State v. Pompey , 2016 Ohio 4610 ( 2016 )

[Cite as State v. Pompey, 2016-Ohio-4610.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-150479
TRIAL NO. B-1405219-A
Plaintiff-Appellee, :
O P I N I O N.
vs. :
MALIK POMPEY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 29, 2016
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Roger W. Kirk, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} This is an appeal from sentences imposed following a defendant’s guilty
pleas to four counts of aggravated robbery with firearm specifications. Malik Pompey
argues that the court did not make required findings before sentencing him to
consecutive sentences for the specifications and that his sentence was disproportionate
to that received by his codefendants and other similar offenders. We’re not persuaded.
No findings were required before imposing consecutive sentences for the specifications,
and the sentences were not otherwise contrary to law.
I. Background
{¶2} Mr. Pompey pled guilty to four counts of aggravated robbery with gun
specifications. The charges stemmed from two armed robberies committed in
September 2014. One night, Mr. Pompey and two codefendants robbed a Circle K
convenience store using a sawed-off shotgun. The next night, they used the same
shotgun to hold up three University of Cincinnati students.
{¶3} At the sentencing hearing, the state asked for a 20-year aggregate prison
term, while defense counsel sought a lesser sentence. Counsel suggested that a 12-year
aggregate term was appropriate because Pompey did not have a criminal record, was
only 20 years old and was very remorseful for his actions. He noted that offenders who
had committed similar crimes had received sentences that were less than 20 years. The
assistant prosecuting attorney conceded that Pompey’s codefendants had received
shorter sentences but reasoned that Pompey “was the prime mover in these offenses”
and that he had “committed [the robberies] personally.”
{¶4} The court settled on an aggregate 18-year sentence. This combined term
consisted of six-year sentences for each aggravated robbery and three-year sentences for
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OHIO FIRST DISTRICT COURT OF APPEALS
each firearm specification. The six-year sentences were all made concurrent, while the
four specifications were made consecutive to each other and consecutive to the
concurrent six-year sentences. When imposing the sentences, the court considered
Pompey’s lack of a criminal record and his genuine remorse along with his failure to
acknowledge the need for treatment despite having committed the offenses while under
the influence of drugs. The court also noted “that there was a sawed-off shotgun used in
connection with this offense, which the defendant provided and the defendant planned
and motivated his friends to join in this criminal endeavor.”
II. The Sentences Were Not Contrary to Law
{¶5} Mr. Pompey’s sole assignment of error is that the court erred when it
imposed excessive, consecutive sentences. He urges us to reduce his sentences because
the trial court did not make findings before imposing consecutive sentences for the
firearm specifications and because his aggregate term is disproportionate to the 15-year
sentence received by one of his codefendants.
{¶6} We may modify or vacate Pompey’s sentence only if we “determine[] 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.” State v.
Marcum, __ Ohio St.3d __, 2016-Ohio-1002, __ N.E.2d __, ¶ 1. See State v. White,
2013-Ohio-4225, 997 N.E.2d 629, ¶ 11 (1st Dist.). Mr. Pompey maintains that the court
failed to make the findings required by R.C. 2929.14(C)(4) before ordering that the four
firearm-specification sentences run consecutively. But R.C. 2929.14(C)(4) applies to
“multiple prison terms [that] are imposed on an offender for convictions of multiple
offenses”—not penalty-enhancing specifications. See State v. James, 8th Dist. Cuyahoga
No. 102604, 2015-Ohio-4987. No findings were required under R.C. 2929.14(C)(4)
before imposing consecutive sentences for the specifications.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} Instead, the trial court’s imposition of sentences for the firearm
specifications was governed by R.C. 2929.14(B)(1)(g), which provides that
[i]f an offender is convicted of or pleads guilty to two or more felonies, if
one or more of those felonies are * * * aggravated robbery * * * , and if the
offender is convicted of or pleads guilty to a specification of the type
described under division (B)(1)(a) of this section in connection with two
or more of the felonies, the sentencing court shall impose on the offender
the prison term specified under division (B)(1)(a) of this section for each
of the two most serious specifications of which the offender is convicted
or to which the offender pleads guilty and, in its discretion, also may
impose on the offender the prison term specified under that division for
any or all of the remaining specifications.
Because Pompey pled guilty to four counts of aggravated robbery along with the
accompanying gun specifications, the trial court was required to sentence him for at
least two of the specifications and had the discretion to sentence him for all four. And
under R.C. 2929.14(C)(1)(a), the sentences for the specifications had to be consecutive to
each other and to the sentences for the underlying felonies. See State v. Isreal, 12th
Dist. Warren No. CA2011-11-115, 2012-Ohio-4876, ¶ 72. The court did precisely what
was required by law.
{¶8} Mr. Pompey contends further that, contrary to R.C. 2929.11(B), his
aggregate prison term was not “consistent with sentences imposed for similar crimes
committed by similar offenders.” As we have noted, the consistency mandated by R.C.
2929.11(B) “does not require that identical sentences be imposed for co-defendants.”
State v. Rowland, 1st Dist. Hamilton No. C-000592, 2001 Ohio App. LEXIS 2088 (May
11, 2001). Thus, “[o]ur role in evaluating a sentence challenged for inconsistency is to
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OHIO FIRST DISTRICT COURT OF APPEALS
determine whether the trial court properly considered the factors and guidelines
contained in the sentencing statutes and whether the record supports the court’s
findings.” State v. Houston, 1st Dist. Hamilton No. C-130429, 2014-Ohio-3111. Here, it
is clear from the record that the court considered the appropriate factors and guidelines
before sentencing Pompey, and as discussed, no findings were required of the court.
III. Conclusion
{¶9} The sentences imposed by the trial court were not contrary to law. We
therefore overrule the sole assignment of error and affirm the judgment of the trial
court.
Judgment affirmed.
H ENDON , P.J., and M OCK , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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