State v. Howard , 2019 Ohio 5113 ( 2019 )

[Cite as State v. Howard, 2019-Ohio-5113.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
Nos. 107467, 107468
and 107469
v. :
KRILLIAN HOWARD, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 12, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-17-618513-A, CR-17-622059-A and CR-17-623374-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Frank Romeo Zeleznikar, Assistant
Prosecuting Attorney, for appellee.
Joseph V. Pagano, for appellant.
EILEEN A. GALLAGHER, J.:
Defendant-appellant Krillian Howard appeals his bindover from the
Juvenile Division of the Cuyahoga County Court of Common Pleas and the sentence
imposed in the General Division. He asserts two assignments of error:
1. The juvenile division of common pleas court improperly relinquished
jurisdiction over the charges against the juvenile appellant where
probable cause was not established and therefore the general division
of common pleas court lacked jurisdiction over the juvenile appellant.
2. Appellant’s sentence is contrary to law because the record does not
support the imposition of maximum sentences.
Howard was indicted in three criminal cases1 with a total of eight
counts of aggravated robbery, seven counts of kidnapping, two counts of felonious
assault, two counts of robbery, two counts of having weapons while under disability,
one count of attempted murder, one count of theft and one count of obstructing
official business. Although Howard was 18 at sentencing, he was actually 16 at the
time of the commission of the offenses charged, thus his three cases originated in
the Cuyahoga County Court of Common Pleas, Juvenile Division, where they began
as four delinquency complaints.2 In each of the four cases, the juvenile court found
probable cause to believe that Howard committed the acts charged and it transferred
each from the juvenile division to the general division. Howard pleaded guilty to
crimes in all cases.
Howard was sentenced to 20 years as an aggregate term for the three
criminal cases, the high end of the agreed sentencing range of 18-20 years.
1 Cuyahoga C.P. No. CR-17-618513-A, Cuyahoga C.P. No. CR-17-622059-A and
Cuyahoga C.P. No. CR-17-623374-A.
2 Cuyahoga J.C. No. DL-17-105530, Cuyahoga J.C. No. DL-17-105867, Cuyahoga
J.C. No. DL-17-112047 and Cuyahoga J.C. No. DL-17-112060.
In CR-17-618513-A, Howard was sentenced to concurrent terms of 11
years on each of two counts of aggravated robbery with a three-year sentence for the
firearm specification to run prior, and consecutive, to the underlying sentence.
In CR-17-622059-A, Howard was sentenced to serve 11 years on the
charge of aggravated robbery with a three-year sentence for the firearm specification
to run prior, and consecutive, to the underlying sentence.
In CR-17-623374-A, Howard was sentenced on two counts of
aggravated robbery to concurrent terms of 11 years with a three-year firearm
specification to run prior, and consecutive, to the underlying sentence.
I. Relevant Procedural and Factual Background
These cases began as four complaints filed in the Cuyahoga County
Court of Common Pleas, Juvenile Division. The juvenile court found probable cause
to believe that Howard committed the acts charged in all four cases. In two cases,
the court determined probable cause via hearing.3 In the other two cases, Howard
stipulated to probable cause and waived his right to a hearing.
In both cases where the court determined probable cause via hearing,
as well as in one case in which Howard stipulated, the court further found Howard
was:
[C]harged with a category two offense and is alleged to have had a
firearm on his person or under his control during the commission of
the offense, and displayed, brandished, indicated possession of, or used
the firearm to facilitate the commission of the offense.
3 DL-17-105530 and DL-17-105867.
In the fourth case, the court ordered an investigation into whether Howard was
amenable to juvenile rehabilitation. After a hearing on that issue, the court
determined that he was not.
The juvenile court relinquished jurisdiction over all four cases and
transferred them to the general division. The two cases subject to a probable cause
hearing were consolidated into one indictment.
II. Law and Analysis
A. Probable Cause Determination
In Howard’s first assignment of error, he argues that the juvenile
court erred by transferring his cases to the general division because there was not
probable cause to believe that he committed the acts charged.4 We disagree. For
the reasons that follow, we find the state presented evidence by which the juvenile
court could conclude there was probable cause to believe that Howard committed
the acts charged.
4Howard does not specify that this assignment of error pertains to DL-17-105530
and DL-17-105867, where the court determined probable cause following a hearing.
Nevertheless, we do not construe Howard’s challenge as applying to the two cases in
which he stipulated to probable cause and waived his right to a hearing. State v. Wilks,
154 Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶ 66, quoting Hal Artz Lincoln-
Mercury, Inc. v. Ford Motor Co., 28 Ohio St.3d 20, 502 N.E.2d 590 (1986), paragraph
one of the syllabus. (“The doctrine of invited error * * * specifies that a litigant may not
‘take advantage of an error which he himself invited or induced.’”).
1. Jurisdiction to Transfer
In general, R.C. 2151.23(A) provides juvenile courts exclusive
jurisdiction over children alleged to have committed acts that would constitute
crimes if committed by an adult. In re M.P., 124 Ohio St.3d 445, 2010-Ohio-599,
923 N.E.2d 584, ¶ 11. Nevertheless, a juvenile court has the duty to “transfer a case,
or bind a juvenile over, to the adult criminal system” in two instances. Id. citing R.C.
2152.10 and 2152.12; State v. D.W., 133 Ohio St.3d 434, 2012-Ohio-4544, 978
N.E.2d 894, ¶ 10 (discussing “[m]andatory transfer” and “[d]iscretionary transfer”).
R.C. 2152.10 and 2152.12 in conjunction with Juv.R. 30 provide the statutory and
procedural framework by which a juvenile court relinquishes its jurisdiction over an
allegedly delinquent child and transfers the case to the court that would otherwise
have had jurisdiction if the offense was committed by an adult. See In re C.G., 8th
Dist. Cuyahoga No. 97950, 2012-Ohio-5286, ¶ 30; see State v. Washington, 1st Dist.
Hamilton No. C-130213, 2014-Ohio-4178, ¶ 10.
Before transferring a case, the juvenile court is first required to make
a determination that there is probable cause to believe that the child committed the
act charged. See M.P. at ¶ 11. In order to establish probable cause to believe that a
juvenile committed an offense “‘[t]he state must provide credible evidence of every
element of an offense * * * that raises more than a mere suspicion of guilt, but need
not provide evidence proving guilt beyond a reasonable doubt.’” (Emphasis
deleted.) In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 42,
quoting State v. Iacona, 93 Ohio St.3d 83, 93, 752 N.E.2d 937 (2001).
Although the juvenile court is required to evaluate the quality of the
state’s evidence in support of probable cause in conjunction with any evidence
offered on behalf of the juvenile that challenges probable cause, the scope of its
analysis, nevertheless, may not exceed this determination. Id. at ¶ 43-44; In re D.M.,
140 Ohio St.3d 309, 2014-Ohio-3628, 18 N.E.3d 404, ¶ 10 (“[The juvenile court] is
not permitted to exceed the limited scope of the bindover hearing or to assume the
role of the fact-finder at trial.”).
2. Evidence Establishing Probable Cause
Here, the two juvenile cases subject to a probable cause hearing both
involved armed robberies.
The first case involved the armed robbery of a man standing at a bank
ATM. In it, Howard was charged with two counts of aggravated robbery, one count
of felonious assault, one count of kidnapping, one count of having weapons under
disability and one count of grand theft. All counts aside from the having weapons
while under disability charge had both one- and three-year firearm specifications.
The second case involved the armed robbery of a Subway restaurant.
In it, Howard was charged with one count of attempted murder, one count of
aggravated robbery, three counts of kidnapping and two counts of felonious assault.
All of these offenses aside from the having weapons while under disability charge
had both one- and three-year firearm specifications attached.
As discussed below, the evidence established relevant commonality
between Howard and both robberies. The state presented evidence that an assailant
in both robberies wore a gray hooded sweatshirt and white tennis shoes. When
Howard was arrested, he was wearing a gray hooded sweatshirt and search of his
house revealed white tennis shoes. The evidence showed that in both robberies, the
assailant in gray conducted the crimes using only his left hand, keeping his right arm
tucked into the pocket of his sweatshirt. The state also presented evidence that
Howard’s right arm was amputated “up to his elbow.” The evidence also established
that during the ATM robbery, the assailant in gray wore a “distinctive” gold watch.
When Howard was arrested, he was wearing a gold watch.
i. The ATM Robbery
At the bindover hearing, the state presented eyewitness testimony
and surveillance video evidence to establish that, on March 21, 2017, the victim went
to his bank to withdraw cash from the walk-up ATM of the Ohio Savings Bank on
Warren Road in Cleveland, Ohio. The victim testified that, as he stood at the ATM,
he was approached by a “young guy” wearing a gray hooded sweatshirt, brandishing
a firearm. He described the young man as being of a medium build “maybe 150, 160
pounds,” about 5’9” and African American. The victim explained that he could not
get a good look at the assailant’s face because the young man had the hood up and
tied tightly around his face, obscuring all but his eyes and nose.
Pointing his gun at the victim, the assailant in gray demanded money.
A second assailant in dark clothing approached and was also carrying a gun. The
victim described this man as larger, weighing approximately 200 pounds, and
African American. His face was not obscured.
The victim opened his wallet to show that he had a single dollar bill
and threw it on the ground, telling them “[y]ou can have that.” The assailants then
demanded the keys to the victim’s truck and threatened to shoot him. They took his
keys and ordered the victim to walk away. He complied.
Moments later, the assailants approached the victim again. Again
they threatened to shoot him and demanded his phone and phone password. He
complied. They asked for his iCloud password, but the victim could not remember
it. One assailant struck the victim in the head multiple times with his gun causing
him to bleed. The assailants fled, stealing the victim’s truck.
At the hearing, the victim made an in-court identification of Howard’s
codefendant as the assailant in dark clothing who did not obscure his face. The
victim did not identify Howard as the assailant in gray. When asked about it on
cross-examination, he stated “like I said, [the assailant in gray] had a hoodie on. It
would be really hard to identify him.”
The state also offered video surveillance from the ATM into evidence.
The surveillance footage captured much of the robbery and supported the victim’s
account. For example, the footage confirmed that the first assailant was wearing a
gray hooded sweatshirt and that the hood was up and tied tightly around his face
and that he was armed with a pistol.
Moreover, the footage also confirmed that the assailant in gray was
wearing a large gold watch and white tennis shoes. It reflected that his right arm
appeared shorter than his left and that he kept it tightly tucked into his sweatshirt
pocket, using only his left hand during the robbery. For example, the video showed
that when the assailant in gray appeared to drop something near the truck, he made
no attempt to use his right arm to retrieve the object even though he was already
holding the gun in his left hand. Instead, he used his left hand to pick up the object
while holding the gun at the same time.
ii. The Subway Robbery
The state also presented evidence that on March 31, 2017, two armed
men entered the Subway restaurant on Memphis Avenue in Cleveland, Ohio during
the evening shift and demanded the money in the register and the cash box from the
back of the store. One assailant wore a gray hooded sweatshirt tied tightly around
his face as well an additional mask to cover his face.
At that time, the cashier was taking a customer’s order at the counter.
A second employee was in the back prep area of the restaurant. All three witnesses
testified at the hearing, however none of them specifically identified Howard as the
assailant in gray. The customer testified that she could not see either assailant’s face
due to the masks they wore, but stated that Howard and the assailant in gray were
“the same height.”
The customer further testified that “two black gentlemen rushed in
using profanity, saying ‘everybody put your f****** hands up.’” She put her hands
up and “didn’t move at all.”
The customer explained that the assailant in dark clothing “just stood
right beside [her],” brandishing a “machine-type of gun.” During her testimony the
customer was questioned about whether the assailant in gray used both his right and
left hands during the course of the robbery and stated:
No. He like used — I don’t know. It looked like, I want to say — because
when he approached me it was like one hand or something. Like it was
just this hand he was moving because he kept doing this saying “hurry
up, hurry up, hurry up.” And he was moving it, like moving this hand.
***
And then he came to me because my phone was lighting up * * * like
how you get a notification of a text message or a call * * * and he came
over to me * * * and grabbed my phone, my wallet.
The customer further explained that the assailant in gray took her
phone and wallet with his left hand, which was also holding the gun. She described
that in order for him to pick up her phone and wallet, he first had to set the gun
down and then pick everything up together. The assailant in gray then went to the
back of the restaurant.
The customer testified that she did not remember the shooter’s skin
tone or eye color, but described him as being “five-six.”
The cashier testified that he immediately opened the cash register and
put his hands up. The assailant in gray demanded the moneybox from the back. The
cashier testified that both assailants wore masks and both were carrying firearms.
He stated that one gunman was carrying a pistol but could not describe the firearm
carried by the other because he “never really paid close attention to the other one.”
The second employee, a 17-year-old girl, testified that while she was
in the back she observed “a guy in [a] gray sweatshirt walk past.” “I thought it was
just another customer coming in, so I was about to go up until I seen what was
happening. It was all in the moment.” She heard one assailant yelling for the cashier
to give him the money.
The second employee testified “I just remember the door [to the back]
opening, making eye contact and then everything else from there is a blur because I
just laid on the floor. * * * I was shot in my arm.” The bullet grazed the employee’s
breast before it entered her arm, struck her radial nerve and exited the other side of
her arm. She collapsed to the ground.
When asked to describe the shooter she stated “[i]t was a gray
sweatshirt with the hood up wearing a mask. All I seen was brown eyes and he was
lighter skin.” She clarified that he was African American and further described him:
“[h]e wasn’t super tall, but also wasn’t short. So like maybe like five-six, five-seven.”
Video surveillance footage captured the robbery from multiple angles
and confirmed the witnesses’ accounts. It showed the assailants enter the
restaurant, both brandishing firearms. It showed one assailant wearing a gray
hooded sweatshirt with the hood up and tied around his face and that he was also
wearing a mask, white tennis shoes and a glove on his left hand. It confirmed that
he did not use his right arm during the robbery and, instead, kept it tucked tightly
into his sweatshirt pocket. It confirmed that he used his left hand to open a door,
carry the cash box and take the customer’s phone and wallet, even though he was
already using that hand to hold the gun. It showed that he shot the employee while
holding the gun in his left hand.
One of the investigating detectives testified about analysis of the
surveillance footage. With respect to the assailant in gray, the detective explained
that the footage showed he never used his right hand. “[I]t was literally tucked into
a hoodie * * * things were being dropped by this gentlemen and this arm never
moved * * * he’s doing everything with his left hand, everything * * * [the right] arm
never moves. It never comes out of his pocket.” He explained that when the
assailant went to the back of the restaurant that he did not use his right hand to open
the door. He instead tucked the gun under his right arm and used his left hand to
open the door. The detective further explained:
And here’s the thing that I think is the most distinctive is this square
item in the hoodie pocket. It’s not a hand. It’s not a hand impression.
To me it almost looks like a piece of plastic or a brace or something
that’s in like the hoodie. And you see the whole arm is completely
covered and placed into that. That square part there kind of gets my
attention because it does not look like a hand. And normally, if you
would put your hand in the hoodie, you would see the impression of a
hand. That’s not a hand, in my opinion.
The detective further testified that after analysis of the surveillance
footage he determined that the assailant in gray was “a thinner black male, light-
skinned, young age” and 5’6” or 5’7”.
3. Howard’s Challenge to the Probable Cause Determination
Howard challenges the transfer of his cases by attacking the juvenile
court’s probable cause determinations. He argues that transfer was improper
because “the state failed to present sufficient evidence to sustain the court’s probable
cause determinations in either case.” He claims that the evidence against him
consisted of “largely” police officer speculation and that “the mere fact” that video
surveillance of both crimes indicated that one of the perpetrators only used one of
his arms was not enough to constitute probable cause. Howard emphasizes that
none of the victims affirmatively identified him in court.
A juvenile court’s probable-cause determination in a mandatory-
bindover proceeding involves questions of both fact and law, and thus,
we defer to the trial court’s determinations regarding witness
credibility, but we review de novo the legal conclusion whether the state
presented sufficient evidence to demonstrate probable cause to believe
that the juvenile committed the acts charged.[5]
A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, at ¶ 51.
Here, as discussed, the state presented substantial evidence
implicating Howard as the assailant in gray in both the ATM robbery and the
Subway robbery. When Howard was arrested, he was wearing a gray hooded
sweatshirt that matched the sweatshirt described by the victims as well as the
surveillance footage. He was wearing a distinctive gold watch that resembled the
watch worn by the assailant in gray during the ATM robbery. There was evidence
that Howard’s right arm was amputated near the elbow. Surveillance footage from
both robberies as well as witness testimony confirmed that the assailant in gray used
only his left hand, keeping his right arm tucked tightly into his pocket. Further,
police recovered white tennis shoes from Howard’s house that matched the shoes
worn by the assailant in gray.
5 Howard does not dispute that both cases involved mandatory bindover. See R.C.
2152.10.
Based on the evidence presented, we find there is probable cause to
believe that Howard committed the acts charged and that transfer to the general
division was, therefore, appropriate.
We overrule this assignment of error.
B. Maximum Sentences
In Howard’s second assignment of error he argues that the sentence
imposed by the trial court is contrary to law because the record does not support
imposition of maximum sentences. We disagree. For the reasons that follow,
Howard’s sentence is not reviewable. However, even assuming that it was
reviewable, his arguments nevertheless lack merit.
For five counts of aggravated robbery and three, three-year firearm
specifications, the trial court sentenced Howard to 20 years in prison.
Review of the record reflects that as a part of the plea bargaining
process, Howard and the state agreed to a sentence range between 18 and 20 years
and made a joint recommendation of that range to the court. During the change of
plea hearing, the follow exchange occurred:
The Court: Now the government has indicated to this court that as
part and parcel of this plea agreement with you, that they’ve entered
into an agreement with your lawyer whereby there’s been an agreement
that you would serve a sentence of between 18 and 22 years. Do you
understand that?
The State: 20 years, your Honor.
The Court: 20?
The State: Yes. 20. I apologize.
The Court: 18 and 20 years. Do you understand that?
Howard: Yes, your Honor.
The Court: Did you have any questions with reference to that?
Howard: No, your Honor.
The Court: Do you agree that that would be the stretch of your
sentence?
Howard: Yes, your honor.
R.C. 2953.08(D)(1) provides:
A sentence imposed upon a defendant is not subject to review under
this section if the sentence is authorized by law, has been recommended
jointly by the defendant and the prosecution in the case, and is imposed
by a sentencing judge.
Howard concedes that he agreed to a possible range between 18 and
20 years but argues that this court should not construe his agreement to that range
as constituting an agreement to a specific 20-year sentence. In essence, Howard
argues that review is not precluded because the sentence was not “recommended
jointly.” Howard makes no claim that the sentence was not authorized by law or
that it was not imposed by a sentencing judge. See R.C. 2953.08(D)(1).
We have previously rejected arguments that attempt to distinguish
between an agreement to a range of possible sentences and an agreement to a
specific sentence for purposes of R.C. 2953.08(D)(1) analysis. See, e.g., State v.
Grant, 2018-Ohio-1759, 111 N.E.3d 791, ¶ 18 (8th Dist.) (“[T]hey are both negotiated
agreements based on a quid pro quo arrangement where each side gives up
something in exchange for being bound by the terms of the agreement.”). This
rationale holds, even where, as is the case here, the trial court sentences a defendant
to the maximum sentence in the agreed range. See, e.g., State v. Rodriquez, 8th
Dist. Cuyahoga No. 107720, 2019-Ohio-3278, ¶ 3, 25. “Where a defendant agrees to
a sentencing range, he implicitly agrees to all definite sentencing possibilities within
that range * * *.” Grant at ¶ 31, citing State v. Ramsey, 5th Dist. Licking No. 16-CA-
91, 2017-Ohio-4398, ¶ 15. Accordingly, pursuant to R.C. 2953.08(D)(1), Howard’s
sentence is not reviewable.
Even were we to assume that R.C. 2953.08(D)(1) did not bar our
review of Howard’s sentence, his challenge would still fail on its merits.
R.C. 2953.08(G)(2) guides our review of a felony sentence. As such,
where a trial court imposes a sentence “solely after consideration of the factors in
R.C. 2929.11 and 2929.12,” an appellate court may disturb a sentence “that is not
clearly and convincingly contrary to law only if the appellate court finds by clear and
convincing evidence that the record does not support the sentence.” State v.
Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23.
Although a trial court must comply with R.C. 2929.11 and 2929.12
when it imposes sentence on a particular felony, it is under no obligation to use
particular language or to make specific finding on the record to demonstrate this
compliance. State v. Gaines, 8th Dist. Cuyahoga No. 103476, 2016-Ohio-4863, ¶ 11.
Where a trial court does not reference its consideration of R.C. 2929.11 and 2929.12
at the sentencing hearing or in its sentencing journal entry, this court has held that
such compliance can be presumed unless the defendant shows otherwise. See, e.g.,
State v. Jones, 8th Dist. Cuyahoga No. 99759, 2014-Ohio-29, ¶ 13.
