State v. Anthony

151 N.E.3d 13

2019 Ohio 5410

STATE of Ohio, Plaintiff-Appellee,

v.Bryan A. ANTHONY, Defendant-Appellant.

NO. 2019-L-045

Court of Appeals of Ohio, Eleventh District, Lake County.

Decided December 31, 2019

MARY JANE TRAPP, J.

{¶1} Appellant, Bryan A. Anthony ("Mr. Anthony"), appeals the judgment of the Lake County Court of Common Pleas sentencing him to consecutive sentences of 11 years in prison and 180 days in jail following his guilty plea to aggravated vehicular homicide, operating a vehicle under the influence of alcohol, a drug of abuse, or a combination of them ("OVI"), duties upon approaching stationary public safety vehicle displaying emergency light, and stopping after accident.

{¶2} This case has many of the elements of a Greek tragedy - a young man from a family of first responders, struggling with an addiction to drugs and alcohol, who had maintained sobriety for five years during his transition from a teen into adulthood but had just recently returned to drinking and drugging. A night of celebrating a friend's next step in becoming a police officer ended in his high school homecoming date cradling the body of her fellow police officer and his paramedic stepfather responding to the scene of a horrific crash and valiantly trying to save the life of a police officer who had been felled by his own stepson.

{¶3} Mr. Anthony raises two assignments of error. First, he argues that his sentence, consisting of maximum, consecutive sentences, is contrary to law for the following reasons:

{¶4} (1) The trial court did not consider the enumerated purpose of rehabilitation under R.C. 2929.11.

{¶5} (2) The trial court incorrectly used the victim's death as evidence under R.C. 2929.12(B)(2) to elevate the seriousness of Mr. Anthony's conduct.

{¶6} (3) The trial court's finding that the victim suffered serious physical harm under R.C. 2929.12(B)(2) is not supported by the record.

{¶7} (4) The trial court erroneously relied on the psychological harm suffered by persons other than the victim to elevate the seriousness of Mr. Anthony's conduct under R.C. 2929.12(B)(2).

{¶8} (5) The trial court erroneously found that recidivism was more likely pursuant to R.C. 2929.12(D)(2) based on Mr. Anthony's "minimal" history of criminal convictions and juvenile adjudications.

{¶9} (6) The trial court erred in failing to find that Mr. Anthony lived a law-abiding life for a significant number of years prior to the commission of the offenses under R.C. 2929.12(E)(3).

{¶10} (7) The trial court erroneously found that the offense was committed under circumstances likely to reoccur pursuant to R.C. 2929.12(E)(4), and thus, erroneously found that Mr. Anthony was likely to engage in future criminal activity.

{¶11} (8) The trial court erred in failing to find that Mr. Anthony demonstrated genuine remorse under R.C. 2929.12(E)(5).

{¶12} (9) The trial court's findings with respect to consecutive sentences pursuant to R.C. 2929.14(C) were contrary to law and not supported by the record.

{¶13} (10) Mr. Anthony's sentence was disproportionate to and inconsistent with similar crimes committed by similar offenders.

{¶14} Second, Mr. Anthony argues that the trial court abused its discretion in imposing his misdemeanor sentence by failing to consider the purposes of misdemeanor sentencing in R.C. 2929.21 and the sentencing factors in R.C. 2929.22.

{¶15} After a careful review of the record and pertinent law, we affirm the judgment of the Lake County Court of Common Pleas.

{¶16} In light of the Supreme Court of Ohio's recent plurality decision in State v. Gwynne , 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, we construe Mr. Anthony's first assignment of error as separately challenging his individual felony sentences and the imposition of consecutive sentences.

{¶17} We first find that Mr. Anthony has not established that his individual felony sentences are clearly and convincingly contrary to law or not supported by the record based upon the following:

{¶18} (1) The record shows that the trial court was "guided" by the third purpose of felony sentencing involving the promotion of the effective rehabilitation of the offender.

{¶19} (2) The trial court did not use the victim's death as evidence to elevate the seriousness of Mr. Anthony's conduct under R.C. 2929.12(B)(2), and "serious physical harm" is not an element of Mr. Anthony's offenses.

{¶20} (3) Evidence in the record supports a finding under R.C. 2929.12(B)(2) that the victim suffered serious physical harm, and thus, that Mr. Anthony's conduct was more serious than that normally constituting the offenses.

{¶21} (4) The trial court is expressly permitted to consider psychological harm to other persons as "other relevant factors" under R.C. 2929.12(B).

{¶22} (5) The court was required to consider Mr. Anthony's criminal history as a factor of recidivism under R.C. 2929.12(D)(2).

{¶23} (6) The trial court was not required to find that Mr. Anthony led a law-abiding life for a significant number of years under R.C. 2929.12(E)(3), and a five-year period in the life of a 24-year-old is hardly "a significant number of years."

{¶24} (7) Given Mr. Anthony's history of serious substance abuse and his unfortunate relapse despite an outstanding support system, the record does not compel a conclusion that such circumstances are unlikely to recur under R.C. 2929.12(E)(4).

{¶25} (8) The trial court is in the best position to determine the genuineness of the remorse expressed by a defendant under R.C. 2929.12(E)(5).

{¶26} (9) The trial court properly considered the statutory guidelines and factors, which determines consistency in sentencing.

{¶27} Second, we find the trial court made all required statutory findings for consecutive felony sentences under R.C. 2929.14(C)(4), and its statutory findings are supported by the record.

{¶28} Finally, we find Mr. Anthony has not established that the trial court abused its discretion in imposing his misdemeanor sentence because he has not rebutted the presumption that the trial court properly considered all relevant factors.

Substantive and Procedural History

{¶29} Mr. Anthony, while operating a vehicle under the influence of alcohol and drugs, struck Mentor Police Officer Mathew Mazany ("Officer Mazany") while Officer Mazany was assisting a fellow officer in a traffic stop on State Route 2 in Mentor, Ohio. After the initial blow, Officer Mazany was pinned in between the police cruiser and Mr. Anthony's vehicle and then hurled against the vehicle that was the subject of the traffic stop. Despite heroic efforts to save him, Officer Mazany died as a result of his multiple injuries.

{¶30} The evening of drinking and drugging began when Mr. Anthony, then 24 years old, drank alcohol to the point of intoxication with a group of friends in Lakeline, Ohio, at a tragically ironic celebration of a friend's graduation from the police academy. Mr. Anthony previously received treatment for substance abuse and remained sober for approximately 5 years. He had relapsed a few months prior to this event and resumed abusing alcohol and drugs.

{¶31} Eventually, Mr. Anthony and his friends arranged for an Uber rideshare to transport them to downtown Willoughby where Mr. Anthony continued to drink alcohol at various bars. At one of the bars, someone gave Mr. Anthony contact information for an individual from whom he could purchase cocaine. Mr. Anthony arranged for a different Uber driver to transport him back to his car in Lakeline. According to the Uber driver, Mr. Anthony exhibited several signs of intoxication.

{¶32} After being dropped off in Lakeline, Mr. Anthony drove his vehicle to Euclid. Surveillance video showed Mr. Anthony's vehicle travel off the roadway for at least ten feet, nearly strike a chain-link fence, and then go back on the roadway. Video also showed that Mr. Anthony stopped at a BP station, where he withdrew $100 from the ATM machine, and resumed driving.

{¶33} Mr. Anthony met with the individual, purchased what he believed to be cocaine, and ingested it in his vehicle. The substance turned out to be heroin containing fentanyl. Mr. Anthony then drove his vehicle eastbound on I-90 toward State Route 2.

{¶34} Officer Mazany was assisting his fellow officer, Maryann Chaloupka ("Officer Chaloupka"), on a traffic stop on Route 2 in Mentor. Both of their police cruisers were parked on the right-side berm with emergency lights flashing behind a Toyota Camry that Officer Chaloupka has stopped for a traffic violation. Officer Chaloupka was sitting in her cruiser speaking with Officer Mazany as he stood outside her driver's side window.

{¶35} Mr. Anthony was driving his vehicle in the right-hand lane of State Route 2 at 60 miles per hour. He did not move over as he approached the two police cruisers and the Toyota Camry. As he approached, he struck Officer Mazany at highway speed and sideswiped Officer Chaloupka's cruiser and the Toyota Camry.

{¶36} At the point of impact, Officer Mazany's body became pinned between Mr. Anthony's vehicle and the police cruiser. He was thrust forward and to the right in a cartwheel fashion and upside down. His body struck the rear of the Toyota Camry, denting its trunk fully inward and causing the vehicle to jump with significant force, and then Officer Mazany landed on the ground. Officer Chaloupka exited her cruiser, called for help, and attempted to revive Officer Mazany. The entire event was captured by Officer Chaloupka's dash cam.

{¶37} Officer Mazany ultimately died from his injuries, which included multiple blunt force trauma with a skull fracture and crush injuries to the thorax.

{¶38} After the collision, Mr. Anthony slowed down but did not stop his vehicle, instead continuing eastbound on State Route 2. The Mentor Police Department and other law enforcement agencies began investigating the collision to identify and locate Mr. Anthony and his vehicle.

{¶39} Mr. Anthony eventually arrived at Mentor Lagoons, where he struck and damaged an automatic entrance gate as he...