State v. TurnerState v. Turner
Appellee Trial Court No. CR0201601141
v.
Antonio Turner DECISION AND JUDGMENT
Appellant Decided: March 17, 2017
* * * * *
Julia R. Bates, Lucas County Prosecuting Attorney, and Frank H. Spryszak, Assistant Prosecuting Attorney, for appellee.
Ernest E. Bollinger, for appellant.
* * * * *
OSOWIK, J.
{¶ 1} This is an appeal from a sentencing judgment of the Lucas County Court of Common Pleas, sentencing appellant to a total term of incarceration of 11 months following appellant’s conviction on one count of receiving stolen property, in violation of
{¶ 2} Appellant, Antonio Turner, sets forth the following two assignments of error:
I. THE TRIAL COURT ERRED IN FINDING THE OFFENSES TO BE PART OF AN ORGANIZED CRIMINAL ACTIVITY.
II. IN SENTENCING APPELLANT TO PRISON, THE COURT VIOLATED RC 2929.11.
{¶ 3} The following undisputed facts are relevant to this appeal. On the afternoon of January 18, 2016, a Toledo woman was inside a bathroom at her home when she glanced out of a window and observed several unknown males standing on the roof of her home. The startled woman immediately pondered what to do in response to the intruders. She locked herself inside the bathroom. Shortly thereafter, the victim heard the perpetrators smashing a window leading into a hallway of the home.
{¶ 4} Ultimately, the victim looked out of the window of the bathroom where she was hiding and observed four men running from her home to a nearby vehicle. The victim had a clear view and was able to obtain a detailed description of the getaway vehicle. The victim next called for emergency police assistance and relayed all of the information regarding the subject vehicle. Upon emerging from the bathroom, the victim discovered that both of her flatscreen televisions had been stolen.
{¶ 6} During the ensuing commotion of the emergency stop, appellant, who had been hiding beneath one of the stolen flatscreen televisions in the rear of the vehicle, slipped out of the vehicle and falsely portrayed himself to the police officers as an innocent eyewitness bystander.
{¶ 7} Appellant pointed the officers in the direction of appellant’s three accomplices, who were fleeing the scene on foot. Subsequently realizing appellant’s ruse, the officers were later able to identify appellant via video footage captured from their dash cam at the scene and charge appellant for these offenses, in addition to charging the three accomplices.
{¶ 8} On January 25, 2016, appellant was indicted on one count of burglary, in violation of
{¶ 9} On April 7, 2016, pursuant to a voluntarily negotiated plea agreement, appellant pled guilty to the count of receiving stolen property and the count of obstruction of official business. In exchange, the remaining burglary offense was dismissed. The
{¶ 10} Both assignments of error are rooted in the common premise that the trial court acted improperly in sentencing appellant. Accordingly, the assignments will be considered simultaneously.
{¶ 11} On appeal, appellant alleges that the trial court erred in determining that appellant had acted as part of an organized criminal activity and also erred in the term of incarceration imposed. We do not concur.
{¶ 12} It is well-established that appellate court review of felony sentencing in Ohio is no longer conducted pursuant to the abuse of discretion standard. Rather,
{¶ 13} In applying the above-referenced statutory framework to the instant case, we first note that
{¶ 15} As applicable to this case,
{¶ 16} At sentencing in this matter, the trial court specifically determined, “[W]e note further that defendant * * * was involved in what is referred to and defined as organized criminal activity along with his three other co-compliciters. And we[,] therefore[,] find that the defendant’s prior criminal history and his conduct in this offense and the engaging in organized criminal activity, we find that the defendant is not amenable to community control and that prison is consistent with the purposes [of sentencing].”
{¶ 17} As held in State v. Morgan, 10th Dist. Franklin No. 13-AP-620, 2014-Ohio-5661, at ¶ 38, “[A] defendant’s participation in an aggravated robbery along with one or more co-defendants is sufficient to find the incident occurred as part of organized criminal activity.” Although appellant relies upon State v. Roberson, 141 Ohio App.3d 626, 752 N.E.2d 984 (6th Dist.2001) for the assertion that the trial court erred in finding organized criminal activity in this case, we note that Roberson involved an appellant who
{¶ 18} The record of evidence shows that on January 25, 2016, appellant acted in concert with three other individuals in the course of the group unlawfully entering an occupied home in the city of Toledo. The group next stole several flatscreen televisions from the home and fled the scene in a waiting getaway car. The record further shows that appellant concealed himself under one of the stolen televisions in the rear seat of the getaway vehicle at the time the group was pulled over by the police shortly after the crimes were committed and a description of the getaway vehicle was reported by the victim.
{¶ 19} In conjunction with the above, the record shows that although appellant initially engaged in a deception in which he falsely portrayed himself to be an eyewitness bystander, appellant ultimately was revealed to be a member of the group that committed these crimes. Given these facts, we find that the record encompasses ample evidence in support of the requisite statutory finding of organized criminal activity. As such, the imposition of a term of incarceration within the statutory range in this non-violent fifth-degree felony case was lawful.
{¶ 21} The judgment of the Lucas County Court of Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J. _______________________________
Thomas J. Osowik, J. JUDGE
CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.