State v. Wells , 2013 Ohio 3809 ( 2013 )

[Cite as State v. Wells, 2013-Ohio-3809.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 99305, 99306, and 99307
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RONALD DAVON WELLS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-566206, CR-564784, and CR-566207
BEFORE: Keough, J., Rocco, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: September 5, 2013
ATTORNEY FOR APPELLANT
Michael H. Murphy
20325 Center Ridge Road, Suite 512
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Adam Chaloupka
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} In this consolidated appeal, defendant-appellant, Ronald Wells (“Wells”),
appeals the trial court’s imposition of consecutive sentences. For the reasons that follow,
we affirm.
{¶2} In July 2012, Wells was indicted in Cuyahoga C.P. No. CR-564784 on one
count each of drug trafficking, drug possession, and possession of criminal tools. While
out on bond for this case and on postrelease control on another case, Wells committed
two separate robberies on two, but consecutive days.
{¶3} In Cuyahoga C.P. No. CR-566206, Wells was charged with two counts of
aggravated robbery each containing repeat violent offender and one- and three-year
firearm specifications, and a notice of prior conviction. He was also charged with having
a weapon while under disability. This case was referred to as the “casino case” because
Wells robbed two patrons of their winnings at gunpoint outside the Horseshoe Casino in
downtown Cleveland.
{¶4} In Cuyahoga C.P. No. CR-566207, Wells was indicted with three counts of
kidnapping, two counts of aggravated burglary, five counts of aggravated robbery, three
counts of felonious assault, and one count each of having a weapon while under disability
and grand theft. A majority of these counts carried repeat violent offender and one- and
three-year firearm specifications, and a notice of prior conviction. This indictment arose
from a home invasion of Wells’s family friend where Wells’s co-defendant physically
assaulted a victim.
{¶5} On October 17, 2012, Wells pled guilty on the drug case to drug possession
with forfeiture specifications. On October 31, Wells pled guilty on the home invasion
case to one amended count each of kidnapping, aggravated burglary, and aggravated
robbery, including all attendant specifications and notices, except the repeat violent
offender specification, which was deleted by the state. Wells also pled guilty to grand
theft and having a weapon while under disability. On that same day, he also pled guilty
on the casino case to the weapon while under disability charge and an amended count of
aggravated robbery, including the one- and three-year firearm specifications and the
notice of prior conviction. The repeat violent offender specification was again deleted
by the state.
{¶6} The trial court sentenced Wells to 17 months on the drug case to be served
concurrently with the casino case, Cuyahoga C.P. No. CR-566206. Regarding the casino
case, the court imposed a total sentence of ten years — merging the firearm specifications
into the three-year specification to be served prior and consecutive to the base sentence of
seven years on the aggravated robbery charge. The court imposed a sentence of 36
months on the weapon under disability charge to be served concurrently with the ten-year
sentence. The court ordered that this ten-year sentence be served consecutively to the
home invasion case, Cuyahoga C.P. No. CR-566207.
{¶7} Finally, on the home invasion case, the court sentenced Wells to eight years
on each count of kidnapping, aggravated burglary, and aggravated burglary, to be served
concurrently. The court also merged all the firearm specifications into one three-year
specification to be served prior and consecutive to the eight-year base sentence on the
underlying offenses. Finally, the court imposed a prison sentence of 36 months on the
weapon while under disability charge and 15 months on the grand theft charge, to be
served currently with the eight-years imposed on the first-degree felonies. Wells’s total
prison sentence on the home invasion case was eleven years, to be served consecutively to
the casino case, Cuyahoga C.P. No. CR-566206.
{¶8} Accordingly, Wells’s total aggregate sentence for all three cases was 21
years. He now appeals his sentences setting forth two assignments of error.
{¶9} In his first assignment of error, Wells contends that the trial court erred
procedurally in imposing consecutive sentences. Specifically, Wells contends that
because the trial court failed to cite the subsection governing the imposition of
consecutive sentences under R.C. 2929.14 during sentencing it did not make the
necessary factual findings under R.C. 2929.14(C)(4). This argument has no merit and
we summarily reject it. As will be discussed under Wells’s second assignment of error,
the trial court strictly complied with R.C. 2929.14(C)(4) in imposing consecutive
sentences; its failure to state the appropriate subsection under R.C. 2929.14 does not
invalidate Wells’s sentence.
