State v. LycansState v. Lycans
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-515313
ATTORNEYS FOR APPELLANT
P.O. Box 33519
North Royalton, Ohio 44133
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Michael P. Graham
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Defendant-appellant, James Lycans (“appellant“), appeals his sentence imposed by the trial court. Based on our review of the record and pertinent case law, we affirm.
{¶ 2} On September 12, 2008, appellant was charged in a six-count indictment with two counts of rape in violation of
{¶ 3} On May 18, 2009, the trial court sentenced appellant to seven years in prison. The trial court also informed him that he would face a mandatory five-year period of postrelease control and would be required to register as a Tier III sex offender pursuant to Ohio‘s version of the Adam Walsh Act. This appeal followed.
{¶ 4} Appellant presents one assignment of error for our review wherein he argues that his sentence is contrary to law because “the trial court failed to consider whether the sentence was consistent with the sentences imposed for similar crimes committed by similar offenders.”
{¶ 5} This court has repeatedly held that “in order to support a contention that his or her sentence is disproportionate to sentences imposed upon other offenders, a defendant must raise this issue before the trial court and present some evidence, however minimal, in order to provide a starting point for analysis and to preserve the issue for appeal.” State v. Christinger, Cuyahoga App. No. 91984, 2009-Ohio-3610, ¶66; State v. Jordan, Cuyahoga App. No. 91869, 2009-Ohio-3078, ¶18; State v. Calvillo, Cuyahoga App. No. 90146, 2009-Ohio-2024, ¶16. At no point during the May 18, 2009 sentencing hearing did appellant argue that a seven-year sentence was disproportionate to sentences imposed on similarly situated offenders. As such, any argument on this issue was waived.
{¶ 6} Even if appellant had preserved his proportionality argument for appeal, his claim lacks merit. In 2006, the Ohio Supreme Court released its opinion in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, wherein it severed portions of Ohio‘s sentencing statutes. Post-Foster, appellate courts are to apply a two-step analysis in determining the validity of a sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶4. “First, they must 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. If this first
{¶ 7} The crux of appellant‘s argument is that the trial judge failed to consider
{¶ 8} Although the trial judge did not specifically mention proportionality at the sentencing hearing, she did state that she had “considered all the factors under 2929.11, 12, 13.” In addition, “[t]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give reasons for imposing maximum, consecutive, or more than the minimum sentences.” Foster at paragraph seven of the syllabus. Despite appellant‘s contentions to the contrary, the trial judge indicated on the record that she did, in fact, consider
{¶ 9} Although appellant argues that his sentence is disproportionate to that imposed upon similarly situated offenders, he “offers no other cases in
{¶ 10} As an appellate court, we are not required to decide whether the lower court “‘imposed a sentence in lockstep with others, but whether the sentence is so unusual as to be outside the mainstream of local judicial practice. Although the offense[s] may be similar, distinguishing factors may justify dissimilar treatment.‘” Id., quoting State v. Dawson, Cuyahoga App. No. 86417, 2006-Ohio-1083, ¶31.
{¶ 11} There is nothing in the record nor does appellant present any evidence to show that the sentence imposed is “outside the mainstream of local judicial practice.” Appellant pled guilty to attempted rape, a second-degree felony that is punishable by two to eight years in prison.
{¶ 13} In this case, the trial judge reviewed the presentence investigation report and the mitigation of penalty report before sentencing appellant. She also read letters and listened to statements from the victim and her mother as well as from members of appellant‘s family and friends. The trial judge noted on the record that the egregiousness of appellant‘s behavior was elevated in light of his relationship of trust to the victim.1
{¶ 14} There is nothing in the record to indicate that the trial judge acted unreasonably, arbitrarily, or unconscionably when sentencing appellant. In reviewing the trial judge‘s comments at sentencing, it is clear that the statutory purpose was upheld in determining appellant‘s sentence. The trial judge indicated that she had considered the relevant statutory factors in making her decision, and appellant has presented no evidence that the trial judge abused her discretion. Accordingly, appellant‘s sole assignment of error is overruled.
{¶ 15} Since appellant did not argue that his sentence was disproportionate at the lower level, he failed to preserve this issue for appeal and his argument was waived. Even if he had preserved his claim for appeal, the trial judge considered the requisite sentencing factors, and appellant has presented no evidence that similarly situated offenders received lighter sentences. After reviewing the record in this case, we cannot find that the trial judge abused her discretion when sentencing appellant. As such, we find no merit to appellant‘s argument, and his sole assignment of error is 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. 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