State v. Vannatter
| Docket Number | C-230568 |
| Decision Date | 24 April 2024 |
| Citation | 2024 Ohio 1549 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. BRANDON VANNATTER, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Criminal Appeal From: Hamilton County Court of Common Pleas TRIAL NO. B-2202798
Melissa A. Powers, Hamilton County Prosecuting Attorney, and H. Keith Sauter, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant Public Defender, for Defendant-Appellant.
{¶1} In this criminal appeal, defendant-appellant Brandon Vannatter appeals his sentence of three years' imprisonment after entering a guilty plea for reckless homicide in violation of R.C. 2903.041(A). In his sole assignment of error, Vannatter argues that the trial court erred when it failed to notify him of the potential for postrelease control during the sentencing hearing and that the court's decision to impose the maximum sentence was based on considerations not contemplated by R.C. 2929.11 and 2929.12.
{¶2} For the reasons that follow, we sustain the assignment of error as it relates to the notification of postrelease control, reverse the postrelease-control portion of Vannatter's sentence and remand the cause for the trial court to hold a notification-of-postrelease-control hearing pursuant to R.C. 2929.191. We overrule the assignment of error in all other respects.
{¶3} Vannatter and the victim, Anthony Harris, were friends enjoying a night out drinking. One of the two had a handgun on his person, though the record on appeal is unclear as to who owned the handgun. Vannatter and Harris returned to a friend's apartment to continue partying. At some point in the night, Vannatter asked to see the handgun. Harris attempted to unload the handgun: he ejected the round from the chamber and then released the magazine. In so doing, Harris had reversed the steps to unload the handgun. After he emptied the chamber, the handgun's mechanism automatically loaded a new round from the magazine into the chamber, so that the handgun remained loaded. Vannatter fired the gun, sending the bullet mistakenly left in the chamber through Harris's head, killing him.
{¶4} Vannatter was charged with one count of reckless homicide, in violation of R.C. 2903.041(A), a third-degree felony, with two firearm specifications. Vannatter entered into a plea agreement with the state of Ohio. Vannatter agreed to plead guilty to the sole charge of reckless homicide and, in exchange, the state dismissed the two firearm specifications. The trial court accepted the plea and deferred sentencing to allow time to prepare the presentence-investigation report and victim-impact statements.
{¶5} At the sentencing hearing, Vannatter, his counsel, a social worker, and Vannatter's family addressed the court on Vannatter's behalf to express remorse, detail Vannatter's compliance with the terms of his release on bond, and plead for mercy. The trial court was unconvinced by Vannatter's statement of remorse. Vannatter had no prior violent criminal activity with what Vannatter's counsel described as a "nominal" prior criminal record. Vannatter's social worker was concerned that Vannatter would not receive the necessary treatment of his mental-health diagnoses while in prison and would continue to self-medicate via substances. The court concluded that community control with drug treatment would not be a suitable sentence because Vannatter had failed to address his substance-abuse issues on his own accord. The trial court then imposed a sentence of three years' imprisonment.
{¶6} Vannatter now timely appeals.
{¶7} In a single assignment of error, Vannatter argues that the trial court erred when imposing his sentence because the trial court failed to inform him of the potential for postrelease control during the sentencing hearing and the record does not support the imposition of the maximum sentence.
{¶8} An appellate court's review of a trial court's felony sentencing is limited. Vannatter appeals as of right under R.C. 2953.08(A)(1)(a), which permits appellate review of a sentence if it was the maximum definite prison term allowed, the maximum was not required, and the sentence was imposed for only one offense. Appellate review under that section is governed by R.C. 2953.08(G)(2). Under that standard, an appellate court may modify or vacate Vannatter's sentence if it "clearly and convincingly find[s]" that either (1) the record does not support the mandatory sentencing findings, or (2) that the sentence is "otherwise contrary to law." State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 11 (1st Dist). In making that determination, the appellate court must review the entire trial-court record, including any oral or written statements made to or by the trial court at the sentencing hearing, and any presentence, psychiatric, or other investigative report that was submitted to the court in writing before the sentence was imposed. R.C. 2953.08(F)(1)-(4).
Notification of postrelease control
{¶9} First, Vannatter argues that the trial court failed to give him notice of the potential for postrelease control during the sentencing hearing. "It is settled that a 'trial court has a statutory duty to provide notice of postrelease control at the sentencing hearing' and that 'any sentence imposed without such notification is contrary to law.'" State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 8, quoting State v. Jordan, 104 Ohio St.3d 221, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 23. Specifically, "[t]he trial court must advise the offender at the sentencing hearing of the term of [postrelease control] supervision, whether postrelease control is discretionary or mandatory, and the consequences of violating postrelease control." State v. Bates, 167 Ohio St.3d 197, 2022-Ohio-475, 190 N.E.3d 610, ¶ 11.
{¶10} The state concedes that the court did not make the required postrelease-control notification and that the cause should be remanded for a notification-of-postrelease-control hearing instead of remanded for full resentencing under R.C. 2929.191. Accordingly, we sustain this portion of Vannatter's assignment of error, reverse the postrelease-control portion of his sentence, and remand the cause to the trial court to hold a hearing in accordance with R.C. 2929.191 informing Vannatter that he would be subject to postrelease control, the terms of postrelease control, and the consequences of violating the terms of postrelease control. See State v. Patrick, 1st Dist. Hamilton No. C-220049, 2022-Ohio-4171, ¶ 18-19.
Imposing a three-year sentence
{¶11} Second, Vannatter argues that the record did not support imposing the maximum sentence of three years. Vannatter argues that his sentence was contrary to law because the sentence imposed was "based on factors or considerations that are extraneous to R.C. 2929.11 and 2929.12." See State v. Bryant, 168 Ohio St.3d 250, 2022-Ohio-1878, 198 N.E.3d 68, ¶ 22.
{¶12} Specifically, Vannatter argues the trial court was motivated to impose the maximum sentence because of its displeasure with the plea agreement and the dismissal of the firearm specifications and their mandatory term of imprisonment. Vannatter contends that the trial court, by basing its sentence on its displeasure with the plea agreement, relied on an extraneous consideration not permitted in sentencing by R.C. 2929.11 and 2929.12. See Bryant at ¶ 22 ("when a trial court imposes a sentence based on factors or considerations that are extraneous to those that are permitted by R.C. 2929.11 and 2929.12, that sentence is contrary to law" and thus constitutes reversible error).
{¶13} However, this argument takes the trial court's statements out of context. Earlier in the sentencing hearing, the judge explained that he intended to explain why he reached the eventual sentence. The trial court's commentary on the plea agreement arose in a colloquy with the father of the victim and whether he thought that Vannatter deserved the maximum sentence:
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