2005 Ohio 1415 | Ohio Ct. App. | 2005
{¶ 2} On November 5, 2003, Allen entered a plea of guilty to one count of Aggravated Robbery, a felony of the first degree in violation of R.C.
{¶ 3} Allen gave the following statement to the police detailing his involvement in the robbery of Gail L. Kopp at her residence in Fairport Harbor, Ohio: "The defendant was contacted by his brother, William Payne, and was asked if he wanted to go to Cleveland, Ohio, [from San Diego] and take part in a robbery. The defendant suspected that his brother was going to rob another drug dealer. * * * The defendant was given a delivery person's uniform, was told to knock on the door and when she answered, stun her with the stun gun. * * * The defendant knocked on the door and, when the victim answered, he stunned her in the neck. They made their way through the door and tied the victim up. The co-defendant began going through the residence looking for jewelry while the defendant remained with the victim and cared for her. * * * Both of them got all the jewelry and went back to Cleveland, Ohio, to the defendant's brother's house."
{¶ 4} The trial court sentenced Allen to serve a ten-year prison term for the Aggravated Robbery count; a ten-year prison term for the Aggravated Burglary; an eight-year prison term for Felonious Assault; and an eight-year prison term for Kidnapping. The court ordered the sentences for Aggravated Burglary, Felonious Assault, and Kidnapping to be served concurrently with each other and consecutively with the sentence for Aggravated Robbery. The court also ordered an additional, consecutive term of three years for the firearm specification. Allen's aggregate sentence is for twenty-three years of imprisonment.
{¶ 5} Allen timely appeals and raises the following assignments of error:
{¶ 6} "[1.] The trial court violated appellant's right to equal protection and due process of law under the
{¶ 7} "[2.] The trial court ruled contrary to law when it ordered consecutive sentences.
{¶ 8} "[3.] The trial court erred when it sentenced the defendant-appellant to maximum and consecutive sentences based upon a finding of factors not found by the jury or admitted by the defendant-appellant in violation of the defendant-appellant's state and federal constitutional rights to trial by jury."
{¶ 9} For clarity, we will address Allen's assignments of error out of order.
{¶ 10} An appellate court reviews a felony sentence under a clear and convincing evidence standard of review. R.C.
{¶ 11} "A court may not impose consecutive sentences for multiple offenses unless it `finds' three statutory factors. R.C.
{¶ 12} When imposing consecutive sentences for multiple offenses under R.C.
{¶ 13} At the sentencing hearing, the court found that "consecutive sentences are necessary in order to protect the public or to punish the offender and they are not disproportionate to the seriousness of the offender's conduct and the danger offender poses to the public. The offenses were committed while the offender was awaiting trial. That * * * the harm was so great or unusual that no single prison term for any of the offenses committed as part of the single course of conduct adequately reflects the seriousness of the offender's conduct and the offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender."
{¶ 14} In support of these findings, the court stated that Allen "committed more than one crime at this time. That he stalked the victim * * *. That he used deception to enter the home. That he used firearms and threatened the victim with a firearm. That he used a stun gun on the victim and that she was severely injured by burns from that weapon. And that the defendant returned here from California to further the conspiracy with others. And that the victim in this case was tied up, held hostage while her home was ransacked and theft was committed of valuable items."
{¶ 15} Allen does not argue that the trial court failed to make the findings required by R.C.
{¶ 16} The trial court is not required to make any findings relative to mitigating circumstances when deciding to impose consecutive sentences. Ohio's felony sentencing law only requires the trial court to "consider" the mitigating circumstances in the exercise of its discretion. State v. Glenn, 11th Dist. No. 2003-L-022, 2004-Ohio-2917, at ¶ 47 ("neither R.C.
{¶ 17} In the present case, the alleged mitigating factors were narrated by Allen's attorney, Allen, and various family members at the sentencing hearing, and were detailed in the pre-sentence investigation report. The trial court found that none of the mitigating factors contained in R.C.
{¶ 18} Allen's second assignment of error is without merit.
{¶ 19} In his first assignment of error, Allen argues the trial court erred by imposing a sentence upon him that was not consistent with similarly situated criminals who committed similar crimes and that his twenty-three year prison sentence is not proportional to the crimes committed. Allen relies upon the express purpose of Ohio felony sentencing that sentences "shall be * * * consistent with sentences imposed for similar crimes committed by similar offenders." R.C.
{¶ 20} The overriding purposes of felony sentencing in Ohio "are to protect the public from future crime by the offender * * * and to punish the offender." R.C.
{¶ 21} This court has stated that, although "a trial court is required to engage in the analysis set forth by R.C.
{¶ 22} Our review of recent cases reveals several instances of defendants receiving sentences between twenty and twenty-five years for crimes involving aggravated robbery, aggravated burglary and/or assault:State v. Watson, 8th Dist. No. 82582, 2003-Ohio-5815 (twenty-one year sentence); State v. Stadmire, 8th Dist. No. 81188, 2003-Ohio-873 (twenty-five and one-half year sentence); State v. Haskins, 6th Dist. No. E-01-016, 2003-Ohio-70 (twenty-one year sentence); State v. Palmer,
{¶ 23} Allen's sentence falls within the range of prescribed sentences for the crimes to which he pled guilty. As a general rule, sentences that fall within the statutory range do not violate the constitutional provision regarding excessive punishments. State v. Gladding (1990),
{¶ 24} Allen further argues that his sentence is disproportionate to the three-year sentence received by his co-defendant, Anthony Shanklin. In comparison, Allen emphasizes his immediate cooperation with police after arrest and efforts to help recover the victim's property.
{¶ 25} In the absence of any evidence in the record of the charges against Shanklin, of Shanklin's role in the crimes, or of Shanklin's criminal background, however, we are unable to draw any conclusions regarding Allen's sentence based on comparison with Shanklin's sentence.State v. Martin, 11th Dist. No. 2002-T-0111, 2004-Ohio-3330, at ¶ 63. Moreover, "[t]here is no requirement that co-defendants receive equal sentences." State v. Lloyd, 11th Dist. No. 2002-L-069, 2003-Ohio-6417, at ¶ 21; Martin, 2004-Ohio-3330, at ¶ 62; State v. Aguirre, 4th Dist. No. 03CA5, 2003-Ohio-4909, at ¶ 50.
{¶ 26} Allen's first assignment of error is without merit.
{¶ 27} By leave of this court granted on February 17, 2005, Allen raises the following supplemental assignment of error: "The trial court erred when it sentenced the defendant-appellant to maximum and consecutive sentences based upon a finding of factors not found by the jury or admitted by the defendant-appellant in violation of the defendant-appellant's state and federal constitutional rights to trial by jury."
{¶ 28} In Apprendi v. New Jersey (2000),
{¶ 29} This court has previously addressed the issue of whetherApprendi and Blakely apply to consecutive sentencing in Ohio and held that they do not. State v. Taylor,
{¶ 30} Allen argues that our decision in Taylor is contrary toBlakely "since it makes no sense that the United States Supreme Court would grant greater protection an individual facing sentencing on only one crime versus an individual * * * who faces punishment for more than one crime." We disagree. Under the United States Constitution, a defendant is entitled to have every element of the offense against him presented to a jury and proven beyond a reasonable doubt. In re Winship
(1970),
{¶ 31} Allen further argues his sentence is invalid since the court's findings, necessary to impose maximum sentences, that Allen committed the worst form of the offense and posed the greatest likelihood of committing future crimes, "had not been admitted to by Mr. Allen nor found by a jury." Again, we disagree.
{¶ 32} The judicial findings proscribed by the Supreme Court inApprendi and Blakely are factual findings. Eg. Apprendi,
{¶ 33} As a result of his convictions for first and second degree felonies, Allen faced possible incarceration of up to ten and eight years, respectively, for each count. R.C.
{¶ 34} Allen's supplemental assignment of error is without merit.
{¶ 35} For the foregoing reasons, the January 29, 2004 judgment entry of the Lake County Court of Common Pleas sentencing Allen to twenty-three years incarceration is affirmed.
Ford, P.J., Rice, J., concur.
