STATE OF OHIO v. MARIO CARGILL
No. 103902
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 22, 2016
[Cite as State v. Cargill, 2016-Ohio-5932.]
McCormack, J., Keough, P.J., and Laster Mays, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED
Robert L. Tobik
Cuyahoga County Public Defender
By: Erika B. Cunliffe
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Frank Romeo Zeleznikar
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
{¶1} Defendant-appellant Mario Cargill appeals from the prison sentence of nine years that he received after pleading guilty to robbery and felonious assault charges. Cargill claims his sentence was inconsistent with the lesser punishment imposed on his codefendant. After a review of the record and applicable law, we find no merit to the appeal and affirm the trial court‘s judgment.
{¶2} On March 3, 2015, Henry Colon argued with his girlfriend Christa Zychowski, Cargill‘s codefendant, over money. A physical altercation ensued between the two. After the altercation, Colon left the house, which he shared with his mother. While Colon was gone, Zychоwski contacted and sought involvement from her friends Cargill and Cargill‘s cousin, James Gray. Colon arrived back home around midnight and went to bed. After Colon was sоund asleep, Zychowski let Cargill and Gray inside the house. The two men awoke Colon from his sleep and attacked him. Cargill strangled Colon until Colon lost consciousness. Colon came to; Gray then struck him with a shotgun. Cargill and Gray demanded money from Colon, beating him until he surrendered $446 in his possession. The attack awakened Colon‘s mother, and Cargill and Gray attacked her as well. They then threatened to kill Colon and his mother if they were to contact thе police.
{¶3} Gray died a week later in a shooting, an incident that was not tied to the attack on Colon. Cargill and Zychowski were each chаrged with two counts of
{¶4} Under a plea agreement, Cargill pleaded guilty to one count of robbery, one count of felonious assault, both second-degree felonies, and accompanying one-year firearm specification on each count. There was no jointly agreed-upon sentence in Cargill‘s plea agreement. In its sentencing memorandum, thе state asked the court to impose the maximum prison term.
{¶5} Before sentencing Cargill, the trial court stated that it would take into consideration Cargill‘s pleading guilty prior to his codefendant Zychowski, though the court did not make any promises regarding Colon‘s sentence. The court went on to reсount Cargill‘s criminal history, including his convictions of drug possession, probation violation, disorderly conduct, domestic violence, and theft. The court, сiting its consideration of the seriousness of the offenses and recidivism factors, imposed the maximum eight years for Cargill‘s robbery offense and one yеar for the firearm specification, for a total of nine years. The court also imposed a concurrent five-year term for his offense of felonious assault.
{¶6} Shortly after Cargill was sentenced, his codefendant Zychowski pleaded guilty to the same offenses: one count of robbеry, one count of felonious assault, and accompanying one-year firearm specification on each count. In contrast, under
{¶7} When Cargill learned of Zychowski‘s shorter prison term, he filed a delayed appeal. His sole assignment of error states:
The sentence imposed here was contrary to law and violated Mario Cargill‘s right to due process because it was inconsistent with and disproportionate to the sentence the same judge imposed on his equally culpable codefendant.
{¶8} When reviewing felony sentences, we apply the standard of reviеw set forth in
{¶9} A sentence is “contrary to law” if the sentence falls outside the statutory range for the particular offense or thе trial court fails to consider the purposes and principles of felony sentencing set forth in
{¶10} Here, Cargill contends his sentence was contrаry to law because it was inconsistent with the sentence imposed on his codefendant. His claim is predicated on
{¶11} The courts have not interpreted the notion оf consistency to mean equal punishment for codefendants. State v. Harder, 8th Dist. Cuyahoga No. 98409, 2013-Ohio-580, ¶ 7. Consistency is not synonymous with uniformity. State v. Black, 8th Dist. Cuyahoga No. 100114, 2014-Ohio-2976, ¶ 12. Rather, the consistency requirement is satisfied when a trial court properly cоnsiders the statutory sentencing factors and principles. State v. O‘Keefe, 10th Dist. Franklin Nos. 08AP-724, 08AP-725 and 08AP-726, 2009-Ohio-1563, ¶ 41. “[C]onsistency is achieved by weighing the factors enumerated in
{¶12} “Consistеncy accepts divergence within a range of sentences and takes into consideration the trial court‘s discretion to weigh statutory factors.” State v. Hyland, 12th Dist. Butler No. CA2005-05-103, 2006-Ohio-339. See also State v. Switzer, 8th Dist. Cuyahoga No. 102175, 2015-Ohio-2954; State v. Armstrong, 2d Dist. Champaign No. 2015-CA-31, 2016-Ohio-5263; State v. Murphy, 10th Dist. Franklin No. 12AP-952, 2013-Ohio-5599, ¶ 14. “Although the offenses may be similar, distinguishing factors may justify dissimilar treatment.” State v. Dawson, 8th Dist. Cuyahoga No. 86417, 2006-Ohio-1083, ¶ 31.
{¶13} Thus, the fact that Cargill was sentenced to an aggregate prison term longer than the term that his codefendant was sentenced to does not in itself establish a violation of the consistency requirement set forth in
{¶14} Judgment affirmed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the commоn pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Cаse 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.
TIM McCORMACK, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
ANITA LASTER MAYS, J., CONCUR