STATE OF OHIO v. APOSTOLOS N. THEODOROU
No. 105630
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 21, 2017
2017-Ohio-9171
Keough, A.J., Blackmon, J., and Celebrezze, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-607318-A
JUDGMENT: AFFIRMED AND REMANDED
Gregory Scott Robey
Robey & Robey
14402 Granger Road
Cleveland, Ohio 44137
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
By: Patrick Lavelle
Andrew F. Rogalski
Assistant County Prosecutors
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Apostolos N. Theodorou (“Theodorou“), appeals his sentence following a guilty plea. For the reasons that follow, we affirm and remand.
{¶2} In 2016, Theodorou sold heroin laced with fentanyl to his friend, Travis Wilson, who subsequently died from an overdose. In June 2016, Theodorou was named in a fifteen-count indictment charging him with eight counts of drug trafficking, three counts of drug possession, and one count each of involuntary manslaughter, corrupting another with drugs, tampering with evidence, and possessing criminal tools. The indictment contained one-year firearm specifications and sought forfeiture of four firearms.
{¶3} In February 2017, Theodorou pleaded guilty to an amended count of involuntary manslaughter, a felony of the third degree (Count 1); corrupting another with drugs, a second-degree felony (Count 2); trafficking, a fourth-degree felony (Counts 5 and 9); drug possession, a felony of the fourth degree (Count 13); and possessing criminal tools, a fifth-degree felony (Count 15). As part of the plea agreement, Theodorou agreed to forfeit the four firearms in his possession. The court found that Counts 1 and 2 were allied offenses, and the state elected that Theodorou be sentenced on Count 2.
{¶4} The trial court sentenced Theodorou to a total of five years in prison. It denied Theodorou‘s request to waive fines, ordering that he pay the mandatory minimum
{¶5} Theodorou now appeals, raising four assignments of error.
I. Sentence Unsupported by the Record
{¶6} In his first assignment of error, Theodorou contends that the trial court erred when it imposed a five-year prison term that is not supported by the record.
{¶7} Appellate review of felony sentences is governed by
{¶8} In this case, Theodorou was sentenced on a number of charges — the most egregious being corrupting another with drugs, a second-degree felony, and was sentenced to a prison term of five years. The five-year sentence is within the statutory range for a second-degree felony. See
{¶9} Additionally, the record reflects that the trial court considered the purposes and principles of felony sentencing set forth in
{¶10} Theodorou contends that there is clear and convincing evidence that the record does not support the trial court‘s findings and the five-year sentence because the trial court failed to consider all of the “less serious” and “less likely” recidivism factors, and gave undue weight to the more serious and more likely recidivism factors.
{¶11} The seriousness and recidivism factors listed in
{¶12} Theodorou contends that a “less likely” recidivism factor that the court did not consider is that “the unique circumstances of the case, namely the unexpected overdose death of the decedent, makes this offense unlikely to recur.” While this statement may be true for the decedent in this case, the record reflects that despite the
{¶13} Accordingly, based on the record before this court, we cannot find by clear and convincing evidence that the record does not support the sentence. Theodorou‘s first assignment of error is overruled.
II. Disproportionate Sentence
{¶14} Theodorou contends in his second assignment of error that the trial court erred when it sentenced him to a five-year prison term and imposed a $7,500 fine, because it is disproportionate to sentences imposed for similar crimes upon similarly situated offenders.
{¶15}
{¶16} “A defendant alleging disproportionality in felony sentencing has the burden of producing evidence to ‘indicate that his sentence is directly disproportionate to sentences given to other offenders with similar records who have committed these
{¶17} Prior to sentencing, the defense submitted a sentencing memorandum that included a proportionate sentence analysis demonstrating that similarly situated offenders who committed similar crimes received sentences ranging from community control sanctions up to four years in prison. Accordingly, the issue was properly preserved for appellate review.
{¶18} Considering the sentences and facts involving Theodorou‘s codefendants, Joshua Taylor and Kaitlyn McCall, Taylor was placed on community control sanctions for five years after pleading guilty to two fourth-degree felonies. The statements made at McCall and Theodorou‘s sentencing reveal that Taylor stayed on scene and called paramedics to help Wilson. McCall received a prison term of 18 months after pleading guilty to two third-degree felonies. The sentencing statements reveal that McCall fled the scene and discarded Wilson‘s cell phone during her flight. In his case, Theodorou pleaded guilty to felonies of the second, third, fourth and fifth degree. The record shows that even after selling Wilson the heroin that caused his death, Theodorou continued
{¶19} A review of the relevant case law regarding defendants convicted of selling heroin to individuals who later passed away from a drug overdose reveals that Theodorou‘s five-year prison sentence is not disproportionate. See State v. Edmonson, 8th Dist. Cuyahoga No. 104528, 2017-Ohio-745 (defendant found guilty of involuntary manslaughter, corrupting another with drugs, and multiple counts of drug trafficking and possession; the court imposed an overall sentence of nine years, but specifically, imposed an eight-year prison sentence for the offense of corrupting another with drugs); State v. Potee, 12th Dist. Clermont No. CA2016-06-045, 2017-Ohio-2926 (defendant found guilty of involuntary manslaughter, two counts of corrupting another with drugs, and trafficking — sentenced to prison for fifteen and one-half years); State v. Zusman, 11th Dist. Lake No. 2014-L-087, 2015-Ohio-3218 (defendant found guilty of involuntary manslaughter, corrupting another with drugs, trafficking, tampering with evidence, and possessing criminal tools — sentenced to 12.5 years in prison); State v. Kramer, 3d Dist. Defiance No. 4-15-14, 2016-Ohio-2984 (defendant found guilty of involuntary manslaughter and ordered to serve a prison sentence of nine years); State v. Karkoska, Cuyahoga C.P. No. CR-13-580222 (defendant pleaded guilty to involuntary manslaughter, corrupting another with drugs, trafficking, drug possession, and possessing criminal tools — sentenced to four years in prison).
{¶21} The second assignment of error is overruled.
III. Imposition of Fine
{¶22} In his third assignment of error, Theodorou contends that the court abused its discretion when it imposed a $7,500 fine, despite his timely filed motion to waive fines and costs, with a supporting affidavit of indigency.
{¶23} An offender who files an affidavit alleging he is indigent and unable to pay the mandatory fine is not automatically entitled to a waiver of that fine. State v. Gipson, 80 Ohio St.3d 626, 634, 687 N.E.2d 750 (1998).
{¶25} In this case, the court noted that Theodorou filed the requisite affidavit of indigency. After considering arguments for and against waiver, the court denied Theodorou‘s request, imposing the mandatory minimum fine of $7,500, but waiving court costs. The record reflects that the trial court considered Theodorou‘s present and future ability to pay the financial sanction. Before imposing sentence, the trial court noted that it considered the record, the oral statements made during sentencing, plea negotiations, mitigation reports, letters, and the presentence investigation report, which revealed that Theodorou was in his early thirties, owned his own home, worked previously as a loan officer, posted bond, and retained counsel. This information allowed the court to make an informed decision about Theodorou‘s future ability to pay the fine, and we find no abuse of discretion by the trial court.
{¶26} Accordingly, Theodorou‘s third assignment of error is overruled.
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 appeal is terminated. Case remanded to the trial court for correction and 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, ADMINISTRATIVE JUDGE
PATRICIA ANN BLACKMON, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR