State v. Gilbert, CA2022-02-021

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtM. POWELL, P.J.
Citation2022 Ohio 3387
PartiesSTATE OF OHIO, Appellant, v. BRANDON GILBERT, Appellee.
Docket NumberCA2022-02-021
Decision Date26 September 2022

2022-Ohio-3387

STATE OF OHIO, Appellant,
v.

BRANDON GILBERT, Appellee.

No. CA2022-02-021

Court of Appeals of Ohio, Twelfth District, Butler

September 26, 2022


CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2018-10-1746

Michael T. Gmoser, Butler County Prosecuting Attorney, and Stephen M. Wagner, Assistant Prosecuting Attorney, for appellee.

Repper-Pagan Law, Ltd., and Christopher Pagan, for appellant.

OPINION

M. POWELL, P.J.

{¶ 1} Appellant, the state of Ohio, appeals a decision of the Butler County Court of Common Pleas granting judicial release to appellee, Brandon Gilbert.

{¶ 2} Gilbert was indicted in 2018 on two counts of kidnapping and one count each of rape, attempted rape, and felonious assault. The charges stemmed from an incident that occurred in the early morning hours of September 29, 2018, during which Gilbert repeatedly struck the victim in the side of her head, restrained her liberty, engaged in digital penetration, and attempted to engage in vaginal intercourse. As a result of the assault, the

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victim suffered serious injuries. Pursuant to plea negotiations, Gilbert pled guilty to one count of felonious assault, a felony of the second degree, one count of gross sexual imposition ("GSI"), and one count of abduction. In exchange for his guilty plea, all other charges were dismissed.

{¶ 3} A sentencing hearing was held on November 4, 2020. The GSI and abduction offenses were merged as allied offenses of similar import, and the state elected to proceed on the GSI offense. The trial court was presented with the responding police officer's body camera recording which showed the victim's account of what had just occurred and Gilbert's subsequent interaction with police. The court was also presented with the victim's medical records containing her account of the offenses and documenting the injuries she suffered during Gilbert's commission of the offenses. The trial court heard from the victim's parents and stepmother who recounted the victim's post-assault struggle with anxiety and mental health issues. Gilbert presented mitigating evidence that he had been compliant with pretrial supervision and GPS monitoring during the two years the case had been pending, that he was committed to Alcohol Anonymous ("AA"), and that he had maintained sobriety. Gilbert submitted two psychological reports indicating that he suffered from traumatic brain injury due to multiple sports-related concussions, and that he suffered from a mild neurocognitive disorder and alcoholism which both contributed to the offenses. The psychologists each expressed the opinion that Gilbert could succeed on probation if he maintained sobriety. Gilbert declined to exercise his right to allocution.

{¶ 4} The trial court sentenced Gilbert to three years in prison for the felonious assault offense and 12 months in prison for the GSI offense and ordered that the prison terms be served consecutively. The trial court specifically found that consecutive sentences were necessary to protect the public from future crime and punish Gilbert and were not disproportionate to the seriousness of Gilbert's conduct and to the danger he posed, and

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that the harm caused by Gilbert's offenses was so great or unusual that a single term would not adequately reflect the seriousness of his conduct. We upheld Gilbert's consecutive sentences on August 16, 2021. State v. Gilbert, 12th Dist. Butler No. CA2020-11-116, 2021-Ohio-2810.

{¶ 5} On August 6, 2021, after serving over six months of his aggregate four-year prison term, Gilbert filed a motion for judicial release. Several months later, on February 9, 2022, the trial court held a hearing on the motion; the parties each presented evidence in support of their respective positions. This included evidence that while in prison, Gilbert had completed a carpentry apprenticeship, had maintained a job as a porter, had his security level reduced from Level 3 to Level 1, and had accrued only two prison infractions. The trial court was also informed that Gilbert participated in AA classes and never tested positive for drugs or alcohol while in prison, and that if he were released, he had several job opportunities and that he would live with his mother and stepfather. Gilbert expressed remorse for his offenses, claimed responsibility for his conduct, stated his conduct over the last few years showed his remorse, and vowed to continue with the AA program if he were released.

{¶ 6} On February 17, 2022, the trial court entered a decision granting Gilbert's motion for judicial release. The trial court found that "a sanction other than a prison term would adequately punish [Gilbert] and protect the public from future criminal violations by [Gilbert] because the applicable factors indicating a lesser...

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