State v. Anderson

2017 Ohio 4186

Opinion

[Cite as State v. Anderson, 2017-Ohio-4186.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104977

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

LATWAN L. ANDERSON DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-603794-A

BEFORE: McCormack, P.J., Laster Mays, J., and Celebrezze, J.

RELEASED AND JOURNALIZED: June 8, 2017 ATTORNEYS FOR APPELLANT

Mark A. Stanton Cuyahoga County Public Defender

Jeffrey Gamso Assistant Public Defender 310 Lakeside Ave., Ste. 200 Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor

Ashley B. Kilbane Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, P.J.:

{¶1} Defendant-appellant Latwan Anderson appeals from his conviction for

aggravated robbery, kidnapping, and tampering with evidence. For the reasons that

follow, we affirm.

{¶2} Anderson was charged in two cases for his involvement in three robberies.

In Cuyahoga C.P. No. CR-16-603854, he was charged with one count of aggravated

robbery, two counts of robbery, two counts of kidnapping, and one count of petty theft.

All of the charges pertain to an incident that occurred on January 10, 2016, and five of the

six counts included one- and three-year firearm specifications. In Cuyahoga C.P. No.

CR-16-603794, Anderson was charged in an 18-count indictment that stems from an

incident on January 24, 2016, and an incident on February 12, 2016. These charges

included three counts of aggravated robbery (Counts 1, 7, and 12), nine counts of robbery

(Counts 2-4, 8-10, and 13-15), three counts of kidnapping (Counts 5, 11, and 16), one

count of petty theft (Count 6), one count of theft (Count 17), and one count of tampering

with evidence (Count 18). The indictment included multiple one- and three-year firearm

specifications and multiple forfeiture specifications.

{¶3} On July 26, 2016, Anderson entered into a guilty plea to amended charges.

In Case No. 603854, Anderson pleaded guilty to aggravated robbery in violation of R.C.

2911.01(A)(1) in Count 1, and the attendant one-year firearm specification, and

kidnapping in violation of R.C. 2905.01(A)(2) in Count 5. All remaining charges and

specifications were nolled. In Case No. 603794, Anderson pleaded guilty to aggravated robbery in violation of R.C. 2911.01(A)(1) in Count 1, and its attendant three-year

firearm specification, aggravated robbery in violation of R.C. 2911.01(A)(1) in Count 7,

and its attendant forfeiture specification, and tampering with evidence in violation of R.C.

2921.12(A)(1) in Count 18. All remaining charges and specifications were nolled.

{¶4} On August 23, 2016, the trial court imposed a prison sentence. In Case

No. 603854, the court sentenced Anderson to three years each on the aggravated robbery

and the kidnapping, to be served concurrently, and one year on the firearm specification,

to be served consecutively to the underlying charge, for a total of four years. In Case

No. 603794, the court sentenced Anderson to three years each on the aggravated robberies

in Count 1 and 7, as well as the attendant firearm specification, to be served

consecutively, and 36 months on the tampering charge in Count 18, to be served

concurrently, for a total of nine years. The total aggregate sentence for both cases was

13 years in prison.

{¶5} Anderson now appeals his sentence, contending that consecutive sentences

were not supported by the record “when no individual sentence involved is the maximum

available for the offense and when the total time imposed for consecutive sentences is

less than the maximum sentence for any one of the individual sentences made

consecutive.” Anderson essentially argues that the court erred in imposing consecutive

sentences where it did not impose the maximum sentence on the individual offenses,

because if the court finds that a sentence less than the maximum is sufficient, then the

record does not support consecutive sentences. Anderson contends that this is particularly true when the individual sentences served consecutively do not amount to the

available maximum sentence. We find no merit to Anderson’s argument.

{¶6} In reviewing felony sentences, we do not review the sentence for an abuse

of discretion. R.C. 2953.08(G)(2); see also State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, 59 N.E.3d 1231. Rather, we may increase, reduce, modify a sentence,

or vacate and remand for resentencing if we clearly and convincingly find that the record

does not support the sentencing court’s statutory findings under R.C. 2929.14(C)(4) or the

sentence is contrary to law. State v. Wenmoth, 8th Dist. Cuyahoga No. 103520,

2016-Ohio-5135, ¶ 12, citing R.C. 2953.08(G)(2).

