STATE OF OHIO, PLAINTIFF-APPELLEE vs. CORY PERKINS, DEFENDANT-APPELLANT
Nos. 106877 and 107155
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
January 10, 2019
[Cite as State v. Perkins, 2019-Ohio-88.]
BEFORE: Keough, J., E.T. Gallagher, P.J., and Blackmon, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED; Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-17-618690-A, CR-17-617762-A and CR-17-623157-A; RELEASED AND JOURNALIZED: January 10, 2019
Russell S. Bensing
600 IMG Building
1360 East Ninth Street
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
By: Frank Romeo Zeleznikar
James Moss
Assistant County Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} In these consolidated appeals, defendant-aрpellant, Cory Perkins, appeals from the trial court‘s judgment sentencing him to consecutive sentences totaling eleven years in prison. Perkins contends that the consecutive sentences were not supported by the record. For the reasons that follow, we affirm.
I. Background
{¶2} In November 2017, Perkins pleaded guilty in three cases that arose from his robberies of three banks over four days in May 2017.
{¶3} In Cuyahoga C.P. No. CR-17-617762, regarding the robbery of PNC bank on May 20, 2017, Perkins pleaded guilty to robbery in violation of
{¶4} In Cuyahoga C.P. No. CR-17-618690, regarding the robbery of Huntingon Bank on May 22, 2017, Perkins pleaded guilty to robbery in violation of
{¶5} In Cuyahoga C.P. No. CR-17-623157, regarding the robbery of Key Bank on May 23, 2017, Perkins pleaded guilty to robbery in violation of
{¶6} All of the robbery and abduсtion offenses were third-degree felonies. Perkins committed these offenses while he was on community control in Cuyahoga C.P. No. CR-15-597566, in which he had pleaded guilty to theft, aggravatеd theft, and money laundering.
{¶7} At sentencing, the trial court merged the abduction count with the robbery count in each case, and the state elected to proceed to sentencing on each robbery offense. The trial court sentenced Perkins to four years each in Cuyahoga C.P. Nos. CR-17-618690 and CR-17-617762, and to three years in Cuyahoga C.P. No. CR-17-623157. The court ordered that the sentences would be served consecutively, for an aggregate term of eleven years in prison, and concurrent with CR-15-597566, in which the trial court had revoked Perkins‘s community control sanctions and imposed nine months in prison. This appeal followed.
II. Law and Analysis
{¶8} In his single assignment of error, Perkins contends that the trial court erred in imposing conseсutive sentences because they were “clearly and convincingly unsupported by the record.”
{¶9}
{¶10} There are two ways a defendant can challenge consecutive sentences on appeal. First, the defendant can argue that consecutive sentences are contrary to law because the court failed to make the necessary findings required by
{¶11} In imposing consecutive sentences in this case, the trial court stated:
So you‘re looking аt an aggregate of 11 years. I‘ll run them consecutive. The reason[s] why I‘m running them consecutive are the following reasons: consecutive sentences are necessary to protect the public from future crime and to punish the offender, they‘re not disproportionate to your conduct and the danger that you pose to the public.
You committed one of these offenses or all of them while you were under community control sanctions in case number 597566.
The offenses were also committed as pаrt of a course of conduct and that harm caused by two or more multiple offenses was so great or unusual that no single prison term for any of the offenses would adequаtely reflect the seriousness of the crime.
And finally, once again, your history of criminal conduct demonstrates that consecutive sentences are necessary.
{¶13} Pursuant to
“Clear and convincing evidence is that measure or degree of proof which is more than a mere ‘preponderanсe of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Id. at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶14} As this court has stated:
It is important to understand that the “clear and convincing” standard applied in
R.C. 2953.08(G)(2) is not discretionary. In fact,R.C. 2953.08(G)(2) makes it clear that “[t]he appellate court‘s standard for review is not whether the sentencing court abused its discretion.” As a practical consideration, this means that appellatе courts are prohibited from substituting their judgment for that of the trial judge.It is also important to understand that the clear and convincing standard used by
R.C. 2953.08(G)(2) is written in the negative. It does not say that the trial judge must have clear and convincing evidence to support its findings. Instead, it is the court of appeals that must clearly and convincingly find that the record does not support the court‘s findings. In other words, the restriction is on the appellate court, not the trial judge. This is an extremely deferential standard of review.
State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 20-21 (8th Dist.).
{¶15} We have no basis for cоncluding that the record does not support the court‘s findings under
{¶16} Perkins argues, however, that consecutive sentences were not warranted because although he admittedly has a substantial сriminal history, many of his prior convictions were due to his drug use and did not involve violence. He argues further that he suffered from post-traumatic stress syndrome, which played a part in his criminal activities. Finally, he contends that no weapons were used and no harm was inflicted on anyone during the commission of the robberies.
{¶17} But these are the very same arguments defense counsel raised in the trial court at sentencing. (Tr. 30-31.) Perkins‘s argument, therefore, seems to be that the trial court abused its discretion by not giving enough weight to these faсtors when imposing consecutive sentences. But
{¶18} We find nothing demonstrating that in imposing consecutive sentences, the trial court relied on a fact that was demonstrably wrong (for example, attributing to Perkins a prior conviction that did not exist), in which case the trial court‘s findings would be clearly erroneous. On the record before us, we cannot say that the trial court’ findings under
{¶19} Judgment affirmed.
It is ordered that appellee recover from appеllant 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 сommon 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.
KATHLEEN ANN KEOUGH, JUDGE
EILEEN T. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR