his plea w as not voluntarily entered, and that the sentence should be set aside. For the re asons set forth below, the judgment is affirmed. {¶2} On July 24, 2019, the Wyandot County Grand Jury indicted Gossma n on two counts of raping a child under the age of thirteen in vi olation of R.C. 2907.02(A)(1)(b), felonies of the first degree. Doc. 1. Gossm an filed a motion for a competency evaluation to determine whether he was competent t o 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 co unt 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 indefi nite prison sentence of a minimum sentence of fifteen years to a maximum term of lif e 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 Gossm an that there wasCase No. 16-20-03

-3- a presumption that the trial court would impose an indefinite p rison term. Id . at 2.

The trial court also recited the State’s sentence recommendatio n as set forth in the plea agreement. Id . at 3. Following the State’s motion to dismiss count two of t he indictment, the trial court conditionally did so. Id . Gossman then withdrew his plea of not guilty to c ount on e and ente red 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 i ndictment. Id . at 4. The trial court then found the plea to be knowingly, voluntaril y, and intelligently given and accepted the plea, thus finding Gossman guilty of rap e. 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 ad vised 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 advocat e speak for them.

Id . The trial court also considered the pre-sentence investigati on 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 max imum 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 as signments 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 th e Constitution. Second Assignment of Error [Gossman’s] sentence should be set aside as the sentence impose d 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 guil ty plea was not voluntary because he was not adequately advised that th e trial court was not bound by the terms of the plea agreement and that he could be g iven a prison sentence of more than the fifteen years to life that was recomm ended. “[I]t is a wellestablished tenet in Ohio that a sentencing court is not bound to accept theCase 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 st ated

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, 202 0, the trial court read the sentence recommendation by the State to Gossman and he agre ed that was the

recommendation. The trial court also advised Gossman of what t he various

sentences could be and informed Gossman that the trial court wa s not required to follow the recommendation. Jan. 31 Tr. 5, 11. Gossman indicat ed 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 g uilty 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 an d 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 a nd indicated he

understood. He then informed the trial court that he still wis hed to enter the pleaCase No. 16-20-03

-6- agreement. Thus, the record shows that the plea was voluntaril y, 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 requ ired 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 pub lic 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, commensur ate 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 determi ne the most effective way to comply with the purposes and principl es of sentencing set forth in section 2929.11 of the Revised Code. In exercising that discretion, the court shall consider the factor s 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 offen der’s recidivism, and the factors set forth in division (F) of this s ection 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 th at apply regarding the offender, the offense, or the victim, and a ny other relevant factors, as indicating that the offender’s condu ct 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 victi m. (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 involv ing a person who was a family or household member at the time of the violation, the offender committed the offense in the vicini ty of one or more children who are not victims of the offense, and th e 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 th at apply regarding the offender, the offense, or the victim, and a ny other relevant factors, as indicating that the offender’s condu ct 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 th at apply regarding the offender, and any other relevant factors, a sCase 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 und er 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 anearlier 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 Revis ed 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 t he 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 t he 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 th at apply regarding the offender, and any other relevant factors, a s factors indicating that the offender is not likely to commit fu ture 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 law

abiding 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, menta l, or physical condition that is traceable to the offender's servi ce in the armed forces of the United States and that was a contributi ng factor in the offender’s commission of the offense or offenses. R.C. 2929.12. A trial court is required to consider the factor s set forth in these statutes, but the trial court is not required to discuss the co nsiderations 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 info rmation contained in the PSI and the victim impact statements. Mar. 18 Tr. 13. The trial court also indicated that it had considered the information pre sented at the hearing and had considered the circumstances surrounding the charge. Id . “[A]fter considering the factors pertaining to the seriousness of the of fense, whether theCase No. 16-20-03

-11- Defendant is likely to recidivate that the offender is not amen able to community control and prison is consistent with the purposes of and princ iples of sentencing.”

Id . at 13-14. The trial court then proceeded to discuss the unde rlying 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 f orth 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 discuss ed several of the seriousness factors, such as Gossman’s position of trust and th e trauma inflicted on

the victim. Id . A review of the PSI shows that the statutory factors set for th 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 sent encing factors set forth in R.C. 2929.12, and the factors mentioned by the trial court a re 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 sent ence was disproportionate and violated the Eighth Amendment’s prohib ition againstCase 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 prohi bition 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 “gross ly 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 disproport ionality in felony sentencing has the burden of producing evidence that his senten ce is disproportionate to sentences given to other offenders with sim ilar 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 th at the State, at sentencing stated that fifteen years to life was a harsh senten ce 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 sa y – sentence given the cruel details of this, of the investigatio n. Mar. 18 Tr. at 11. Taken in context, the State did not say th at the sentence was harsh in this case. This court also notes that the fifteen yea rs to life sentence wasCase No. 16-20-03

-13- recommended by the State and requested by Gossman. The trial c ourt considered all of this, but also considered the underlying facts of this c ase. Pursuant to the presentence investigation, Defendant appears to be a vile, disgusting human being who took pleasure in torturin g 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 suffer ed 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 some one of his abuse. The dread this child must have felt every time she knew she wou ld be placed in his care is almost unimaginable. Defendant’s vict im 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, an d let all be warned this Defendant should never be around childre n ever again.

Id . at 14-15. Gossman has not presented any evidence that his se ntence 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 ma ximum sentence. Even though the sentence was greater than that recommended and requested, there is nothing in the record to indicate it is grossly disproportio nate and thus violates the Eighth Amendment. The second assignment of error is overru led.Case No. 16-20-03

-14- Ineffectiveness of Counsel {¶11} Gossman argues in the first assignment of error that he was den ied the effective assistance of counsel for failing to have mental heal th 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 “wh ether the accused, under all the circumstances, * * * had a fair tria l 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 syllab us. 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 counse l’s essential duties to his client. Next, and analytically separat e 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.C t. 3135, 57 L.Ed.2d 1154. On the issue of counsel’s ineffectiveness, the petitioner has t he 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) prejud ice caused by the violation makes it unnecessary for a court to consider the othe r 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 p robability that, butCase No. 16-20-03

-15- for counsel's errors, the result of the proceeding would have b een different.” State v. Conway , 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. “Th e prejudice inquiry, thus, focuses not only on outcome determinat ion, 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 wi tness in State v.

Maxwell , 139 Ohio St. 3d 12, 2014-Ohio-1019 , 9 N.E.3 d 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 follo ws. The defense decision to call or not call a mitigation witness i s a matter of trial strategy. * * * Debatable trial tactics general ly 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 coun sel to not do so. Gossman’s attorney did raise the fact that Gossman was sufferin g from mental health issues including substance abuse, anxiety disorder and d epression. Mar. 18 Tr. 9. These statements were also supported by the PSI and by the prior competencyCase No. 16-20-03

-16- hearing. However, there is nothing in the record to support Go ssman’s claim that such testimony would have affected the sentence. Since there i s nothing to show

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

the ineffective assistance of counsel claim fails. The first a ssignment 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 Co unty is affirmed. Judgment Affirmed SHAW, P.J. and ZIMMERMAN, J., concur. /jlr