[Cite as State v. Brill, 2023-Ohio-404.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

UNION COUNTY

STATE OF OHIO,

CASE NO. 14-22-20

 PLAINTIFF-APPELLEE,

 v.

GARY LEON BRILL, O P I N I O N

 DEFENDANT-APPELLANT.

Appeal from Union County Common Pleas Court

Trial Court No. 22-CR-0131

Judgment Affirmed

Date of Decision: February 13, 2023

APPEARANCES:

Jonathan T. Tyack for Appellant

Raymond Kelly Hamilton for Appellee
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WILLAMOWSKI, J. 

{¶1} Defendant-appellant Gary L. Brill (“Brill”) appeals the judgment of the 

Union County Court of Common Pleas, challenging the sentence imposed by the 

trial court on several grounds. For the reasons set forth below, the judgment of the 

trial court is affirmed. 

Facts and Procedural History

{¶2} Brill was born in 1962. Doc. 1. Through his friendship with the W. 

family, he came to know A.W. when she was three or four years old. PSI. Brill 

hosted 4-H activities on his farm. PSI. A.W. participated in these 4-H activities as 

a child. PSI. In between July 1, 2019 and October 31, 2019, Brill engaged in sexual 

conduct on multiple occasions with A.W., who turned thirteen during the timeframe 

in which this sexual conduct was occurring. Doc. 1. PSI. Tr. 16. 

{¶3} On June 21, 2022, Brill was charged, via a bill of information, with one 

count of unlawful sexual conduct with a minor in violation of R.C. 2907.04(A), a 

felony of the third degree. Doc. 1. Brill then pled guilty to the charge against him. 

Doc. 3. On August 18, 2022, Brill appeared before the trial court for sentencing. 

Doc. 14. The trial court sentenced Brill to serve the maximum prison term of sixty 

months. Doc. 14, 15. The trial court then issued its judgment entry of sentencing 

on August 18, 2022. Doc. 14. 

{¶4} Brill filed his notice of appeal on August 30, 2022. Doc. 20. On appeal, 

he raises the following four assignments of error:
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First Assignment of Error

The maximum sentence imposed in this case is clearly and 

convincingly contrary to law. 

Second Assignment of Error

The Ohio Constitution provides jurisdiction for this Court to 

review and remand or modify criminal sentences that are 

contrary to any law. That authority cannot be vacated via statute, 

and a litigant with a right to appeal cannot be deprived of that 

right without due process of law. 

Third Assignment of Error

The maximum prison sentence imposed in this case is contrary to 

law because the specific sentencing findings made by the trial 

court under R.C. 2929.11 and R.C. 2929.12 are not supported by 

the record. 

Fourth Assignment of Error

Under the facts and circumstances of this case, the maximum 

prison sentence imposed upon Mr. Brill amounts to cruel and 

unusual punishment in violation of the Eighth and Fourteenth 

Amendments to the United States Constitution and Article I, 

Section 9 of the Ohio Constitution. 

First Assignment of Error

{¶5} Brill raises several arguments, seeking to establish that the trial court 

imposed a sentence that is clearly and convincingly contrary to law by ordering him 

to serve the maximum prison term for this offense. 

Legal Standard

{¶6} R.C. 2953.08 governs appeals based on the felony sentencing 

guidelines. R.C. 2953.08(A) reads, in its relevant part, as follows:
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(A) In addition to any other right to appeal and except as provided 

in division (D) of this section, a defendant who * * * pleads guilty 

to a felony may appeal as a matter of right the sentence imposed 

upon the defendant on one of the following grounds:

(1) The sentence consisted of or included the maximum definite 

prison term allowed for the offense by division (A) of section 

2929.14 or section 2929.142 of the Revised Code * * * and the 

court imposed the sentence under one of the following 

circumstances:

(a) The sentence was imposed for only one offense.

(b) The sentence was imposed for two or more offenses arising out 

of a single incident, and the court imposed the maximum definite 

prison term or longest minimum prison term for the offense of the 

highest degree.

* * * 

(4) The sentence is contrary to law.

R.C. 2953.08(A)(1). See State v. Moore, 142 Ohio App.3d 593, 596, 2001-Ohio2376, 756 N.E.2d 686, 688 (4th Dist. 2001). 

{¶7} “[T]he proper scope of felony sentence review by Ohio appellate courts 

is set forth in R.C. 2953.08(G)(2).” State v. Redmond, 6th Dist. Lucas No. L-18-

1066, 2019-Ohio-309, ¶ 15. This section reads, in its relevant part, as follows:

(2) The court hearing an appeal under division (A), (B), or (C) of 

this section shall review the record, including the findings 

underlying the sentence or modification given by the sentencing 

court.

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. The appellate court’s standard for review is not 
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whether the sentencing court abused its discretion. The appellate 

court may take any action authorized by this division if it clearly 

and convincingly finds either of the following:

(a) That the record does not support the sentencing court’s 

findings under division (B) or (D) of section 2929.13, division 

(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 

2929.20 of the Revised Code, whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

R.C. 2953.08(G)(2). See State v. Taflinger 3d Dist. Logan No. 8-17-20, 2018-Ohio456, ¶ 14. “‘[O]therwise contrary to law’ means ‘in violation of statute or legal 

regulations at a given time.’” State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 

169 N.E.3d 649, ¶ 34, quoting Black’s Law Dictionary 328 (6th Ed.1990). 

Clear and convincing evidence is that measure or degree of proof 

which is more than a mere ‘preponderance of the evidence,’ but 

not to the extent of such certainty as is required ‘beyond a 

reasonable doubt’ in criminal cases, and which will produce in the 

mind of the trier of facts a firm belief or conviction as to the facts 

sought to be established.

State v. Sullivan, 2017-Ohio-8937, 102 N.E.3d 86 (3d Dist.), ¶ 12, quoting Cross v. 

Ledford, 161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the syllabus (1954).

Legal Analysis 

{¶8} In this assignment of error, Brill raises three main arguments to 

challenge his sentence. However, no objections were raised to these issues before 

the trial court. Tr. 19-30. “[W]hen the accused fails to object to the error in the trial 

court, appellate courts apply the plain-error standard of review.” State v. West, ---

Ohio St.3d ---, 2022-Ohio-1556, --- N.E.3d ---, ¶ 2. Under the Ohio Rules of 
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Criminal Procedure, “[p]lain errors or defects affecting substantial rights may be 

noticed although they were not brought to the attention of the court.” Crim.R. 52(B).

“In order to find plain error under Crim.R. 52(B), there must be 

an error, the error must be an ‘obvious’ defect in the trial 

proceedings, and the error must have affected ‘substantial 

rights.’” State v. Bowsher, 3d Dist. Union No. 14-07-32, 2009-

Ohio-6524, ¶ 12, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 

[2002-Ohio-68,] 759 N.E.2d 1240 (2002). ‘The standard for plain 

error is whether, but for the error, the outcome of the proceeding 

clearly would have been otherwise.’ State v. Hornbeck, 155 Ohio 

App.3d 571, 2003-Ohio-6897, 802 N.E.2d 184, ¶ 16 (2d Dist.), 

citing State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978). 

Notice of plain error is taken “only to ‘prevent a manifest 

miscarriage of justice.’” State v. Davis, 3d Dist. Seneca No. 13-16-

30, 2017-Ohio-2916, ¶ 23, quoting Long, supra, at paragraph three 

of the syllabus.

State v. Eitzman, 3d Dist. Henry No. 7-21-03, 2022-Ohio-574, ¶ 42, quoting 

Taflinger, supra, at ¶ 17. Under Crim.R. 52(B), “the defendant bears the burden of 

demonstrating that a plain error affected his substantial rights.” (Emphasis sic.) 

State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 14.

{¶9} Since Brill did not raise objections to these issues before the trial court, 

we will apply the plain error standard of review to his three arguments in this 

assignment of error. First, Brill argues that the trial court based his sentence on 

impermissible considerations, identifying a statement that the trial judge made 

regarding the charge against Brill as evidence of error. Tr. 21. In this statement, 

the trial judge alluded to the fact that the illegal sexual contact with the victim 

occurred several times, beginning in July of 2019 and continuing through October 
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of 2019. Tr. 21. Doc. 1.1 The trial court then noted that the victim turned thirteen 

almost sixty days into this timeframe. Tr. 21. Doc. 1. 

{¶10} In this case, Brill was charged with unlawful sexual conduct with a 

minor in violation of R.C. 2907.04(A), a felony of the third degree. Doc. 1. This 

statute prohibits sexual conduct between “a person who is eighteen years of age or

older” and a person who “is thirteen years of age or older but less than sixteen years 

of age * * *.” R.C. 2907.04(A). However, sexual conduct with a “person * * * less 

than thirteen years of age” constitutes the offense of rape in violation of R.C. 

2907.02(A)(1)(b), a felony of the first degree. R.C. 2907.02(A)(1)(b). The trial 

court noted that Brill was fortunate to have been charged under R.C. 2907.04(A) 

because the allegations in the complaint indicated that the victim was under the age 

of thirteen when the sexual conduct began and that Brill could, therefore, have been 

charged with rape in violation of R.C. 2907.02(A)(1)(b). 

{¶11} Further, the father of the victim gave an impact statement that 

including the following information:

When the Prosecutor, Victim’s Advocate, and the lead detective 

came to our house that Thursday afternoon, the Prosecutor 

informed us that he was prepared to go to the Grand Jury the 

very next morning with F-1 rape and gross sexual imposition * * 

*, but that Mr. Brill wanted to talk. And although he didn’t need 

our input, he wanted to know what our thoughts and our 

daughter’s thoughts were on accepting a guilty plea but for a 

lesser charge. My wife and I both thought that the sooner our 

daughter can put this behind her, the better. 

1 At the hearing, the prosecution stated that sexual conduct occurred on eight different occasions within this 

timeframe. Tr. 16. 
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Tr. 8. Consideration of such information is permissible as 

‘[c]ourts have consistently held that evidence of other crimes, 

including crimes that never result in criminal charges being 

pursued, or criminal charges that are dismissed as a result of a 

plea bargain, may be considered at sentencing.’

(Citations omitted.) State v. Dixon, 4th Dist. Hocking No. 21CA8, 2022-Ohio-2807, 

¶ 31, quoting State v. Starkey, 7th Dist. Mahoning No. 06 MA 110, 2007-Ohio6702, ¶ 16. See also State v. Meeks, 3d Dist. Logan No. 8-19-24, 2019-Ohio-4124, 

¶ 16; State v. Lanning, 6th Dist. Ottawa No. OT-19-024, 2020-Ohio-2863, ¶ 17. 

‘[N]o caselaw * * * would prohibit a trial judge from taking into 

account charges that are reduced or dismissed as a result of a plea 

bargain, [and] in fact, the history of Ohio law indicates that the 

sentencing judge may consider such factors.’

State v. Banks, 10th Dist. Franklin Nos. 10AP-1065, 10AP-1066, and 10AP-1067, 

2011-Ohio-2749, ¶ 24, quoting Starkey at ¶ 19. See also State v. Ellis, 2d Dist. 

Montgomery No. 25422, 2013-Ohio-2342, ¶ 13; State v. Allen, 5th Dist. Stark No. 

2021CA00051, 2022-Ohio-268, ¶ 60. Accordingly, we conclude that Brill’s first 

argument under this assignment of error is without merit. 

{¶12} Second, Brill argues that the trial court relied on information from an 

unauthorized source. As evidence of this alleged error, Brill points to the following 

comment made by the trial court:

He took time to groom her and develop a relationship that would 

put her in a position of vulnerability. And then stole her * * * 

childhood as well as her innocence. It’s obvious here this 

afternoon and obvious based upon the Court’s experience of cases 
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that come before the Court that this corrupt behavior of the 

defendant will forever impact the victim’s life. 

(Emphasis added.) Tr. 22. Brill argues that, in considering its “experience of 

cases,” the trial court erred by relying on information from other cases that were not 

before the judge. Tr. 22. He asserts that the trial court relied on unauthorized 

sources of information by relying on its experience in other cases. 

{¶13} However, in this appeal, Brill makes a number of arguments based 

upon the factors listed in R.C. 2929.12. This provision directs a trial court to 

consider a number of factors to determine whether “the offender’s conduct is more 

serious than conduct normally constituting the offense[.]” R.C. 2929.12(B). Thus, 

this statute expressly directs a trial judge to determine the relative seriousness of a 

particular offense in comparison to other instances of the same type of offense. In 

this process,

the individual decisionmaker has the discretion to determine the 

weight to assign a particular statutory factor. State v. Fox (1994), 

69 Ohio St.3d 183, 193, 631 N.E.2d 124, 132 * * *. A discretionary 

decision necessitates the exercise of personal judgement, and we 

have determined that when making such judgments, the 

sentencing court ‘is not required to divorce itself from all personal 

experiences and make [its] decision in a vacuum.’ State v. Cook

(1992), 65 Ohio St.3d 516, 529, 605 N.E.2d 70, 84 * * *.

(Citations omitted.) State v. Arnett, 88 Ohio St.3d 208, 215-216, 2000-Ohio-302, 

724 N.E.2d 793, (2000). In the identified statement, the trial judge was simply 

relying on his experience to gauge the seriousness of the offense committed by Brill 

in comparison to the “conduct normally constituting the offense[.]” R.C. 2929.12. 
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{¶14} Further, the record indicates that the trial court considered the facts of 

Brill’s case. By the time the trial judge made this statement, he had also heard

statements from the victim, the victim’s father, the prosecutor, Brill, and defense 

counsel. Tr. 4-19. The trial judge had an abundance of information regarding the 

facts of this particular case to consider as he determined the relative seriousness of 

the offense committed by Brill. Having considered the facts of this case, we have 

found no indication that the trial judge drew on an unauthorized source of 

information as he considered the facts of this case and imposed a sentence. Thus, 

we conclude that Brill’s second argument under this assignment of error is without 

merit. 

{¶15} Third, Brill asserts that his right to allocution was violated by the two 

previously alleged errors. “The right to allocution * * * guarantees the defendant 

an opportunity to present information to the court for consideration when 

determining what punishment fits the crime.” City of Euclid v. Winters, 8th Dist. 

Cuyahoga No. 65013, 1994 WL 144518, *3 (Apr. 21, 1994) (Krupansky, J., 

dissenting). 

The right of allocution is set forth in R.C. 2929.19 and Crim.R. 

32. R.C. 2929.19(A) states: ‘At the [sentencing] hearing, the 

offender * * * may present information relevant to the imposition 

of sentence in the case. The court shall * * * ask the offender 

whether the offender has anything to say as to why sentence 

should not be imposed upon the offender.’ Further, Crim.R. 

32(A) requires the trial court, at the sentencing hearing, to ‘(1) 

[a]fford counsel an opportunity to speak on behalf of the 

defendant and address the defendant personally and ask if he or 
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she wishes to make a statement in his or her own behalf or present 

any information in mitigation of punishment.’

State v. Gutierrez, 6th Dist. Wood No. WD-21-035, 2021-Ohio-4232, ¶ 13, quoting 

R.C. 2929.19 and Crim.R. 32(A).

‘[T]he interest that is protected by the right to allocution is the 

opportunity for the defendant to address the court directly on his 

own behalf after all the information on which the sentencing court 

relies when pronouncing sentence has been presented.’ 

(Emphasis sic.) State v. Brown, 166 Ohio App.3d 252, 2006-Ohio1796, 850 N.E.2d 116, ¶ 13 (11th Dist.).

State v. Faircloth, 2d Dist. Montgomery No. 28715, 2021-Ohio-1514, ¶ 12. Thus, 

“[a] trial court can violate a defendant’s right of allocution if it does not allow the 

defendant to respond after new information is introduced and considered by the 

court at the sentencing hearing.” State v. Fowler, 6th Dist. Ottawa No. OT-21-031, 

2022-Ohio- 3499, ¶ 17. 

{¶16} “Although not considered a constitutional right, the right of allocution 

is firmly rooted in the common-law tradition.” State v. Massey, 5th Dist. Stark No. 

2006-CA-00370, 2007-Ohio-3637, ¶ 15.

Trial courts must painstakingly adhere to Crim.R. 32, 

guaranteeing the right of allocution. A Crim.R. 32 inquiry is 

much more than an empty ritual: it represents a defendant’s last 

opportunity to plead his case or express remorse.

State v. Green, 90 Ohio St.3d 352, 360-361, 2000-Ohio-182, 738 N.E.2d 1208, 1221 

(2000). “When the right of allocution is violated, the reviewing court must reverse 
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the sentence and remand the matter for resentencing, unless the error was invited or 

harmless.” Gutierrez, supra, at ¶ 14.

{¶17} In this case, both Brill and his attorney were given the opportunity “to 

address the court directly * * *” on the matter of his sentence. Brown, supra, at ¶ 

13. See Tr. 16-19. However, Brill he alleges that the trial judge violated his right 

to allocation by considering new information after the Defense addressed the court. 

This allegedly new information is contained in the statements that Brill previously 

identified in his first two arguments under this assignment of error. Again, we note 

that no objection was raised over this matter before the trial court. 

{¶18} However, the victim’s date of birth, the charge against Brill, and the 

dates during which the instances of sexual conduct occurred were all stated in the 

bill of information and were properly in the record before the trial court. Doc. 1. 

Tr. 21. Further, the trial judge’s statement about the effects of this crime on the 

victim referred directly to the victim’s impact statement that was given before Brill 

addressed the trial court. Tr. 4-13, 22. None of this was arguably new information. 

Brill had this information available to him and could have addressed any of these 

facts in his allocution. Thus, we cannot conclude that the trial court erred as alleged 

in Brill’s third argument under this assignment of error. Since Brill has not carried 

the burden of establishing plain error in any of these three arguments, his first 

assignment of error is overruled. 
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Second Assignment of Error

{¶19} Brill argues that the Ohio Supreme Court’s decision in State v. Jones

runs afoul of the Ohio Constitution by depriving defendants of meaningful appellate 

review of the sentences imposed by trial courts. See Jones, supra. 

