State v. Barnes

[Cite as State v. Barnes, 2020-Ohio-665.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108360
v. :
DEYONTE BARNES, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 27, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-18-632526-A and CR-19-636606-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Megan A. Helton, Assistant Prosecuting
Attorney, for appellee.
Ruth R. Fischbein-Cohen, for appellant.
PATRICIA ANN BLACKMON, J.:
Deyonte Barnes (“Barnes”) appeals from his five-year prison sentence
and assigns the following errors for our review:
I. The court erred in that it did not consider the ORC 2929.11
factors.
II. It was error not to consider the ORC 2929.12 factors.
Having reviewed the record and pertinent law, we affirm the trial
court’s judgment. The apposite facts follow.
On December 5, 2018, Barnes pled guilty to robbery in violation of
R.C. 2911.02(A)(2), a second-degree felony, with a notice of prior conviction
specification in Cuyahoga C.P. No. CR-18-632526. On February 19, 2019, Barnes
pled guilty to domestic violence in violation of R.C. 2919.25, a fifth-degree felony,
and drug possession in violation of R.C. 2925.11, a fifth-degree felony, with firearm
specifications in Cuyahoga C.P. No. CR-19-636606-A.
Also on February 19, 2019, the court sentenced Barnes to a total of
five years in prison. Specifically, Barnes’s sentence is five years in prison for robbery
in CR-18-632526-A and two years in prison for the convictions in CR-19-636606-A,
to run concurrently. Barnes’s two-year sentence consists of 12 months in prison for
domestic violence to run concurrent to 12 months in prison for drug possession, and
one year in prison for the firearm specification, to run consecutive to the 12 months.
It is from this sentence that Barnes appeals.
Felony Sentencing Standard of Review
R.C. 2953.08(G)(2) provides, in part, that when reviewing felony
sentences, the appellate court’s standard is not whether the sentencing court abused
its discretion; rather, if this court “clearly and convincingly” finds that (1) “the record
does not support the sentencing court’s findings under” certain provisions of R.C.
Chapter 2929 or (2) “the sentence is otherwise contrary to law,” then we may
conclude that the court erred in sentencing. See also State v. Marcum, 146 Ohio
St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231.
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.” State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525,
¶ 10.
Pursuant to 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,” 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 of 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. However, this court has
held that “[a]lthough the trial court must consider the principles and purposes of
sentencing as well as the mitigating factors, the court is not required to use
particular language or make specific findings on the record regarding its
consideration of those factors.” State v. Carter, 8th Dist. Cuyahoga No. 103279,
2016-Ohio-2725, ¶ 15.
Pursuant to R.C. 2929.14(A)(2), the prison term for a second-degree1
felony conviction is two to eight years, and pursuant to R.C. 2929.14(A)(5), the term
for a fifth-degree felony conviction is six to 12 months. Barnes’s five-year prison
sentence for the robbery is more than the minimum, but not the maximum term
allowed. Barnes’s 12-month sentences for his two fifth-degree felony convictions are
both the maximum allowed under the law. Barnes’s one-year sentence for the
firearm specification is mandatory pursuant to R.C. 2941.141(A) and
2929.14(B)(1)(a)(iii).
We review Barnes’s assigned errors together. On appeal, he argues
that the court failed to consider the statutory factors found in R.C. 2929.11 and
2929.12. The following facts about the offenses at issue were put on the record at
Barnes’s sentencing hearing.
In Case No. CR-18-632526-A, Barnes “and his brother stopped the
victim while he was riding his bicycle and beat him up.” Barnes hit the victim, “and
he broke his jaw in two places.” The victim “had to have several surgeries since
1 Barnes argues in his appellate brief that he received “the absolute maximum
sentence” of five years for a third-degree felony conviction. However, the record shows
that Barnes’s robbery conviction is a second-degree felony, rather than a third-degree
felony.
then, and he did want the Court to know that his is a lifetime affliction for him, [in]
that he’s going to have to deal with this injury for the rest of his life.” The victim
asked the court to sentence Barnes to five years in prison. In Case No. CR-19-
636606-A, the victim stated on the record that she and Barnes had a child together
and that she is the victim of Barnes’s domestic violence conviction.
From these facts, the court stated the following:
So, I have considered the purposes and principles of the Ohio Revised
Code section regarding sentencing.
I’ve read the presentence report. I’ve listened to what everybody had
to say.
And sir, this is the sentence that I am going to give you. Obviously, I’m
sending you to the institution. Both cases require that you go to the
institution.
And interestingly enough, as I was giving this a lot of thought before we
came out, I was thinking that five years would, in fact, be appropriate,
and that’s kind of the range that I was thinking and it’s interesting that
that is the exact number that the victim also indicated.
The court imposed Barnes’s sentence and advised him of postrelease
control. The court ran Barnes’s sentences in these two cases concurrently, but
consecutive to his federal sentence. The court found that this was necessary to
protect the public and punish Barnes. The court found that the sentences “are not
disproportionate to [Barnes’s] conduct and to other sentences given out.” The court
continued by stating that, “importantly, I find that your criminal history
necessitates” the sentence imposed.
You have some assaults as a juvenile. You also have a felony assault in
2008.
***
[Y]ou * * * have * * * in 2008, an aggravated riot, and you were * * *
given Community Control sanctions, and you violated it.
And then in 2009, * * * you have two cases. First one is an aggravated
burglary with a three-year firearm specification, and [the court] gave
you seven years on that case.
And in the other case, it is a count of robbery. [The court] gave you two
years on that [and] ran them concurrently.
And then you come to the cases you have with [this court]. Obviously,
you have some very serious cases in your past. They’re violent.
Upon review, we find that the court considered 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 applied postrelease control, and
sentenced Barnes within the permissible statutory range. Therefore, Barnes’s
sentence is not contrary to law, and his two assigned errors are 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.
PATRICIA ANN BLACKMON, JUDGE
MARY J. BOYLE, P.J., and
EILEEN A. GALLAGHER, J., CONCUR