Login | December 11, 2018

11th District affirms sentence for ‘brutal’ Portage County assault

Legal News Reporter

Published: December 7, 2017

An 8-year sentence in a Portage County felonious assault case was supported by the record even though the court failed to find that recidivism was likely or state that seriousness factors were considered, the 11th District Court of Appeals recently found.

Larry A. Pishner Jr. pleaded guilty to felonious assault stemming from a July 16, 2016 incident with his wife, Brandy, at their home.

Pishner was originally also indicted for attempted murder and domestic violence.

According to case summary, Pishner’s neighbors called police after hearing an escalating argument, screams for help and the sound of a body being thrown against a wall.

Responding officers witnessed Pishner on top of the victim like “an MMA cage fight… pummeling her head off the concrete garage floor.” Patrolmen said Pishner had already pulled out chunks of the victim’s hair from her head and bitten her all over.

Brandy’s 3-year-old nephew was present during the incident.

Pishner apologized in court for his actions. His attorney requested a light prison sentence due to his guilty plea, lack of criminal record and “exemplary” behavior while in jail.

Several people who spoke in court called Pishner’s actions out of character.

The trial judge stated that if the police had not arrived, Pishner – who had mental health issues - would have killed Brandy.

On appeal, Pishner argued the trial court erred by imposing the maximum sentence by failing to consider R.C. 2929.12.

Although the judge considered “the overriding principles of 2929.19,” the appellant claimed the trial court never indicated his conduct was “more serious than conduct normally constituting the offense or that he was likely to commit future crimes.”

Pishner admitted that alcohol was a factor in his conduct but said the judge should have considered that he successfully completed a jail treatment program.

However, 11th District Judge Diane V. Grendell and appellate Judge Cynthia Westcott Rice agreed the maximum sentence was warranted.

“Pishner’s characterization of these mitigating factors is misleading,” Judge Grendell stated in her 2-1 opinion. “Pishner did not expressly apologize to either Brandy or her family; rather, he apologized to the court, his family, and his daughter. Also, Brandy did not testify that Pishner’s conduct was out of character for him. She intimated, albeit darkly, that unlike the others who spoke at the hearing: `I … know what 16 ½ years has been. I know, not them. And he knows.’

“More compelling is the brutal nature of the assault. The trial judge expressed her reasonable belief that, if the case had proceeded to trial, Pishner would have been found guilty of attempted murder as charged in the indictment, and that, if the police had not arrived, Pishner would have killed Brandy. Unlike Pishner, the trial court also noted the trauma caused the 3-year-old witness of the assault, whose screams ultimately induced the neighbors to summon the police.”

Eleventh District Judge Colleen Mary O’Toole dissented, stating that Pishner is entitled to be resentenced.

“Appellant’s undisputed act of senseless and horrific violence appears, from all accounts, to be an anomaly,” Judge O’Toole wrote in her dissenting opinion. “Appellant is a military veteran who, up until this time, had led a law-abiding life. If punishment were the only sentencing factor required by R.C. 2929.12 then there is no doubt that a maximum sentence would be justified.

“However, the purposes of the legislation and the required considerations under the statute are to insure fairness and a statutory basis for expending taxpayer dollars, not vengeance. The statute serves to focus the jurist to be thoughtful and mindful when imposing a sentence.

“… Justice and the Constitution require mindfulness, transparency and fairness to all, not just a simple rote restatement of the statutory `magic words.’ “

The case is cited State v. Pishner, 2017-Ohio-8689.