State v. Friday

[Cite as State v. Friday, 2015-Ohio-4909.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102774
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JEROME MARELL FRIDAY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-587653-B
BEFORE: Celebrezze, A.J., Keough, J., and McCormack, J.
RELEASED AND JOURNALIZED: November 25, 2015
ATTORNEY FOR APPELLANT
Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Anthony Thomas Miranda
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., A.J.:
{¶1} Appellant, Jerome Marell Friday, appeals his two-year prison sentence
imposed on a second-degree-felony robbery conviction. He argues that the court erred in
finding that the presumption of prison was not overcome, asserting that community
control was the appropriate sanction. After a thorough review of the record and law, this
court affirms.
I. Factual and Procedural History
{¶2} Appellant acted as the get-away driver in an organized scheme to rob a
jewelry store in July 2014. He, along with others, traveled from Michigan to Ohio
specifically to rob jewelry stores. They hired juveniles to actually enter the stores while
appellant and two others played ancillary roles. Appellant and several others were
arrested after the robbery.
{¶3} Appellant was indicted with multiple charges including first-degree-felony
aggravated robbery. On October 16, 2014, appellant changed his previously entered
not-guilty pleas by pleading guilty to amended charges of robbery, a violation of R.C.
2911.02(A)(1), and attempted grand theft, a violation of R.C. 2923.02 and 2913.02(A)(1).
The court accepted appellant’s pleas and set the matter for sentencing after ordering a
presentence investigation, substance abuse, and community based corrections facility
(“CBCF”) amenability reports.
{¶4} At the sentencing hearing, appellant’s counsel indicated that appellant
qualified for CBCF placement. The court considered appellant’s lack of criminal history,
appellant’s criminal conduct in the case, and findings in the presentence investigation
report that determined appellant had a moderate recidivism risk. The court considered
this evidence in determining whether the presumption of prison was effectively rebutted.
It determined that it was not. The court imposed a minimum two-year prison sentence
for robbery and a 12-month concurrent prison sentence for attempted grand theft.
{¶5} Appellant then filed the instant appeal assigning one error for review:
I. The trial court abused its discretion in imposing a two year term of
imprisonment on appellant as a first time offender.
II. Law and Analysis
{¶6} The present appeal focuses solely on the sentence imposed by the trial
court. Appellant argues that the court abused its discretion when it imposed a prison
term for the robbery conviction rather than finding that appellant was amenable to
community control.
{¶7} This court reviews appellant’s sentence under the rubric set forth in R.C.
2953.08. R.C. 2953.08(A) outlines the sentencing matters that a defendant may appeal.
The only applicable provision is that the sentence is “contrary to law.” R.C.
2953.08(A)(4).
{¶8} This court reviews the records and all findings and may increase, reduce, or
otherwise modify a sentence that is appealed under R.C. 2953.08 or may vacate the
sentence and remand the matter for resentencing. This court’s standard of review is not
whether the sentencing court abused its discretion, but whether we clearly and
convincingly find either of the following:
(a) That the record does not support the sentencing court’s findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of 2929.20 of the Revised Code, whichever,
if any, is relevant.
(b) That the sentence is otherwise contrary to law.
R.C. 2953.08(G)(2).
{¶9} Appellant’s assignment of error argues an abuse of discretion, but appellant
is forced by R.C. 2953.08(G) to demonstrate that the court’s decision not to depart from a
presumption of prison is contrary to law. “Contrary to law” in the context of sentencing
means the sentence imposed is outside the statutory limits, or the court did not engage in a
mandatory sentencing consideration. State v. Bonds, 8th Dist. Cuyahoga No. 100481,
2014-Ohio-2766, ¶ 5-6.
{¶10} First- and second-degree felony convictions carry with them a presumption
in favor of prison. R.C. 2929.13(D)(1) states that for such a felony, “it is presumed that
a prison term is necessary in order to comply with the purposes and principles of
sentencing under section 2929.11 of the Revised Code.” However, under certain
circumstances, a trial court may depart from that presumption. R.C. 2929.13(D)(2)
offers guidance to the sentencing court:
[T]he sentencing court may impose a community control sanction or a
combination of community control sanctions instead of a prison term on an
offender for a felony of the first or second degree * * * for which a
presumption in favor of a prison term is specified as being applicable if it
makes both of the following findings:
(a) A community control sanction or a combination of community control
sanctions would adequately punish the offender and protect the public from
future crime, because the applicable factors under section 2929.12 of the
Revised Code indicating a lesser likelihood of recidivism outweigh the
applicable factors under that section indicating a greater likelihood of
recidivism.
(b) A community control sanction or a combination of community control
sanctions would not demean the seriousness of the offense, because one or
more factors under section 2929.12 of the Revised Code that indicate that
the offender’s conduct was less serious than conduct normally constituting
the offense are applicable, and they outweigh the applicable factors under
that section that indicate that the offender’s conduct was more serious than
conduct normally constituting the offense.
{¶11} A trial court must make both of the above findings in order to overcome the
presumption of prison. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d
1, paragraph one of the syllabus.
{¶12} The trial court found that the presumption in favor of prison was not
overcome. This court cannot say that decision is clearly and convincingly unsupported.
The seriousness factors in R.C. 2929.12(B) weigh in favor of prison because appellant’s
conduct is more serious than conduct normally constituting the offense. Appellant
participated in an organized enterprise whose goal was to steal cars and rob jewelry
stores. This indicates the crime was more serious as outlined in R.C. 2929.12(B)(7).
The factors in R.C. 2929.12(C) indicating a crime is less severe are not satisfied.
{¶13} Recidivism factors outlined in R.C. 2929.12(D) and (E) may weigh in favor
of community control, but the trial court must make findings under R.C. 2929.13(D)(2)(a)
and (b) in order to overcome the presumption of prison. Appellant focuses on his lack of
criminal history, but that is not the only factor that matters. Appellant also tried to
mitigate his participation by claiming he only acted as the get-away driver and was
influenced by another to engage in the crime, but his participation in an organized scheme
to travel from Michigan to steal a car and rob jewelry stores in northeast Ohio belies that
point. Here, the seriousness factors weigh in favor of prison. Therefore, the trial court’s
decision is not clearly and convincingly unsupported.
III. Conclusion
{¶14} The trial court’s decision to sentence appellant to a minimum prison
sentence is not clearly and convincingly contrary to law. Appellant engaged in an
organized scheme to travel from Michigan to Ohio to commit robberies. The court
considered the factors outlined in R.C. 2929.12 and determined that a prison sentence was
appropriate. Nothing in the record indicates that decision was contrary to law.
{¶15} Judgment affirmed.
It is ordered that appellee recover of 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.
_________________________________________________________
FRANK D. CELEBREZZE, JR., ADMINISTRATIVE JUDGE
KATHLEEN ANN KEOUGH, J., and
TIM McCORMACK, J., CONCUR