DocketNumber: No. 89551.
Citation Numbers: 2008 Ohio 1632
Judges: ANN DYKE, J.
Filed Date: 4/3/2008
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 2} On November 2, 2005, a jury found appellant guilty of the three counts of aggravated robbery, one count of aggravated burglary, and two counts of murder, as well as three-year firearm specifications on each of the underlying counts. The trial court found appellant guilty of having a weapon while under a disability.
{¶ 3} The following day, the trial court sentenced appellant to 42 years to life in prison, credit with time served on the having a weapon while under disability count. More specifically, the trial court sentenced appellant to nine-year sentences on the three aggravated robbery counts and the single aggravated burglary count. In addition, the trial court sentenced appellant to 15 years to life for each of the two murder convictions. The nine years sentences were to be served concurrently with each other and concurrent to the murder sentences. The murder sentences were ordered to be served consecutively to one another. The three-year firearm specifications on each of the counts were ordered to be served consecutively to each other and consecutively to the underlying sentences. On November 21, 2005, appellant challenged his convictions as well as his sentence in a direct appeal to this court. In a decision dated November 30, 2006, this court affirmed his *Page 4
convictions but vacated his sentence and remanded the case to the trial court for re-sentencing. See State v. Marshall, Cuyahoga App. No. 87334,
{¶ 4} Following our remand, the trial court imposed the original sentence except it merged the firearm specifications. More specifically, the trial court sentenced appellant to nine years for aggravated burglary, nine years on each of the three aggravated robbery convictions and fifteen years to life on the two murder convictions. The trial court ordered the nine year sentences to be served concurrently with one another and concurrent to the murder sentences. The trial court further ordered the murder sentences to be served consecutively to one another. A single merged firearm specification was to be served prior to and consecutive with the other sentence imposed. In total, appellant was sentenced to a total of 33 years to life in prison. *Page 5
{¶ 5} Appellant now timely appeals and asserts three assignments of error for our review. Appellant's first assignment of error states:
{¶ 6} "Under current sentencing laws and, given the facts and circumstances surrounding this case, there is clear and convincing evidence that MARSHALL's sentence is excessive."
{¶ 7} Within the first assignment of error, appellant argues that his sentence is excessive and that the trial court did not comply with the requirements of R.C.
{¶ 8} In February 2006, the Ohio Supreme Court in State v.Foster,
{¶ 9} In exercising its discretion, however, the trial court must still consider R.C.
{¶ 10} In the case sub judice, the trial court sentenced appellant within the statutory ranges provided by R.C.
{¶ 11} Additionally, a review of the transcript reveals that the trial court *Page 7
considered the principles and purposes of sentencing as required by R.C.
{¶ 12} "The court has considered the record, oral statements made today, the purposes and principles of sentencing, the seriousness and recidivism factors relevant to the offense and this offender, and the need for deterrence, incapacitation, rehabilitation and restitution."
{¶ 13} Finally, we do not find appellant's sentence excessive. InState v. Davis, Highland App. No. 06CA21,
{¶ 14} "[W]e review a felony sentence under the abuse of discretion standard. Foster, at paragraph seven of the syllabus. See, e.g.,State v. Pace, Medina App. No. 06CA74-M,
{¶ 15} Here, the trial court did not abuse its discretion in imposing non-minimum and consecutive sentences because, given the facts of this case, the sentence is not "greatly excessive under traditional concepts of justice" or "manifestly disproportionate to the crime of the defendant." See Davis, supra. As we previously stated in State v.Marshall, Cuyahoga App. No. 87334,
{¶ 16} Appellant's second assignment of error states:
{¶ 17} "The trial court failed to engage in comparison analysis to determine if *Page 9 MARSHALL's sentence was similar to those sentences given for similar crimes."
{¶ 18} Appellant next complains that the trial court failed to make a finding that his sentence was consistent with similarly situated offenders. R.C.
{¶ 19} "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 consistent with sentences imposed for similar crimes committed by similar offenders."
{¶ 20} The goal of felony sentencing pursuant to R.C.
{¶ 21} In this matter, appellant failed to present evidence to the trial court or to this court to indicate that his sentence is disproportionate to sentences given other *Page 10 offenders who have committed these offenses, nor did he present evidence as to what a "proportionate sentence" might be. Therefore, he has not preserved the issue for appeal. Accordingly, appellant's second assignment of error is overruled.
{¶ 22} Appellant's third assignment of error states:
{¶ 23} "MARSHALL is entitled to a presumptive minimum sentence because a greater sentence would violate the Ex Post Facto and Due Process Clauses of the United States Constitution."
{¶ 24} Within this assignment of error, appellant maintains that application of Foster to him, whose alleged criminal conduct pre-datesFoster, violates the Ex Post Facto Clause of Article
{¶ 25} In State v. Mallette, Cuyahoga App. No. 87984,
{¶ 26} "In the instant case, Mallette had notice that the sentencing range was the same at the time he committed the offenses as when he was sentenced. Foster did not judicially increase the range of his sentence, nor did it retroactively apply a *Page 11 new statutory maximum to an earlier committed crime, nor did it create the possibility of consecutive sentences where none existed. As a result, we conclude that the remedial holding of Foster does not violate Mallette's due process rights or the ex post facto principles contained therein."
{¶ 27} Subscribing to the conclusion reached in Mallette, supra, and the other cases cited, we find that the trial court did not violate appellant's due process rights or the ex post facto principles contained therein by imposing more than minimum or consecutive sentences. Appellant was sentenced within the same statutory range for each of the underlying felony convictions and within the range for the gun specifications that was in existence at the time he committed the crimes. He was at all times provided with fair warning of the sentence he could receive. Accordingly, appellant's third assignment of error is without merit.
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 appeal 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. *Page 12
*Page 1ANTHONY O. CALABRESE, JR., P.J., and MELODY J. STEWART, J., CONCUR
State v. Parks, 88671 (5-24-2007) , 2007 Ohio 2518 ( 2007 )
State v. Davis, 06ca21 (7-26-2007) , 2007 Ohio 3944 ( 2007 )
State v. Lawwill, 88251 (5-31-2007) , 2007 Ohio 2627 ( 2007 )
State v. McCollins, 88657 (5-17-2007) , 2007 Ohio 2380 ( 2007 )