State v. Marshall, 89551 (4-3-2008)State v. Marshall, 89551 (4-3-2008)
{¶ 1} Defendant-appellant, William Marshall (“appellant“), appeals from the sentences imposed upon his convictions for aggravated robbery, burglary, murder, and having a weapon while under а disability. For the reasons set forth below, we affirm.
{¶ 2} On November 2, 2005, a jury found appellant guilty of the three counts of aggravated robbery, one count of aggravated burglary, and two counts of murder, as well as three-year firearm specifications оn each of the underlying counts. The trial court found appellant guilty of having a weapon while under a disability.
{¶ 3} The following day, the trial court sentenced appellant to 42 years to life in prison, credit with time served on the having a weapon whilе under disability count. More specifically, the trial court sentenced appellant to nine-year sentences on the three aggravated robbery counts and the single aggravated burglary count. In addition, the trial court sentenced appellant to 15 years to life for each of the two murder convictions. The nine years sentences were to be served concurrently with each other and concurrent to the murder sentences. The murder sentences were ordered to be served consecutively to one another. The three-year firearm specifications on each of the counts were ordered to be served consecutively to each other and consecutively to the underlying sentencеs. On November 21, 2005, appellant challenged his convictions as well as his sentence in a direct appeal to this court. In a decision dated November 30, 2006, this court affirmed his
{¶ 4} Following our remand, the trial court imposed the original sentence except it merged the firearm specifications. More specifically, the trial court sentenced appellant to nine years for aggravated burglary, nine years on each of the three aggravated robbery convictions and fifteen years to life on the two murder convictions. The trial court ordered the nine year sentences to be served concurrently with one another and concurrent to the murder sentences. The trial court further ordered the murder sentences tо be served consecutively to one another. A single merged firearm specification was to be served prior to and consecutive with the other sentence imposed. In total, appellant was sentenced to a total of 33 yеars to life in prison.
{¶ 5} Appellant now timely appeals and asserts three assignments of error for our review. Appellant‘s first assignment of error states:
{¶ 6} “Under current sentencing laws and, given the facts and circumstances surrounding this case, there is clеar and convincing evidence that MARSHALL‘s sentence is excessive.”
{¶ 7} Within the first assignment of error, appellant argues that his sentence is excessive and that the trial court did not comply with the requirements of R.C.
{¶ 8} In February 2006, the Ohio Supreme Court in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, declared unconstitutional and severed those provisions of Ohio‘s felony sentencing statutes requiring “judicial fact-finding” before imposing a more than minimum, maximum, or consecutive sentences. Id. at paragraphs one and three of the syllabus (declaring R.C.
{¶ 9} In exercising its discretion, however, the trial court must still consider R.C.
{¶ 10} In the case sub judice, the trial court sentenced appellant within the statutory ranges provided by R.C.
{¶ 11} Additionally, a review of the transcript reveals that the trial court
{¶ 12} “The court has considered the record, oral statements made today, the purposes and principles of sentencing, the seriousness and recidivism factors relevant to the offense and this offender, and the need for deterrence, incapacitation, rehabilitation and restitution.”
{¶ 13} Finally, we do not find appellant‘s sentence excessive. In State v. Davis, Highland App. No. 06CA21, 2007-Ohio-3944, the court reiterated the following:
{¶ 14} “[W]e review a felony sentence under the abuse of discretion standard. Foster, at paragraph seven of the syllabus. See, e.g., State v. Pace, Medina App. No. 06CA74-M, 2007-Ohio-1354, at P7; State v. Duff, Licking [App. No.] 06CA81, 2007-Ohio-1294, at P6. `The term abuse of discretion * * * connotes morе than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.’ State v. Montgomery (1991), 61 Ohio St.3d 410, 413, 575 N.E.2d 167, quoting State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144. `“An `abuse of discretion’ has also been found where a sentence is greatly excessive under traditional concepts of justice or is manifestly disproportionate to the crime or the defendant. Woosley v. United States (1973), 478 F.2d 139, 147. * * * Where the severity of the sentence shocks the judicial conscience or greatly
{¶ 15} Here, the trial court did not abuse its discretion in imposing non-minimum and consecutive sentences because, given the facts of this case, the sentence is not “greatly excessive under traditional concepts of justice” or “manifestly disproportionate to the crime of the defendant.” See Davis, supra. As we previously stated in State v. Marshall, Cuyahoga App. No. 87334, 2006-Ohio-6271, appellant was extensively involved in the planning оf the robbery. Additionally, he provided the guns that were used to shoot and kill the two victims. Moreover, after the incident, all the perpetrators met at appellant‘s nearby home and appellant divided the stolen money, taking $250.00 for himself. Given thesе facts, the trial court did not abuse its discretion in sentencing appellant to a prison term of 33 years to life. Appellant‘s first assignment of error is without merit.
{¶ 16} Appellant‘s second assignment of error states:
{¶ 17} “The trial court failed to engage in comparison analysis to determine if
{¶ 18} Appellant next complains that the trial court failed to make a finding that his sentence was consistent with similarly situated offenders. R.C.
{¶ 19} “A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender‘s conduct and its impact upon the victim, and consistent with sentenсes imposed for similar crimes committed by similar offenders.”
{¶ 20} The goal of felony sentencing pursuant to R.C.
{¶ 21} In this matter, appellant failed to present evidence to the trial court or to this court to indicate that his sentence is disproportionate to sentences given other
{¶ 22} Appellant‘s third assignment of error states:
{¶ 23} “MARSHALL is entitled to a presumptive minimum sentence because a greater sentence would violate the Ex Post Facto and Due Process Clauses of the United States Constitution.”
{¶ 24} Within this assignment of error, appellant maintains that application of Foster to him, whose alleged criminal conduct pre-dates Foster, violates the Ex Post Facto Clause of Article
{¶ 25} In State v. Mallette, Cuyahoga App. No. 87984, 2007-Ohio-715, we rejected the same argument presented by appellant here by stating the following:
{¶ 26} “In the instant case, Mallette had notice that the sentencing range was the same at the time he committed the offenses as when he was sentenced. Foster did not judicially increase the range of his sentence, nоr did it retroactively apply a
{¶ 27} Subscribing to the conclusion reached in Mallette, supra, and the other cases cited, we find that the trial court did not violate appellant‘s due process rights or the ex post facto prinсiples contained therein by imposing more than minimum or consecutive sentences. Appellant was sentenced within the same statutory range for each of the underlying felony convictions and within the range for the gun specifications that was in existence at the time he committed the crimes. He was at all times provided with fair warning of the sentence he could receive. Accordingly, appellant‘s third assignment of error is without merit.
Judgment affirmed.
It is ordered that appellee recover from аppellant 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 conviction 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.
ANTHONY O. CALABRESE, JR., P.J., and MELODY J. STEWART, J., CONCUR