State v. Gregory , 2016 Ohio 8486 ( 2016 )

[Cite as State v. Gregory, 2016-Ohio-8486.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 104038, 104039, and 104040
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
KAVONTE D. GREGORY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-14-590377-C, CR-13-571558-B, and CR-15-594219-A
BEFORE: E.T. Gallagher, J., Jones, A.J., and Kilbane, J.
RELEASED AND JOURNALIZED: December 29, 2016
ATTORNEY FOR APPELLANT
Russell S. Bensing
1360 East Ninth St.
Suite 600
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Glen Ramdhan
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} In this consolidated appeal, defendant-appellant, Kavonte Gregory
(“Gregory”), appeals from the trial court’s imposition of consecutive sentences. He raises
one assignment of error:
1. The record clearly and convincingly does not support the imposition of
consecutive sentences.
{¶2} After careful review of the record and relevant case law, we affirm Gregory’s
sentences.
I. Procedural History
{¶3} In Cuyahoga C.P. No. CR-13-571588-B, Gregory pleaded guilty to an
amended count of robbery in violation of R.C. 2911.02(A)(3), a felony of the third
degree. According to the prosecutor, the amended count stemmed from Gregory’s theft
of a cell phone at a bus station. At sentencing, the trial court imposed a two-year period
of community control sanctions and reserved the right to impose a three-year prison term
if Gregory violated the conditions of his community control sanctions.
{¶4} In Cuyahoga C.P. No. CR-15-594219-A, Gregory pleaded guilty to an
amended count of attempted failure to verify in violation of R.C. 2923.02 and 2950.06, a
felony of the fourth degree. The record reflects that Gregory’s registration requirements
arose from a prior adjudication of delinquency for gross sexual imposition in the
Cuyahoga County Juvenile Court.
{¶5} In Cuyahoga C.P. No. CR-14-590377-C, Gregory pleaded guilty to rape in
violation of R.C. 2907.02(A)(2), with one- and three-year firearm specifications;
aggravated burglary in violation of R.C. 2911.11(A)(2), with one- and three-year firearm
specifications; and aggravated robbery in violation of R.C. 2911.01(A)(1), with one- and
three-year firearm specifications.
{¶6} The charges in the rape case arose from an incident where Gregory and two
others, codefendants Tabitha Harris and Wilberto Santos, committed criminal acts against
male victim, C.G., and female victim, D.S., while guests in C.G.’s home. According to
the prosecutors synopsis of the case, Harris telephoned her girlfriend, D.S., who was at
that time staying at C.G.’s apartment with her three-year-old child. Harris asked her
girlfriend if she, Gregory, and Santos could come over and hang out, and D.S. replied that
they could. Before they reached the apartment, Gregory, Harris, and Santos devised a
plan to rob the victims when they got to the apartment.
{¶7} D.S. and the three defendants drank alcohol and smoked marijuana until
about 2:00 or 3:00 a.m. when D.S. asked her guests to leave because it was getting late.
At this point, Santos pulled out a gun and asked “where is the safe, where’s the money?”
Gregory also approached D.S. with balled fists and told her that he was going to punch
her in the face if she did not tell them the location of the safe. When the victims
explained that there was no safe in the apartment, the defendants placed D.S. in the
bathroom and warned her not to move or they would kill her. In addition, the defendants
took C.G. to his bedroom and made him lie on his bed, naked, while they ransacked the
apartment in search of valuables.
{¶8} Subsequently, Santos and Gregory forced the victims, at gunpoint, to engage
in sexual acts with each other. Afterwards, Santos and Gregory forced D.S. to perform
oral sex on them. Before leaving the apartment, the defendants took the victims’
identification cards and threatened to kill them and their family members if either of them
told anyone what happened that night. According to the prosecutor, each victim
reported that “Mr. Gregory throughout the whole thing was the more aggressive out of the
two between Mr. Santos and Mr. Gregory.”
{¶9} In November 2015, the trial court found that Gregory violated the terms of his
community control sanctions in Case No. CR-13-571588-B as a result of his conduct in
Case Nos. CR-15-594219-A and CR-14-590377-C. Accordingly, the court terminated
his community control and proceeded to sentencing in each case.
{¶10} In Case No. CR-13-571588-B, the trial court imposed a 36-month prison
term on Gregory’s underlying robbery charge.
{¶11} In Case No. CR-15594219-A, the trial court imposed a 12-month prison
term on the attempted failure to verify charge.
{¶12} In Case No. CR-14-590377-C, the trial court determined that the aggravated
robbery and aggravated burglary charges merged for the purposes of sentencing. The
state elected to proceed with sentencing on the aggravated burglary charge. The trial
court imposed an 11-year prison term on the rape charge, to run consecutive to the
three-year firearm specification. In addition, the trial court imposed an eight-year prison
term on the aggravated burglary charge, to run consecutive to the sentence for rape, for an
aggregate 22-year prison term.
{¶13} Following an extensive discussion on the record, the trial court ordered the
sentences in each case to run consecutively to each other, for an aggregate 26-year prison
term.
{¶14} Gregory now appeals from the sentences imposed in Case Nos.
CR-13-571588-B, CR-15-594219-A, and CR-14-590377-C.
II. Law and Analysis
{¶15} In his sole assignment of error, Gregory argues the record clearly and
convincingly does not support the imposition of consecutive sentences.
{¶16} Before imposing a consecutive sentence, a trial court is required to find that
(1) “consecutive service is necessary to protect the public from future crime or to punish
the offender”; (2) “consecutive sentences are not disproportionate to the seriousness of
the offender’s conduct and to the danger the offender poses to the public”; and (3) any of
the following:
(a) The offender committed one or more of the multiple offenses while the offender was
awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16,
2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior
offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of
conduct, and the harm caused by two or more of the multiple offenses so committed was
so great or unusual that no single prison term for any of the offenses committed as part of
any of the courses of conduct adequately reflects the seriousness of the offender’s
conduct.
(c) The offender’s history of criminal conduct demonstrates that consecutive sentences
are necessary to protect the public from future crime by the offender.
R.C. 2929.14(C)(4).
{¶17} On appeals involving the imposition of consecutive sentences, R.C.
2953.08(G)(2) directs the appellate court “to review the record, including the findings
underlying the sentence” and to modify or vacate the sentence “if it clearly and
convincingly finds * * * [t]hat the record does not support the sentencing court’s findings
under division * * * (C)(4) of section 2929.14 * * * of the Revised Code * * *” or if the
“sentence is otherwise contrary to law.” See also State v. Bonnell, 140 Ohio St. 3d 209,
2014-Ohio-3177, 16 N.E.3d 659, ¶ 28. Thus, under R.C. 2953.08(G)(2), an appellate
court may increase, reduce, or modify a sentence, or it may vacate the sentence and
remand for resentencing, only if it “clearly and convincingly” finds either (1) that the
record does not support certain specified findings, or (2) that the sentence imposed is
contrary to law.
{¶18} In this case, the record reflects that the trial court addressed the facts and
circumstances of each case individually prior to imposing the aggregate 26-year prison
term at the consolidated sentencing hearing. In formulating the 22-year sentence in Case
No. CR-14-590377-C, the trial court indicated that it carefully considered Gregory’s
remorse and acceptance of guilt, the state’s detailed synopsis of the facts supporting the
charges, and the sentencing memorandum provided by the state. In addition, the court
emphasized the seriousness the case and relevant recidivism factors. In support of its
decision to impose consecutive sentences in Case No. CR-14-590377-C, the trial court
stated the following:
The next decision I have to make is whether or not I’m going to run
these concurrent or consecutive. And I thought about this, I’ve listened to
your arguments and I’m going to run them consecutive in this case. I ran
them consecutive with regard to Mr. Santos and I think the same analysis
applies here, even with your view about how things developed — from your
point of view, not prior, but coming there and partying with these
individuals and it just develops at that point in time where the robbery
occurs and then the rape occurs thereafter.
Because even if that’s correct, there is a significant difference
between robbing someone of their possessions and then taking the next step
to raping those individuals as part of that overall spree of criminal activity.
And to me those are consecutive types of situations and the conduct is
separate and that the presumption of concurrent terms for conduct is not
appropriate.
So I am finding consecutive sentences, that it’s necessary to protect the public
from future crimes or to punish Mr. Gregory and that consecutive sentences are not
disproportionate to the seriousness of your conduct and to the danger of your conduct as it
poses — potentially poses to the public.
These were significant and awful acts with regard to the rape and humiliation that
followed the burglary of the property. And it did, in my view, occur as a result of a
course of conduct of multiple offenses involving multiple victims and that the harm
caused by these multiple offenses was so great or unusual that no single term for these
offenses would be adequate to reflect the seriousness of your conduct.
And then, finally, the history of criminal conduct that I mentioned is another factor
that adds to the consecutive nature that I view these sentences for all the reasons that I
mentioned. So I do think all the elements that are necessary to establish consecutive
sentences is justified under the facts of this case.
So that is a total of [22] years in prison for your conduct in this case.
{¶19} Following the court’s imposition of a consecutive sentence in Case No. CR-14-590377-C,
the court proceeded to sentencing in Case Nos. CR-15-594219-A and CR-13-571558-B. As stated,
the court imposed a 12-month prison term in Case No. CR-15-594219-A and a 36-month prison term in
Case No. CR-13-571558-B. With respect to the court’s decision to run those prison terms
consecutively to each other and to the term imposed in Case No. CR-14-590377-C the court made the
following statement:
So that leaves one issue to be resolved and that is with regard to these two cases,
594219 and 571558, whether or not those are going to be run consecutive to the case
590377, or whether it’s going to be run concurrent with those cases. Concerning the
robbery that I just mentioned and just sentenced you to for 36 months in prison, I’m going
to run that consecutive to the sentence of 22 years in Case Number 590377. I’m doing
that for all the reasons that I set forth in my analysis of Section 2929.14 sub part (C)(4),
one, this is a different victim, this is a different circumstance, you were on probation and
there’s nothing about this particular case that would justify, in my mind, making it
concurrent with your conduct in the what I’ll refer to as the rape/robbery case.
So you have to stand separate from this punishment — for this punishment based
on your conduct. And I think all of the same reasons and analyses apply, that it’s
necessary to protect the public from future crime, to punish the offender, and that
consecutive sentences are not disproportionate to the seriousness of your conduct and to
the danger that Mr. Gregory poses to the public. It also, based on your criminal history
and conduct, demonstrates that it’s justified on that basis as well. And this is part of a
pattern of robbing people over an extended period of time. So for those reasons I think it
is justified.
That leaves Case Number 544219, the failure to — the attempted failure to
register, that arises out of your conduct that occurred while you were a juvenile and
arising out of a gross sexual imposition matter for which you had to register and failed to
do so. And the one-year sentence in prison I’ve imposed, the question here is whether I
run that concurrent or whether I run that consecutive. And I’m going to run that
consecutive as well for all the reasons that I’ve stated with the prior analyses of
consecutive sentences.
This is separate conduct with a separate victim. This is an ongoing relationship
and — this is an ongoing matter which he has to register on a regular basis. And this is
separate conduct than anything else that we’ve discussed here today. And I think that it
is sufficiently separate that it should not be considered concurrent with other counts. So
that’s — for totals, that is a total of 26 years in prison on these three cases.
{¶20} On appeal, Gregory does not argue that the court failed to make the required
findings for imposing consecutive sentences. Rather, he contends that the record clearly
and convincingly does not support the trial court’s findings. Specifically, Gregory
argues that his aggregate sentence in Case No. CR-14-590377-C is unfairly
disproportionate to the 20-year sentence received by codefendant Santos.
{¶21} In support of his position, Gregory cites this court’s decision in State v.
Moore, 8th Dist. Cuyahoga No. 99788, 2014-Ohio-5135, in which this court found that
the record did not support the trial court’s finding that consecutive sentences were not
disproportionate to the seriousness of the defendant’s conduct in the commission of the
offenses and to the danger he posed to the public.
{¶22} In Moore, the defendant participated in a robbery of the Hard Rock Café in
Cleveland. He was not armed and was described by a victim as having shown some
compassion during the crime. His codefendant, Lamar Chaney, was the mastermind
behind the robbery, carried a gun, and used the gun to terrorize the victims. Chaney
pleaded guilty and received concurrent nine-year prison terms on two counts of
kidnapping with firearm specifications and one count of aggravated robbery with firearm
specifications. Moore decided to go to trial and, after being convicted, received a prison
term of ten years on each count, which the court ordered to run consecutive to each other
plus the firearm specification for a total of 33 years in prison. Moore appealed, and this
court reversed and remanded for resentencing, at which he was resentenced to 27 years in
prison.
{¶23} In Moore, this court considered the defendant’s behavior in comparison to
his codefendant to conclude that his conduct did not merit a consecutive sentence. In
reaching this conclusion, the Moore court “clearly and convincingly” found that the
record did not support the court’s finding that consecutive sentences are not
disproportionate to his conduct and to the danger he poses to the public. Id. at ¶ 40.
{¶24} Gregory urges this court to find Moore instructive. After careful review,
however, we find Moore to be distinguishable from the circumstances of this case. As
stated, the Moore court found that the record did not support the trial court’s findings
under R.C. 2929.14(C)(4) based on its determination that the defendant’s conduct during
the offenses was “significantly less egregious or less dangerous” than his codefendant’s
conduct. In contrast, the victims in this case indicated that Gregory was the most
aggressive of the assailants. Furthermore, the record reflects that Gregory’s role in this
case was not passive. Rather, Gregory took an active role in the burglary and the rape of
the female victim.
{¶25} For the foregoing reasons, Gregory’s sentence cannot be characterized as
“clearly disproportionate” to the role he played in significant crimes committed in Case
No. CR-14-590377-C. While Gregory showed remorse at the sentencing hearing, we
agree with the trial court that his criminal history, the severity of the offenses, his conduct
during the incident, and the fact that he was on community control sanctions at the time
he committed the offenses, were proper factors to consider in fashioning an appropriate
sentence.
{¶26} Thus, the record does not clearly and convincingly support a finding that the
trial court erred when it found that consecutive sentences in Case No. CR-14-590377-C
were not disproportionate to the seriousness of Gregory’s conduct and the danger he
posed to the public. Moreover, we find the record supports the trial court’s findings
regarding Gregory’s criminal history and its statement that Gregory’s course of conduct,
involving multiple victims and multiple offenses, was so great or unusual that no single
term for these offenses would be adequate to reflect the seriousness of his conduct.
{¶27} Finally, we find Gregory has failed to demonstrate how the record in this
case clearly and convincingly does not support the trial court’s decision to run Gregory’s
sentences in each case consecutive to each other. At oral argument, appellate counsel
suggested that the trial court’s decision to run Gregory’s 12-month prison term in Case
No. CR-15-594219-A consecutive to the sentences imposed in Case Nos.
CR-13-571558-B and CR-14-590377-C was unreasonable. Counsel maintained that
Gregory’s failure to verify his address was unrelated to the crimes committed in the other
cases and did not establish a pattern of conduct. We find no merit to counsel’s position.
{¶28} While counsel correctly notes that Gregory’s obligation to verify his
address derived from a juvenile case not subject to this appeal, we find Gregory’s entire
criminal history was a factor the trial court was entitled to consider. Moreover, the fact
that Gregory has not been convicted of failing to verify his address in the past did not
preclude the trial court from imposing his sentence consecutively to a separate case
where, as here, the applicable R.C. 2929.14(C)(4) factors apply. In our view, the trial
court gave appropriate weight to the legislative intent supporting Gregory’s obligation to
verify his address — to protect the public — and the relevant factors substantiating
Gregory’s likelihood of recidivism, including the breadth and nature of Gregory’s
criminal history. Accordingly, we find nothing in the record to discount the trial court’s
findings that consecutive sentences in each case were appropriate.
{¶29} Gregory’s sole assignment of error is overruled.
{¶30} Judgment affirmed.
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.
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.
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 T. GALLAGHER, JUDGE
LARRY A. JONES, SR., A.J., and
MARY EILEEN KILBANE, J., CONCUR