{¶7} A sentence is contrary to law if it falls outside the statutory range for the

particular degree of offense or if the trial court fails to consider the purposes and

principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors set

forth in R.C. 2929.12. State v. Pawlak, 8th Dist. Cuyahoga No. 103444,

2016-Ohio-5926, ¶ 58. Courts have “full discretion” to impose a sentence within the

applicable statutory range. State v. Collier, 8th Dist. Cuyahoga No. 95572,

2011-Ohio-2791, ¶ 15, citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470, paragraph seven of the syllabus. Therefore, a sentence imposed within the

statutory range is “presumptively valid.” Collier at ¶ 15.

{¶8} Here, Anderson does not dispute that he was sentenced within the statutory

range for his offenses, and he does not argue that the court failed to consider the

principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12. We must therefore determine whether we “clearly and

convincingly find that the record does not support the sentencing court’s statutory

findings under R.C. 2929.14(C)(4).” Wenmoth; R.C. 2953.08(G)(2).

{¶9} In order to impose consecutive sentences, the trial court must make findings

set forth in R.C. 2929.14(C)(4) and incorporate those findings into the journal entry of

sentence. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.

R.C. 2929.14(C)(4) provides that the trial court must find that consecutive sentences are

necessary to protect the public from future crime or to punish the offender, that such

sentences would not be disproportionate to the seriousness of the conduct and to the

danger the offender poses to the public, and that one of the following applies:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under postrelease control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

{¶10} Compliance with R.C. 2929.14(C)(4) requires the trial court to make the

statutory findings at the sentencing hearing, “and by doing so it affords notice to the

offender and to defense counsel.” Bonnell at ¶ 29. “Findings,” for these purposes,

means that “‘the [trial] court must note that it engaged in the analysis’ and that it ‘has considered the statutory criteria and specifie[d] which of the given bases warrants its

decision.’” Id. at ¶ 26, quoting State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d

131 (1999). Further, the reviewing court must be able to determine that the record

contains evidence to support the findings. State v. Davis, 8th Dist. Cuyahoga No.

102639, 2015-Ohio-4501, ¶ 21, citing Bonnell at ¶ 29.

{¶11} Here, the record reflects that in setting forth the consecutive sentence

requirements of R.C. 2929.14(C)(4), the trial court stated:

Running these cases and counts consecutive to each other is consistent with the requirements of R.C. 2929.14(C)(4), which states that I have to make a finding that consecutive sentences [are] necessary to protect the public from future crime or to punish the offender, and that consecutive sentences are not disproportionate to the seriousness of Mr. Anderson’s conduct and to the danger that he poses to the public.

The court also finds * * * [that] subpart (b) applies in this situation, that at

least two of the multiple offenses were committed as part of one or more

courses of conduct, and the harm caused by two or more or multiple

offenses so committed was so great or unusual, that no single prison term

for any of the offenses committed as part of any of the courses of the

conduct adequately reflects the seriousness of the offender’s conduct.

{¶12} In explaining the sentence, the court continued:

And this is the absolute minimum sentence that I thought was appropriate in

this circumstance. Others may have imposed a greater sentence. But the

obligation is to impose the minimum sentence that addresses the situation.

And I think I’ve done that with 13 years. And clearly it is a situation where multiple offenses have occurred over a one-month period [in] which

a weapon was used in each one. And it seems to me that consecutive

sentences are, in fact, required and fall clearly within the guidelines of the

statute.

{¶13} The record also demonstrates that prior to imposing sentence, the court

carefully considered the nature of the offenses, the presumption of prison, Anderson’s

conduct, and his criminal history. The court noted Anderson’s minimal criminal record

and the fact that Anderson may suffer from “a number of addictions to drugs * * * that

may or may not have some reason for [Anderson] to commit these aggravated robberies

and kidnapping.” However, the court determined that Anderson’s apparent drug

addiction is not sufficient to avoid prison, “given the nature of the charges * * * and

[Anderson’s] conduct in this case.”

