State v. Steele

[Cite as State v. Steele, 2014-Ohio-1625.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100129
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DONZELL STEELE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-568940-A
BEFORE: E.A. Gallagher, J., Keough, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: April 17, 2014
ATTORNEY FOR APPELLANT
Michael H. Murphy
20325 Center Ridge Road, Suite 512
Rocky River, OH 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Daniel A. Cleary
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
EILEEN A. GALLAGHER, J.:
{¶1} Defendant-appellant Donzell Steele appeals his sentence from the Cuyahoga
County Court of Common Pleas. On appeal, Steele challenges the court’s imposition of
the maximum sentence available and the court’s consecutive sentence findings. For the
following reasons, we affirm.
{¶2} Steele pleaded guilty to involuntary manslaughter in violation of R.C.
2903.04 and aggravated robbery in violation of R.C. 2911.01(A)(1). Both counts
contained one-year firearm specifications. The trial court imposed a prison term of 11
years on both counts. The one-year firearm specifications merged and ran consecutive
to the 11-year prison term. The trial court ordered the two terms to be served
concurrently to each other for a cumulative total of 12 years but consecutive to a sentence
imposed upon Steele in a separate case. Steele now appeals.
{¶3} Steele’s first assignment of error states:
The sentence handed down from the trial court was not commensurate with
the crime committed.
{¶4} Although referencing the contrary to law standard for sentencing review,
Steele asks this court to find his sentence to be arbitrary, capricious and disproportionate
to his conduct. We reiterate that this court no longer applies the abuse of discretion
standard of State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, when
reviewing a felony sentence. State v. A.H., 8th Dist. Cuyahoga No. 98622,
2013-Ohio-2525, ¶ 7. Instead, we follow the standard of review set forth in R.C.
2953.08(G)(2), which provides in relevant part:
The court hearing an appeal under division (A), (B), or (C) 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:
(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 section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶5} Steele argues that the trial court erred in imposing the maximum prison terms
allowable under R.C. 2929.14(A)(1). This court has previously explained that, “[t]he
decision as [to] how long a sentence should be — assuming it falls within a defined
statutory range — is a pure exercise of discretion.” State v. Akins, 8th Dist. Cuyahoga
No. 99478, 2013-Ohio-5023, ¶ 16. Trial courts have full discretion to impose a prison
sentence within the statutory range. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,
845 N.E.2d 470, paragraph seven of the syllabus. Apart from any claim that the
sentencing judge failed to fulfill a statutorily-mandated obligation before imposing
sentence, a sentence falling within the statutory range is unreviewable. Akins at ¶ 16.
{¶6} In this case, Steele’s sentences each fell within the statutory range for
first-degree felonies. Furthermore, the record reflects that the trial court considered all
required factors of law including the principles and purposes of sentencing under R.C.
2929.11, as well as the seriousness and recidivism factors under R.C. 2929.12.1 Steele’s
sentence is not contrary to law and his first assignment of error is overruled.
{¶7} Steele’s second assignment of error states:
The trial court’s imposition of consecutive sentences violates Ohio Revised
Code Section 2953.08.
{¶8} Our standard of review for this assignment of error is set forth in R.C.
2953.08(G)(2) as addressed above. R.C. 2929.14(C)(4) authorizes the court to require
an offender to serve multiple prison terms consecutively for convictions on multiple
offenses. Consecutive sentences can be imposed if the court finds that (1) a consecutive
sentence is necessary to protect the public from future crime or to punish the offender and
(2) that consecutive sentences are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public. In addition to these two
factors, the court must find any of the following:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.
Relevant to the trial court’s analysis under R.C. 2929.12, the trial court noted that a firearm
1
was involved in this offense, that the offense resulted in the death of Steele’s younger compatriot, that
Steele was arrested three times in four months for situations involving a firearm, that Steele had a
prior juvenile offense involving a firearm and that Steele was awaiting sentencing on a separate case
at the time of this offense.
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
Id.{¶9} Although the use of “talismanic words” is not necessary, it must be clear from
the record that the trial court actually made the required statutory findings. State v.
Davila, 8th Dist. Cuyahoga No. 99683, 2013-Ohio-4922, ¶ 9. In this instance, the
record reflects that although the trial court did not set forth “talismanic words,” the court
nevertheless made each of the findings required by R.C. 2929.14(C)(4) for imposing
consecutive terms.
{¶10} Steele’s second assignment of error is overruled.
{¶11} This cause is affirmed.
It is ordered that appellee recover of appellant its 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 Cuyahoga
County Court of Common Pleas 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.
EILEEN A. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
TIM McCORMACK, J., CONCUR