State v. Gossman

[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, OPINION

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

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

-2-
Case No. 16-20-03

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.

-3-
Case No. 16-20-03

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 well-

established tenet in Ohio that a sentencing court is not bound to accept the

-4-
Case No. 16-20-03

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

-5-
Case No. 16-20-03

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.

-6-
Case No. 16-20-03

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.

-7-
Case No. 16-20-03

(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

-8-
Case No. 16-20-03

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 post-
release 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:

-9-
Case No. 16-20-03

(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, 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

-10-
Case No. 16-20-03

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

-11-
Case No. 16-20-03

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

-12-
Case No. 16-20-03

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.

-13-
Case No. 16-20-03

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

-14-
Case No. 16-20-03

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

-15-
Case No. 16-20-03

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

-16-