State v. PhillipsState v. Phillips
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 12, 2021
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Eamonn McDermott, Assistant Prosecuting Attorney, for appellee.
Allison F. Hibbard, for appellant.
KATHLEEN ANN KEOUGH, J.:
{1} Defendant-appellant, Russell Phillips, appeals his sentences following guilty pleas in two cases. For the reasons that follow, we affirm.
{2} In Cuyahoga C.P. No. CR-18-626391-B, Phillips was named in a 20-count indictment along with his codefendants, Donna Ashcraft and Nicholas Frye.
{3} In March 2020, Phillips entered guilty pleas in both cases. In Case No. CR-18-626391-B, he pleaded guilty to two counts of burglary, felonies of the second degree, and four amended counts of attempted burglary, third-degree felonies. In Case No. CR-18-626633-B, Phillips pleaded guilty to two counts of burglary, second-degree felonies, and five amended counts of attempted burglary, felonies of the third degree. All remaining counts in both cases were nolled. The matter was passed for sentencing for the purpose of obtaining a presentence investigation and psychological evaluation for mitigation. Phillips‘s previously posted bond remained in place pending sentencing.
{4} Due to the COVID-19 pandemic, sentencing was reset multiple times. On June 29, 2020, Phillips requested a continuance because he had not yet completed the presentence investigation and psychological evaluation due to the pandemic. He maintained that the evaluations were necessary for sentencing. The
{5} On November 11, 2020, Phillips appeared for sentencing with stand-in counsel, who requested that the court consider the sentencing memorandum filed on Phillips‘s behalf. The trial court sentenced Phillips in Case No. CR-18-626391-B to seven years on each burglary offense, and nine months on each of the four attempted burglary offenses. In Case No. CR-18-626633-B, the court sentenced Phillips to seven years on each burglary offense and nine months on each of the five attempted burglary offenses. All sentences were ordered to be served concurrently, for a total prison sentence of seven years.
{6} Phillips appeals, contending in his sole assignment of error that the trial court‘s sentence is not supported by the record and is contrary to law. Specifically, he contends that the trial court failed to consider the sentencing factors found in
{7} We review felony sentences under the standard set forth in
{8} When sentencing a defendant, a court must consider the purposes and principles of felony sentencing set forth in
{9} In this case, prior to sentencing, the trial court acknowledged on the record that it took into “consideration * * * the record, the oral statements made [at the sentencing hearing], the purposes and principles of sentencing, the serious and recidivism factors relevant to the offense and this offender, [and] the need for deterrence, incapacitation, rehabilitation, and restitution.” (Tr. 25-26.) Although the trial court did not specifically state on the record that it considered ”
{10} Phillips contends that his sentence is also contrary to law because the court did not specifically state that it reviewed his sentencing memorandum, and
{11} First, the trial court acknowledged that it “considered the record,” which included both reports prepared for the purposes of sentencing, and the sentencing memoranda that counsel filed. Moreover, the court stated that it considered the arguments made during sentencing, which included counsel‘s request that the trial court take into consideration Phillips‘s mental health issues and the sentencing memorandum. Finally, Phillips stated at sentencing that he took responsibility for his actions and expressed remorse. Accordingly, we find the court imposed sentence after considering all relevant and available information.
{12} Second, the fact that Phillips‘s codefendant received a lesser sentence does not render Phillips‘s sentence contrary to law. The record demonstrates that unlike Phillips, Frye agreed to cooperate with the police and testify against Phillips and Ashcraft. This agreement seemingly precipitated Phillips to publish a post on Facebook insinuating that Frye was a “snitch” or “a rat.” The court was well within its discretion to consider Phillips‘s conduct when imposing sentence. Moreover, mere disparity in sentencing between codefendants does not render the sentence
{13} Finally, we find that Phillips was not prejudiced with stand-in counsel. At the hearing, stand-in counsel advised the court that there was no reason not to go forward with sentencing. Although Phillips focuses on a prior statement made by his trial counsel that the case was “extremely complicated” and “necessary” for trial counsel to be present “and not a stand[-]in counsel,” we note that this statement was made in support of a motion to continue sentencing, and after this statement was made, trial counsel filed a thorough sentencing memorandum highlighting the relevant mitigation information and advocating for a minimum sentence. Finally, we note that Phillips‘s stand-in counsel was from the same law firm as his trial counsel. Accordingly, the appearance of stand-in counsel at sentencing did not render Phillips‘s sentence contrary to law.
{14} The assignment of error is overruled.
{15} 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. The defendant‘s convictions having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.
KATHLEEN ANN KEOUGH, JUDGE
ANITA LASTER MAYS, P.J., and EILEEN A. GALLAGHER, J., CONCUR