State v. McGee , 2011 Ohio 6433 ( 2011 )

[Cite as State v. McGee, 2011-Ohio-6433.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96688
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RICHARD McGEE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-507434
BEFORE: E. Gallagher, J., Boyle, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: December 15, 2011
ATTORNEY FOR APPELLANT
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Judith M. Kowalski
333 Babbitt Road
Suite 323
Euclid, Ohio 44123
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Jessie W. Canonico
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶ 1} Richard McGee appeals from his resentencing in the Cuyahoga County
Common Pleas Court. McGee argues the trial court abused its discretion in sentencing
him to a seven-year term of imprisonment consecutive to the term imposed in case
CR-507845 and in imposing the maximum sentence for both counts of aggravated
robbery. Finding no merit to this appeal, we affirm the decision of the trial court.
{¶ 2} In 2008, a jury convicted McGee of two counts of aggravated robbery and
two counts of kidnapping. The trial court subsequently sentenced McGee to seven years
on both aggravated robbery charges and five years on each of the kidnapping charges for
a total prison term of twelve years. The court ordered those sentences to be served
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consecutive to an eight-year prison sentence imposed in Case CR-507845, in which a jury
found McGee guilty of aggravated robbery, carrying a concealed weapon, and improper
handling of a firearm.
{¶ 3} McGee appealed both convictions to this Court in separate case numbers,
App. Nos. 92019 and 92026. McGee’s appeal relating to lower court case number
CR-507845 was dismissed for lack of a final appealable order. See State v. McGee,
Cuyahoga App. No. 92026, 2010-Ohio-2082. In McGee’s direct appeal of the case now
at bar, this court affirmed McGee’s convictions and the imposition of a sentence
consecutive with case CR-507845 but remanded the matter for resentencing after finding
that the convictions in this case were for allied offenses and, therefore, they must merge.
See State v. McGee, Cuyahoga App. No. 92019, 2010-Ohio-2081.
{¶ 4} On remand, the trial court conducted a resentencing hearing. The court, in
conjunction with this court’s opinion, merged the charges of kidnapping with those of
aggravated robbery for purposes of sentencing. After hearing from McGee and others
who spoke on his behalf, the trial court sentenced McGee to seven years on each of the
charges of aggravated robbery, to run concurrent with each other but consecutive to the
prison sentence in CR-507845.
{¶ 5} McGee appeals, raising the two assignments of error contained in the
appendix to this opinion.
{¶ 6} In his first assignment of error, McGee argue that the trial court erred when
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it ordered his seven-year prison sentence be served consecutive with the eight-year prison
sentence ordered in case CR-507845. We find no merit to this argument.
{¶ 7} We review felony sentences using the framework announced in State v.
Kalish, 120 Ohio St. 2d 23, 2008-Ohio-4912, 896 N.E.2d 124. In its plurality opinion,
the Kalish court declared that in applying State v. Foster, 109 Ohio St. 3d 1,
2006-Ohio-856, 845 N.E.2d 470, to the existing statutes, appellate courts “must apply a
two-step approach.” Kalish at ¶4.
{¶ 8} Appellate courts must first “examine the sentencing court’s compliance
with all applicable rules and statutes in imposing the sentence to determine whether the
sentence is clearly and convincingly contrary to law.” Id. at 26. See, also, R.C.
2953.08(G). If this first prong is satisfied, then we review the trial court’s decision under
an abuse of discretion standard. Id. at ¶4 and ¶19.
{¶ 9} In the first step of our analysis, we review whether McGee’s sentence is
contrary to law as required by R.C. 2953.08(G). As the Kalish court noted, post-Foster
“trial courts have full discretion to impose a prison sentence within the statutory range
and are no longer required to make findings and give reasons for imposing maximum,
consecutive, or more than the minimum sentence.” Id. at 11, quoting Foster at paragraph
seven of the syllabus; State v. Mathis, 109 Ohio St. 3d 54, 2006-Ohio-855, 846 N.E.2d 1,
paragraph three of the syllabus. The Kalish court held that although Foster eliminated
mandatory judicial fact-finding, it left R.C. 2929.11 and 2929.12 intact. Kalish at 13.
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Therefore, the trial court must still consider those statutes when imposing a sentence.
Id., citing Mathis at 38.
{¶ 10} R.C. 2929.11(A) provides that:
“[A] court that sentences an offender for a felony shall be guided by the overriding
purposes of felony sentencing [:] * * * to protect the public from future crime by
the offender and others and to punish the offender. To achieve those purposes, the
sentencing court shall consider the need for incapacitating the offender, deterring
the offender and others from future crime, rehabilitating the offender, and making
restitution to the victim of the offense, the public, or both.”
{¶ 11} R.C. 2929.12 provides a nonexhaustive list of factors a trial court must
consider when determining the seriousness of the offense and the likelihood that the
offender will commit future offenses.
{¶ 12} R.C. 2929.11 and 2929.12 are not fact-finding statutes. Instead, they
“serve as an overarching guide for trial judges to consider in fashioning an appropriate
sentence.” Kalish at 17. Thus, “[i]n considering these statutes in light of Foster, the
trial court has full discretion to determine whether the sentence satisfies the overriding
purposes of Ohio’s sentencing structure.” Id.
{¶ 13} In the instant case, McGee does not argue that the court failed to consider
R.C. 2929.11 and 2929.12 when imposing his sentence. Instead, he argues that because
he has a relatively minor criminal history and that he played no part in the violent aspects
of the crimes for which he was convicted, a lesser sentence was proper. While McGee is
free to put forth this argument, it does not demonstrate that his sentence violated Ohio’s
sentencing statutes.
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{¶ 14} The trial court’s journal entry reflects that it considered all factors as
required by law and found that prison was consistent with R.C. 2929.11. Further, the
imposed prison terms on the two felonies to which McGee pleaded guilty were within the
statutory range. Since McGee was sentenced within the statutory range and has failed to
demonstrate how his sentence violated Ohio’s sentencing statutes, we do not find that it
was contrary to law.
{¶ 15} We next consider whether the trial court abused its discretion. Kalish at ¶4
and ¶19. 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. Blakemore v.
Blakemore (1983), 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140.
{¶ 16} We find nothing in the record to suggest that the trial court’s decision was
unreasonable, arbitrary, or unconscionable. As outlined above, a review of the record
indicates that the trial court also expressly stated that it had considered all factors of the
law and found that prison was consistent with the purposes and principles of R.C.
2929.11.
{¶ 17} Accordingly, McGee’s first assignment of error is overruled.
{¶ 18} In his second assignment of error, McGee argues the trial court erred when
it sentenced him to the maximum sentences for the underlying case. This assignment of
error lacks merit.
{¶ 19} Pursuant to R.C. 2911.01, aggravated robbery is a first-degree felony, which
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is punishable by annualized terms of imprisonment ranging from three to ten years. See
R.C. 2929.14(A)(1). Here, the trial court sentenced McGee to two, seven-year terms of
imprisonment, which is not the maximum penalty authorized by law.
{¶ 20} Thus, McGee’s argument that the trial court erred by sentencing him to the
maximum term of imprisonment is without merit.
{¶ 21} The judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said lower court to carry this
judgment into execution. The defendant’s conviction having been affirmed, any bail
pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR
Appendix
Assignments of Error:
“I. The trial court erred to the prejudice of appellant by sentencing him to a
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total of fifteen years imprisonment amounting to consecutive terms of seven
and eight years respectively, in that the consecutive terms are excessive for
the purposes set forth in Ohio Revised Code Section 2929.11(A) and (B), and
are not necessary to protect the public.”
“II. The trial court abused its discretion to the prejudice of appellant by
imposing maximum sentences when consideration of the factors in 2929.12
tended to favor a lesser sentence.”