State v. Cole , 2019 Ohio 2821 ( 2019 )

[Cite as State v. Cole, 2019-Ohio-2821.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 106931
v. :
GEORGE ALLEN COLE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 11, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-14-590944-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and John D. Kirkland, Assistant Prosecuting
Attorney, for appellee.
Allison S. Breneman, for appellant.
KATHLEEN ANN KEOUGH, J.:
Defendant-appellant, George Allen Cole, appeals from the sentence
imposed by the trial court upon resentencing, arguing that the court erred in
imposing consecutive sentences. Finding no merit to the appeal, we affirm.
I. Background
Cole, his brother, and his girlfriend were indicted in three cases
relating to six burglaries that occurred from July 19, 2014, through August 26, 2014,
in Cleveland, Fairview Park, and Rocky River. In Cuyahoga C.P. No. CR-14-590944-
B, Cole was charged with four counts of burglary, four counts of theft, two counts of
criminal damaging, and one count each of forgery and misuse of credit cards. In
Cuyahoga C.P. No. CR-14-589681-A, Cole was charged with burglary and theft. In
Cuyahoga C.P. No. CR-14-588878-B, Cole was charged with burglary, theft, and
criminal damaging.
Cole was also charged in Cuyahoga C.P. No. CR-14-585523-A with
drug possession and endangering children. He pleaded no contest to the
indictment, and the case was continued for sentencing after Cole’s trial on the
remaining three cases. (Cole’s codefendants pleaded guilty to amended indictments
in the three cases.)
The state’s theory at trial was that Cole and his brother would “case”
westside neighborhoods in broad daylight, looking for houses in which the
homeowners had left for work. State v. Cole, 8th Dist. Cuyahoga Nos. 103187,
103188, 103189, and 103190, 2016-Ohio-2936, ¶ 4. Cole drove his girlfriend’s SUV
and would drop his brother off near the intended targets, while he waited in the SUV.
Id. Cole’s brother would break into the homes and steal jewelry, coins, and other
valuables. Id. Cole’s girlfriend would then take the valuables to various pawn shops
and sell them. Id. The group kept a logbook that detailed the homes they had
burglarized and the properties they were targeting. Id. at ¶ 5.
After a five-day trial during which the jury heard from 24 witnesses
and viewed over 90 exhibits, the jury convicted Cole of all charges. Id. at ¶ 30. The
trial court subsequently sentenced him to an aggregate term of 48 years in prison.
Id.
On appeal, Cole challenged, among other alleged errors, the
sufficiency and manifest weight of the evidence supporting his convictions. Id. at
¶ 32. This court affirmed all of Cole’s convictions, with the exception of two burglary
counts in Cuyahoga C.P. No. CR-14-590944-B. This court determined that on those
two counts (Counts 26 and 29), the state had failed to establish the “likely to be
present” element of R.C. 2911.12(A)(2). Id. at ¶ 45. This court found, however, that
the evidence supported a finding of guilty on the lesser included offense of burglary
under R.C. 2911.12(A)(3), a third-degree felony. Id. at ¶ 46. Accordingly, this court
modified the trial court’s judgment of conviction on Counts 26 and 29 to find Cole
guilty of burglary under R.C. 2911.12(A)(3), and remanded with instructions that the
court resentence him on those counts. Id.
Cole also argued on appeal that his 48-year prison sentence was
“greatly disproportionate” to that of his brother and girlfriend, and amounted to
“cruel and unusual punishment.” Id. at ¶ 74. He argued further that the trial court
had failed to make the requisite statutory findings to impose consecutive sentences,
his 48-year prison sentence “was inconsistent with felony guidelines and an abuse
of the trial court’s discretion,” and the record did not support consecutive sentences.
Id. at ¶ 74, 88.
After noting that its analysis did not apply to the two burglary counts
upon which Cole was to be resentenced,1 this court rejected Cole’s argument that the
trial court had failed to sentence him consistently with the other offenders and that
his sentence was harsher than theirs because he chose to go to trial rather than take
a plea. Id. at ¶ 83. This court found there was no evidence in the record that the
trial court acted vindictively in imposing the sentence, and that Cole had failed to
provide any such evidence. Id.
This court also rejected Cole’s argument that his sentence should have
been more “in line” with the 21-year sentence his brother received. Id. at ¶ 84. This
court found that Cole was convicted of more offenses than his brother and, further,
that Cole’s brother showed remorse, while Cole showed none. Id. at ¶ 91. Further,
this court found that at sentencing, the trial court “considered Cole’s extensive
criminal history, his presentence investigation report, the arguments of counsel,
Cole’s statement, and what occurred during trial, including Cole’s troubling
behavior,” which this court noted included “making gestures and mouthing words
to female jurors and the trial judge herself.” Id. at ¶ 86. This court concluded that
“there is no doubt that by the time Cole was sentenced, the trial court had gained a
greater appreciation of the details of the charged crimes and insight into Cole’s
1The court found that because Cole was to be resentenced on the two burglary
counts, his sentence at that point was 32 years in prison with the possibility of another 36
months in prison on each burglary conviction. Id. at ¶ 84, fn. 2.
character, having presided over a lengthy trial that included 24 witnesses and 91
exhibits.” Id. Accordingly, this court found that in imposing Cole’s sentence, the
trial court had considered the statutory purposes and principles of felony
sentencing, as well as the seriousness, recidivism, and mitigating sentencing factors,
and had properly exercised its discretion in imposing sentence. Id. at ¶ 87.
With respect to consecutive sentences, this court found that the trial
court made the requisite statutory findings at sentencing to impose consecutive
sentences. Id. at ¶ 92. Further, this court found that the trial court did not err in
finding that Cole’s consecutive sentences were not disproportionate to the
seriousness of his conduct because the trial court found that many of the burglary
victims were elderly, traumatized by the burglaries, and lost precious family
heirlooms as a result of the burglaries. Id. at ¶ 91-92. In addition, the trial court
found that records obtained from Cole’s vehicle indicated that Cole and his brother
had a chart of the numerous houses they had robbed or intended to rob, and that
Cole and his brother “rode around * * * and pilfered communities and streets.” Id.
at ¶ 90.
This court found that the trial court’s sentencing journal entries did
not include the consecutive sentence findings, however, and accordingly, it
remanded for the trial court to enter nunc pro tunc sentencing entries that
incorporated the findings. Id.
At resentencing, the trial court sentenced Cole to 36 months each on
the two third-degree felony burglary convictions in Cuyahoga C.P. No. CR-14-
590944-B and ordered that the sentences be served consecutively, and consecutive
to the other previously imposed sentences. Accordingly, Cole’s aggregate prison
sentence is now 38 years. This appeal followed.
II. Law and Analysis
In his single assignment of error, Cole argues that the trial court erred
in imposing consecutive sentences.
Initially, we find that the trial court properly imposed consecutive
sentences on the two burglary counts at resentencing.
Consecutive sentences may be imposed only if the trial court makes
the required findings pursuant to R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 20-22. Under the statute, consecutive
sentences may be imposed if the trial court finds that (1) consecutive sentences are
necessary to protect the public from future crime or to punish the offender, and (2)
consecutive sentences are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public. In addition, the court
must find that any one of the following applies:
(1) the offender committed one or more of the multiple offenses
while awaiting trial or sentencing, while under a sanction, or while
under postrelease control for a prior offense;
(2) at least two of the multiple offenses were committed as part of
one or more courses of the conduct, and the harm caused by two or
more of the offenses 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; or
(3) the offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
In order to impose consecutive terms of imprisonment, a trial court
must both make the statutory findings mandated for consecutive sentences under
R.C. 2929.14(C)(4) at the sentencing hearing and incorporate those findings into its
sentencing entry. Bonnell at the syllabus.
Here, in imposing consecutive sentences on the two burglary counts,
the trial court found that consecutive sentences (1) were necessary to protect the
public from future crime and to punish Cole, (2) were not disproportionate to the
seriousness of his conduct, and (3) that Cole’s history of criminal conduct
demonstrated that consecutive sentences were necessary to protect the public from
future crime by Cole. (Tr. 16.) Accordingly, the court made the necessary findings
under R.C. 2929.14(C)(4) to impose consecutive sentences. Additionally, the
journal entry of sentencing contains the trial court’s findings. The trial court did not
err, therefore, in imposing consecutive sentences on the two burglary counts upon
which it resentenced Cole.
Cole’s arguments, however, all pertain to his total sentence of 38 years
incarceration on the three cases he took to trial and the fourth case to which he
pleaded guilty, which the trial court ordered were to be served consecutively.
Specifically, Cole contends that the consecutive sentences are disproportionate to
his conduct because he was merely the “getaway driver” and “lookout” for the
burglaries and did not actually enter the homes to commit the burglaries. He further
contends that his 38-year sentence is “unduly harsh” when compared to the
sentences his codefendants received, and “against the sentencing guidelines.” He
also contends that he was “punish[ed] for exercising his constitutional right” to go
to trial. These arguments are barred by res judicata.
The doctrine of res judicata bars the further litigation of issues that
were or could have been raised previously in a direct appeal. State v. Leek, 8th Dist.
Cuyahoga No. 74338, 2000 Ohio App. LEXIS 2909, 3 (June 21, 2000), citing State
v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.
In Cole’s direct appeal of his convictions, this court considered and rejected Cole’s
argument that consecutive sentences were disproportionate to his conduct. Cole,
8th Dist. Cuyahoga Nos. 103187, 103188, 103189, and 103190, 2016-Ohio-2936, at
¶ 92. This court also rejected Cole’s argument that his sentence was harsher than
that of his codefendants because he chose to go to trial rather than take a plea. Id.
at ¶ 83. This court also rejected Cole’s argument that the trial court failed to
sentence him consistently with his codefendants, and that his sentence was unduly
harsh when compared to that received by his brother, who actually committed the
burglaries. Id. at ¶ 83-86. And this court rejected Cole’s argument that his sentence
was against the sentencing guidelines set forth in R.C. 2929.11 and 2929.12, noting
that the trial court considered the purposes and principles of sentencing set forth in
the statutes, and that the trial court properly exercised its discretion in imposing
Cole’s lengthy prison sentence. Id. at ¶ 86-87. Because Cole raises the same issues
this court previously considered and rejected in his direct appeal, they are barred by
the doctrine of res judicata.
Moreover, this court’s remand from Cole’s direct appeal was limited
to resentencing in Cuyahoga C.P. No. CR-14-590944-B on two burglary counts and
the issuance of nunc pro tunc sentencing entries to incorporate the trial court’s
consecutive-sentence findings. Thus, all other issues related to Cole’s convictions,
including the imposition of consecutive sentences on the four cases, were res
judicata at the time of resentencing. See State v. Ketterer, 140 Ohio St.3d 400, 2014-
Ohio-3973, 18 N.E.3d 1199, ¶ 24, 27. The limited remand did not affect the finality
of this court’s holding that the trial court properly imposed consecutive sentences
nor did it open the issue of consecutive sentences to further review after
resentencing.
The assignment of error is therefore 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 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.
KATHLEEN ANN KEOUGH, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
RAYMOND C. HEADEN, J., CONCUR
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