State v. Bartoe ( 2011 )

[Cite as State v. Bartoe, 2011-Ohio-2521.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95286
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JACOB BARTOE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-529964
BEFORE: Kilbane, A.J., Jones, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: May 26, 2011
ATTORNEY FOR APPELLANT
Robert A. Dixon
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Daniel T. Van
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, A.J.:
{¶ 1} Defendant-appellant, Jacob Bartoe (Bartoe), appeals his sentence.
Finding no merit to the appeal, we affirm.
{¶ 2} In October 2009, Bartoe, and codefendant Christopher Jones
(Jones) were charged with two counts aggravated robbery (Counts 1 and 2)
and two counts of kidnapping (Counts 3 and 4). All four counts carried a
one- and three-year firearm specification and a weapon forfeiture
specification. Bartoe proceeded to a jury trial, at which the following
evidence was adduced.
{¶ 3} On October 8, 2009, Stephen Donahue (Donahue), Bartoe, and
Jones drove to Devon Boepple’s (Boepple) apartment. Inside the apartment,
the group smoked marijuana. At some point, Donahue went into the
bathroom. When he walked out, Donahue observed Jones with a gun.
Jones pointed the gun at Donahue and Beopple, ordering Beopple to give him
her money. Then, Bartoe grabbed Donahue in a choke hold and Jones hit
Beopple with his gun. He also punched Beopple several times. Donahue
struggled with Bartoe and was released from Bartoe’s hold after he hit Bartoe
in the head with an ashtray. At the same time, Beopple managed to flee
from Jones and ran to her neighbor’s apartment for help. Bartoe and Jones
then fled from the apartment. Donahue attempted to chase after Bartoe and
Jones, but they drove away.
{¶ 4} At the conclusion of trial, the jury found Bartoe guilty of all
charges and firearm specifications. The trial court found Bartoe guilty of all
weapon forfeiture specifications. Counts 1 and 2 merged for purposes of
sentencing and the State elected to proceed with Count 1. On May 28, 2010,
the trial court sentenced Bartoe to four years in prison on each of Counts 1, 3,
and 4, to be served concurrently to each other, and three years in prison on
the firearm specifications, to be served consecutively to Counts 1, 3, and 4, for
an aggregate of seven years in prison.
{¶ 5} Bartoe now appeals, raising the following single assignment of
error for review.
ASSIGNMENT OF ERROR ONE
“[Bartoe] was denied due process of law when the court
imposed a sentence that was disproportionate to that
imposed upon a more culpable codefendant, in violation of
R.C. 2929.11(B)[.]”
{¶ 6} The Ohio Supreme Court has set forth the applicable standard of
appellate review of a felony sentence in State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124, ¶4:
“In applying [State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, 845 N.E.2d 470,] to the existing statutes,
appellate courts must apply a two-step approach. First,
they must 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. If this first prong is
satisfied, the trial court’s decision shall be reviewed under
an abuse-of-discretion standard.”1
{¶ 7} Bartoe argues that his sentence was contrary to law because it is
disproportionate to the sentence imposed on codefendant Jones. Apparently,
the State offered Jones a plea deal in exchange for his testimony in Bartoe’s
case. On June 2, 2010, Jones pled guilty to amended charges, which
included one count of aggravated robbery, a one-year firearm specification,
and a weapon forfeiture specification. The trial court sentenced Jones to an
aggregate of four years in prison. Bartoe contends that since his sentence is
inconsistent with Jones’s sentence, the trial court imposed his sentence
without regard to R.C. 2929.11(B) and violated his constitutional rights.
{¶ 8} We note that while Foster eliminated mandatory judicial
fact-finding, it left R.C. 2929.11 and 2929.12 intact, setting forth the
statutory factors that the trial court must consider when imposing its
sentence. Kalish at ¶13.
{¶ 9} Relevant to this appeal, R.C. 2929.11(B) provides that: “[a]
sentence imposed for a felony shall be reasonably calculated to achieve the
1 We
recognize Kalish is merely persuasive and not necessarily controlling
because it has no majority. The Supreme Court split over whether we review
sentences under an abuse-of-discretion standard in some instances.
two overriding purposes of felony sentencing set forth in division (A) of this
section, commensurate with and not demeaning to the seriousness of the
offender’s conduct and its impact upon the victim, and consistent with
sentences imposed for similar crimes committed by similar offenders.”2
{¶ 10} This court has previously recognized that there is no requirement
for judicial findings in either R.C. 2929.11 or R.C. 2929.12, and that the trial
court is required only to carefully consider the statutory factors before
imposing its sentence. State v. Samuels, Cuyahoga App. No. 88610,
2007-Ohio-3904, ¶15. Furthermore, the Kalish court recognized that R.C.
2929.11 and 2929.12 are not fact-finding statutes; rather, they “serve as an
overarching guide for trial judges to consider in fashioning an appropriate
sentence.” Id. at ¶17. “In considering these statutes in light of Foster, the
trial court has full discretion to determine whether the sentence satisfies the
overriding purposes of Ohio’s sentencing structure.” Id.
2R.C. 2929.11(A) provides that: “[a] court that sentences an offender for a
felony shall be guided by the overriding purposes of felony sentencing. The
overriding purposes of felony sentencing are to protect the public from future crime
by the offender and others and to punish the offender. To achieve those purposes,
the sentencing court shall consider the need for incapacitating the offender,
deterring the offender and others from future crime, rehabilitating the offender, and
making restitution to the victim of the offense, the public, or both.”
{¶ 11} In the instant case, there is nothing in the record to demonstrate
that Bartoe’s sentence is contrary to law. First, his sentence is within the
permissible statutory range. Second, the record reflects that the trial court
considered the factors in R.C. 2929.11. Accordingly, Bartoe’s sentence is not
contrary to law.
{¶ 12} Having satisfied step one, we next consider whether the trial
court abused its discretion. An ‘“abuse of discretion’ connotes more than an
error of law or judgment; it implies that the court’s attitude is unreasonable,
arbitrary or unconscionable.’” Blakemore v. Blakemore (1983), 5 Ohio St.3d
217, 219, 450 N.E.2d 1140, quoting State v. Adams (1980), 62 Ohio St.2d 151,
157, 404 N.E.2d 144. Here, the trial court indicated that Bartoe did in fact
operate in concert with Jones. Bartoe placed Donahue in a choke hold, while
Jones bludgeoned Boepple with a gun. Based on these facts, we do not find
that Bartoe’s sentence was unreasonable, arbitrary, or unconscionable.
{¶ 13} Finally, as for Bartoe’s claim that his sentence is disproportionate
to Jones’s sentence, we find that he failed to raise this argument below. This
court has previously held that in order to support a claim that a “sentence is
disproportionate to sentences imposed upon other offenders, a defendant
must raise this 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.” State v. Edwards, Cuyahoga App. No. 89181,
2007-Ohio-6068, ¶11. See, also, State v. Redding, Cuyahoga App. No. 90864,
2008-Ohio-5739.
{¶ 14} In the instant case, Bartoe stated at the sentencing hearing that
“since the court found me guilty of participation with [Jones], I just ask that
you treat us fairly as the team that you say we acted as and you give us both
the same penalty we deserve.” This limited dialogue, however, was
insufficient to preserve the issue for appeal. Jones was sentenced after
Bartoe was sentenced, therefore, Jones’s sentence was outside the record and
the trial court could not use it as a starting point for its analysis. “Without a
starting point for the trial court to begin analysis, the issue has not been
preserved for appeal and we decline to address it.” State v. Thomas,
Cuyahoga App. No. 94335, 2011-Ohio-183, at ¶24, citing State v. Woods,
Cuyahoga App. No. 82789, 2004-Ohio-2700.
{¶ 15} Having found that Bartoe’s sentence was neither contrary to law
nor an abuse of discretion, his sole assignment of error is overruled.
Judgment is 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 appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
LARRY A. JONES, J., and
SEAN C. GALLAGHER, J., CONCUR