State of Ohio v. Tyrece L. Ayers
No. 13AP-371
IN THE COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT
January 28, 2014
[Cite as State v. Ayers, 2014-Ohio-276.]
(C.P.C. No. 11CR-07-3815), (REGULAR CALENDAR)
Rendered on January 28, 2014
Ron O‘Brien, Prosecuting Attorney, and Laura R. Swisher, for appellee.
Siewert & Gjostein Co., LPA, and Thomas A. Gjostein, for appellant.
APPEAL from the Franklin County Court of Common Pleas
T. BRYANT, J.
{1} Defendant-appellant, Tyrece L. Ayers (“appellant“), appeals from the sentences imposed following his guilty plea to five counts of robbery, violations of
I. FACTS AND PROCEDURAL HISTORY
{2} Appellant was indicted on 15 counts, including aggravated burglary, robbery and kidnapping for incidents that occurred on June 30, July 9, and July 10, 2011. On January 31, 2013, appellant plead guilty to Counts 2, 8, 10, 12 and 14 of the indictment, all violations of
{3} Appellant was found guilty in a separate case of murder with a firearm specification for a drive-by shooting on January 23, 2010, that resulted in the death of Tyrone Malcolm, Jr. (Franklin C.P. No. 12CR-03-1180). This court affirmed the judgment. See State v. Ayers, 10th Dist. No. 13AP-18 (Dec. 19, 2013).
{4} On March 7, 2013, the trial court conducted a sentencing hearing. Appellant was sentenced to three years as to each count to run consecutive with case No. 12CR-03-1180, for a total of 36 years (15 years for this case and 21 years for case No. 12CR-03-1180) to be served at the Ohio Department of Rehabilitation and Correction.
II. ASSIGNMENT OF ERROR
{5} Appellant has timely appealed and brings the following assignment of error:
THE TRIAL [COURT] ERRED IN SENTENCING THE DEFENDANT, IMPROPERLY, TO CONSECUTIVE SENTENCES ON COUNT NUMBERS 2, 8, 10, 12, 14 OF THE INDICTMENT AS WELL AS CONSECUTIVE TO CASE NO. 12 CR 1180, PURSUANT TO OHIO REVISED CODE
§2929.11 ,§2929.12 AND§2929.14 .
III. DISCUSSION
{6} By his assignment of error, appellant contends that the trial court erred in imposing consecutive sentences. He argues that the trial court erred in doing so without referencing the factors in
{7} Appellant did not raise any argument challenging the imposition of consecutive sentences at the sentencing hearing in the trial court. Consequently, we may reverse appellant‘s sentence only if the sentence imposed constitutes plain error. Under
{8} In State v. Allen, 10th Dist. No. 10AP-487, 2011-Ohio-1757, this court discussed the standard of review applicable to felony sentences, as follows:
As an initial matter, we must determine the standard of review to apply. In State v. Burton, 10th Dist. No. 06AP-690, 2007-Ohio-1941, ¶ 19, this court held that, pursuant to
R.C. 2953.08(G) , we review whether clear and convincing evidence establishes that a felony sentence is contrary to law. A sentence is contrary to law when the trial court failed to apply the appropriate statutory guidelines. Burton at ¶ 19.After Burton, however, in a plurality opinion, the Supreme Court of Ohio established a two-step procedure for reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. The first step is to “examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. The second step requires that the trial court‘s decision also be reviewed under an abuse of discretion standard. Id. An abuse of discretion connotes more than an error of law or judgment; it entails a decision that is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
As a plurality opinion, Kalish has limited precedential value. State v. Franklin, 182 Ohio App.3d 410, 2009-Ohio-2664, ¶ 8. Additionally, since Kalish, this court has continued to rely on Burton and only applied the contrary-to-law standard of review. Franklin at ¶ 8, citing State v. Burkes, 10th Dist. No. 08AP-830, 2009-Ohio-2276; State v. O‘Keefe, 10th Dist. No. 08AP-724, 2009-Ohio-1563; State v. Hayes, 10th Dist. No. 08AP-233, 2009-Ohio-1100.
{9} According to Ohio‘s sentencing laws, a sentencing court is required to consider the principles and purposes of felony sentencing as set forth in
{10} The trial court‘s sentencing entry states that it “considered the purposes and principles of sentencing set forth in
{11} Appellant also argues that the trial court did not mention the factors under
(4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds 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 , or2929.18 of the Revised Code, or was under post-release control for a prior 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.
{12} ”
{13} Plaintiff-appellee, the state of Ohio, does not argue that the trial court complied with the requirements in
{14} The trial court stated at the sentencing hearing, as follows:
[DEFENSE COUNSEL]: Mr. Ayers is already serving a life sentence.
* * *
THE COURT: Taking the life of someone else, and then he was engaged in five or six robberies, however many, why should the court place all the time that was imposed for the murder and more or less ignore the offenses regarding the robbery offenses, and why shouldn‘t he receive time in addition to what he did?
* * *
[B]ut where the court struggles is if you take the 21 years -- you can even say 25, to make it easier. Well, maybe not. I‘m bad at math. But at any rate, say he‘s eligible after 21. Doesn‘t get out for a couple years later, 24, so you have murder, right? That‘s one offense. You have Counts 2 for robbery -- all these are robberies of the second degree -- 2, 8, 10, 12, and 14. All right? That‘s six, so a total of six offenses. All right? And so if you multiply that by, what, four, right?
* * *
So you‘re looking at four years per offense. I mean, that‘s kind of what it rounds out to be. And I guess, you know, my question is, is that sufficient to, one, penalize Mr. Ayers for his actions? Does it, you know, also satisfy the victims in this case, and does it -- you know, I understand he‘s young and things of that nature, but he would still have the opportunity for release after 20 some odd years, 21 years. So that‘s what I‘m getting at. I don‘t know. You know? That‘s awfully cheap. You know, four years for someone‘s life is -- what a discount.
* * *
I think I said I‘m familiar with the facts. I‘ve read all the materials that the court was provided, considered all the factors the court‘s required to consider before imposing the sentence. And, quite frankly, the court is disturbed by Mr. Ayers‘s conduct and the offenses. He‘s had a real nice support system. He had folks write in on his behalf who claimed to know him all of his life and was surprised by his conduct.
However, his action doesn‘t leave counsel much to argue, to be quite frank. You can only do so much with the facts that
you‘re given, and I was concerned about the coincidence, if you want to put it kindly, about the victims in this case being all Latino. And Mr. Manning pointed specifically to that concern in the PSI where I‘ve read that before. It reaffirmed my issue. I don‘t like any of this stuff, and quite frankly, I think that as a result, there needs to be an appropriate penalty. So the court will impose a period of three years for Counts 2, 8, 10, 12, 14. Those are robberies, all felonies of the second degree. They will run consecutive of one another for a total of 15 years in addition to Case Number 12CR-1180, so Mr. Ayers will serve a total of 36 years before he‘s eligible for his parole.
(Mar. 7, 2013 Tr. 3; 5; 6-8; 11-12.)
{15} In this case, the trial court did not specify the necessary findings. We have previously found that when the record demonstrates that the trial court failed to make the findings required by
{16} Finally, the state argues that the sentencing here does not rise to the level of plain error because there is no manifest injustice, citing State v. Gilbert, 10th Dist. No. 12AP-142, 2012-Ohio-5521. However, Gilbert predates Wilson and the cases following Wilson, where this court has found that a failure to precisely comply with
IV. CONCLUSION
{17} For the foregoing reasons, appellant‘s assignment of error is sustained as to
Judgment affirmed in part and reversed in part; cause remanded.
TYACK and DORRIAN, JJ., concur.
T. BRYANT, J., retired, formerly of the Third Appellate District, assigned to active duty under authority of the Ohio Constitution, Article IV, Section 6(C).