{¶10} In his second assignment of error, Wells contends that the trial court abused
its discretion by imposing consecutive sentences.
{¶11} We review consecutive sentences using the standard of review set forth in
R.C. 2953.08. State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 10
(holding that the standard of review set forth by the Ohio Supreme Court in State v.
Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, is no longer valid in light
of the enactment of H.B. 86 and the “revival” of statutory findings necessary for imposing
consecutive sentences).
{¶12} R.C. 2953.08(G)(2) provides two grounds for an appellate court to overturn
the imposition of consecutive sentences: (1) the sentence is “otherwise contrary to law”;
or (2) the appellate court, upon its review, clearly and convincingly finds that “the record
does not support the sentencing court’s findings” under R.C. 2929.14(C)(4). Venes at ¶
11; R.C. 2953.08(G)(2).
{¶13} The presumption in Ohio is that sentencing is to run concurrent, unless the
trial court makes the required findings for consecutive sentences set forth in R.C.
2929.14(C)(4). State v. Wells, 8th Dist. Cuyahoga No. 98428, 2013-Ohio-1179, ¶ 11;
R.C. 2929.41(A).
{¶14} Under current R.C. 2929.14(C)(4), when imposing consecutive sentences,
the trial court must first find the sentence is “necessary to protect the public from future
crime or to punish the offender.” Next, the trial court must find that consecutive
sentences are “not disproportionate to the seriousness of the offender’s conduct and to the
danger the offender poses to the public.” Finally, the trial court must find that one of the
following factors applies:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction * * *, or
was under postrelease 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 * * * 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).
{¶15} Compliance with this statute “requires separate and distinct findings in
addition to any findings relating to purposes and goals of criminal sentencing.” Venes,
8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891 at ¶ 17, citing State v. Jones, 93 Ohio
St.3d 391, 399, 2001-Ohio-1341, 754 N.E.2d 1252. The failure to make these findings is
“contrary to law.” Id. at ¶ 12.
{¶16} In this case, we find that the trial court strictly complied with the
requirements of R.C. 2929.14(C)(4) prior to imposing consecutive sentences and our
review of the entire record supports the trial court’s findings.
{¶17} After the trial court discussed the overall underlying purposes and goals of
felony sentencing, it thoroughly discussed the factors and indicators under each section of
R.C. 2929.12. The court then imposed its sentence on each case. Following the
imposition of each sentence, the court then considered whether the sentences in these
cases should be served consecutively, stating:
[T]his Court is of the opinion that consecutive sentences are necessary to
protect the public from future crime or to punish you. You had just served
time for two robberies. While you were on post-release control and bond
here, you went out and committed two more serious robberies with a
firearm.
The Court finds that this sentence is not disproportionate to the seriousness
of your conduct and to the danger that you posed to the public. In one
instance, your codefendant beat a person and sent him to the hospital,
somebody you knew, and in another instance, they beat again — you call
him your uncle and caused him to have injuries for which he did not seek
medical treatment.
You frightened people that were robbed as they came out of the casino after
their winnings.
The Court finds that you committed the two robberies, the two separate
days, August 18th and August 19th, while you were awaiting trial on your
drug case and while you were under a sanction of post-release control for a
prior offense which was robbery. They were part of a course of conduct in
order to satisfy your desire for drugs to have money for them as you were
robbing people. Your history of criminal conduct since you were a
juvenile is all violence: felonious assault, robberies, antisocial behavior by
selling drugs and such. So I feel that consecutive sentences are necessary
to protect the public from future crime by you.
{¶18} The trial court succinctly delineated each necessary finding under R.C.
2929.14(C)(4) when it imposed its sentence. Additionally, the trial court supported its
separate and distinct findings with facts from the record, although it was not obligated to
do so. This text-book approach made appellate review of the issues and the case simple.
{¶19} Accordingly, we find that the trial court made all the necessary findings
prior to imposing consecutive sentences, those findings are supported by the record, and
Wells’s sentence is not contrary to law. The second assignment of error is overruled.
{¶20} 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 convictions 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.
KATHLEEN ANN KEOUGH, JUDGE
KENNETH A. ROCCO, P.J., and
MARY EILEEN KILBANE, J., CONCUR