Here, the court’s sentencing journal entry confirmed that it
“considered all required factors of the law,” and found that “prison is consistent with
the purpose of R.C. 2929.11.”
Beyond these statements, review of the sentencing transcript reveals
that the court extensively considered the sentencing factors. For example, aside
from recounting details of the ATM and Subway robberies and the injuries suffered
by the victims in those cases, there was also discussion about the other crimes for
which Howard was being sentenced: the armed robbery of a “younger gentleman”
as well as the carjacking of a woman while she was parked in the driveway visiting
her 91-year-old mother. In the carjacking case, Howard and others blocked the
woman in the driveway, proceeded to rob her at gunpoint and stole her car. There
was also discussion of the psychological trauma the victims in these cases suffered.
Beyond Howard’s present cases, the court also recounted “a number
of prior violent offenses” that Howard committed. And although the court did
recognize that Howard was a juvenile when he committed these offenses, it found
his criminal history nonetheless “extensive.” The court detailed “several” instances
of receiving stolen property, escape, causing harm to government property, fleeing
a police officer, attempting to cause physical harm to a police officer, burglary and
grand theft of a motor vehicle.
Additionally, the court noted that it found it particularly disturbing
that Howard selectively chose his victims based on their race. The court was made
aware of the underlying circumstances surrounding Howard losing his right arm,
namely that it occurred after he crashed a stolen car into a train while attempting to
flee pursuing police officers.
Howard makes multiple challenges to the court’s consideration of
R.C. 2929.11 and 2929.12. For example, he alleges that his sentence was in excess
of what is required to protect the public and punish him and he complains that the
court failed to “adequately” account for his relative youth as well as “other relevant
mitigating factors.”
We reject these challenges. This court will not substitute its judgment
for that of the trial court. State v. Franklin, 8th Dist. Cuyahoga No. 107482, 2019-
Ohio-3760, ¶ 36. Moreover, we are not empowered to re-weigh sentencing factors.
State v. Taylor, 8th Dist. Cuyahoga No. 107881, 2019-Ohio-3367, ¶ 17.
Howard also complains that the 11-year sentence related to the ATM
robbery is “disproportionate” to his codefendant’s sentence for the same count.
Howard bases this claim on the unsupported assertion that his codefendant received
a five-year sentence despite being the person who hit the victim with the gun.6
Putting aside the dearth of support in the record, we reject the basis
by which Howard claims his sentence is “disproportionate.” Proportionality
“involves the relationship between the sentence and the defendant’s conduct, i.e., is
it ‘commensurate with and not demeaning to the seriousness of the offender’s
conduct and its impact upon the victim,’ or, in other words, ‘does the punishment fit
the crime.’” State v. Ware, 8th Dist. Cuyahoga No. 106176, 2018-Ohio-2294, ¶ 13,
quoting State v. Moore, 2014-Ohio-5135, 24 N.E.3d 1197, ¶ 17. Attacking the
6 We note that the record is devoid of any indication about the nature of the crimes
with which the codefendant was charged, whether he was convicted or whether any
penalties were imposed.
proportionality of a sentence by comparison to the unsupported claim that a more
culpable codefendant’s received a lesser sentence necessarily fails.
Consistency, on the other hand, relates to “the defendant’s sentence
‘in the context of sentences given to other defendants,’ i.e., did the defendant receive
a sentence similar to those ‘imposed for similar crimes committed by similar
offenders.’” Id., quoting Moore at ¶ 17. We note that the record here is devoid of
any consistency challenge.
“As courts have long concluded, a ‘defendant must raise the
consistency-in-sentencing issue before the trial court and present some evidence,
however minimal, in order to provide a starting point for analysis and to preserve
the issue for appeal.’” (Emphasis deleted.) State v. Montanez-Roldon, 8th Dist.
Cuyahoga No. 103509, 2016-Ohio-3062, ¶ 14, quoting State v. Spock, 8th Dist.
Cuyahoga No. 99950, 2014-Ohio-606, ¶ 37. There is no indication that the trial
court failed to properly consider the sentencing factors and principles.
We overrule this assignment of error.
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 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
EILEEN T. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR