STATE OF OHIO v. BARRY BLEVINS
No. 105023
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
June 22, 2017
[Cite as State v. Blevins, 2017-Ohio-4444.]
FRANK D. CELEBREZZE, JR., J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-597731-A. BEFORE: Celebrezze, J., McCormack, P.J., and Laster Mays, J.
Russell S. Bensing
1360 East 9th Street, Suite 600
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
BY: Hannah Smith
Brian Radigan
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{1} Defendant-appellant, Barry Blevins (“appellant“), brings this appeal challenging the trial court‘s imposition of consecutive sentences. Specifically, appellant argues that the trial court imposed consecutive sentences without making the required findings under
I. Factual and Procedural History
{2} Appellant was indicted, entered a plea, and was sentenced in two separate criminal cases: Cuyahoga C.P. No. CR-14-592088-A and Cuyahoga C.P. No. CR-15-597731-A. This appeal pertains to the sentence imposed in the latter case.
CR-14-592088-A
{3} On December 23, 2014, the Cuyahoga County Grand Jury returned an eight-count indictment charging appellant with (1) drug trafficking, in violation of
{4} On June 2, 2015, appellant entered a plea of no contest to all eight counts in the indictment. The trial court advised appellant of his constitutional rights and penalties implicated by his plea of no contest. Furthermore, based on the evidence proffered by the state, the trial court found appellant guilty on all counts and specifications. The trial court proceeded immediately to sentencing and imposed an aggregate three-year prison term.
{5} On June 30, 2015, appellant filed an appeal challenging his convictions. This court determined that the trial court‘s June 2, 2015 sentencing journal entry did not accurately reflect what transpired during the sentencing hearing, and remanded the case to the trial court for a nunc pro tunc sentencing entry.
{6} On January 12, 2016, the trial court issued a nunc pro tunc sentencing entry indicating that Counts 1 and 2 merged for sentencing purposes, and the state elected to sentence appellant on Count 1; Counts 7 and 8 also merged for sentencing purposes, and the state elected to sentence appellant on Count 7.
{7} In State v. Blevins, 2016-Ohio-2937, 65 N.E.3d 146 (8th Dist.), this court held that the trial court properly denied appellant‘s motion to suppress and affirmed appellant‘s convictions. Id. at ¶ 2.
CR-15-597731-A
{8} On October 11, 2014, the victim, David Garrett, was shot and killed during an
{9} The parties reached a plea agreement. The state amended Count 5 by deleting the one-year firearm specification and the notice of prior conviction and repeat violent offender specifications. On August 1, 2016, appellant pled guilty to Count 5, voluntary manslaughter, a first-degree felony, and the underlying three-year firearm specification. The remaining counts and specifications charged in the indictment were
{10} The trial court held a sentencing hearing on August 31, 2016. The trial court sentenced appellant to a prison term of 14 years: three years on the firearm specification to be served prior to and consecutively with 11 years on the voluntary manslaughter count. The trial court ordered appellant to serve this 14-year sentence consecutively with his three-year prison sentence in CR-14-592088-A.
{11} On September 29, 2016, appellant filed the instant appeal challenging the trial court‘s sentence. He assigns two errors for review:
I. The trial court‘s imposition of consecutive sentences was contrary to law.
II. The trial court‘s imposition of maximum and consecutive sentences is clearly and convincingly unsupported by the record.
II. Law and Analysis
A. Consecutive Sentences
{12} In his first assignment of error, appellant argues that the trial court failed to make the requisite findings pursuant to
{13} We review felony sentences under the standard set forth in
{14}
(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 postrelease 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.
{15} Compliance with
{16} In the instant matter, appellant concedes that the trial court made the first
I also find that the crimes were — at least two of these crimes were committed as part of one or more courses of conduct. And I find that the harm caused by the multiple offenses was so great that no single prison term to these multiple offenses would suffice.
Finally, I also find that your history of criminal conduct demonstrates that consecutive sentences are necessary, as I said earlier, to protect the public from future crime.
(Tr. 132.)
{17} Appellant‘s challenge to the trial court‘s imposition of consecutive sentences pertains to the second
{19} In support of his argument, appellant directs this court to State v. Vinson, 8th Dist. Cuyahoga No. 103329, 2016-Ohio-7604. There, this court concluded that “the trial court failed to make a finding at the sentencing hearing that consecutive sentences are not disproportionate to the seriousness of [the defendant‘s] conduct.” Id. at ¶ 69. In imposing consecutive sentences, the trial court stated:
the Court is going to make these findings so it could help to understand your sentence. That consecutive sentences are necessary to protect the public from future crime. That consecutive sentences are necessary to punish the defendant. The Court finds that consecutive sentences are not disproportionate to the danger the offender poses to the public. And the Court finds that your history indicates that consecutive sentences are necessary to protect the public from future crimes.
Id. This court explained that the trial court did not make the specific finding that consecutive sentences were not disproportionate to the seriousness of the defendant‘s conduct, nor could such a finding be discerned from the court‘s other statements. Id. at ¶ 70. Accordingly, this court vacated the trial court‘s imposition of consecutive sentences and remanded the matter to the trial court to determine whether consecutive sentences
{20} In State v. Morris, 8th Dist. Cuyahoga No. 104013, 2016-Ohio-7614, this court faced a similar argument regarding the trial court‘s
{21} The Morris court also relied on Amey, 8th Dist. Cuyahoga Nos. 103000 and 103001, 2016-Ohio-1121. There, this court held that “the trial court‘s statements on the record clearly indicate that it considered proportionality with regard to the seriousness of Amey‘s conduct and the danger presented.” Id. at ¶ 16. This court explained,
[t]he [trial] court remarked that Amey was on probation for a domestic violence conviction in Cuyahoga C.P. No. CR-13-578704. The court noted that he had been referred to domestic violence classes but did not attend them. The court also outlined Amey‘s extensive record that included crimes of violence and offenses committed while Amey was on community control sanctions. The court remarked that he had not “responded favorably to sanctions previously imposed.” Viewing the court‘s remarks in their entirety, we are satisfied that the trial court made a distinct “proportionality” finding in compliance with the statute.
{22} In the instant matter, we initially note that a trial court is not required to give a “talismanic incantation of the words of [
{23} After review, the record reflects that the trial court did not specifically state that consecutive sentences would not be disproportionate to the danger appellant poses to the public. However, we find that the trial court‘s statements on the record — when viewed in their entirety — clearly indicate that the trial court considered proportionality with regard to both the seriousness of appellant‘s conduct and the danger appellant posed to the public.
{25} Viewing the trial court‘s statements in their entirety, we can discern that the trial court found that consecutive sentences are both not disproportionate to the seriousness of appellant‘s conduct and not disproportionate to the danger appellant poses to the public.
{26} The trial court properly incorporated its findings into its sentencing journal entry as required. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at syllabus. The trial court‘s August 31, 2016 sentencing journal entry provides, in relevant part,
The court imposes prison terms consecutively finding that consecutive service is necessary to protect the public from future crime or to punish defendant; that the consecutive sentences are not disproportionate to the seriousness of defendant‘s conduct and to the danger defendant poses to the
public; and that, at least two of the multiple offenses were committed in this case as part of one or more courses of conduct, and the harm caused by said multiple offenses 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 defendant‘s conduct, or defendant‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by defendant.
{27} For all of the foregoing reasons, we conclude that the trial court made the appropriate consecutive sentence findings, and the record clearly reflects that the trial court engaged in the correct analysis required under
{28} Accordingly, appellant‘s first assignment of error is overruled.
B. Maximum Sentence
{29} In his second assignment of error, appellant challenges the trial court‘s imposition of the maximum 11-year sentence for his voluntary manslaughter conviction.
A trial court‘s imposition of a maximum prison term for a felony conviction is not contrary to law as long as the sentence is within the statutory range for the offense, and the court considers both the purposes and principles of felony sentencing set forth in
R.C. 2929.11 and the seriousness and recidivism factors set forthR.C. 2929.12 .
State v. Seith, 8th Dist. Cuyahoga No. 104510, 2016-Ohio-8302, ¶ 12.
{31} In the instant matter, appellant argues that the trial court‘s reasons for imposing the maximum sentence — particularly the court‘s statements regarding the plea agreement and the benefit appellant received therefrom — are contradicted and clearly and convincingly unsupported by the record. Specifically, appellant takes issue with the following statements made by the trial court at sentencing:
I mean, there is no question about it, this is a maximum sentence for the particular crime we‘re talking about. To me it seems the benefit you received of the plea bargain was the reduction in the crime charged. I don‘t know whether you are in fact guilty of murder. You are not being sentenced for murder, that‘s for sure. But there is evidence here that if you went to trial would have certainly created a genuine issue of material fact, and would have allowed a jury to decide that you did in fact commit a murder for which a life sentence would have been imposed.
My point is, not to say that it is guaranteed that you would have been found guilty and gotten a life sentence, but to say that a life sentence was possible. And here, to paraphrase [the victim‘s grandmother], 6, 11, 14 years, you are going to get out of prison. You are not going to spend the rest of your
life in prison, whereas otherwise you might have. Again, recognizing explicitly that you weren‘t adjudicated guilty of murder, that is for sure.
(Tr. 132-133.)
{32} Appellant argues that the trial court concluded the benefit from the parties’ plea agreement was “one-sided,” and that by pleading guilty, appellant eliminated the possibility of being convicted of murder and receiving a life sentence. Appellant contends that the benefit of the plea agreement was not one-sided, and that the state also benefitted from the agreement by avoiding the embarrassment of appellant being acquitted on all 12 counts at trial.
{33} Appellant further argues that the trial court failed to consider the possibility that he could have been acquitted at trial. In support of his argument, appellant contends that the limited record before the trial court at sentencing provided substantial evidence that the victim was the aggressor and that the victim beat, pistol whipped, and may have even fired a gun at appellant. As such, appellant asserts that “voluntary manslaughter was likely the worst-case scenario for [him] if he‘d gone to trial” and suggests that he may have even prevailed at trial under a self-defense theory. Appellant‘s brief at 8. Finally, appellant asserts that by pleading guilty, he was “foregoing the very real possibility of acquittal at trial.” Appellant‘s brief at 9.
{34} Initially, we note that appellant‘s argument is premised on the assumption that the trial court imposed the maximum sentence because of the court‘s view regarding the benefit appellant received from the plea agreement, rather than the aforementioned factors and considerations that prompted the court to impose consecutive sentences.
{36} A plea agreement does not, however, preclude the trial court‘s consideration of the underlying facts of the case in determining the appropriate sentence to impose. State v. Frankos, 8th Dist. Cuyahoga No. 78072, 2001 Ohio App. LEXIS 3712 (Aug. 23, 2001); State v. Clayton, 8th Dist. Cuyahoga No. 99700, 2014-Ohio-112, ¶ 18. Thus, the trial court is permitted to consider the original charge when imposing its sentencing. Peal at ¶ 18.
{37} This court faced a similar argument in State v. Smith, 8th Dist. Cuyahoga No. 101387, 2014-Ohio-5553. There, the defendant-appellant was charged in a three-count indictment with drug trafficking, drug possession, and possession of criminal tools. The parties reached a plea agreement under which the state dismissed the drug trafficking count and appellant pled guilty to the remaining two counts. On appeal,
the record reflects the trial court relied on required statutory considerations, relevant information, and the circumstances underlying Smith‘s case. The trial court‘s statements do not reflect that the dismissed charge was “the sole basis for the sentence.” State v. Clayton, 8th Dist. Cuyahoga No. 99700, 2014-Ohio-112, ¶ 19. Rather, the statements indicate only that the court believed Smith was lying to it. Reeves, at ¶ 35. Moreover, concurrent terms of twelve months were within the statutory parameters.
Id. (Emphasis added.) Smith at ¶ 17.
{38} In the instant matter, the trial court‘s sentence for appellant‘s first-degree felony was within the permissible statutory range under
[a Heartless Felons gang member], along with six or seven other people, including the victim, came to the bar and confronted [appellant]. * * * Once they all left the bar, [appellant] stated “they all started jumping me. I was all by myself.”
According to [appellant], while they were outside, someone told the victim to go get the gun and he did. The victim told the people who were beating on [appellant] to get out of the way and he started chasing [appellant] down with the gun, [appellant] stated. The victim began shooting at [appellant], and [appellant] tripped. When he tripped, [appellant] fell to the ground, where the victim began pistol whipping him. [Appellant] stated someone knew him from the bar and pulled the victim off of him. The victim then started chasing that guy and the rest of the group, including [the Heartless Felons member], began jumping [appellant] again. According to [appellant, the Heartless Felon] had a gun. He fumbled with it and [appellant] ended up retrieving it from him. [Appellant] stated, “[e]verybody was shooting. I ran and fired back behind me blindly. At least three or four others were shooting. I dropped the gun in the parking lot and ran.”
{40} The trial court stated that it considered the statements made by the state, defense counsel, appellant, the victim‘s fiancée, and the victim‘s grandmother.
{41} The prosecutor asserted that appellant
{42} The trial court inquired as to whether there was evidence that the victim discharged a gun during the altercation. The prosecutor stated that there was a video of the altercation and that the parties disputed whether the video displayed the victim handling a gun. The prosecutor further explained that testing was conducted and there was no gunshot residue on the victim‘s hands. The trial court inquired as to whether the eyewitnesses who reported the victim had a gun were associated with appellant. The prosecutor asserted that “[t]here [were] two sides to the story.” (Tr. 90.)
{43} Defense counsel stated that appellant showed genuine remorse for the victim and the victim‘s family. Defense counsel provided the following factual account of the incident:
[o]ut in the parking lot there are three other individuals that — including [the victim] — that confronted [appellant]. Once they confronted [appellant], a fight ensued.
[Appellant] was tossed to the ground, and he was pistol whipped. There are three people that indicate that [the victim] had a pistol and was beating my client about the head.
(Tr. 110.) Defense counsel emphasized that one of the witnesses who did not know appellant and was not connected to appellant in any way observed the victim with a
{44} The trial court indicated that it considered the state‘s sentencing memorandum and defense counsel‘s sentencing memorandum. Defense counsel‘s sentencing memorandum provided, in relevant part, that the eyewitnesses
each indicate that the victim * * * was: 1) the aggressor; 2) had a pistol; 3) was “pistol whipping” and beating [appellant] along with several of [the victim‘s] friends; 4) [e]ither [the victim] or one of his friends shot a weapon at [appellant]; 5) [appellant] attempted to escape but could not; 6) [d]ue to being beat up with a firearm and shot at, [appellant] fired a weapon in haste in order to keep his assailants away and to prevent death or great bodily harm.
On the other hand, the state‘s sentencing memorandum provided, in relevant part,
[p]olice and witnesses identified [appellant] fighting with the victim. The victim is seen with an out-stretched arm and what is believed to be a weapon. At one point in the altercation, [appellant] goes to the ground. [Appellant] walks away, but he does not leave. Instead, [appellant] returns armed with a firearm. When the victim turns and leaves the scene, [appellant] comes after the victim. [Appellant] fires a fatal shot into the victim‘s back.
Upon investigation, police learn that the co-defendant hands [appellant] a firearm. [Appellant] shoots the victim in the back. [Appellant] runs away and tosses the gun. The victim dies from that gunshot wound.
{45} The trial court considered that when appellant was arrested for drug trafficking on December 17, 2014, he was in possession of a different gun than the gun that had been used during the October 2014 nightclub shooting. Finally, the trial court considered appellant‘s criminal history, which the trial court described as “unremitting” and noted that it included violent crimes. Appellant‘s criminal history includes
{46} Regarding appellant‘s assertion that a voluntary manslaughter conviction would have been the “worst case scenario” had he exercised his right to trial, we find that the limited record regarding the circumstances surrounding the nightclub shooting contained evidence upon which a factfinder could have rejected appellant‘s contention that he shot the victim based upon serious provocation or in self-defense. According to the PSI‘s offense summary, the victim was walking away from the fight when appellant began shooting at him. Furthermore, according to the state‘s sentencing memorandum, appellant walked away from the fight, obtained a firearm, returned to the fight, and shot the victim in the back as the victim was leaving the scene.
{47} For all of the foregoing reasons, we cannot say that appellant‘s sentence is unsupported by the record or contrary to law. The trial court did not err by imposing the maximum 11-year sentence for appellant‘s voluntary manslaughter conviction.
{48} Appellant‘s second assignment of error is overruled.
III. Conclusion
{50} Judgment affirmed.
It is ordered that appellee recover of 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 convictions 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.
FRANK D. CELEBREZZE, JR., JUDGE
TIM MCCORMACK, P.J., and
ANITA LASTER MAYS, J., CONCUR