2005 Ohio 4653 | Ohio Ct. App. | 2005
Lead Opinion
{¶ 2} On September 19, 2001, appellant was indicted by the Trumbull County Grand Jury on four counts: count one, robbery, a felony of the second degree, in violation of R.C.
{¶ 3} A jury trial commenced on February 4, 2002. On February 6, 2002, the jury returned a verdict of guilty on all four counts.
{¶ 4} The facts at trial revealed that on June 10, 2001, Save-A-Step convenience store in Hubbard Township, Trumbull County, Ohio, was robbed. Jennifer Samble ("Samble"), a cashier at Save-A-Step, testified for appellee, the state of Ohio, that at approximately 6:20 a.m., she noticed a tall, black male ask a patron for directions. Samble saw the individual talk to another customer, Kenneth Speed ("Speed"), and then he began to shop. Samble indicated that the individual's shopping manner was odd due to the fact that over the course of about twenty minutes, he would wander around the store, select an item, bring it to the counter, then wander the store again, nervously reaching for his wallet each time he approached the cash register.
{¶ 5} At about 6:40 a.m., Samble stated that the individual became very jittery and nervous and asked her if she took credit cards. The individual's uneasy demeanor caused Samble to activate the store's panic alarm. Samble maintained that the individual then informed her that he was robbing the store, stuck his hand in his pocket, told her that he had a gun, and demanded that she give him money or he would kill her. Samble stepped back and yelled out that she was being robbed. Samble then dialed 9-1-1.
{¶ 6} Debra Grilli ("Grilli"), a customer in the store during the incident, testified for appellee that when she first noticed the individual, he was "antsy" and pacing the store. Grilli stated that she was holding a cup of coffee that she was waiting to pay for at the counter, and a five dollar bill. After hearing Samble's exclamation, the individual backed away from the counter and took the five dollar bill from Grilli's hand. The individual demanded more money from Grilli which she did not have because she left her purse in the car.
{¶ 7} Apparently still desiring more money, the individual approached another patron, George Roth ("Roth"). Roth testified for appellee that while he was waiting in line, the individual spun him around, removed his wallet from his back pocket, and fled the store. Samble stated that the individual drove away in a "white Honda Civic looking car." Roth described the individual's vehicle as a "light colored foreign car."1
{¶ 8} Hubbard Township Police arrived at the scene within four minutes. Officer Gregory Tarr ("Officer Tarr"), with the Hubbard Township Police Department ("HTPD"), interviewed witnesses, and discovered that Samble observed the individual talk to Speed while he was in the store.
{¶ 9} The following day, June 11, 2001, Detective Michael Begeot ("Detective Begeot"), with the HTPD, was assigned to investigate the robbery. Detective Begeot tracked down Speed, a prison guard, who told him that he knew appellant all of his life and that he saw him in the store on the morning of the robberies. According to Detective Begeot, Speed further stated that appellant may have been recently released from jail or may be on parole. In fact, appellant was on parole and with the assistance of the Ohio Adult Parole Authority, Detective Begeot assembled a six-person photo line-up which included a picture of appellant. Based upon identifications by Samble, Grilli, and Roth, appellant was arrested and charged with three counts of robbery and theft from an elderly person.
{¶ 10} Pursuant to its February 26, 2002 judgment entry, the trial court sentenced appellant to a prison term of eight years on count one; five years on count two to run consecutive to count one; five years on count three to run concurrent to counts one and two; and count four to merge with count three for a total period of incarceration of thirteen years.
{¶ 11} On March 22, 2002, appellant filed a notice of appeal, Case No. 2002-T-0035, namely alleging that his conviction with respect to count four, theft from an elderly person, was not supported by sufficient evidence, and that the trial court failed to comply with R.C.
{¶ 12} A re-sentencing hearing was held on August 2, 2004. Pursuant to its August 2, 2004 judgment entry, the trial court sentenced appellant to a prison term of eight years on count one; five years on count two to run consecutive to count one; five years on count three to run concurrent to counts one and two for a total period of incarceration of thirteen years. It is from that judgment that appellant filed a timely notice of appeal and makes the following assignment of error:
{¶ 13} "The trial court's imposition of consecutive sentences upon appellant based upon findings not made by a jury nor admitted by appellant is contrary to law and violates appellant's right to due process, as guaranteed by the
{¶ 14} In his sole assignment of error, appellant argues that the trial court's imposition of consecutive sentences based upon findings, pursuant to R.C.
{¶ 15} This court stated in State v. Rupert, 11th Dist. No. 2003-L-154,
{¶ 16} "[a] reviewing court will not reverse a sentence unless an appellant demonstrates that the trial court was statutorily incorrect or that it abused its discretion by failing to consider sentencing factors.State v. Chapman (Mar. 17, 2000), 11th Dist. No. 98-P-0075, 2000 Ohio App. LEXIS 1074, * * * at 10. `The term "abuse of discretion" connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable.' State v. Adams
(1980),
{¶ 17} "Before imposing consecutive sentences, a trial court must make the findings contained in R.C.
{¶ 18} "If a trial court merely asserts that it has reviewed the provisions in R.C.
{¶ 19} "Furthermore, when consecutive sentences are imposed under R.C.
{¶ 20} "`(2) The court shall impose a sentence and shall make a finding that gives its reasons for selecting the sentence imposed in any of the following circumstances:
{¶ 21} "`(* * *)
{¶ 22} "`(c) If it imposes consecutive sentences under section
{¶ 23} In the case at bar, appellant agrees that R.C.
{¶ 24} With respect to the trial court's justification for consecutive sentences regarding counts one and two, the trial court stated at the re-sentencing hearing that:
{¶ 25} "[c]onsecutive sentences are necessary to protect the public because [appellant has] not been rehabilitated after serving two prior prison terms for offenses of violence;
{¶ 26} "[Appellant] committed these offenses while on parole for another offense and demonstrated that he would not conform his behavior to the laws of this State when released on parole supervision;
{¶ 27} "Consecutive sentences are necessary to punish the offender for the same reasons;
{¶ 28} "Consecutive sentences are not disproportionate to the seriousness of [appellant's] conduct because [appellant] chose to rob three different people on the same day and while he was on parole;
{¶ 29} "Consecutive sentences are not disproportionate to the danger [appellant] poses to the public because he has demonstrated that he does not respond to rehabilitative efforts, does not conform his behavior when released under supervision, and his danger to the public can only be limited through incarceration;
{¶ 30} "Consecutive sentences are necessary because [appellant] was on the post-release sanction of parole at the time [of the] offense;
{¶ 31} "[Appellant's] criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crimes because he has consistently failed to respond to rehabilitative efforts, prison sentences, or parole."
{¶ 32} The foregoing demonstrates that the trial court made findings under R.C.
{¶ 33} Appellant's reliance here on Blakely v. Washington (2004),
{¶ 34} According to Apprendi v. New Jersey (2000),
{¶ 35} "Blakely refined the Apprendi rule when it held that `the "statutory maximum" for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdictor admitted by the defendant.' (Emphasis sic.)" Rupert, supra, at ¶ 45, quoting Blakely, supra, at 2537.
{¶ 36} Blakely and Apprendi are distinguishable from the instant case because they deal with sentencing for a single crime.
{¶ 37} We stated in Rupert, supra, at ¶ 47, that:
{¶ 38} "Ohio courts have consistently held Apprendi does not apply to consecutive sentences as long as the sentence does not exceed the statutory maximum for each individual underlying offense. See State v.Carter, 6th Dist. No. L-00-1082, [2002-Ohio-3433, at ¶ 25] * * *. Accord, State v. Gambrel (Feb. 2, 2001), 2d Dist. No. 2000-CA-29, 2001 Ohio App. LEXIS 339, * * * at 4; State v. Brown, 2d Dist. No. 18643, [ 2002-Ohio-277], * * * at 5 * * *; State v. Wilson (Oct. 25, 2002), 6th Dist. No. L-01-1196, [2002-Ohio-5920]. Federal courts have also held consecutive sentences do not conflict with Apprendi. See United Statesv. Wingo (C.A.6, 2003), 76 Fed.Appx. 30, at 35; United States v.Sauceda (C.A.6, 2002), 46 Fed.Appx. 322, at 323. [See, also, UnitedStates v. Booker (2005),
{¶ 39} Here, appellant was not sentenced for a single crime. Appellant's individual sentences are each within the statutory range.Blakely is not applicable to appellant's sentence. Thus, with respect to the instant case, Ohio's sentencing scheme is not unconstitutional in light of Apprendi, Blakely, and Booker.
{¶ 40} For the foregoing reasons, appellant's sole assignment of error is not well-taken. The judgment of the Trumbull County Court of Common Pleas is affirmed.
O'toole, J., concurs,
O'Neill, J., dissents with Dissenting Opinion.
Dissenting Opinion
{¶ 41} I respectfully dissent. The sentence is constitutionally infirm in light of the United States Supreme Court's decision in Blakely v.Washington.2
{¶ 42} For the reasons stated in my prior concurring and dissenting opinions, the trial court's imposition of consecutive sentences violated the
{¶ 43} This matter should be remanded for resentencing consistent withBlakely v. Washington.
