State v. A.H.

[Cite as State v. A.H., 2013-Ohio-2525.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98622
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
A.H.
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-559933
BEFORE: Celebrezze, J., Boyle, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: June 20, 2013
ATTORNEY FOR APPELLANT
Joseph E. Feighan, III
14516 Detroit Avenue
Lakewood, Ohio 44107
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: John Hanley
Joseph J. Ricotta
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendant-appellant, A.H.,1 appeals his sentence received in the common pleas
court following a guilty plea. After careful review of the record and relevant case law, we
affirm appellant’s sentence.
{¶2} On February 28, 2012, appellant was indicted by the Cuyahoga County Grand
Jury in Cuyahoga C.P. No. CR-559933 on two counts of kidnapping in violation of R.C.
2905.01(A)(2), with firearm and forfeiture specifications; two counts of aggravated robbery
in violation of R.C. 2911.01(A)(1), with firearm and forfeiture specifications; three counts
of theft in violation of R.C. 2913.02(A)(1), with firearm and forfeiture specifications; one
count of felonious assault in violation of R.C. 2903.11(A)(2), with firearm and forfeiture
specifications; and one count of having a weapon while under disability in violation of R.C.
2923.13(A)(1), with a forfeiture specification.
{¶3} On April 30, 2012, appellant entered a guilty plea to one count of aggravated
robbery with a one-year firearm specification attached thereto. The remaining counts were
dismissed by the state. The facts presented at the plea hearing established that, on
September 21, 2011, appellant and a codefendant stopped two victims at gun point and
demanded their money. On May 30, 2012, the trial court sentenced appellant to six years
1 On February 23, 2012, appellant was bound over from the Cuyahoga County
Court of Common Pleas, Juvenile Division. Appellant was 16 years old at the time
of his arrest.
on the aggravated robbery count and one year on the firearm specification, to run
consecutively, for an aggregate seven-year term of imprisonment.
{¶4} Appellant now brings this timely appeal, raising five assignments of error for
review:
I. The trial court’s sentence was contrary to law for not considering all the
factors required under [R.C.] 2929.11.
II. The trial court’s sentence was contrary to law for not considering all the
factors required under [R.C.] 2929.12.
III. The trial court abused its discretion when it sentenced appellant to a
six-year prison term for his conviction of aggravated robbery.
IV. The trial court abused its discretion when it sentenced appellant to a
one-year prison term consecutive to the six-year prison term imposed.
V. The trial court committed reversible error when it sentenced appellant to a
one-year mandatory prison term for firearm specification consecutive to the
six-year prison term imposed for aggravated robbery without placing its
reasons for doing so on the record pursuant to R.C. 2929.14(C)(4).
Law and Analysis
I. Sentence Contrary to Law
{¶5} In his first and second assignments of error, appellant argues that his sentence
is contrary to law based on the trial court’s failure to consider the relevant factors under
R.C. 2929.11 and 2929.12. For the purposes of judicial clarity, we review these
assignments of error together.
{¶6} Recently, this court addressed the standard of review appellate courts must
utilize when reviewing challenges to the imposition of consecutive sentences. State v.
Venes, 8th Dist. No. 98682, 2013-Ohio-1891. In Venes, we held that the standard of
review set forth by the Ohio Supreme Court in State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124, was no longer valid, stating in pertinent part:
In State v. Kalish * * *, the supreme court considered the relevant standard of
review in the post-Foster era in which the findings necessary to impose
consecutive sentences under former R.C. 2929.14(E)(4) had been declared
unconstitutional. A plurality of the court held that R.C. 2953.08(G)(2) was
inapplicable because it expressly related to “findings” that had been
abrogated as unconstitutional. Instead, the plurality set forth the following
method of reviewing criminal sentences: (1) is the sentence contrary to law
and (2) if not, was it an abuse of discretion. Id. at ¶ 14-19.
Kalish, as is any plurality opinion, is of “questionable precedential value.”
See Kraly v. Vannewkirk, 69 Ohio St.3d 627, 633, 635 N.E.2d 323 (1994).
Nevertheless, panels of this court have found it persuasive, at least insofar as
it was applied to sentencing in the post-Foster era. See, e.g., State v.
Martinez, 8th Dist. No. 96222, 2011-Ohio-5832, ¶ 6, fn. 1.
The post-Foster era ended with the enactment of H.B. 86 and the revival of
statutory findings necessary for imposing consecutive sentences under R.C.
2929.14(C)(4). By reviving the requirement for findings as a predicate for
imposing consecutives, the ground offered by Kalish for rejecting the
standard of review set forth in former R.C. 2953.08 — that it could not stand
as a standard of review for a statute that improperly required findings of fact
before imposing consecutive sentences — was nullified. With the basis for
the decision in Kalish no longer valid, and given that Kalish had questionable
precedential value in any event, we see no viable reasoning for continuing to
apply the standard of review used in that case. Henceforth, we review
consecutive sentences using the standard of review set forth in R.C. 2953.08.
Venes at ¶ 8-10.
{¶7} In the case at hand, appellant’s first and second assignments of error do not
challenge the trial court’s imposition of consecutive sentences as raised by the defendant in
Venes. Rather, appellant’s challenge to the sentence imposed by the trial court derives
from R.C. 2953.08(A)(4), which permits “a defendant who is convicted or pleads guilty to a
felony [to] appeal as a matter of right the sentence imposed” on the grounds that “[t]he
sentence is contrary to law.” Nevertheless, as with appeals challenging the imposition of
consecutive sentences, a careful reading of R.C. 2953.08(G)(2) indicates that the standard
of review applies equally to an appeal brought under R.C. 2953.08(A). See R.C.
2953.08(G)(2). Accordingly, we find that the standard of review set forth in R.C.
2953.08(G)(2) shall govern all felony sentences.
{¶8} R.C. 2953.08(G)(2) provides in relevant part:
The court hearing an appeal under division (A) * * * of this section shall
review the record, including the findings underlying the sentence or
modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence that
is appealed under this section or may vacate the sentence and remand the
matter to the sentencing court for resentencing. The appellate court’s standard
for review is not whether the sentencing court abused its discretion. The
appellate court may take any action authorized by this division if it clearly
and convincingly finds either of the following:
***
(b) That the sentence is otherwise contrary to law.
{¶9} In light of the arguments raised by appellant in his first and second assignments
of error, our review is limited to determining whether appellant’s sentence is clearly and
convincingly contrary to law based on the trial court’s alleged failure to consider each of
the relevant factors under R.C. 2929.11 and 2929.12.
{¶10} Although Kalish no longer provides the framework for reviewing felony
sentences, it does provide this court with adequate guidance for determining whether a
sentence is clearly and convincingly contrary to law. In Kalish, the court expressed that a
sentence is not clearly and convincingly contrary to law where the trial court considers the
purposes and principles of sentencing under R.C. 2929.11 as well as the seriousness and
recidivism factors listed in R.C. 2929.12, properly applies postrelease control, and
sentences a defendant within the permissible statutory range. Kalish at ¶ 18; State v. Rose,
12th Dist. No. CA2011-11-241, 2012-Ohio-5607, ¶ 78.
{¶11} In the case at hand, appellant does not dispute that his sentence is within the
permissible statutory range. Rather, appellant contends that the trial court could not have
considered all the factors listed under R.C. 2929.11 and 2929.12 because “it did not have
enough information regarding the victims,” who elected not to appear at the sentencing
hearing. However, contrary to appellant’s position, the May 31, 2012 journal entry clearly
indicates that the trial court considered “all the required factors of the law” and concluded
that “prison [is] consistent with the purpose of R.C. 2929.11.” See State v. Kamleh, 8th
Dist. No. 97092, 2012-Ohio-2061, ¶ 61 (“The court’s statement that it considered the
required statutory factors, without more, is sufficient to fulfill its obligations under the
sentencing statutes”), citing State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873
N.E.2d 306, ¶ 18; State v. Wright, 8th Dist. No. 95096, 2011-Ohio-733, ¶ 4.
{¶12} Furthermore, the record reflects that before imposing appellant’s sentence, the
trial court considered the arguments of defense counsel, the presentence investigation
report, and “all relevant seriousness and recidivism factors” to ensure that “the public is
protected from future crimes and that [appellant] was punished appropriately.” Thus, the
sentencing transcript and journal entry reveal that the trial court adequately considered the
relevant statutory considerations set forth in R.C. 2929.11 and 2929.12. The fact that the
victims did not provide a statement at the sentencing hearing does not negate our
conclusion.
{¶13} For the foregoing reasons, we find that the sentence imposed by the trial court
is not clearly and convincingly contrary to law.
{¶14} Appellant’s first and second assignments of error are overruled.
II. Abuse of Discretion
{¶15} In his third assignment of error, appellant argues that the trial court abused its
discretion when it sentenced him to a six-year prison term for his conviction of aggravated
robbery. Specifically, appellant contends that the mitigating factors contained in R.C.
2929.12 weighed heavily in his favor, thereby requiring a lower sentence than imposed.
However, as directed by the Ohio legislature, this court’s standard for review “is not
whether the sentencing court abused its discretion.” R.C. 2953.08(G)(2). Accordingly,
we are not entitled to review the trial court’s R.C. 2929.12 considerations under an abuse of
discretion standard.
{¶16} We note, however, that even if we were to analyze this assignment of error
under the two-step procedure set forth in Kalish, and therefore go on to the second step to
apply the abuse of discretion standard, we find no merit to appellant’s arguments based on
the seriousness of the offenses committed by him. See State v. Foster, 12th Dist. No.
12AP-69, 2012-Ohio-4129, ¶ 16.
{¶17} Appellant’s third assignment of error is overruled.
III. Firearm Specification
{¶18} In his fourth and fifth assignments of error, appellant collectively argues that
the trial court erred when it ordered his one-year firearm specification to run consecutively
to the six-year term imposed on his aggravated robbery conviction.
{¶19} Initially, appellant contends that the firearm specification and the aggravated
robbery conviction should have merged for the purposes of sentencing because “the
commission of one crime could not have occurred without the other.” However, in State
v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, ¶ 19, the Ohio Supreme
Court conclusively held that a firearm specification and its predicate offense are not allied
offenses of similar import “because a firearm specification is a penalty enhancement, not a
criminal offense.” Accordingly, appellant’s allied offense argument is without merit.
{¶20} Next, appellant contends that the trial court failed to make the necessary
findings pursuant to R.C. 2929.14(C)(4) before imposing consecutive prison terms at
sentencing. However, the case law pertaining to firearm specifications and sentencing is
very clear. R.C. 2929.14(C)(1)(a) states:
If a mandatory prison term is imposed upon an offender * * * for having a
firearm on or about the offender’s person or under the offender’s control
while committing a felony * * * the offender shall serve any mandatory
prison term imposed * * * consecutively to and prior to any prison term
imposed for the underlying felony * * *, and consecutively to any other
prison term or mandatory prison term previously or subsequently imposed
upon the offender.
{¶21} Thus, the trial court was mandated by statute to run appellant’s one-year
sentence on the firearm specification consecutively to and prior to the six-year sentence
imposed on the underlying felony. Accordingly, the finding requirements of R.C.
2929.14(C)(4) were not applicable to the case at hand.
{¶22} Appellant’s fourth and fifth assignments of error are overruled.
{¶23} 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. 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., JUDGE
MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR