State v. Cole , 2011 Ohio 2146 ( 2011 )

[Cite as State v. Cole, 2011-Ohio-2146.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 94911
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TYRONE COLE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-526704
BEFORE: Kilbane, A.J., Cooney, J., and Keough, J.
RELEASED AND JOURNALIZED: May 5, 2011
ATTORNEY FOR APPELLANT
Richard Agopian
The Hilliard Building
1415-1419 West Ninth Street - 2nd Floor
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Kevin R. Filiatraut
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, A.J.:
{¶ 1} Defendant-appellant, Tyrone Cole, appeals from the sentence imposed by the
trial court following his guilty plea to attempted aggravated murder and other offenses. For
the reasons set forth below, we affirm.
{¶ 2} On July 31, 2009, the defendant and codefendants, Ira Charles Eason and
Arthello Gathright, were indicted pursuant to a 19-count indictment, in connection with an
armed robbery that occurred at the Euclid Mart in Euclid, Ohio, on July 5, 2009, while
workers Abdumanap Eldosov (Eldosov) and Michael Aziz (Aziz), Aziz’s wife Nousa
EsDarous (EsDarous), and their children, Anthony Aziz (Anthony) and Angelina Aziz
(Angelina), were present.
{¶ 3} Counts 1 through 3 charged the defendants with attempted aggravated murder in
violation of R.C. 2903.01(B) and 2923.02 in connection with alleged attacks on Abdumanap
Eldosov, Michael Aziz, and Nousa EsDarous. Counts 4 through 6 charged the defendants
with aggravated robbery of Eldosov, Aziz, and EsDarous in violation of R.C. 2911.01(A)(1).
Counts 7, 9, 10, and 11 charged them with felonious assault upon Eldosov, Aziz, EsDarous,
and Anthony, in violation of R.C. 2903.11(A)(2). Count 8 charged them with felonious assault
upon Eldosov, in violation of R.C. 2903.11(A)(1). Counts 12 through 16 charged defendants
with kidnapping Eldosov, Aziz, EsDarous, Anthony, and Angelina, in violation of R.C.
2905.01(A)(2). Count 18 charged defendants with conspiracy to commit aggravated robbery.
Counts 17 and 19 set forth charges against the codefendants. All counts set forth one- and
three-year firearm specifications.
{¶ 4} On January 19, 2010, defendant pled guilty to all charges. The trial court
sentenced defendant on February 23, 2010. The trial court imposed a nine-year term on
Counts 1 and 4, and ordered that it be served consecutive to a nine-year term imposed for
Counts 2 and 5, and consecutive to a five-year term imposed on Counts 3 and 6, and
consecutive to a nine-year term imposed on Counts 11 and 15. The court also imposed a
concurrent ten-year term for Count 16, for a total sentence of 32 years on these counts. The
court additionally noted that the state asked that the court not impose sentence on Counts 7, 8,
9, 10, 12, 13, 14, and 18. The court then determined that defendant would serve three years
for the firearm specifications prior to and consecutive to all counts, for a total of 35 years.
The trial court also imposed a five-year mandatory period of postrelease control and ordered
“no early release, no halfway house, and no transitional housing.”
{¶ 5} Defendant now appeals and assigns one error for our review:
“The trial court was required to make necessary findings in order to impose
consecutive sentences [pursuant to] Oregon v. Ice, [555 U.S. 160,] 129 S.Ct.
711 [172 L.Ed.2d 517] (2009).”
{¶ 6} Within this assignment of error, defendant asserts that Ice retroactively
reinstates the consecutive-sentencing statutes requiring fact-finding that were excised in State
v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. He further asserts that the
sentence imposed is disproportionate to the offense and inconsistent with the sentence imposed
for similar crimes committed by similar offenders.
{¶ 7} In State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d
768, the Ohio Supreme Court recently addressed this argument and held that
Ice “does not revive Ohio’s former consecutive-sentencing statutory
provisions, R.C. 2929.14(E)(4) and 2929.41(A), which were held
unconstitutional in Foster. Trial court judges are not obligated to engage in
judicial fact-finding prior to imposing consecutive sentences unless the
General Assembly enacts new legislation requiring that findings be made.”
Id. at paragraphs two and three of the syllabus. As stated in State v. Kalish,
120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, 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 sentences.’” (Emphasis
added in Kalish.) Id. at ¶11, quoting Foster at ¶100.
{¶ 8} As to defendant’s additional claims regarding proportionality and consistency,
we note that defendant did not challenge the proportionality of his sentence or its consistency
of it as compared to other similar offenders in the court below, therefore, he has waived this
issue. State v. Lycans, Cuyahoga App. No. 93480, 2010-Ohio-2780.
{¶ 9} In any event, these challenges lack merit under the two-part framework
established in Kalish. The Kalish court noted that while Foster eliminated
mandatory judicial fact-finding, it left R.C. 2929.11 and 2929.12 intact,
setting forth the statutory factors that the trial court must consider when
imposing its sentence. Kalish at ¶13.
{¶ 10} R.C. 2929.11(A) provides that when a trial court sentences an
offender for a felony conviction, it must be guided by the “overriding purposes
of felony sentencing.” Those purposes are “to protect the public from future
crime by the offender and others and to punish the offender.” Id. R.C.
2929.11(B) states that a felony sentence “shall be reasonably calculated to
achieve the two overriding purposes of felony sentencing set forth in [R.C.
2929.11(A)], commensurate with and not demeaning to the seriousness of the
offender’s conduct and its impact upon the victim, and consistent with
sentences imposed for similar crimes committed by similar offenders.” R.C.
2929.12 sets forth factors a trial court must consider when determining the
seriousness of the offense and the likelihood that the offender will commit
future offenses.
{¶ 11} The Kalish court also noted that R.C. 2929.11 and 2929.12 are
not fact-finding statutes; rather, they “serve as an overarching guide for trial
judges to consider in fashioning an appropriate sentence.” Id. at ¶17. “In
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. Moreover, this court has previously recognized
that there is no requirement for judicial findings in either R.C. 2929.11 or
2929.12, and that the trial court is required only to carefully consider the
statutory factors before imposing its sentence. State v. Samuels, Cuyahoga
App. No. 88610, 2007-Ohio-3904, ¶15.
{¶ 12} In this matter, the court complied with the applicable rules and statutes, so
the sentence is not clearly and convincingly contrary to law, and the court did not abuse its
discretion. At the sentencing hearing, the trial court outlined that defendant and the
codefendants decided to rob the Euclid Mart, that Eldosov, Aziz, and Aziz’s family members,
EsDarous, Anthony (age 3), and Angelina (an infant), were present. Defendant grabbed the
three-year-old, held a gun to him, and took him to his mother. He then shot Eldosov at least
twice, and shot at Aziz. After his codefendant rifled through the cash register, defendant shot
at EsDarous, but his gun was out of ammunition.
{¶ 13} The court viewed video of the offenses and stated:
{¶ 14} “This is one of the worst offenses I’ve ever seen since I’ve been a judge. The
damage that you did is probably some of the worst damage short of killing people that I’ve
ever seen. Your record is horrendous and the fact that you were on parole, I think PRC at the
time this happened, it’s just inexcusable. *** Those people went to work that day, they
were there to make some money, to go home to support their families. It’s just — it’s
inexcusable.”
{¶ 15} The court’s sentencing journal entry indicates that the trial court considered “all
required factors of the law” and found that the sentence was consistent with “the purpose of
R.C. 2929.11.”
{¶ 16} We do not find the sentence disproportionate to the offenses.
{¶ 17} Viewing the record in its entirety, there is no basis upon which we may
conclude that the trial court committed an error of law or abused its discretion in imposing the
sentence in this matter.
{¶ 18} The 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.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
COLLEEN CONWAY COONEY, J., and
KATHLEEN ANN KEOUGH, J., CONCUR