[Cite as State v. Tannert, 2016-Ohio-7046.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 103550 

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

BRANDON TANNERT

 DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-14-588785-A 

BEFORE: Stewart, J., Jones, A.J., and Celebrezze, J. 

RELEASED AND JOURNALIZED: September 29, 2016 
ATTORNEYS FOR APPELLANT

Robert L. Tobik 

Cuyahoga County Public Defender 

Cullen Sweeney 

Assistant Public Defender 

310 Lakeside Avenue, Suite 200 

Cleveland, OH 44113 

 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

Marc Bullard 

Assistant County Prosecutor 

Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, OH 44113 
MELODY J. STEWART, J.: 

{¶1} Defendant-appellant Brandon Tannert was the subject of a buy-bust drug 

transaction in which he sold ecstacy to an informant working for an undercover agent for 

the Bureau of Alcohol, Tobacco, and Firearms. In addition to the sale of drugs, the agent 

asked the informant to arrange for Tannert to sell the agent a firearm during the drug 

transaction. After first refusing to sell the firearm, Tannert relented and engaged in 

active negotiation over price. The buy went forward and Tannert was charged with drug 

trafficking and drug possession. Both counts contained one-year firearm specifications. 

{¶2} At trial, Tannert claimed that he had been the victim of entrapment — that the 

agent intentionally combined a lawful firearm transaction (Tannert was licensed to carry a 

concealed firearm and there was no question that he could legally sell the gun) with the 

illegal drug transaction. The court rejected Tannert’s entrapment defense, albeit 

declaring that it was “troubled” by the decision. The sole issue on appeal is whether the 

court’s rejection of Tannert’s entrapment defense was against the manifest weight of the 

evidence. 

{¶3} “The defense of entrapment is established where the criminal design 

originates with the officials of the government, and they implant in the mind of an 

innocent person the disposition to commit the alleged offense and induce its commission 

in order to prosecute.” (Emphasis added.) State v. Doran, 5 Ohio St.3d 187, 190, 449 

N.E.2d 1295 (1983), paragraph one of the syllabus. A firearm specification under R.C. 
2941.141 is not a criminal offense; it is a penalty enhancement. State v. Dean, 146 Ohio 

St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 219. By definition, the affirmative defense 

of entrapment is inapplicable to sentencing enhancements, so any discussion of the 

court’s rejection of an entrapment defense to the firearm specification is irrelevant. The 

trial court did not err by rejecting Tannert’s entrapment defense. 

{¶4} What Tannert really appears to be arguing is that the state engaged in 

“sentencing manipulation” as distinct from “sentencing entrapment.” Sentencing 

entrapment occurs when the state causes a defendant, initially predisposed to commit a 

lesser crime, to commit a more serious crime. Sentencing manipulation occurs when the 

state engages in improper conduct that has the effect of increasing a defendant’s sentence.

 United States v. Turner, 569 F.3d 637, 641 (7th Cir.2009), citing United States v. 

Garcia, 79 F.3d 74, 75 (7th Cir.1996). Sentencing manipulation arguments are typically 

made in federal court, where government misconduct may be a basis for a downward 

departure or variance from the federal sentencing guidelines. See, e.g., United States v. 

Bigley, 786 F.3d 11 (D.C.Cir.2015); United States v. Fontes, 415 F.3d 174, 180 (1st 

Cir.2005); but see Garcia, supra (rejecting the sentencing manipulation doctrine). 

{¶5} Tannert claims that the state, via the informant, badgered him to sell the 

weapon so that he would be in possession of it during the drug transaction — this 

permitted the state to attach a firearm specification to the drug trafficking count. Tannert 

argues that the trial court wrongfully convicted him of the specification and thus 

improperly enhanced his sentence. Those arguments are unavailing in Ohio. 
{¶6} Tannert does not dispute that he was in possession of a firearm while 

committing the drug offense. And because the firearm specification in this case applies 

when “the offender had a firearm on or about the offender’s person or under the 

offender’s control while committing the offense,” R.C. 2941.141(A), it did not matter that 

Tannert had been licensed to carry a concealed weapon. The mere possession of the 

firearm, whether lawful or not, while drug trafficking was sufficient to prove the firearm 

specification. 

{¶7} And even assuming for the sake of argument that Tannert was induced or 

badgered to sell the gun simultaneously to the drug transaction, there is nothing in the 

record that indicates such an inducement was misconduct on the part of law enforcement 

or was done solely for the purpose of penalty enhancement. The agent testified that he 

first learned from the informant that Tannert wanted to sell the firearm. Desiring to get 

guns “off the street,” the agent arranged to buy the firearm at the same time he purchased 

the drugs. The agent testified that he arranged to buy the firearm from Tannert to “get 

that off [Tannert’s] hands” in light of “the people that Mr. Tannert was involved with 

based on again on what [the informant] was telling us.” There is no evidence that the 

agent arranged to buy the firearm to hang a firearm specification on Tannert. 

{¶8} Additionally, Tannert’s argument that the firearm specification would not 

apply if he had, for instance, sold the drugs in the house and sold the gun in the car is not 

supported by case law. This court has consistently upheld convictions for firearm 

specifications when a firearm was around or in close proximity to drug-related offenses. 
See State v. Benton, 8th Dist. Cuyahoga No. 82810, 2004-Ohio-3116 (upholding firearm 

specification where the defendant was arrested in his home and drugs and a firearm were 

found in his wife’s car in a detached garage); State v. White, 8th Dist. Cuyahoga No. 

82495, 2004-Ohio-228 (affirming conviction for drug trafficking with a one-year firearm 

specification when firearm was located in a bedroom of the house); State v. Easterly, 8th 

Dist. Cuyahoga No. 94797, 2011-Ohio-215 (upholding firearm specification where 

defendant was arrested in one part of building and drugs and a gun were found in 

defendant’s office). 

{¶9} The court’s finding of guilt on the firearm specification was not in error. 

The sentencing judge, therefore, had no discretion to refuse to impose a term of 

incarceration for the firearm specification. See R.C. 2929.14(B)(1)(a) (“Except as 

provided in division (B)(1)(e) of this section, if an offender who is convicted of or pleads 

guilty to a felony also is convicted of or pleads guilty to a specification of the type 

described in section 2941.141, 2941.144, or 2941.145 of the Revised Code, the court 

shall impose on the offender one of the following prison terms * * *.”). (Emphasis 

added.) 

{¶10} Judgment affirmed. 
It is ordered that appellee recover of appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

______________________________________________ 

MELODY J. STEWART, JUDGE 

FRANK D. CELEBREZZE, JR., J., CONCURS; 

LARRY A. JONES, SR., A.J., DISSENTS (WITH SEPARATE OPINION) 

LARRY A. JONES, SR., A.J., DISSENTING: 

{¶11} I respectfully dissent from the majority’s judgment and analysis. I 

recognize that a firearm specification is “‘not a separate offense, but, rather, a sentencing 

provision that enhances the penalty for the associated predicate offense.’” State v. Capp, 

8th Dist. Cuyahoga No. 102919, 2016-Ohio 295, ¶ 27, quoting State v. Noor, 10th Dist. 

Franklin No. 13AP-165, 2014-Ohio-3397, ¶ 51, fn. 2. I also recognize that the 

affirmative defense of entrapment relates to a criminal “offense.” State v. Doran, 5 

Ohio St.3d 187, 192, 449 N.E.2d 1295 (1983). But I would decline to apply a rigid 

application of what constitutes a criminal “offense,” as I believe the majority does, to 

reach what I believe is an unjust result.1

 

 1

See, e.g., Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) 

(The fact that New Jersey labeled the hate crime a “sentence enhancement” rather than a separate 
{¶12} Although a firearm specification is not a separate, “stand-alone” offense, it 

nonetheless is subject to the same measures of the predicate offense — it must be 

charged in the indictment, it can be subject to plea negotiations, and the state is required 

to prove it beyond a reasonable doubt. Thus, I would hold that the entrapment defense 

can apply to sentencing enhancements. 

{¶13} Although I have not found an Ohio state case on point, I note that under the 

federal system, a sentence enhancement for possession of a gun during a drug-trafficking 

crime is not applicable where the defendant shows that he was entrapped into possessing 

the gun. See, e.g., United States v. Parilla, 114 F.3d 124, 127 (9th Cir.1997), citing the 

United States Sentencing Guidelines. 

{¶14} In light of the above, I would find Tannert’s sole assignment of error well 

taken, reverse the conviction on the firearm specifications, and remand for a new trial 

solely on the specifications.2

 

criminal act was irrelevant for constitutional purposes. Id. at 478. “As a matter of simple justice, it 

seemed obvious that the procedural safeguards designed to protect” a defendant from punishment for 

the possession of a firearm should apply equally to his violation of the hate crime statute. Id. at 476. 

“Merely using the label ‘sentence enhancement’ to describe the latter did not provide a principled 

basis for treating the two crimes differently.” Id.) 

2

 See State v. Moss, 6th Dist. Lucas No. L-91-126, 1992 Ohio App. LEXIS 3176 (June 19, 

1992) (“Neither the Rules of Criminal Procedure nor Ohio statutes require that a new trial be granted 

as to both the firearm specification as well as the underlying offense where the only error occurred in 

the firearm specification charge.”) Id. at 3.