State v. Merriweather , 2010 Ohio 2279 ( 2010 )

[Cite as State v. Merriweather, 2010-Ohio-2279.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 09 MA 160
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
HASSAN MERRIWEATHER )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 2008-CR-349C
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Martin E. Yavorcik
3736 Boardman-Canfield Road
Suite 3
Canfield, Ohio 44406
JUDGES:
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: May 20, 2010
WAITE, J.
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{¶1} Appellant Hassan Merriweather is appealing his eight-year prison
sentence. He was involved in the robbery and shooting death of Demar Flores on
March 17, 2008. Four people were charged in the Mahoning County Court of
Common Pleas as codefendants in the crime. Appellant eventually pleaded guilty to
one count of complicity to aggravated robbery, a first degree felony with a potential
prison term of ten years. Appellant argues that he should have received a shorter
prison sentence because he cooperated in the trial of his codefendant Reginald
Gilchrist; because he had virtually no prior criminal record; and because he showed
true remorse at the sentencing hearing. Appellant argues that the court should have
considered this mitigating evidence at sentencing. The record reveals that the trial
court considered all the appropriate sentencing factors and criteria, and imposed a
sentence within the range of sentences permitted by law. The state asked for the
maximum prison term to be imposed, and the court imposed only an eight-year
prison term. It is apparent that the court considered some mitigating evidence at
sentencing, particularly since the court imposed less than the maximum ten-year
prison term. The sentence is neither clearly and convincingly contrary to law nor an
abuse of discretion, and the conviction and sentence are affirmed.
{¶2} Appellant was indicted on March 27, 2008, on one count of complicity to
aggravated robbery, R.C. 2911.01(A)(1), a first degree felony. There was an
accompanying three-year gun specification, R.C. 2941.145. Counsel was appointed
to represent Appellant. Three other codefendants were indicted at the same time.
Charles E. Smith, Jr., was indicted for aggravated murder. Reginald Gilchrist and
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Sarah Beck were indicted for complicity to aggravated murder and aggravated
robbery.
{¶3} On June 10, 2009, Appellant agreed to enter into a Crim.R. 11 plea
agreement. He pleaded guilty to complicity to aggravated robbery, and the
prosecutor agreed to dismiss the gun specification. The court held a plea hearing,
advised Appellant of the rights he was waiving by entering the guilty plea, and then
accepted the plea. There was no agreement as to sentencing. The court held the
sentencing hearing on August 12, 2009. The prosecutor stated that two
codefendants had pleaded guilty and that Reginald Gilchrist’s case had gone to trial,
but he was acquitted. Appellant had agreed to testify against Reginald Gilchrist, but
gave inconsistent testimony at trial. (8/12/09 Tr., p. 3.) The prosecutor also stated
that Appellant could have been charged with aggravated murder but was not
because of his initial cooperation in the case. (8/12/09 Tr., pp. 2-3.) The prosecutor
recommended that the court impose the maximum prison term of ten years.
{¶4} Appellant’s attorney stated that Appellant’s only prior criminal record
consisted of a misdemeanor offense in Pennsylvania, and that there was little risk of
recidivism. He agreed with the prosecutor that Appellant gave inconsistent testimony
at the trial of Reginald Gilchrist. He noted that, unlike the other codefendants,
Appellant stayed at the scene of the crime and attempted to comfort the victim before
the police arrived. He stated that Appellant was in over his head as the crime
unfolded and that he did not intend for the victim to get shot. Appellant’s attorney
told the court that Appellant had endured a difficult life, including being shot as a
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child. Appellant gave a statement at the hearing, testifying that he was sorry for his
involvement with the crime and that what happened was “beyond my free will”.
(8/12/09 Tr., p. 9.)
{¶5} The court stated that it considered the record, the oral and written
statements presented at sentencing, the prosecutor’s recommendation, the
presentence investigation, the principles and purposes of sentencing in R.C.
2929.11, and the seriousness and recidivism factors in R.C. 2929.12. The court
sentenced Appellant to eight years in prison. The sentencing entry was filed on
August 13, 2009, and this timely appealed followed on September 14, 2009.
ASSIGNMENT OF ERROR
{¶6} “THE TRIAL COURT ERRED WHEN IT IMPOSED A SENTENCE
THAT WAS AN ABUSE OF DISCRETION.”
{¶7} Subsequent to the holdings in State v. Foster, 109 Ohio St.3d 1, 2006-
Ohio-856, 845 N.E.2d 470, trial courts have, “full discretion to impose a prison
sentence within the statutory range and are no longer required to make findings or
give their reasons for imposing maximum, consecutive, or more than the minimum
sentences.” Id. at paragraph seven of the syllabus. Under R.C. 2953.08(G)(2)(b),
appellate courts must use a two-step approach in reviewing felony sentences,
examining whether the sentence is clearly and convincingly contrary to law and
whether the trial court abused its discretion in imposing the penalty. State v. Gratz,
7th Dist. No. 08MA101, 2009-Ohio-695, ¶8; State v. Gray, 7th Dist. No. 07MA156,
2008-Ohio-6591, ¶17. First, we must “examine the sentencing court's compliance
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with all applicable rules and statutes in imposing the sentence to determine whether
the sentence is clearly and convincingly contrary to law.” State v. Kalish, 120 Ohio
St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶26. In examining all applicable rules
and statutes, courts must consider R.C. 2929.11 and R.C. 2929.12. Id. at ¶13-14. If
the sentence is clearly and convincingly not contrary to law, the second step of
review is to determine whether the trial court's exercise of discretion in selecting a
sentence within the permissible statutory range constitutes an abuse of discretion.
Id. at ¶17. An abuse of discretion is more than an error of law or judgment; it implies
that the court's attitude is unreasonable, arbitrary or unconscionable. Kalish, at ¶19.
{¶8} Appellant concedes that the sentence is not clearly and convincingly
contrary to law. Instead, Appellant argues that the sentence represents an abuse of
discretion because the trial court failed to properly consider R.C. 2929.11 and
2929.12. Certainly, the principles and purposes of sentencing in R.C. 2929.11 and
the seriousness and recidivism factors in R.C. 2929.12 are an integral part of the
felony sentencing process. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846
N.E.2d 1, ¶38. As Appellant acknowledges, the sentencing court need not make
findings regarding these statutes. A silent record raises the rebuttable presumption
that the sentencing court considered all the proper statutory sentencing criteria.
State v. James, 7th Dist. No.07CO47, 2009-Ohio-4392, ¶50. Appellant has not
pointed to anything in the record, or to any omission from the record, that indicates
an abuse of discretion.
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{¶9} The trial judge specifically stated that she considered R.C. 2929.11 and
2929.12 in determining the appropriate sentence. Furthermore, the record contains
evidence supporting the imposition of a harsher penalty rather than a less severe
penalty. The robbery resulted in a murder, which is arguably the most serious form
that a robbery can take. Appellant had already received an immediate benefit of his
plea bargain when the firearm specification was dropped, thus removing a mandatory
three-year prison term that would have been added to his sentence on the robbery.
The court may consider charges that are eventually dropped when it is formulating its
sentence. State v. Wiles (1991), 59 Ohio St.3d 71, 78, 571 N.E.2d 97. The record
also indicates that Appellant received a benefit by being charged with the lesser
crime of complicity to aggravated robbery rather than complicity to aggravated
murder.
{¶10} Appellant believes that his remorse for the crime should have been a
factor at sentencing, but the record is somewhat contradictory about his remorse.
Although he did say he was sorry for his participation in the crime, he also said that
his actions were somehow beyond his free will, which seems to indicate a denial of
responsibility. Appellant stated that he did not wish for the crime to occur, but
nothing in the record corroborates that statement. He admitted that he was present
at the scene of the crime to sell illegal drugs, so he intended to commit some type of
crime when the robbery and shooting occurred. He stated that he cooperated in the
prosecution of his codefendants, but also admits that he gave contradictory testimony
during the trial of Reginald Gilchrist. It is not clear what impact Appellant’s
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contradictory testimony had on Mr. Gilchrist’s trial, which resulted in an acquittal, but
the fact that he gave contradictory testimony indicates a certain lack of cooperation
rather than a reason to impose a less severe sentence. Thus, Appellant’s supposed
mitigating circumstances do not really lend support for imposing a less severe
sentence. Even with his weak mitigating evidence, the trial court decided to impose
less than the maximum sentence, indicating that the court did consider the mitigating
circumstances that Appellant discusses in this appeal.
{¶11} The eight-year prison term is within the range of sentences available to
the trial court, and there is no abuse of discretion found in the record. The court
considered the principles and purposes of felony sentencing in R.C. 2929.11, and the
seriousness and recidivism factors in R.C. 2929.12. Therefore, Appellant’s
assignment of error is overruled and the judgment of the trial court is affirmed.
Vukovich, P.J., concurs.
DeGenaro, J., concurs.