State v. Robinson , 2016 Ohio 4638 ( 2016 )

[Cite as State v. Robinson, 2016-Ohio-4638.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 15AP-910
(C.P.C. No. 14CR-0879)
v. :
(REGULAR CALENDAR)
Derrick L. Robinson, :
Defendant-Appellant. :
D E C I S I O N
Rendered on June 28, 2016
On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
Prichard, for appellee.
On brief: Steven P. Billing, for appellant.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Derrick L. Robinson, appeals from a judgment entry
of the Franklin County Court of Common Pleas finding him guilty, pursuant to guilty plea,
of one count of involuntary manslaughter, one count of burglary, one count of aggravated
robbery, and one count of having a weapon while under disability, and sentencing him to
an aggregate term of 19 years in prison. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} By indictment filed February 21, 2014, plaintiff-appellee, State of Ohio,
charged Robinson, along with two other codefendants, Melanie Dawn Spears and Terrille
Desean Ellis, with one count of aggravated murder in violation of R.C. 2903.01, an
unclassified felony; one count of aggravated burglary in violation of R.C. 2911.11, a first-
degree felony; one count of aggravated robbery in violation of R.C. 2911.01, a first-degree
No. 15AP-910 2
felony; and one count of having a weapon while under disability in violation of
R.C. 2923.13, a third-degree felony. The aggravated murder, aggravated burglary, and
aggravated robbery charges all carried accompanying firearm specifications. All four
charges related to the home invasion shooting death of Shaun Fullen on November 20,
2013.
{¶ 3} Though Robinson initially entered a plea of not guilty to all charges, on
October 9, 2014 Robinson entered a guilty plea to the stipulated lesser included offense of
involuntary manslaughter in violation of R.C. 2903.04, a first-degree felony, with an
accompanying three-year firearm specification; the stipulated lesser included offense of
burglary in violation of R.C. 2911.12, a third-degree felony; one count of aggravated
robbery in violation of R.C. 2911.01, a first-degree felony; and one count of having a
weapon while under disability in violation of R.C. 2923.13, a third-degree felony.
{¶ 4} At the plea hearing, the state recited the facts for the trial court, stating that
on November 20, 2013, Spears recruited Robinson and Ellis to commit a robbery and met
with them several times throughout the day. That evening, Spears let Ellis and Robinson
into the home under the guise that she was being robbed. Once Ellis and Robinson were
inside the home, a confrontation occurred and Ellis shot and killed Fullen. Ellis and
Robinson then ransacked the home, took money and guns, and fled the scene.
Prosecutors further stated Robinson was under disability from a 1994 conviction for
aggravated robbery. The trial court accepted Robinson's guilty plea, ordered a
presentence investigation, and set the matter for sentencing. The parties jointly
recommended a sentence range between 19 and 31 years in prison.
{¶ 5} At the August 21, 2015 sentencing hearing, the trial court sentenced
Robinson to seven years on the involuntary manslaughter count plus an additional three
years on the firearm specification, three years on the burglary count, three years on the
aggravated robbery count, and three years on the having a weapon while under disability
count. The trial court ordered Robinson to serve all counts consecutively to each other
and consecutively to the firearm specification for an aggregate prison term of 19 years.
The trial court journalized Robinson's convictions and sentence in an August 26, 2015
judgment entry. Robinson timely appeals.
No. 15AP-910 3
II. Assignments of Error
{¶ 6} Robinson assigns the following errors for our review:
[1.] The trial court erred in imposing consecutive terms of
imprisonment, in violation of R.C. 2929.14(C)(4).
[2.] The trial court erred in imposing the maximum terms of
imprisonment on Count Two of the indictment (burglary
without specification) and Count Four of indictment (having a
weapon under disability).
III. Standard of Review
{¶ 7} Both of Robinson's assignments of error assert the trial court erred in
imposing Robinson's sentence. An appellate court will not reverse a trial court's
sentencing decision unless the evidence is clear and convincing that either the record does
not support the sentence or that the sentence is contrary to law. State v. Chandler, 10th
Dist. No. 04AP-895, 2005-Ohio-1961, ¶ 10, citing State v. Maxwell, 10th Dist. No. 02AP-
1271, 2004-Ohio-5660, ¶ 27, citing State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165,
¶ 10. See also State v. Marcum, __ Ohio St.3d __, 2016-Ohio-1002, ¶ 1 ("an appellate
court may vacate or modify a felony sentence on appeal only if it determines by clear and
convincing evidence that the record does not support the trial court's findings under
relevant statutes or that the sentence is otherwise contrary to law"). "In determining
whether a sentence is contrary to law, an appellate court must review the record to
determine whether the trial court considered the appropriate statutory factors, made the
required findings, gave the reasons for its findings, and properly applied the statutory
guidelines." Maxwell at ¶ 27, citing State v. Altalla, 10th Dist. No. 03AP-1127, 2004-
Ohio-4226, ¶ 7.
IV. First Assignment of Error – Consecutive Sentences
{¶ 8} In his first assignment of error, Robinson argues the trial court erred in
imposing consecutive terms of imprisonment.
{¶ 9} Before imposing consecutive sentences, a court must make certain findings.
R.C. 2929.14(C) provides as follows:
(4) If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court
finds that the consecutive service is necessary to protect the
No. 15AP-910 4
public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the
offender poses to the public, and if the court also finds any of
the following:
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing,
was under a sanction imposed pursuant to section 2929.16,
2929.17, or 2929.18 of the Revised Code, or was under post-
release 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 for any of the
offenses committed as part of any of the courses of conduct
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.
{¶ 10} Thus, pursuant to R.C. 2929.14(C)(4), in order to impose consecutive terms
of imprisonment, a trial court is required to make at least three distinct findings: (1) that
consecutive sentences are necessary to protect the public from future crime or to punish
the offender; (2) that consecutive sentences are not disproportionate to the seriousness of
the offender's conduct and to the danger the offender poses to the public; and (3) that one
of the subsections (a), (b), or (c) applies. State v. Price, 10th Dist. No. 13AP-1088, 2014-
Ohio-4696, ¶ 31, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177.
{¶ 11} A trial court seeking to impose consecutive sentences must make the
findings required by R.C. 2929.14(C)(4) at the sentencing hearing and also incorporate
such findings into its sentencing entry. Bonnell at ¶ 37. However, the trial court need not
state reasons to support its findings, nor is the court "required to give a talismanic
incantation of the words of the statute, provided that the necessary findings can be found
in the record and are incorporated into the sentencing entry." Id. "[A] word-for-word
recitation of the language of the statute is not required," but where "the reviewing court
can discern that the trial court engaged in the correct analysis and can determine that the
No. 15AP-910 5
record contains evidence to support the findings, consecutive sentences should be
upheld." Id. at ¶ 29.
{¶ 12} At the August 21, 2015 sentencing hearing, in announcing it would impose
consecutive sentences, the trial court stated:
I will make them consecutive to protect the public and punish
the offender. Obviously it's not disproportional to the
seriousness of the offense or the danger the offender poses to
the public, so that's why they're consecutive, for a total of 19
years.
(Tr. at 21.) Robinson argues the trial court did not make the requisite finding that one of
the subsections (a), (b), or (c) applies to warrant the imposition of consecutive sentences.
However, upon review of the transcript of the sentencing hearing, the trial court stated it
was familiar with the facts of the case. In its recitation of facts at the plea hearing, the
state noted Robinson has a prior conviction for aggravated robbery. See, e.g., State v.
Dixon, 10th Dist. No. 15AP-432, 2015-Ohi0-5277, ¶ 24 (where a case involves a guilty
plea, the prosecutor's recitation of facts, to which the defendant did not object, contains
support for the trial court's findings of fact in imposing the sentence). At the sentencing
hearing, the trial court stated it had reviewed both the presentence investigation report
and Robinson's sentencing memorandum, both of which discussed Robinson's extensive
criminal history beginning when he was a juvenile and continuing into adulthood. State
v. Aliane, 10th Dist. No. 04AP-1259, 2006-Ohio-228, ¶ 19 (a sentencing court does not err
in implicitly adopting the findings from a sentencing memorandum at the sentencing
hearing). The victim's family and Robinson's counsel also spoke at the sentencing hearing
about Robinson's criminal history.
{¶ 13} Additionally, the judgment entry states:
The Court further finds that consecutive sentences are
necessary to protect the public from future crime, that
consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the
offender poses to the public, and that the offender's history of
criminal conduct demonstrates that consecutive sentences are
necessary to protect the public from future crime by the
offender.
No. 15AP-910 6
(Aug. 26, 2015 Jgmt. Entry at 2.) Having reviewed the entire record, we agree with the
state that although the trial court did not expressly state it was making the finding under
R.C. 2929.14(C)(4)(c), the record supports such a finding. There was ample evidence
regarding Robinson's criminal history to adequately support the trial court's finding that
consecutive sentences were necessary to protect the public from future crime by Robinson
given his history of criminal conduct. Because the trial court engaged in the appropriate
analysis, the record supports the trial court's findings under R.C. 2929.14(C)(4), and the
trial court appropriately journalized those findings in its judgment entry, we conclude
Robinson's consecutive sentences are in accordance with law. We overrule Robinson's
first assignment of error.
V. Second Assignment of Error – Maximum Terms of Imprisonment
{¶ 14} In his second assignment of error, Robinson argues the trial court erred in
imposing the maximum term of imprisonment on the burglary and having a weapon
under disability counts. More specifically, Robinson argues the trial court failed to state
its reasons for imposing the maximum sentence on those two counts and that the facts do
not support imposition of the maximum sentence on those counts.
{¶ 15} R.C. 2929.11 sets forth the purposes and principles of felony sentencing.
Pursuant to R.C. 2929.11, which provides in pertinent part:
(A) A court that sentences an offender for a felony shall be
guided by the overriding purpose 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 using the minimum sanctions that the
court determines accomplish those purposes without
imposing an unnecessary burden on state or local government
resources. 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.
(B) A sentence imposed for a felony shall be reasonably
calculated to achieve the 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
No. 15AP-910 7
consistent with sentences imposed for similar crimes
committed by similar offenders.
Further, under R.C. 2929.12(A), a court imposing a sentence on a felony offender has
discretion to determine the most effective way to comply with the purposes and principles
of felony sentencing. Thus, the court must consider the factors set forth in R.C.
2929.12(B) and (C) relating the seriousness of the offender's conduct, as well as the
factors set forth in divisions (D) and (E) relating to the likelihood of recidivism, along with
any other relevant factors.
{¶ 16} Robinson argues the maximum terms of imprisonment he received on the
burglary and having a weapon under disability counts are disproportionate to the less-
than-maximum sentences he received on the involuntary manslaughter and aggravated
robbery counts. To the extent Robinson argues the trial court needed to explicitly state
the factors it considered before imposing the sentence, we note that "[i]t is well settled
that [R.C. 2929.11 and 2929.12] do not mandate judicial fact-finding." State v. Holloman,
10th Dist. No. 07AP-875, 2008-Ohio-2650, ¶ 18. Instead, the proper inquiry is whether
the trial court "failed to properly consider the statutory sentencing factors and guidelines
found in R.C. 2929.11 and 2929.12." (Emphasis added.) State v. McMichael, 10th Dist.
No. 11AP-1042, 2012-Ohio-3166, ¶ 42. See also Holloman at ¶ 18.
{¶ 17} The judgment entry states "[t]he Court has considered the purposes and
principles of sentencing set forth in R.C. 2929.11 and the facts set forth in R.C. 2929.12,"
and "the Court has weighed the factors as set forth in the applicable provisions of R.C.
2929.13 and R.C. 2929.14." (Aug. 26, 2015 Jgmt. Entry at 2.) Such language in the
judgment entry defeats a claim that the trial court failed to consider the purposes and
principles of sentencing. State v. Ganguly, 10th Dist. No. 14AP-383, 2015-Ohio-845, ¶
45, citing State v. Murphy, 10th Dist. No. 12AP-952, 2013-Ohio-5599, ¶ 13, citing State v.
Reeves, 10th Dist. No. 09AP-493, 2010-Ohio-4018, ¶ 16.
{¶ 18} The three-year sentences the trial court imposed on both the burglary and
having a weapon while under disability charge are within the statutory range of
permissible sentences the trial court could impose for these offenses. Consequently,
neither the sentencing hearing nor the judgment entry reflects an abuse of discretion in
the trial court's imposing the maximum sentences on those two counts. See State v.
No. 15AP-910 8
Salinas, 10th Dist. No. 09AP-1201, 2010-Ohio-4738, ¶ 65 (no abuse of discretion in
imposing mandatory sentences where those sentences are within the statutory range of
permissible sentences). Additionally, we note that both parties jointly recommended a
sentence range of 19 to 31 years, and the aggregate term of 19 years in prison is within that
range.
{¶ 19} Accordingly, we conclude Robinson's sentences on the burglary and having
a weapon under disability charges are in accordance with law. We, therefore, overrule
Robinson's second and final assignment of error.
VI. Disposition
{¶ 20} Based on the foregoing reasons, Robinson's sentence is in accordance with
law. Having overruled Robinson's two assignments of error, we affirm the judgment of
the Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER and HORTON, JJ., concur.