Legal Standard

{¶20} “The general rule, of such age that it is beyond dispute, is that the 

ground, principle, or reason of a decision made by a higher court is binding as 

authority on the inferior court.” In re Schott, 16 Ohio App.2d 72, 75, 241 N.E.2d 

773, 776 (1st Dist. 1968). 

This [rule] applies to all lower courts. The Court of Appeals is 

bound by the Supreme Court’s last decision on the question 

involved. It is immaterial whether the reasoning advanced in 

support of the decision is well or ill founded; when the Supreme 

Court of Ohio lays down the rules of law, such rules of law are 

binding upon the Courts of Appeals of Ohio.

Id., citing 14 Ohio Jurisprudence 2d 653 et seq., Courts, Section 224 et seq. 

{¶21} Further, “the highest court of a state ‘has the final word on the meaning 

of state law.’” County of Westchester, N.Y. v. Commissioner of Transp. of State of 

Conn., 9 F.3d 242, 245 (2d Cir. 1993), quoting Deeper Life Christian Fellowship, 

Inc. v. Sobol, 948 F.2d 79, 84 (2d Cir. 1991). Accordingly, “[w]hat the statutes of 

a State mean, the extent to which any provision may be limited by other Acts or by 

other parts of the same Act, are questions on which the highest court of the State 

has the final word.” Musser v. Utah, 333 U.S. 95, 68 S.Ct. 397, 92 L.Ed. 562 (1948). 
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{¶22} Given these aforementioned principles, “[a] court of appeals [of this 

state] is bound by and must follow decisions of the Ohio Supreme Court, which are 

regarded as law unless and until reversed or overruled.” Sherman v. Millhon, 10th 

Dist. Franklin No. 92AP-89, 1992 WL 142368, *1 (June 16, 1992). Appellate courts 

“are without authority to ‘make a determination that conflicts with a decision of the 

Supreme Court of Ohio * * *.’” State v. Buckmaster, 11th Dist. Lake No. 2007-L105, 2008-Ohio-1336, ¶ 15, quoting State v. Worrell, 10th Dist. Franklin No. 06AP706, 2007-Ohio-2216, ¶ 10. 

Legal Analysis 

{¶23} In this assignment of error, Brill’s arguments challenge the Ohio 

Supreme Court’s decision in State v. Jones. See Jones, supra. In that case, the Ohio 

Supreme Court considered the history of R.C. 2953.08(G), noting that a former 

version of this provision “authorized appellate courts to ‘* * * modify or * * * vacate 

the sentence * * * if the court clearly and convincingly found * * * [t]hat the record 

does not support the sentence[.]’” (Emphasis sic.) Id. at ¶ 35. However, this 

provision was amended and now authorizes an appellate court only to modify or 

vacate a sentence 

if it clearly and convincingly finds either of the following: 

(a) That the record does not support the sentencing court’s 

findings under division (B) or (D) of section 2929.13, division 

(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 

2929.20 of the Revised Code, whichever, if any, is relevant;
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(b) That the sentence is otherwise contrary to law. 

R.C. 2953.08(G)(2)(a). The Ohio Supreme Court reasoned that

[t]his amendment eliminated the broad stand-alone provision 

from the first paragraph of the original version of R.C. 

2953.08(G), which allowed an appellate court to modify or vacate 

the sentence when it found that ‘the record does not support the 

sentence,’ former R.C. 2953.08(G)(1) * * *. In its place, the 

General Assembly enacted a narrower provision in which an 

appellate court’s authority to modify or vacate a sentence is 

limited to situations in which it concludes that the record does not 

support the sentencing court’s findings under certain specified 

statutes, not including R.C. 2929.11 and 2929.12.

Jones, supra, at ¶ 37. Further, the Ohio Supreme Court held that

an appellate court’s determination that the record does not 

support a sentence does not equate to a determination that the 

sentence is ‘otherwise contrary to law’ as that term is used in R.C. 

2953.08(G)(2)(b).

Id. at ¶ 32. Thus, the Ohio Supreme Court concluded that “nothing in R.C. 

2953.08(G)(2) permits * * * an appellate court” “to substitute its judgment for that 

of the trial court concerning the overall selection of a sentence that is compliant with 

R.C. 2929.11 and 2929.12.” Id. at ¶ 30. 

Accordingly, “pursuant to Jones, an appellate court errs if it * * 

* modifies or vacates a sentence ‘based on the lack of support in 

the record for the trial court’s findings under R.C. 2929.11 and 

R.C. 2929.12.’”

State v. Slife, 3d Dist. Auglaize No. 2-20-17, 2021-Ohio-644, ¶ 13, quoting State v. 

Dorsey, 2d Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 17, quoting Jones, 

supra, at ¶ 29. Since Jones was decided, this Court has applied its reasoning on 
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numerous occasions. State v. Berry, 3d Dist. Union No. 14-20-05, 2021-Ohio-1132, 

¶ 139; State v. Wilson, 2022-Ohio-504, 185 N.E.3d 176, ¶ 144 (3d Dist.); State v. 

Coleman, 3d Dist. Logan No. 8-21-42, 2022-Ohio-1811, ¶ 7. 

{¶24} In this assignment of error, Brill asserts that this Court should review 

the trial court’s application of R.C. 2929.11 and R.C. 2929.12 despite the holding 

in Jones.

2

 In support of this assertion, he argues that following Jones and/or R.C. 

2953.08 is violative of his constitutional rights. In his brief, Brill forthrightly admits 

that his arguments rest on several dissenting opinions in Ohio Supreme Court cases. 

Appellant’s Brief, 10. See State ex rel. Hilltop Basic Resources, Inc. v. Cincinnati, 

167 Ohio App.3d 798, 2006-Ohio-3348, 857 N.E.2d 612, ¶ 27 (1st Dist.) (“When a 

party relies on a dissent, but the majority decision is binding on us, its argument is 

looking bleak.”). 

{¶25} First, we will address Brill’s argument that this Court should 

essentially disregard the Ohio Supreme Court’s decision in Jones and conduct a 

review of the trial court’s application of the factors in R.C. 2929.11 and R.C. 

2929.12. His brief includes various conclusory references to the equal protection 

and due process clauses of the United States Constitution and the Ohio Constitution. 

But aside from citing to several dissenting opinions by Ohio Supreme Court 

2

In his second assignment of error, Brill challenges the Jones decision and the statute that Jones interpreted. 

See Jones, supra. In his third assignment of error, he alternatively argues that Jones does not apply to this 

case. Thus, we will analyze arguments in his second assignment of error under the assumption that Jones is 

applicable to this appeal before we examine his alternative argument that contests the applicability of Jones

to this case in his third assignment of error.
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Justices, he does not direct us to any legally binding authority that has limited or 

reversed the Jones decision in a manner that would impact the outcome of this 

appeal. 

{¶26} As noted above, “[i]t is well settled that an appellate court is 

‘conclusively bound by the decisions of the Supreme Court of Ohio.’” State v. 

Crago, 93 Ohio App.3d 621, 640, 639 N.E.2d 801, 814 (10th Dist. 1994), quoting 

Thompson v. Moore, 72 Ohio App. 539, 541, 53 N.E.2d 666, 667 (1943). Since an

appellate court has no authority to set aside a decision of the Ohio Supreme Court, 

an appellate court has no basis to review the constitutionality of a decision of the 

Ohio Supreme Court. Because we are conclusively bound to follow the decisions 

of the Ohio Supreme Court, any constitutional analysis of Jones herein would be a 

meaningless exercise. Accordingly, we decline to address the arguments from Brill 

that beckon us to disregard Jones. 

{¶27} Second, Brill also argues that R.C. 2953.08 “vacates via statute” the 

constitutional authority of appellate courts to review prison sentences. Appellant’s 

Brief, 10. He suggests that this constitutional authority of appellate courts “cannot 

be abrogated by statute.” Id. The Ohio Constitution provides: 

Courts of appeals shall have such jurisdiction as may be provided 

by law to review and affirm, modify, or reverse judgments or final 

orders of the courts of record inferior to the court of appeals 

within the district * * *.
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Article IV, Section 3(B)(2) of the Ohio Constitution. In examining this language, 

the Ohio Supreme Court has held:

This, and former analogous language, has been held to empower 

the General Assembly to alter the appellate jurisdiction of the 

Court of Appeals. Youngstown Municipal Ry. Co. v. Youngstown

(1946), 147 Ohio St. 221, 70 N.E.2d 649. See Price v. McCoy Sales 

& Service, Inc. (1965), 2 Ohio St.2d 131, 135, 207 N.E.2d 236. Cf. 

Meyer v. Meyer (1950), 153 Ohio St. 408, 414, 91 N.E.2d 892, and 

Pilgrim Distributing Corp. v. Galsworthy, Inc. (1947), 148 Ohio St. 

567, 576, 76 N.E.2d 382.

State v. Collins, 24 Ohio St.2d 107, 107-108, 265 N.E.3d 261, 262 (1970). Thus,

The appellate jurisdiction of the courts of appeals is determined 

by statute. Article IV, Section (B)(2), Ohio Constitution. That 

jurisdiction with respect to review of criminal sentences is set out 

in R.C. 2953.08.

State v. Lofton, 2d Dist. Montgomery No. 19852, 2004-Ohio-169, ¶ 9. In Jones, the 

Ohio Supreme Court applied R.C. 2953.08. Jones, supra, at ¶ 42. In the case 

presently before this Court, we will do the same. 

{¶28} In conclusion, since an appellate or “trial court ha[s] no authority to 

effectively overrule the Ohio Supreme Court” by disregarding its decisions, we will 

follow the holding of the Ohio Supreme Court in Jones as being dispositive of the 

issues raised in this appeal. Young v. Durrani, 2016-Ohio-5526, 61 N.E.3d 34, ¶ 29 

(1st Dist.). Accordingly, Brill’s second assignment of error is overruled. 

Third Assignment of Error

{¶29} Brill argues that Jones, supra, addressed a sentence that was appealed 

under R.C. 2953.08(A)(4). He asserts that, because he was able to appeal his 
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sentence under R.C. 2953.08(A)(1)(a), Jones does not apply to this case and does 

not prohibit appellate review of the trial court’s application of R.C. 2929.11 and 

R.C. 2929.12. 

Legal Standard

{¶30} R.C. 2953.08 governs appeals that are based on felony sentencing 

guidelines. Section (A) of this provision “specifies the particular grounds on which 

a defendant may seek appellate review of his or her sentence.” State v. Kennedy, 2d 

Dist. Montgomery No. 19635, 2003-Ohio-4844, ¶ 8. This provision reads, in its 

relevant part, as follows:

(A) [A] defendant who * * * pleads guilty to a felony may appeal 

as a matter of right the sentence imposed upon the defendant on 

one of the following grounds:

(1) The sentence consisted of or included the maximum definite 

prison term allowed for the offense by division (A) of section 

2929.14 or section 2929.142 of the Revised Code * * *, the 

maximum definite prison term or longest minimum prison term 

was not required for the offense pursuant to Chapter 2925. or any 

other provision of the Revised Code, and the court imposed the 

sentence under one of the following circumstances:

(a) The sentence was imposed for only one offense.

* * *

(4) The sentence is contrary to law.

R.C. 2953.08(A). In turn, Section (G) of this provision “defines the standard of 

review and authority of an appellate court reviewing the propriety of a given 

sentence.” State v. Battiste, 8th Dist. Cuyahoga No. 79852, 2002-Ohio-1079, 2002 
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WL 451297, *4 (Mar. 14, 2002). In particular, R.C. 2953.08(G)(2) gives appellate 

courts the authority to modify or vacate a sentence 

if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court’s

findings under division (B) or (D) of section 2929.13, division 

(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 

2929.20 of the Revised Code, whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

R.C. 2953.08(G)(2). The text of R.C. 2953.08(G)(2) expressly states that it is 

applicable to appeals that are brought “under division (A), (B), or (C) of” R.C. 

2953.08. R.C. 2953.08(G)(2). 

{¶31} In Jones, the Ohio Supreme Court interpreted the provisions in R.C. 

2953.08(G)(2) and concluded that

[n]othing in R.C. 2953.08(G)(2) permits an appellate court to 

independently weigh the evidence in the record and substitute its 

judgment for that of the trial court concerning the sentence that 

best reflects compliance with R.C. 2929.11 and 2929.12.

Jones, supra, at ¶ 42. The import of this decision is

that appellate review of a trial court’s sentencing decision under 

R.C. 2953.08(G)(2) does not permit an appellate court to modify 

or vacate a sentence based on a lack of support in the record for 

the trial court’s findings under R.C. 2929.11 and 2929.12.

State v. Bryant, 168 Ohio St.3d 250, 2022-Ohio-1878, 198 N.E.3d 68, ¶ 19, citing 

Jones, supra. 
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Legal Analysis 

{¶32} In this assignment of error, Brill asserts that Jones addressed an appeal 

that was brought under R.C. 2953.08(A)(4) and that appellate districts—including 

this Court—have erroneously applied Jones to sentences that are appealable under 

R.C. 2953.08(A)(1)(a). Appellant’s Brief, 17. He then argues that appellate courts 

can review a trial court’s application of R.C. 2929.11 and R.C. 2929.12 in imposing 

a sentence that can be appealed under R.C. 2953.08(A)(1)(a). There is no dispute 

that Brill’s sentence satisfies the conditions set forth in R.C. 2953.08(A)(1)(a). 

{¶33} However, the text of R.C. 2953.08(G)(2) clearly states that this 

provision applies to appeals brought “under division (A), (B), or (C)” of R.C. 

2953.08. R.C. 2953.08(G)(2). In Jones, the Ohio Supreme Court interpreted R.C. 

2953.08(G)(2). Having examined the entirety of this statute, we conclude that the 

Ohio Supreme Court’s interpretation of R.C. 2953.08(G)(2) in Jones is applicable 

to appeals brought under R.C. 2953.08(A) because R.C. 2953.08(G)(2) is applicable 

to appeals brought under R.C. 2953.08(A). Thus, Jones is controlling to appeals 

brought under R.C. 2953.08(A)(1)(a) and is not limited to appeals brought under 

R.C. 2953.08(A)(4). Accordingly, we find this argument to be without merit. 

{¶34} In conclusion, the trial court, in this case, imposed a sentence that was 

within the statutorily authorized range. Further, the record indicates that the trial 

court considered the purposes and principles of felony sentencing under R.C. 

2929.11 and the seriousness and recidivism factors in R.C. 2929.12. Tr. 19-21. 
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Having examined the materials in the record, we conclude that Brill has not 

demonstrated that his sentence is clearly and convincingly contrary to law. State v. 

Reed, 3d Dist. Union No. 14-20-16, 2021-Ohio-1623, ¶ 20. For these reasons, his

third assignment of error is overruled. 

Fourth Assignment of Error

{¶35} Brill argues that the imposition of the maximum sentence constitutes 

cruel and unusual punishment in this case. 

Legal Standard

{¶36} The Eighth Amendment to the United States Constitution states that 

“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and 

unusual punishments inflicted.” Eighth Amendment to the United States 

Constitution. 

Historically, the Eighth Amendment has been invoked in 

extremely rare cases, where it has been necessary to protect 

individuals from inhumane punishment such as torture or other 

barbarous acts. Robinson v. California (1962), 370 U.S. 660, 676, 

82 S.Ct. 1417, 1425, 8 L.Ed.2d 758, 768. Over the years, it has also 

been used to prohibit punishments that were found to be 

disproportionate to the crimes committed.

State v. Weitbrecht, 86 Ohio St.3d 368, 370, 1999-Ohio-113, 715 N.E.2d 167, 169-

170 (1999).

‘[C]ases in which cruel and unusual punishments have been found 

are limited to those involving sanctions which under the 

circumstances would be considered shocking to any reasonable 

person.’ [McDougle v. Maxwell, 1 Ohio St.2d 68,] 70, 30 O.O.2d 

[38,] at 39, 203 N.E.2d [334,] at 336 [(1964)]. Furthermore, ‘the 
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penalty must be so greatly disproportionate to the offense as to 

shock the sense of justice of the community.’ Id.

State v. Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803, 172 N.E.3d 952, ¶ 80.

“[C]ases involving cruel and unusual punishments are rare * * *.” State v. 

Blankenship, 145 Ohio St.3d 221, 2015-Ohio-4624, 48 N.E.3d 516, ¶ 32. “As a 

general rule, a sentence that falls within the terms of a valid statute cannot amount 

to a cruel and unusual punishment.” McDougle at 69. 

Legal Analysis 

{¶37} In his brief, Brill cites to caselaw that correctly emphasizes the 

difficultly of prevailing on an Eighth Amendment claim on appeal. Appellant’s 

Brief, 20-21. However, in support of his claim, Brill merely asserts that his sentence 

constitutes cruel and unusual punishment without directing our attention to any fact 

or authority that would suggest his punishment is “inhumane” or “barbarous.” 

Weitbrecht, supra, at 370. Brill also has not raised an argument that explains how

a sixty-month prison term is a “greatly disproportionate” sentence for an offense 

that involved engaging in sexual conduct with a minor over a period of several 

months while abusing his relationship with the victim in the process. Patrick, supra, 

at ¶ 80, quoting McDougle, supra, at 70.

{¶38} In this case, the trial court imposed a prison term that was within the 

statutory range as authorized by an enactment of the General Assembly. In this kind 

of analysis, “reviewing courts should grant substantial deference to the broad 
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authority that legislatures possess in determining the types and limits of 

punishments for crimes.” State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 

888 N.E.2d 1073, ¶ 22, quoting Weitbrecht, supra, at 373-374. Having examined 

the materials in the record, we conclude that Brill has not demonstrated that the 

sentence imposed by the trial court constitutes cruel and unusual punishment within 

the meaning of the Eighth Amendment of the United States Constitution. 

Accordingly, his fourth assignment of error is overruled. 

Conclusion

{¶39} Having found no error prejudicial to the appellant in the particulars 

assigned and argued, the judgment of Union County Court of Common Pleas is 

affirmed. 

Judgment Affirmed

MILLER, P.J. and ZIMMERMAN, J., concur.

/hls