State v. Lewis ( 2013 )

[Cite as State v. Lewis, 2013-Ohio-1581.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25225
v. : T.C. NO. 12CR538/2
RAYFIELD LEWIS : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 19th day of April , 2013.
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MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
LUCAS W. WILDER, Atty. Reg. No. 0074057, 120 W. Second Street, Suite 400, Dayton,
Ohio 45402
Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} Rayfield Lewis pled guilty in the Montgomery County Court of
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Common Pleas to aggravated robbery (deadly weapon), a first-degree felony. In exchange
for the plea, a firearm specification and a robbery charge were dismissed. The trial court
sentenced Lewis to three years in prison, and he was ordered to pay restitution of $500 and
court costs. Lewis appeals from his conviction, claiming that his sentence was an abuse of
discretion. For the following reasons, the trial court’s judgment will be affirmed in part and
reversed in part, and the matter will be remanded for resentencing on court costs only.
{¶ 2} According to the pre-sentence investigation report, on February 9, 2012,
Shauna Hernandez called her ex-boyfriend, Dorian Pierce, and asked him to give her a ride
to Piqua, Ohio, in exchange for gas money. Hernandez wanted to purchase a vehicle she
had seen on Craig’s List, and she had $1,400 in her right coat pocket. Pierce picked her up
in a gray Chevrolet Trailblazer and drove to a gas station, where Hernandez purchased gas
for his vehicle.
{¶ 3} Instead of heading to Piqua, Pierce contacted Jermaine Maddox and told him
that he was bringing a woman that they could rob. They arranged for the robbery of
Hernandez in an alley. Lewis indicated that he agreed to help Maddox, his cousin, because
he (Lewis) was using marijuana, “let his self esteem be controlled by others,” and “let the
money get the best of him.”
{¶ 4} Pierce started driving down alleys for reasons that Hernandez did not
understand. At one alley, a man with a black hoodie “produced a shotgun while standing in
front of the vehicle.” Pierce stopped the truck, at which time a second man jumped into the
back seat of the vehicle and started going through Hernandez’s left coat pocket. The man
took her purse, which contained her primary cell phone, an ACER computer, a credit card, a
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prepaid cell phone, and paperwork. The man then “punched her in the face before he
walked away from the vehicle.” While the robbery was occurring, Pierce repeatedly stated,
“Oh shit,” and stayed in the vehicle.
{¶ 5} After the robbery in the alley had ended, Pierce asked Hernandez if she
needed to go to the bank to get money for the car she wanted to buy. Hernandez showed
Pierce the $1,400 that she still had in her right pocket. Pierce told Hernandez that he
needed $20 so he could find the suspects. He “snatched” the $1,400 from Hernandez and
told her that he would pull a gun on her. Pierce then gave Hernandez $700 back, drove into
another alley, and told her, “Get out of the car, bitch.”
{¶ 6} Hernandez contacted the police. The pre-sentence investigation report
indicates that, when she spoke with the responding officers, she “kept changing her story”
and provided “varying accounts of the incident.” Four days later, on February 13,
Hernandez was contacted by Detective Coberly. At this time, she provided the version of
events described above.
{¶ 7} Hernandez called Det. Coberly on February 23 to report that Pierce had
offered her money in exchange for her dropping the charges against him. The same day,
Pierce went to the detective section of the Dayton Police Department after learning that there
was a warrant for his arrest. When asked if he had a gun when he told Hernandez that he
would pull a gun on her, Pierce responded, “No, I was just fucking with her.” Pierce
identified Lewis as the individual who punched Hernandez during the robbery in the alley.
{¶ 8} Lewis was subsequently indicted for aggravated robbery, with a firearm
specification, and robbery (physical harm). Maddox was also charged with the same
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offenses in the same indictment, but Pierce was not. In April 2012, Lewis pled guilty to
aggravated robbery, a first-degree felony; in exchange for the plea, the firearm specification
and robbery charge were dismissed. The trial court sentenced him to three years in prison,
and he was ordered to pay restitution to Hernandez in the amount of $500 and court costs.
{¶ 9} In his sole assignment of error, Lewis claims that “[t]he trial court’s sentence
was contrary to law and an abuse of discretion.”
{¶ 10} We review a felony sentence using a two-step procedure. State v. Kalish,
120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 4. “The first step is to ‘examine the
sentencing court’s compliance with all applicable rules and statutes in imposing the sentence
to determine whether the sentence is clearly and convincingly contrary to law.’” State v.
Stevens, 179 Ohio App.3d 97, 2008-Ohio-5775, 900 N.E.2d 1037, ¶ 4 (2d Dist.), quoting
Kalish at ¶ 4. “If this step is satisfied, the second step requires that the trial court’s decision
be ‘reviewed under an abuse-of-discretion standard.’” Id.{¶ 11} The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum or more than minimum sentences. See State v. Foster, 109
Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at paragraph seven of the syllabus. However,
the trial court must comply with all applicable rules and statutes, including R.C. 2929.11 and
R.C. 2929.12. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 37.
{¶ 12} Lewis pled guilty to aggravated robbery in violation of R.C. 2911.01(A)(1),
a first-degree felony. For a felony of the first degree, the trial court is authorized to impose
a prison term of three, four, five, six, seven, eight, nine, ten, or eleven years. R.C.
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2929.14(A)(1). Lewis’s three-year prison term – the statutory minimum – was not contrary
to law.
{¶ 13} Although not specifically raised by Lewis, we note that the trial court
imposed court costs in its sentencing entry without orally imposing those costs at Lewis’s
sentencing hearing. Under R.C. 2947.23, a trial court is required to impose “the costs of
prosecution” against all convicted defendants, even those who are indigent. See State v.
White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8. The Ohio Supreme
Court made clear that the trial court must orally notify a defendant at sentencing that the
court is imposing court costs. State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926
N.E.2d 278, ¶ 22, citing Crim.R. 43(A). Because the trial court failed to impose court costs
at sentencing, we must remand for the limited purpose of resentencing on court costs.
{¶ 14} Lewis’s primary argument is that his sentence was an abuse of discretion,
because it was unduly harsh when compared to the sentence Pierce received. According to
Lewis, Pierce was charged for the same offense as Lewis, yet Pierce received a more lenient
sentence. Lewis states that Pierce pled guilty to robbery, a third-degree felony, and received
community control sanctions (including 180 days in jail), despite the fact that Pierce is 33
years old and has a long history of felony convictions. Lewis indicates that he has no
felony history, had two minor offenses on his record, and that he was very remorseful
following the offense.
{¶ 15} As an initial matter, the record of Pierce’s case before the trial court is not
part of the record on appeal in this case. We therefore cannot review the transcripts of
Pierce’s plea and sentencing hearings or the information in Pierce’s pre-sentence
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investigation, assuming one was conducted. Accordingly, we cannot substantiate the
differences in criminal history, pleas, and sentences that Lewis reports in his appellate brief.
{¶ 16} However, even accepting Lewis’s allegations regarding Pierce’s criminal
history and robbery conviction as true, Lewis also notes that Pierce pled guilty to a
third-degree felony, as opposed to a first-degree felony. And it is unclear whether Pierce’s
conviction was based on his robbery of the $700 from Hernandez, which did not involve
Lewis, or the aggravated robbery of Hernandez in the alley, of which Lewis was a
participant. Lewis’s sentence did stem from the aggravated robbery in the alley, during
which Lewis punched Hernandez in the face. Accordingly, we cannot say that Lewis’s
sentence was unduly harsh when compared to Pierce’s.
{¶ 17} Upon review of the record in this case, we also cannot conclude that the trial
court abused its discretion when it imposed a three-year sentence. Lewis participated in the
robbery of Hernandez in an alley, during which another participant, Jermaine Maddox,
threatened Hernandez with a shotgun. While Maddox pointed the shotgun at Pierce’s
vehicle, Lewis went into the vehicle, took Hernandez’s purse, and went through Hernandez’s
left coat pocket. Lewis was identified as the person who punched Hernandez in the face
before walking away from the vehicle.
{¶ 18} Under R.C. 2929.13(D)(1), there is a presumption of prison for a first-degree
felony. In sentencing Lewis to prison, the trial court stated: “You’ve participated in a
planned robbery involving a firearm. The victim continues to suffer emotional trauma since
this offense occurred. And the person who wrote this report finds that you don’t appear to
accept much responsibility for this offense.”
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{¶ 19} We recognize that Lewis did express remorse for his involvement in the
aggravated robbery, contrary to the trial court’s statement at sentencing, and that Lewis’s
prior criminal convictions were very minor; Lewis had a juvenile truancy charge and an
adult misdemeanor conviction for unauthorized use of property. However, even taking
these considerations into account, we cannot conclude that the trial court abused its
discretion in imposing the minimum prison term, given the circumstances surrounding the
offense.
{¶ 20} Lewis’s assignment of error is sustained in part and overruled in part.
{¶ 21} The trial court’s judgment will be affirmed in part and reversed in part, and
the matter will be remanded for resentencing on court costs only.
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HALL, J. and WELBAUM, J., concur.
Copies mailed to:
Michele D. Phipps
Lucas W. Wilder
Hon. Barbara P. Gorman