[Cite as State v. Artis, 2022-Ohio-3819.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 111298 v. :
ROBERT ARTIS, II, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: October 27, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-20-650687-A, CR-20-655197-A, and CR-21-657133-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Gregory M. Paul, Assistant Prosecuting Attorney, for appellee.
Joseph V. Pagano, for appellant.
KATHLEEN ANN KEOUGH, J.:
Defendant-appellant, Robert Artis, II (“Artis”), appeals his sentence
following his guilty pleas in three cases, contending that the trial court erred in
imposing maximum consecutive sentences. For the reasons that follow, we affirm. I. Background
In Cuyahoga C.P. No. CR-20-650687, Artis pleaded guilty to Count 1,
aggravated vehicular homicide in violation of R.C. 2903.06(A)(2)(a), a third-degree
felony; Counts 2 and 3, aggravated vehicular assault in violation of
R.C. 2903.08(A)(2)(b), felonies of the fourth degree; and Count 4, failure to stop
after an accident in violation of R.C. 4549.02(A)(1), a third-degree felony. The
charges arose out of an incident that occurred on May 2, 2020, when Artis, while
driving 65 m.p.h. in a 35-m.p.h. zone on Kinsman Avenue in Cleveland, ran a red
light and struck another vehicle. The rear seat passengers in the vehicle that Artis
struck ─ two children and their adult aunt — were transported to the hospital. The
aunt was paralyzed from the waist down as a result of her injuries and died two
weeks later. The seven-year-old child spent weeks in the hospital with a traumatic
brain injury and multiple facial and skull fractures. The five-year-old child had
several facial fractures and was discharged after several days in the hospital.
Immediately after the accident, the driver of the vehicle that Artis struck was able to
pull one of the children out of the vehicle and, upon seeing Artis exit his vehicle,
called for his help. Instead, he ran from the scene of the accident and was not
identified until nearly two weeks later.
On May 15, 2020, Artis was involved in an altercation at a gas station
on Kinsman Avenue where he shot multiple times at a male in the gas station
parking lot. He was arrested a short time later after he was identified in a photo
line-up. He was charged in Cuyahoga C.P. No. CR-21-657133 with offenses relating to this incident and subsequently pleaded guilty to Count 1, discharge of a firearm
on or near prohibited premises in violation of R.C. 2923.162(A)(3), a third-degree
felony, and Count 2, carrying a concealed weapon in violation of R.C. 2923.12(A)(2),
a felony of the fourth degree.
In early September 2020, local, state, and federal law enforcement
engaged in Operation Legend to crack down on violent crime and drug trafficking in
high crime neighborhoods in Cleveland. In the early morning hours of September 3,
2020, while he was out on bond in connection with the above-described cases, Artis
was spotted in a vehicle on Kinsman Avenue that was under surveillance in
connection with Operation Legend. He was arrested after being found in possession
of a stolen loaded handgun with an extended clip, cocaine, methamphetamine, and
a digital scale. He was charged in Cuyahoga C.P. No. CR-20-655197 in connection
with this incident and subsequently pleaded guilty to Counts 1 and 3, drug trafficking
in violation of R.C. 2925.03(A)(2), fourth- and fifth-degree felonies, respectively;
Counts 2 and 4, drug possession in violation of R.C. 2925.11(A), both fifth-degree
felonies; Count 5, improperly handling firearms in a motor vehicle in violation of
R.C. 2923.16(B), a fourth-degree felony; Count 6, carrying a concealed weapon in
violation of R.C. 2923.12(A)(2), a felony of the fourth degree; Count 7, receiving
stolen property in violation of R.C. 2913.51(A), a fourth-degree felony; and Count 8,
possessing criminal tools in violation of R.C. 2923.24(A), a fifth-degree felony.
After the plea hearing, the trial court referred Artis to the probation
department for a presentence investigation report (“PSI”). At the subsequent sentencing hearing, the trial court heard arguments from the prosecutor and
defense counsel regarding the appropriate sentence to be imposed, as well as victim
impact statements from the brother of the deceased victim and the mother of the
two children involved in the accident. The court also heard from Artis.
The trial court found that Artis was not amenable to community-
control sanctions and that a prison sentence was consistent with the purposes and
principles of sentencing, telling him:
So, Mr. Artis, you know, there’s something that your attorney said and also [the victim’s brother] said that I believe are equally correct. The standard is reckless under the aggravated vehicular homicide [statute]. And what [the victim’s brother] said was, you know, in a nutshell, we understand that accidents happen, but you need to take into account the entire picture.
The entire picture, to me, as it relates to this incident and the two subsequent incidents — so this first incident happened on May 2nd, and on May 15th you were discharging a weapon at a gas station. And then after you were on bond, on September 2nd, then you were at the same gas station or near that same gas station trafficking in drugs, improperly handling a firearm in a motor vehicle. You had a firearm with a drum extended magazine. And this is while you’re on bond.
And so I think it seems that you’re only understanding about needing to change your ways when you’re in front of a courtroom and asking for leniency. You know, you’re 21 at the time, 22 now. I can tell you that I know young people feel that they’re invincible, but I think you’ve learned that all the other humans walking this early are not invincible, but you acted in a manner that is a combination of the maximum disregard for human life when you rammed your vehicle at excessive speed into the back of a car which the victim stated that she saw you get out of the car while she was pulling her child out and giving CPR, and you ran away. To me, that’s the maximum disregard for human life in favor of your own self interests. And in addition to that, it demonstrates a complete disregard for the law.
And the two subsequent incidents demonstrate your continued criminal intent. And, in fact the third — the trafficking case, the drug trafficking came out because of citizen complaints for all the activity that was happening. All three of these cases happened between East 138th and East 139th and Kinsman, all three of these cases.
So it’s just demonstrating to me that you are one of the people that is contributing, not only to the crime in this area — in the first case, loss of life — but just the quality of the life that people around you are living in favor of your own self-interest.
(Tr. 45-46.)
In CR-20-650687, the court sentenced Artis to the maximum
sentence of 60 months on Count 1, the maximum of 18 months on Counts 2 and 3,
and the maximum of 36 months on Count 4, and ordered that the sentences be
served consecutively.
In CR-20-655197, the court sentenced Artis to 12 months on Count 1;
six months on Counts 2, 3, 4 and 8; and 12 months on Counts 5, 6, and 7. The court
ordered that the sentences were to be served concurrently but consecutive to the 11-
year sentence in CR-20-650687.
In CR-21-657133, the trial court sentenced Artis to 12 months’
incarceration on both counts, concurrent to each other and concurrent to the other
cases. Thus, the court sentenced Artis to a total term of 12 years in prison. This
appeal followed.
II. Law and Analysis
In his single assignment of error, Artis contends that the maximum
sentences in CR-20-650687 and consecutive sentences in CR-20-650687 and
CR-20-655197 are contrary to law. A. Maximum Sentences
We review felony sentences under the standard of review set forth in
R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59
N.E.3d 1231, ¶ 1, 21. Under R.C. 2953.08(G)(2), an appellate court may increase,
reduce, modify, or vacate and remand a challenged felony sentence if the court
clearly and convincingly finds either that the record does not support the sentencing
court’s findings as required by certain sentencing statutes,1 or the sentence is
“otherwise contrary to law.”
“A trial court’s imposition of a maximum prison term for a felony
conviction is not contrary to law as long as the sentence is within the statutory range
for the offense, and the court considers the purposes and principles of felony
sentencing set forth in R.C. 2929.11 and the seriousness and recidivism factors set
forth in R.C. 2929.12.” State v. Seith, 8th Dist. Cuyahoga No. 104510,
2016-Ohio-8302, ¶ 12, citing State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and
103414, 2016-Ohio-5234, ¶ 10, 16; see also State v. Pate, 8th Dist. Cuyahoga
No. 109758, 2021-Ohio-1089, ¶ 3 (a court’s imposition of any prison term, even a
maximum term, for a felony conviction is not contrary to law if the sentence is within
the statutory range for the offense and the trial court considers R.C. 2929.11 and
2929.12).
1 R.C. 2929.13, 2929.14(B)(2)(e) or (C)(4), and 2929.20(I), if applicable. R.C. 2929.14(C)(4) is applicable to this case because the trial court imposed consecutive sentences. We discuss the trial court’s findings under R.C. 2929.14(C)(4) below. R.C. 2929.11 and 2929.12 are not fact-finding statutes and although
the trial court must “consider” the factors, it is not required to make specific findings
on the record regarding its consideration of those factors, even when imposing a
more-than-minimum sentence. Pate at ¶ 6. Indeed, consideration of the factors is
presumed unless the defendant affirmatively shows otherwise. Id., citing State v.
Wright, 2018-Ohio-965, 108 N.E.3d 1109, ¶ 16 (8th Dist.). Furthermore, a trial
court’s statement in its sentencing journal entry that it considered the required
statutory factors is sufficient to fulfill its obligations under R.C. 2929.11 and 2929.12.
State v. Sutton, 8th Dist. Cuyahoga Nos. 102300 and 102302, 2015-Ohio-4074,
¶ 72; State v. Clayton, 8th Dist. Cuyahoga No. 99700, 2014-Ohio-112, ¶ 9.
Artis makes no argument that his maximum sentences in
CR-20-650687 did not fall within the statutory range, and our review of the offenses
and corresponding sentences demonstrates that the sentences were within the
statutory range. The term of imprisonment for a third-degree felony involving a
violation of R.C. 2903.06 is a range between 12 and 60 months and for a third-
degree felony involving a violation of R.C. 4549.02 a range between nine and 36
months. See R.C. 2929.14(A)(3)(a) and 2929.14(A)(3)(b), respectively. The term of
imprisonment for a fourth-degree felony involving a violation of R.C. 2903.08 is 6
to 18 months. The maximum sentences imposed by the trial court fell within these
ranges.
In addition, the transcript reflects that the trial court specifically
considered the purposes and principles of felony sentencing under R.C. 2929.11 and 2929.12 before sentencing Artis to maximum terms. (Tr. 45-46.) Additionally, the
trial court’s journal entries of sentencing in each case state that the court considered
“all required factors of the law” in imposing its sentence and found that “prison is
consistent with the purpose of R.C. 2929.11.” Accordingly, the trial court’s
imposition of maximum sentences was not contrary to law.
Nevertheless, Artis contends that the maximum sentences for
aggravated vehicular homicide and two counts of aggravated vehicular assault were
contrary to law and imposed in violation of his Sixth Amendment rights because the
maximum sentences were based on the court’s finding that he acted “more than
recklessly,” instead of merely “recklessly.” Artis contends that the culpable mental
state for the aggravated vehicular homicide and aggravated vehicular assault
offenses with which he was charged is recklessness, but in sentencing him to
maximum sentences because he acted “more than recklessly” in committing the
offenses, the trial court sentenced him on greater offenses than those upon which he
was indicted and to which he pleaded guilty. Artis’s argument is without merit.
Artis bases his argument on the trial court’s statement to him at the
sentencing hearing after sentencing was complete. After telling him that he would
be remanded to Lorain Correctional Institution, the trial judge told Artis:
Sir, you know there’s recklessness and reckless driving. You’re looking down at your phone when you shouldn’t be. You’re not paying attention, whatever it is. And it seems — I don’t know if you were driving around without insurance, but this goes beyond recklessness. This is a — you demonstrated a complete disregard for the law and complete disregard for the other inhabitants of the area in which you live by demonstrating the excess speed that you were driving at, that you just took off when you saw a woman cradling her child and then proceeded days later to just fire off weapons at a gas station. And then on top of it, there’s so many complaints in the area that the police had to pay special attention to that area, and, lo and behold, they find you with a drum magazine after you’ve been on bond to me.
So to me, this is not just reckless behavior. This is behavior that has terrorized the community. It has impacted a family more than you could possibly ever understand. You can feel remorse, but you’ll never understand it. Do you understand, sir?
THE DEFENDANT: Yes.
THE COURT: So I think that this sentence is not — if it’s not appropriate, less than maybe what I would have given you otherwise. Do you understand?
THE DEFENDANT: Yes, ma’am.
(Tr. 52-53.)
Reading the statement as a whole, it is apparent that the trial court
told Artis that considering the three incidents together, the totality of his behavior
was more than merely reckless because it “terrorized” the community in which he
lived and left behind a devastated family that had lost a loved one. The court’s
comments did not relate only to Artis’s maximum sentences for aggravated
vehicular homicide and aggravated vehicular assault, as he contends, and in no way
demonstrate that the court improperly considered a culpable mental state other
than recklessness when it imposed the maximum sentences. In fact, when the court
sentenced Artis, it correctly told him that “[t]he standard is reckless under the
aggravated vehicular homicide [statute].” (Tr. 44.) The court then told him that his
conduct warranted maximum sentences because driving his car at an excessive
speed, ramming it into another vehicle, and then running off when one of the victims called for his help demonstrated “the maximum disregard for human life in favor of
your own self-interests * * * and a complete disregard for the law.” (Tr. 45-46.) The
record clearly demonstrates that the trial court considered the correct culpable
mental state in imposing maximum sentences for Artis’s offenses of aggravated
vehicular homicide and aggravated vehicular assault.
Furthermore, despite Artis’s argument otherwise, the record supports
the trial court’s imposition of maximum sentences. The PSI demonstrated and
defense counsel admitted that Artis had been previously adjudicated a delinquent
and that he had a prior misdemeanor conviction for drug possession, drug
trafficking, and carrying a concealed weapon. The record also reflects that Artis was
driving a vehicle at nearly 30 m.p.h. over the speed limit when he struck another
vehicle, killing a passenger and severely injuring two children in the vehicle.
Furthermore, despite a request for help from the driver of the vehicle he hit, Artis
callously chose to run away.
Because Artis’s maximum sentences were in the statutory ranges, the
trial court considered the purposes and principles of felony sentencing set forth in
R.C. 2929.11 and 2929.12, and the record supports the imposition of maximum
sentences, the trial court’s imposition of maximum sentences in CR-20-650687 is
not contrary to law.
B. Consecutive Sentences
Artis also contends that the trial court erred in imposing consecutive
sentences in CR-20-650687 and CR-20-655197 because the court failed to make the necessary statutory findings. He also asserts that even if the court made the proper
findings, the record does not support consecutive sentences.
Consecutive sentences may be imposed only if the trial court makes
the required findings pursuant to R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 20-24. Under the statute, consecutive
sentences may be imposed if the trial court finds that (1) consecutive sentences are
necessary to protect the public from future crime or to punish the offender;
(2) consecutive sentences are not disproportionate to the seriousness of the
offender’s conduct and to the danger the offender poses to the public; and (3) at least
one of the following applies:
(1) The offender committed one or more of the multiple offenses while awaiting trial or sentencing, while under a sanction, or while under postrelease control for a prior offense;
(2) At least two of the multiple offenses were committed as part of one or more courses of the conduct, and the harm caused by two or more of the offenses 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; or
(3) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
To impose consecutive terms of imprisonment, a trial court must both
make the R.C. 2929.14(C)(4) findings at the sentencing hearing and incorporate
those findings into its sentencing entry. Bonnell at syllabus.
The record reflects that at the sentencing hearing, the trial court made
the statutory findings to impose consecutive sentences in CR-20-650657 (tr. 48) and to order that the sentences in CR-20-655197 be served consecutive to those in
CR-20-650687. (Tr. 48, 50.) The record also reflects that the court incorporated its
findings into its sentencing entries in both cases.
Nevertheless, Artis contends that the consecutive sentences were
contrary to law because the court’s findings “are not supported by any factual basis.”
(Appellant’s brief, p. 15.) “For example,” he argues, “the finding that the sentence is
not disproportionate is not supported by any kind of comparison to any other similar
crimes committed by any similarly situated offenders.” Id. He also contends that
the trial court did not adequately explain why consecutive sentences were necessary
to accomplish the purposes and principles of Ohio’s criminal sentencing goals.
Initially, we note that Artis’s “disproportionate” argument is
misplaced. In deciding whether to impose consecutive sentences, the trial court
must find that consecutive sentences are not disproportionate to the seriousness of
the offender’s conduct and to the danger he poses to the public. “Accordingly, the
appropriate focus when reviewing consecutive sentences is on the seriousness of
[Artis’s] conduct and the danger he poses, not [on] those who have committed
similar offenses.” State v. Bolden, 8th Dist. Cuyahoga No. 110841, 2022-Ohio-2271,
¶ 29.
Artis relies on State v. Metz, 2019-Ohio-4054, 146 N.E.3d 1190, ¶ 94
(8th Dist.), to support his argument that the trial court did not adequately explain
its reasons for imposing consecutive sentences. “To the contrary, in Metz we
explained that a reviewing court must determine whether the record clearly and convincingly supports the consecutive sentences.” Bolden at ¶ 30, citing Metz at
¶ 97, 110. “A trial court ‘has no obligation to state reasons to support its findings,’
but the necessary findings ‘must be found in the record and incorporated into the
sentencing entry.’” Bolden at id., quoting Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, 16 N.E.3d 659, at ¶ 37.
An appellate court may modify or vacate the sentence if it clearly and
convincingly finds that the record does not support the trial court’s findings under
R.C. 2929.14(C)(4). Bonnell at ¶ 28. We make no such finding in this case.
The record reflects that on May 2, 2020, Artis rammed into a car,
causing the death of an adult and serious injuries to two children. Less than two
weeks later, he was involved in an altercation at a gas station, shooting multiple
times at a male in the gas station parking lot. Then, on September 2, 2020, while he
was on bond to the trial court for the earlier incidents, he was apprehended in
possession of a stolen loaded handgun with an extended clip, cocaine,
methamphetamine, and a digital scale. As the trial court recognized, Artis’s actions
demonstrated a “complete disregard for the rules set by this court [and] the law
* * *.” (Tr. 49-50.) Accordingly, the record supports the trial court’s consecutive-
sentence findings.
Artis further challenges the imposition of consecutive sentences by
asserting that the trial court did not adequately consider that (1) the PSI placed him
at only a moderate risk level to reoffend, (2) he is a young adult with little
involvement with the criminal justice system before these offenses, and (3) he complied when the trial court placed him on GPS monitoring during the pendency
of the cases, even obtaining a job during that time. He asserts that under such
circumstances, a 12-year prison term for a 22-year-old man who recklessly, rather
than intentionally, committed aggravated vehicular homicide and aggravated
vehicular assault is in excess of what is necessary to accomplish the purposes and
principles of Ohio’s criminal sentencing goals. (Appellant’s brief, p. 15.)
These contentions would appropriately be addressed in an
assignment of error asserting that the trial court did not consider the purposes and
principles of felony sentencing as set forth in R.C. 2929.11 and 2929.12. Artis did
not raise any such assignment of error, however, and we decline to raise it for him.
Moreover, the trial court stated at the sentencing hearing and in its sentencing
entries that it had considered the purposes and principles of sentencing set forth in
R.C. 2929.11 and 2929.12 in imposing the maximum consecutive sentences.
Accordingly, although Artis may believe that his conduct did not
warrant consecutive sentences, this court finds that the trial court complied with the
mandates of R.C. 2929.14(C)(4), and that its imposition of consecutive sentences is
not contrary to law and is supported by the record. Appellant’s assignment of error
is therefore overruled.
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 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.
KATHLEEN ANN KEOUGH, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and MICHELLE J. SHEEHAN, J., CONCUR