State v. TaylorState v. Taylor
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO
Plaintiff-Appellee
-vs-
KEITH TAYLOR
Defendant-Appellant
JUDGES:
Hon. William B. Hoffman, P.J.
Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
Case No. CT2023-0064
O P I N I O N
CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2023-0218
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 23, 2024
APPEARANCES:
For Plaintiff-Appellee
RON WELCH, ESQ.
Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth Street
P.O. Box 189
Zanesville, Ohio 43702
For Defendant-Appellant
CHRIS BRIGDON
8138 Somerset Road
Thornville, Ohio 43076
Hoffman, P.J.
{¶1} Defendant-appellant Keith Taylor appeals the judgment entered by the Muskingum County Common Pleas Court convicting him following his pleas of guilty to engaging in a pattern of corrupt activity with a firearm specification (
STATEMENT OF THE FACTS AND CASE
{¶2} On January 25, 2023, Appellant and his co-defendant, Juliana Washington, smashed the windows of five cars parked at FlowFit Studios in Zanesville, Ohio. Appellant and Washington stole purses and wallets from the vehicles, including checks, credit cards, and driver’s licenses belonging to the owners of the vehicles. Appellant and Washington then went to Zanesville Gymnastics and smashed a car window, stealing a victim’s purse which contained credit cards and the victim’s driver’s license.
{¶3} The next day Appellant and Washington smashed another car window at a gymnastics studio, stealing a victim’s checks and identification. Two of the checks stolen from this vehicle were forged and cashed by Appellant and Washington, using driver’s licenses stolen from the Flowfit thefts.
{¶4} On February 7, 2023, Appellant and Washington were introduced to B.K., who was homeless at the time, through a mutual friend. Appellant and Washington
offered B.K. an opportunity to make some money. Appellant and Washington put B.K. in a car with another woman, and instructed them to go through a bank drive-through in Zanesville to cash one of the stolen checks using a stolen driver’s license. After turning the money over to Appellant, B.K. indicated she did not want to be a part of what Appellant was doing, and she wanted out of the car. Appellant drove B.K. to an area behind a strip mall in Zanesville, where Appellant assaulted B.K., striking her with his fists and a handgun until B.K. was unconscious. When she regained consciousness, she made her way to a store in the strip mall, where the police were called. B.K. was taken to the emergency room for treatment.
{¶5} After participating in several “smash and grabs” in the Twinsburg area, Appellant and Washington returned to the Newark/Heath area, where, with the aid of another woman, they attempted to cash several checks stolen from the vehicles in Muskingum County. When the woman attempted to cash one of the stolen checks at a bank branch in Zanesville, she was caught by the drive-through teller because the victim to whom the check belonged was a former employee of the bank branch. The bank called 911, and a police officer stopped the vehicle. When the deputy approached the vehicle, the woman sped away at the urging of Appellant and Washington, who were instructing her via cell phone. A chase ensued on Interstate 70, reaching speeds of 115 mph. The woman crashed the vehicle into a truck in the median, while still on the phone with Appellant and Washington.
{¶6} Appellant was charged by the Muskingum County Grand Jury in a 45-count indictment. Pursuant to a negotiated plea, Appellant pled guilty to engaging in a pattern of corrupt activity with a firearm specification (
of theft (
{¶7} The trial court sentenced Appellant to an aggregate term of incarceration of 21 to 26 ½ years. It is from the July 28, 2023 judgment of the trial court Appellant prosecutes his appeal, assigning as error:
I. SHOULD THIS COURT SHOULD [SIC] REVERSE THE TRIAL COURT’S DECISION TO IMPOSE A MAXIMUM SENTENCE ON COUNT 1 AND COUNT 28; BECAUSE, THE SENTENCE WAS IN CONTRAVENTION OF THE SENTENCING STATUTES
II. SHOULD THIS COURT SHOULD [SIC] REVERSE THE TRIAL COURT’S DECISION TO IMPOSE AN AGGREGATE SENTENCE OF 21 YEARS; BECAUSE, THE SENTENCE WAS IN CONTRAVENTION OF THE SENTENCING STATUTES
I., II.
{¶8} We address both assignments of error together, as Appellant does in his brief. Appellant argues the proportionality of the sentence was inconsistent with the
principles set forth in
{¶9} Appellant first argues the trial court impermissibly relied on advocacy from the prosecution. Appellant argues ten days after Appellant’s arrest, the State made an offer of a recommendation of a twelve-year sentence upon a plea to the same counts to which Appellant pled in the instant case. However, after the co-defendant went to trial, counsel for Appellant represented the State told Appellant if the co-defendant was convicted, the offer was “going up.” Sent. Tr. 12. At the sentencing hearing, the State argued for a sentence of 25 to 30 years.
{¶10} The plea agreement signed by the parties set forth, “[T]he parties agree that the State will make no recommendation as to sentencing at the time of the Defendant’s plea herein. However, both the State and counsel for Defendant reserve the right to argue for the sentence they feel is appropriate at the time of sentencing.” Nothing in the plea agreement precluded the State from arguing for a sentence of more than the twelve years previously offered. Further, the trial court did not accept either of the parties’ arguments concerning sentencing, instead sentencing Appellant to more years than argued by defense counsel, but less years than argued by the State. We find the State was not bound by its previous offer to recommend a sentence of twelve years, and the trial court did not impermissibly rely on the State’s advocacy in sentencing Appellant.
{¶11} Appellant next argues in sentencing, the trial court considered dismissed counts which would have merged in sentencing had Appellant been convicted of these counts. Based on the record before this Court, it is not clear which, if any, of the dismissed counts would have merged had Appellant been convicted of all counts. Appellant cites
this Court to State v. Jenkins, 15 Ohio St. 3d 164, 473 N.E.2d 264 (1984), for the proposition “where two or more aggravating circumstances arise from the same act or indivisible course of conduct and are thus duplicative, the duplicative aggravating circumstances will be merged for purposes of sentencing.” Id. at paragraph 5 of the syllabus. However, Jenkins was a capital case, and the cited portion of the syllabus is qualified by the phrase [i]n the penalty phase of a capital prosecution.” Id. We find Jenkins inapplicable because the instant case is not a capital case. A sentencing court may consider charges which have been dismissed or reduced pursuant to a plea agreement. State v. Rush, 5th Dist. Muskingum No. CT12-0038, 2013-Ohio-2728, 996 N.E.2d 503, ¶ 13. We find the trial court did not err in considering counts dismissed pursuant to the plea agreement in the instant case.
{¶12} Appellant argues the record does not support the sentence when considering the principles set forth in
{¶13} We review felony sentences using the standard of review set forth in
{¶14} When sentencing a defendant, the trial court must consider the purposes and principles of felony sentencing set forth in
recidivism factors in
{¶15} “The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others, to punish the offender, and to promote the effective rehabilitation of the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources.”
{¶16}
{¶17} Nothing in
2929.12. State v. Jones, 163 Ohio St.3d 242, 69 N.E.3d 649, 2020-Ohio-6729, ¶ 42. Instead, we may only determine if the sentence is contrary to law.
{¶18} A sentence is not clearly and convincingly contrary to law where the trial court “considers the principles and purposes of
{¶19} The judgment entry states the trial court considered the principles and purposes of sentencing under
{¶20} Appellant argues generally the sentence in the instant case is disproportionate to the offenses committed, based in part on the State’s original plea offer of twelve years incarceration. Cases violating the Eighth Amendment’s prohibition on cruel and unusual punishment “are limited to those involving sanctions which under the circumstances would be considered shocking to any reasonable person,” and “the penalty must be so greatly disproportionate to the offense as to shock the sense of justice of the community.” State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶
14, quoting McDougle v. Maxwell, 1 Ohio St.2d 68, 70, 30 O.O.2d 38, 203 N.E.2d 334 (1964). Proportionality review should focus on individual sentences, rather than on the cumulative impact of multiple sentences imposed consecutively. Id. at ¶20. “Where none of the individual sentences imposed on an offender are grossly disproportionate to their respective offenses, an aggregate prison term resulting from consecutive imposition of those sentences does not constitute cruel and unusual punishment.” Id. As a general rule, a sentence falling within the terms of a valid statute cannot amount to a cruel and unusual punishment. Id. at ¶21.
{¶21} Appellant does not argue any of his individual sentences are disproportionate to the offenses committed. Each of the individual sentences was within the statutory range, and the maximum sentence was imposed only as to two counts: the felony which covered all of the enterprises Appellant was involved in, and the felonious assault, which in the trial court’s opinion was a separate victim and was not “necessary in this case to perform [the] criminal enterprise.” Sent. Tr. 23. We find the penalties imposed in the instant case are not so greatly disproportionate to the offenses Appellant committed as to shock the sense of justice of the community.
{¶22} The first and second assignments of error are overruled. The judgment of the Muskingum County Common Pleas Court is affirmed.
By: Hoffman, P.J.
Wise, J. and
Baldwin, J. concur