{¶14} In considering the appropriate sentence for Anderson, the court continued:

The next thing for me to consider is how do I approach each one of these events and what is the appropriate sentence for you, given the three aggravated robberies in a very short time period, essentially one month period, and the use of the weapon.

And the way you did it with regard to the victims working at the Shell station and at the Dollar Store, certainly tells me that the people working at that store, who go in every night to do their job, this is, I would suggest, their worst nightmare, is to have someone approach them with a weapon, brandish the weapon in the way in which you did, and place them at a tremendous risk and not knowing if you are going to pull the trigger or not. I would view that as that you have injured those people. You have caused them harm. And if not physical harm, then psychological harm for the fear that you have placed in their life, placing their families at risk, and not knowing if they’re going to make it through the evening or not. Whatever your intentions were for each one of these circumstances with the weapon, the three aggravated robberies, those individuals at the end of that weapon, at the other end of the weapon, had no idea what you were going to do. So I think your conduct is very serious and the nature of your conduct is very serious and the nature of your conduct deserves a significant amount of time in prison for each one of these circumstances.

And I don’t think it is appropriate for me to weigh whether one robbery

versus the other robbery in terms of whether one is worse than the other.

It seems to me that they’re all fairly the same. And the risk for these

individuals are the same in each situation.

{¶15} In light of the foregoing, we find the trial court made all of the required

consecutive sentence findings and it engaged in the analysis required under R.C.

2929.14(C)(4). Additionally, under these facts, we cannot “clearly and convincingly”

find that the record does not support the court’s findings.

{¶16} Anderson argues that because the trial court did not impose a maximum

sentence, the record cannot support consecutive sentence findings. However, the law does

not require the court to impose maximum sentences in order to impose the sentences

consecutively. And in fact, the court’s duty to provide a sentence reasonably calculated

to protect the public from future crime by the offender and to punish the offender using

the minimum sanctions that the court determines will accomplish those purposes (along

with seriousness and recidivism factors) is separate and apart from the court’s duty to

make findings when considering whether consecutive sentences are warranted. Thus,

the trial court engages in different analyses. It is therefore entirely possible in this case

that the trial court found that Anderson did not pose the greatest likelihood to re-offend, and therefore did not impose a maximum sentence, while still finding that a single term of

three years did not adequately reflect the seriousness of Anderson’s conduct or adequately

protect the public, and therefore impose consecutive sentences.

{¶17} Trial courts have broad discretion in fashioning the appropriate felony

sentence. State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, ¶ 36 (“The

General Assembly has afforded judges great discretion in fashioning proper sentences,

constrained only by guideposts that require the sentencing judge to consider certain

factors that help determine the seriousness of the crime and the likelihood of

recidivism.”); State v. Anderson, 2016-Ohio-7044, 62 N.E.3d 229, ¶ 1 (8th Dist.) (“There

is arguably nothing more unassailable than the trial court’s discretion to fashion final

sentences.”); State v. Malone, 2016-Ohio-5556, 61 N.E.3d 46, ¶ 11 (3d Dist.), citing R.C.

2929.13(A); R.C. 2929.12(A) (stating that a court that imposes sentence for a felony

offender has discretion to determine the most effective way to comply with the purposes

and principles of sentencing set forth in [R.C. 2929.11]”). This discretion includes

finding that maximum sentences are not necessary, while also finding that consecutive

sentences are warranted.

{¶18} Accordingly, given the trial court’s discretion in fashioning a felony

sentence and this court’s limited review of a trial court’s sentence, we find that the trial

court’s failure to impose maximum sentences did not preclude the trial court’s imposition

of consecutive sentences.

{¶19} Anderson’s sole assignment of error is overruled. {¶20} Judgment affirmed.

It is ordered that appellee recover of 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 conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

_______________________________________ TIM McCORMACK, PRESIDING JUDGE

ANITA LASTER MAYS, J., and FRANK D. CELEBREZZE, JR., J., CONCUR