State v. Bauldwin ( 2011 )

[Cite as State v. Bauldwin, 2011-Ohio-6435.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96703
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
LINDSEY BAULDWIN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-528042
BEFORE: S. Gallagher, J., Jones, P.J., and Keough, J.
RELEASED AND JOURNALIZED: December 15, 2011
ATTORNEY FOR APPELLANT
Brooke Deines
Law Offices of Brooke Deines, LLC
815 Superior Avenue East
Suite 1325
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Maxwell M. Martin
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶ 1} Appellant, Lindsey Bauldwin, a.k.a. Orlando Patterson, appeals from his
resentencing in the Cuyahoga County Court of Common Pleas. For the reasons stated
herein, we affirm the decision of the trial court.
{¶ 2} Appellant was charged in a four-count indictment with one count of
attempted murder (R.C. 2923.02 and 2903.02(A)), two counts of aggravated robbery
(R.C. 2911.01(A)(1) and 2911.01(A)(3)), and one count of kidnapping, all with one- and
three-year firearm specifications. He was found guilty by a jury on all counts. The trial
court sentenced him to eight years on each count, to run concurrently. He was also
sentenced to three years for the firearm specifications, to run prior and consecutive to the
eight years for the underlying sentence. His total prison term was 11 years.
{¶ 3} On direct appeal, this court affirmed appellant’s conviction, but remanded
for resentencing. State v. Bauldwin, Cuyahoga App. No. 94876, 2011-Ohio-1066.1 This
court found that the charges of aggravated robbery and kidnapping were allied offenses of
similar import and subject to merger. Id. at ¶ 51.
{¶ 4} Upon remand, the state elected to proceed on Count 2, aggravated robbery
(R.C. 2911.01(A)(3)). The trial court proceeded to sentencing on that count and the
other remaining count of attempted murder.
{¶ 5} The state requested that the court impose the same sentence. Appellant and
his counsel advocated for a reduced sentence. The resentencing judge reviewed the
original sentencing entry and this court’s prior opinion, considered the fact pattern that
was presented, and commented on the seriousness of the charges and the injuries suffered
by the victim. He indicated that he would have imposed a harsher sentence, but he chose
to defer to the judgment of the prior judge, who was able to observe the trial and the
demeanor of the witnesses.
{¶ 6} After finding Counts 2, 3, and 4 are allied, the court imposed a prison
sentence of eight years each on Counts 1 and 2, to run concurrently. The court also
1
The underlying facts of the case were set forth in that opinion and are incorporated herein.
Id. at ¶ 2-6.
merged the gun specifications into a single three-year gun specification, to be served prior
to and consecutive with all other sentences. Appellant received a total prison term of 11
years. The court also imposed a mandatory five-year term of postrelease control. In its
journal entry, the court indicated that it considered all required factors of the law and
found that prison is consistent with the purpose of R.C. 2929.11.
{¶ 7} Appellant filed this appeal, raising two assignments of error for our review.
His first assignment of error provides as follows: “The resentencing court abused its
discretion by failing to properly consider felony sentencing guidelines when it imposed an
eleven-year prison term upon appellant.”
{¶ 8} In State v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the
Ohio Supreme Court set forth a two-step approach that appellate courts are to apply when
reviewing felony sentences: “First, they must 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. If this first prong is satisfied, the
trial court’s decision in imposing the term of imprisonment is reviewed under the
abuse-of-discretion standard.” Id. at ¶ 26.
{¶ 9} In this case, appellant’s sentence was within the statutory range for the
offenses he committed. The trial court’s entry reflects that it found a prison term to be
consistent with the purpose of R.C. 2929.11 and that it considered all required factors.
Additionally, the trial court properly imposed postrelease control. Therefore, appellant’s
sentence is not clearly and convincingly contrary to law. See id. at ¶ 18. Appellant does
not dispute this.
{¶ 10} Appellant claims the trial court abused its discretion when imposing the
sentence by failing to properly consider the felony-sentencing guidelines. He complains
of the lack of reference to any R.C. 2929.12 factors. However, a trial court is not
required to provide any reasons in imposing sentence, and a record may be silent as to
judicial findings. See id. at ¶ 12, citing State v. Foster, 109 Ohio St. 3d 1,
2006-Ohio-856, 845 N.E.2d 470. Moreover, “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.”
{¶ 11} While appellant argues the trial court did no more than give a cursory
glance to the facts and defer to the judgment of the original sentencing judge, we are not
persuaded by this argument. The record reflects that the trial court reviewed this court’s
prior opinion, the facts presented in the case, the serious nature of the offenses, and the
serious injuries suffered by the victim. The court also heard statements from counsel and
appellant. It was to appellant’s benefit that some deference was given to the original
sentencing judge’s decision, as the resentencing judge believed a harsher sentence was
warranted. We find nothing that prohibits a resentencing judge from giving some
consideration to the original sentence. Indeed, the trial judge has the benefit of
observing the trial and the demeanor of the witnesses. Finally, the court’s journal entry
clearly expresses that it gave consideration to all required factors of the law.
Accordingly, we find no abuse of discretion by the trial court and overrule appellant’s
first assignment of error.
{¶ 12} Appellant’s second assignment of error provides as follows: “The sentence
is void because the resentencing court failed to comply with [Crim.R. 32].”
{¶ 13} Appellant argues that the resentencing court failed to apprise him of his
appellate rights pursuant to Crim.R. 32(B). We find appellant’s reliance on State v.
Hunter, Cuyahoga App. No. 92626, 2010-Ohio-657, to be misplaced.
{¶ 14} This court indicated in State v. Thomas, Cuyahoga App. No. 94788,
2011-Ohio-214, ¶ 38, as follows: “Although the trial court in this case failed to advise
Thomas of his appellate rights under Crim.R. 32, we find Hunter to be distinguishable
and the error here to be harmless. In Hunter, the defendant was not given appointed
counsel and filed his appeal pro se. Here, this court granted Thomas’s motion for
delayed appeal, and subsequently appointed appellate counsel to represent him in the
appeal. Accordingly, we conclude that any argument relative to the omission is moot.”
See, also, State v. Gray, Cuyahoga App. No. 81474, 2003-Ohio-436, ¶ 21 (failure to
advise of right to appeal at resentencing hearing was harmless). Other courts have
rejected similar arguments where no prejudice is shown. See State v. Gordon, Summit
App. No. 25317, 2011-Ohio-1045; State v. Duncan, Henry App. No. 7-02-10,
2003-Ohio-3879, ¶ 12; State v. Middleton, 12th Dist. No. CA2004-01-003,
2005-Ohio-681, at ¶ 25.
{¶ 15} Likewise, in this case we find any error in failing to inform appellant of his
appellate rights under Crim.R. 32(B) was harmless because he was able to effect a timely
appeal through counsel and has not shown any prejudice. Appellant’s second assignment
of error is overruled.
Judgment 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 issue out of this court directing the common
pleas 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.
SEAN C. GALLAGHER, JUDGE
LARRY A. JONES, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR