State v. Black ( 2020 )

[Cite as State v. Black, 2020-Ohio-3117.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108551
v. :
THOMAS D. BLACK, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 28, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-18-635123-A and CR-18-635291-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Carl J. Mazzone, Assistant Prosecuting
Attorney, for appellee.
Friedman & Gilbert and Mary Catherine Corrigan, for
appellant.
EILEEN T. GALLAGHER, A.J.:
Defendant-appellant, Thomas Black, appeals from his sentence
following a guilty plea. He raises the following assignment of error for review:
1. The trial court’s sentence was contrary to law.
After careful review of the record and relevant case law, we affirm
Black’s sentence.
I. Procedural and Factual History
In Cuyahoga C.P. No. CR-18-635123-A, Black was named in a six-
count indictment, charging him with aggravated robbery in violation of R.C.
2911.01(A)(1), with one- and three-year firearm specifications; grand theft in
violation of R.C. 2913.02(A)(1); theft in violation of R.C. 2913.02(A)(1); petty theft
in violation of R.C. 2913.02(A)(1); criminal damaging or endangering in violation of
R.C. 2909.06(A)(1); and having weapons while under disability in violation of R.C.
2923.13(A)(3). The indictment stemmed from allegations that on November 29,
2018, Black robbed a victim at gunpoint, taking the victim’s wallet, phone, keys, and
2013 Honda Accord. Later that day, the victim’s credit card was used at a gas station
and a retail store located in Cuyahoga County. On December 3, 2018, Black was
alleged to have been driving the victim’s Honda Accord when the vehicle rear-ended
a city of Cleveland garbage truck.
In Case No. CR-18-635291-A, Black was named in a four-count
indictment, charging him with aggravated robbery in violation of R.C. 2911.01(A)(1);
robbery in violation of R.C. 2911.02(A)(2); petty theft in violation of R.C.
2913.02(A)(1); and obstructing official business in violation of R.C. 2921.31(A). The
indictment stemmed from allegations that on December 4, 2018, Black attempted
to rob a victim of his wallet, keys, and phone. The victim did not comply with Black’s
demands and ran away. Black produced what was later learned to be a BB gun
during the incident.
A consolidated plea hearing was held in February 2019. At the onset
of the hearing, the state set forth the terms of the proposed plea agreement, and
defense counsel confirmed that Black wished to accept the plea agreement and
withdraw his previously entered pleas of not guilty. In Case No. CR-18-635123-A,
Black agreed to plead guilty to each count of the indictment, in exchange for the
deletion of the firearm specification attached to Count 1. In Case No. CR-18-635291-
A, Black agreed to plead guilty to aggravated robbery and obstructing official
business, as charged in Counts 1 and 4 of the indictment, in exchange for the
dismissal of remaining counts.
Prior to accepting Black’s pleas, the trial court engaged Black in the
necessary Crim.R. 11(C) plea colloquy. During this colloquy, Black stated that he
understood the nature of his charges, the maximum penalties he faced, and the
rights he was waiving by entering a plea. Thereafter, Black pleaded guilty in Case
No. CR-18-635123-A to aggravated robbery, grand theft, theft, petty theft, criminal
damaging or endangering, and having weapons while under disability. In Case No.
CR-18-635291-A, Black pleaded guilty to aggravated robbery and obstructing official
business.
Upon accepting Black’s guilty plea, the trial court found Black guilty
of the offenses and referred him to the Adult Probation Department for the
completion of a presentence investigation and report.
A consolidated sentencing hearing was held in March 2019. At the
hearing, the state reiterated the seriousness of the facts supporting the charges and
sought the imposition of consecutive sentences. Defense counsel then spoke on
Black’s behalf. Counsel noted that the subject offenses were likely committed with
a BB gun and, therefore, “no one’s life * * * was actually in danger.” Counsel asserted
that drugs played a role in Black’s commission of the crimes and further noted that
Black has no prior history of violence. Based on these factors, counsel sought
“probation, or in the alternative, a minimum sentence for the crimes that have been
pled to.” Black also spoke on his own behalf. He expressed remorse for his “negative
actions” and indicated that he has “a problem using K2,” and needs rehabilitation.
In consideration of the foregoing statements together with Black’s
presentence-investigation report, the trial court imposed an aggregate seven-year
prison term. In Case No. CR-18-635291-A, the trial court sentenced Black to seven
years in prison on the aggravated robbery offense, to run concurrently with a 90-day
jail term imposed on the obstructing official business offense. In Case No. CR-18-
635123-A, the trial court sentenced Black to seven years in prison on the aggravated
robbery offense, 12 months in prison on the grand theft offense, 12 months in prison
on the theft offense, nine months in prison on the having weapons while under
disability offense, 180 days in jail on the petty theft offense, and 180 days in jail on
the criminal damaging offense. The court expressed that the terms were ordered to
be served concurrently with each other, and concurrently with the sentence imposed
in Case No. CR-18-635291-A. (Tr. 45.)
Black now appeals from his sentence.
II. Law and Analysis
In his sole assignment of error, Black argues his prison sentence is
contrary to law. He contends that the record is devoid of any evidence that the trial
court carefully considered the sentencing factors set forth under R.C. 2929.11 and
2929.12.
We review felony sentences under the standard set forth in R.C.
2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 16. R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a
reviewing court may overturn the imposition of consecutive sentences where the
court “clearly and convincingly” finds that (1) “the record does not support the
sentencing court’s findings under R.C. 2929.14(C)(4),” or (2) “the sentence is
otherwise contrary to law.”
A sentence is contrary to law if it falls outside the statutory range for
the particular degree of offense or if the trial court fails to consider the purposes and
principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors
set forth in R.C. 2929.12. State v. Pawlak, 8th Dist. Cuyahoga No. 103444, 2016-
Ohio-5926, ¶ 58. R.C. 2929.11 and 2929.12 are not fact-finding statutes. Therefore,
although the trial court must consider the purposes and principles of felony
sentencing set forth in R.C. 2929.11 and the sentencing factors listed in R.C. 2929.12,
the court is not required to make findings or give reasons for imposing more than
the minimum sentence. State v. Pavlina, 8th Dist. Cuyahoga No. 99207, 2013-
Ohio-3620, ¶ 15, citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470. “Appellate courts are to afford deference to a trial court’s broad
discretion in making sentencing decisions.” (Citation omitted.) State v. Shivers,
8th Dist. Cuyahoga No. 105621, 2018-Ohio-99, ¶ 9.
Applying the foregoing, courts have “refused to find that a sentence is
contrary to law when the sentence is in the permissible range, and the court’s journal
entry states that it ‘considered all required factors of the law’ and ‘finds that prison
is consistent with the purposes of R.C. 2929.11.’” State v. Williams, 8th Dist.
Cuyahoga No. 100042, 2014-Ohio-1618, ¶ 17, quoting State v. May, 8th Dist.
Cuyahoga No. 99064, 2013-Ohio-2697, ¶ 16.
Under R.C. 2929.11(A), the three overriding purposes of felony
sentencing are “to protect the public from future crime by the offender and others,”
“to punish the offender using the minimum sanctions that the court determines
accomplish those purposes * * *,” and “to promote the effective rehabilitation of the
offender using the minimum sanctions that the court determines accomplish those
purposes without imposing an unnecessary burden on state or local government
resources.” Additionally, the sentence imposed shall be “commensurate with and
not demeaning to the seriousness of the offender’s conduct and its impact on the
victim, and consistent with sentences imposed for similar crimes committed by
similar offenders.” R.C. 2929.11(B).
Furthermore, in imposing a felony sentence, “the court shall consider
the factors set forth in [R.C. 2929.12(B) and (C)] relating to the seriousness of the
conduct [and] the factors provided in [R.C. 2929.12(D) and (E)] relating to the
likelihood of the offender’s recidivism * * *.” R.C. 2929.12.
When a sentence is imposed solely after consideration of the factors
in R.C. 2929.11 and 2929.12, “[a]n appellate court may vacate or modify any
sentence that is not clearly and convincingly contrary to law only if the appellate
court finds by clear and convincing evidence that the record does not support the
sentence.” Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 23.
Clear and convincing evidence is that measure or degree of proof which
is more than a mere “preponderance of the evidence,” but not to the
extent of such certainty as is required “beyond a reasonable doubt” in
criminal cases, and which will produce in the mind of the trier of facts
a firm belief or conviction as to the facts sought to be established.
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus.
On appeal, Black does not dispute that his individual prison terms
were imposed within the applicable statutory ranges set forth under R.C. 2929.14.
Nevertheless, Black argues that “there is no reasonable basis to conclude that the
trial court constructively made the necessary considerations” under R.C. 2929.11
and 2929.12. Relying on his genuine remorse and the trial court’s obligation to use
the minimum sanctions available, Black maintains that he “should have been given
the opportunity to complete a period of community control and/or a minimum
prison sentence of three (3) years.”
After careful review of the record, we find Black’s position to be
without merit. In this case, the trial court expressed in each sentencing journal entry
that it considered all required factors of law and that Black’s sentence is consistent
with the purposes of R.C. 2929.11. In addition, the trial court stated on the record
that it was required to comply with the purposes and principles of felony sentencing.
(Tr. 43.) The court, therefore, fulfilled its obligations under both R.C. 2929.11 and
2929.12.
Although the trial court had no obligation to do so, the record further
reflects that the trial court articulated the relevant seriousness factors it considered
in formulating Black’s sentence, stating:
You think about the [seriousness] factors, the victims, the psychological
harm of coming out of a car and someone grabbing them with a gun or
alleged gun and taking their material and wallet and car, that’s pretty
serious. The fact that you were committing these offenses with a
perceived firearm is also a serious factor.
(Tr. 44.) Similarly, the court summarized the relevant mitigating factors it
considered, including Black’s acknowledgment of guilt, his acceptance of
responsibility, and his minimal criminal history. (Tr. 45.)
Viewing Black’s arguments in their entirety, it is evident that he
believes the trial court failed to effectively balance the relevant sentencing factors in
this matter. However, we are not permitted to substitute our judgment for that of
the sentencing court. State v. Franklin, 8th Dist. Cuyahoga No. 107482, 2019-Ohio-
3760, ¶ 47. Moreover, we are not empowered to reweigh sentencing factors. Id. As
this court has previously explained that:
“‘The weight to be given to any one sentencing factor is purely
discretionary and rests with the trial court.’” State v. Price, 8th Dist.
Cuyahoga No. 104341, 2017-Ohio-533, ¶ 20, quoting State v. Ongert,
8th Dist. Cuyahoga No. 103208, 2016-Ohio-1543, ¶ 10, citing State v.
Torres, 8th Dist. Cuyahoga No. 101769, 2015-Ohio-2038, ¶ 11. A lawful
sentence “‘cannot be deemed contrary to law because a defendant
disagrees with the trial court’s discretion to individually weigh the
sentencing factors. As long as the trial court considered all sentencing
factors, the sentence is not contrary to law and the appellate inquiry
ends.’” Price at id., quoting Ongert at ¶ 12.
State v. Bailey, 8th Dist. Cuyahoga No. 107216, 2019-Ohio-1242, ¶ 15.
Based on the foregoing, we find there is no objective information in
the record to suggest the trial court (1) failed to consider R.C. 2929.11 and 2929.12
in formulating the sentence, or (2) relied on demonstrably false or inaccurate
information when making these considerations. Rather, the record reflects that the
court thoroughly considered the purposes and principles of felony sentencing
required by R.C. 2929.11 and the seriousness and mitigating factors outlined in R.C.
2929.12. While Black’s remorse and minimal criminal history are relevant factors,
so too are the factors correlating to the psychological and economic harm suffered
by the victims, and Black’s commission of the offenses while under intervention. See
R.C. 2929.12. Accordingly, we are unable to conclude that Black’s individual
sentences were clearly and convincingly unsupported by the record.
Black’s sole assignment of error is overruled.
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
conviction having been affirmed, any bail pending 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.
EILEEN T. GALLAGHER, ADMINISTRATIVE JUDGE
PATRICIA ANN BLACKMON, J., and
RAYMOND C. HEADEN, J., CONCUR