[Cite as State v. Blevins, 2017-Ohio-4444.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 105023
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
BARRY BLEVINS DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-597731-A
BEFORE: Celebrezze, J., McCormack, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: June 22, 2017 ATTORNEY FOR APPELLANT
Russell S. Bensing 1360 East 9th Street, Suite 600 Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor BY: Hannah Smith Brian Radigan Assistant Prosecuting Attorneys The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendant-appellant, Barry Blevins (“appellant”), brings this appeal
challenging the trial court’s imposition of consecutive sentences. Specifically, appellant
argues that the trial court imposed consecutive sentences without making the required
findings under R.C. 2929.14(C)(4) and that the maximum sentence imposed by the trial
court is not clearly and convincingly supported by the record. After a thorough review of
the record and law, this court affirms.
I. Factual and Procedural History
{¶2} Appellant was indicted, entered a plea, and was sentenced in two separate
criminal cases: Cuyahoga C.P. No. CR-14-592088-A and Cuyahoga C.P. No.
CR-15-597731-A. This appeal pertains to the sentence imposed in the latter case.
CR-14-592088-A
{¶3} On December 23, 2014, the Cuyahoga County Grand Jury returned an
eight-count indictment charging appellant with (1) drug trafficking, in violation of R.C.
2925.03(A)(2); (2) drug possession, in violation of R.C. 2925.11(A); (3) drug trafficking,
in violation of R.C. 2925.03(A)(2); (4) carrying a concealed weapon, in violation of
R.C. 2923.12(A)(2); (5) improperly handling a firearm in a motor vehicle, in violation of
R.C. 2923.16(B); (6) receiving stolen property, in violation of R.C. 2913.51(A); (7)
having weapons while under disability, in violation of R.C. 2923.13(A)(2); and (8) having
weapons while under disability, in violation of R.C. 2923.13(A)(3). Counts 1 through 3 contained one-year firearm specifications and forfeiture specifications. Counts 4 through
8 contained forfeiture specifications. Appellant pled not guilty to the indictment.
{¶4} On June 2, 2015, appellant entered a plea of no contest to all eight counts in
the indictment. The trial court advised appellant of his constitutional rights and penalties
implicated by his plea of no contest. Furthermore, based on the evidence proffered by
the state, the trial court found appellant guilty on all counts and specifications. The trial
court proceeded immediately to sentencing and imposed an aggregate three-year prison
term.
{¶5} On June 30, 2015, appellant filed an appeal challenging his convictions.
This court determined that the trial court’s June 2, 2015 sentencing journal entry did not
accurately reflect what transpired during the sentencing hearing, and remanded the case to
the trial court for a nunc pro tunc sentencing entry.
{¶6} On January 12, 2016, the trial court issued a nunc pro tunc sentencing entry
indicating that Counts 1 and 2 merged for sentencing purposes, and the state elected to
sentence appellant on Count 1; Counts 7 and 8 also merged for sentencing purposes, and
the state elected to sentence appellant on Count 7.
{¶7} In State v. Blevins, 2016-Ohio-2937, 65 N.E.3d 146 (8th Dist.), this court
held that the trial court properly denied appellant’s motion to suppress and affirmed
appellant’s convictions. Id. at ¶ 2.
CR-15-597731-A
{¶8} On October 11, 2014, the victim, David Garrett, was shot and killed during an altercation outside of a nightclub on Cleveland’s west side. On August 3, 2015, the
Cuyahoga County Grand Jury returned a 12-count indictment charging appellant with (1)
murder, in violation of R.C. 2903.02(A); (2) murder, in violation of R.C. 2903.02(B); (3)
felonious assault, in violation of R.C. 2903.11(A)(1); (4) felonious assault, in violation of
R.C. 2903.11(A)(2); (5) voluntary manslaughter, in violation of R.C. 2903.03(A); (6)
involuntary manslaughter, in violation of R.C. 2903.04(A); (7) discharge of a firearm on
or near prohibited premises, in violation of R.C. 2923.162(A)(3); (8) aggravated assault,
in violation of R.C. 2903.12(A)(1); (9) aggravated assault, in violation of R.C.
2903.12(A)(2); (10) tampering with evidence, in violation of R.C. 2921.12(A)(1); (11)
having weapons while under disability, in violation of R.C. 2923.13(A)(2); and (12)
having weapons while under disability, in violation of R.C. 2923.13(A)(3). Counts 1
through 6 contained one- and three-year firearm specifications, notice of prior conviction
specifications, and repeat violent offender specifications. Count 7 contained one- and
three-year firearm specifications and a notice of prior conviction specification. Counts 8
and 9 contained one- and three-year firearm specifications. Appellant pled not guilty to
the indictment.
{¶9} The parties reached a plea agreement. The state amended Count 5 by
deleting the one-year firearm specification and the notice of prior conviction and repeat
violent offender specifications. On August 1, 2016, appellant pled guilty to Count 5,
voluntary manslaughter, a first-degree felony, and the underlying three-year firearm
specification. The remaining counts and specifications charged in the indictment were nolled. The trial court ordered a presentence investigation report (“PSI”) and set the
matter for sentencing.
{¶10} The trial court held a sentencing hearing on August 31, 2016. The trial
court sentenced appellant to a prison term of 14 years: three years on the firearm
specification to be served prior to and consecutively with 11 years on the voluntary
manslaughter count. The trial court ordered appellant to serve this 14-year sentence
consecutively with his three-year prison sentence in CR-14-592088-A.
{¶11} On September 29, 2016, appellant filed the instant appeal challenging the
trial court’s sentence. He assigns two errors for review:
I. The trial court’s imposition of consecutive sentences was contrary to law.
II. The trial court’s imposition of maximum and consecutive sentences is clearly and convincingly unsupported by the record.
II. Law and Analysis
A. Consecutive Sentences
{¶12} In his first assignment of error, appellant argues that the trial court failed to
make the requisite findings pursuant to R.C. 2929.14(C)(4) prior to imposing consecutive
sentences.
{¶13} We review felony sentences under the standard 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, ¶ 16. R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a
reviewing court may overturn the imposition of consecutive sentences where the court
“clearly and convincingly” finds that (1) “the record does not support the sentencing court’s findings under R.C. 2929.14(C)(4),” or (2) “the sentence is otherwise contrary to
law.”
{¶14} R.C. 2929.14(C)(4) provides that in order to impose consecutive sentences,
the trial court must find that consecutive sentences are (1) necessary to protect the public
from future crime or to punish the offender, (2) that such sentences would not be
disproportionate to the seriousness of the conduct and to the danger the offender poses to
the public, and (3) 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.
() The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶15} Compliance with R.C. 2929.14(C)(4) requires the trial court to make the
statutory findings at the sentencing hearing, which 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.’” State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 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
discern 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. A trial court is not,
however, required to state its reasons to support its findings, nor is it required to give a
rote recitation of the statutory language, “provided that the necessary findings can be
found in the record and are incorporated in the sentencing entry.” Bonnell at ¶ 37.
{¶16} In the instant matter, appellant concedes that the trial court made the first
R.C. 2929.14(C)(4) finding. In making the first finding, the trial court stated, “I find that
consecutive service is necessary to protect the public from future crime[.] * * * I also find
it’s necessary to adequately punish you for the crime.” (Tr. 131-132.) Furthermore,
regarding the third finding, appellant does not challenge the trial court’s determination
that R.C. 2929.14(C)(4)(b) and (c) applied. In making the third finding, the trial court
stated,
I also find that the crimes were — at least two of these crimes were committed as part of one or more courses of conduct. And I find that the harm caused by the multiple offenses was so great that no single prison term to these multiple offenses would suffice.
Finally, I also find that your history of criminal conduct demonstrates that consecutive sentences are necessary, as I said earlier, to protect the public from future crime.
(Tr. 132.)
{¶17} Appellant’s challenge to the trial court’s imposition of consecutive
sentences pertains to the second R.C. 2929.14(C)(4) finding, commonly referred to as the
“disproportionate” or “proportionality” finding. See State v. Hauser, 8th Dist. Cuyahoga
No. 103880, 2016-Ohio-7710, ¶ 37; State v. Amey, 8th Dist. Cuyahoga Nos. 103000 and
103001, 2016-Ohio-1121, ¶ 16. {¶18} Regarding the trial court’s proportionality finding, appellant concedes that
the trial court found that “consecutive sentences are not disproportionate to the
seriousness of [his] conduct.” (Tr. 132.) However, appellant argues that the trial court
failed to find that consecutive sentences are not disproportionate to the danger he poses to
the public. As such, appellant asserts that the trial court’s proportionality finding was
insufficient.
{¶19} In support of his argument, appellant directs this court to State v. Vinson, 8th
Dist. Cuyahoga No. 103329, 2016-Ohio-7604. There, this court concluded that “the trial
court failed to make a finding at the sentencing hearing that consecutive sentences are not
disproportionate to the seriousness of [the defendant’s] conduct.” Id. at ¶ 69. In
imposing consecutive sentences, the trial court stated:
the Court is going to make these findings so it could help to understand your sentence. That consecutive sentences are necessary to protect the public from future crime. That consecutive sentences are necessary to punish the defendant. The Court finds that consecutive sentences are not disproportionate to the danger the offender poses to the public. And the Court finds that your history indicates that consecutive sentences are necessary to protect the public from future crimes.
Id. This court explained that the trial court did not make the specific finding that
consecutive sentences were not disproportionate to the seriousness of the defendant’s
conduct, nor could such a finding be discerned from the court’s other statements. Id. at ¶
70. Accordingly, this court vacated the trial court’s imposition of consecutive sentences
and remanded the matter to the trial court to determine whether consecutive sentences were appropriate and, if so, to make the requisite R.C. 2929.14(C)(4) findings. Id. at ¶
72.
{¶20} In State v. Morris, 8th Dist. Cuyahoga No. 104013, 2016-Ohio-7614, this
court faced a similar argument regarding the trial court’s R.C. 2929.14(C)(4)
proportionality finding. In imposing consecutive sentences, the trial court stated that
consecutive sentences “are not disproportionate.” Id. at ¶ 27. On appeal, the
defendant-appellant argued that the trial court’s proportionality finding was insufficient
because the court did not specify whether its finding was related to the seriousness of his
conduct, the danger he posed to the public, or both. Id. at ¶ 29. This court rejected
appellant’s proportionality argument and held that “[t]he trial court’s statements on the
record indicate that it considered proportionality both with regard to the seriousness of
[the defendant’s] conduct and the danger he poses to the public.” Id. at ¶ 34. This court
relied on State v. Crawley, 8th Dist. Cuyahoga No. 102781, 2015-Ohio-5150, where this
court rejected the defendant-appellant’s argument regarding the specificity of the trial
court’s proportionality finding and concluded that “the trial court’s failure to identify the
factors — or ‘the reasons’ — that were considered in its proportionality analysis does not
render the consecutive sentences contrary to law.” Crawley at ¶ 12-13.
{¶21} The Morris court also relied on Amey, 8th Dist. Cuyahoga Nos. 103000 and
103001, 2016-Ohio-1121. There, this court held that “the trial court’s statements on the
record clearly indicate that it considered proportionality with regard to the seriousness of
Amey’s conduct and the danger presented.” Id. at ¶ 16. This court explained, [t]he [trial] court remarked that Amey was on probation for a domestic violence conviction in Cuyahoga C.P. No. CR-13-578704. The court noted that he had been referred to domestic violence classes but did not attend them. The court also outlined Amey’s extensive record that included crimes of violence and offenses committed while Amey was on community control sanctions. The court remarked that he had not “responded favorably to sanctions previously imposed.” Viewing the court’s remarks in their entirety, we are satisfied that the trial court made a distinct “proportionality” finding in compliance with the statute.
Id.
{¶22} In the instant matter, we initially note that a trial court is not required to give
a “talismanic incantation of the words of [R.C. 2929.14(C)(4)], provided that the
necessary findings can be found in the record and are incorporated in the sentencing
entry.” Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 37. Here,
unlike Morris, Crawley, and Amey, the trial court did not merely state that consecutive
sentences “are not disproportionate.” Rather, the trial court stated that “consecutive
sentences are not disproportionate to the seriousness of [appellant’s] conduct.” (Tr.
132.)
{¶23} After review, the record reflects that the trial court did not specifically state
that consecutive sentences would not be disproportionate to the danger appellant poses to
the public. However, we find that the trial court’s statements on the record — when
viewed in their entirety — clearly indicate that the trial court considered proportionality
with regard to both the seriousness of appellant’s conduct and the danger appellant posed
to the public. {¶24} In imposing consecutive sentences, the trial court expressly found that
consecutive sentences were “necessary to protect the public from future crime” and
“necessary to adequately punish [appellant] for [the voluntary manslaughter offense].”
The trial court further acknowledged that appellant had an “unremitting criminal history”
that included offenses of violence. Regarding the proportionality finding, the trial court
stated, “I also find that consecutive sentences are not disproportionate to the seriousness
of your conduct. In [CR-14-592088-A and CR-15-597731-A], two months apart, you
had a weapon. The one time you clearly used it, the other time presumably you were
ready to use it.” (Tr. 132.) Finally, based on appellant’s history of criminal conduct, the
trial court remarked that consecutive sentences were necessary to protect the public from
future crime.
{¶25} Viewing the trial court’s statements in their entirety, we can discern that the
trial court found that consecutive sentences are both not disproportionate to the
seriousness of appellant’s conduct and not disproportionate to the danger appellant poses
to the public.
{¶26} The trial court properly incorporated its findings into its sentencing journal
entry as required. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at
syllabus. The trial court’s August 31, 2016 sentencing journal entry provides, in relevant
part,
The court imposes prison terms consecutively finding that consecutive service is necessary to protect the public from future crime or to punish defendant; that the consecutive sentences are not disproportionate to the seriousness of defendant’s conduct and to the danger defendant poses to the public; and that, at least two of the multiple offenses were committed in this case as part of one or more courses of conduct, and the harm caused by said multiple 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 defendant’s conduct, or defendant’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by defendant.
{¶27} For all of the foregoing reasons, we conclude that the trial court made the
appropriate consecutive sentence findings, and the record clearly reflects that the trial
court engaged in the correct analysis required under R.C. 2929.14(C)(4). See State v.
Hart, 8th Dist. Cuyahoga No. 104387, 2017-Ohio-290, ¶ 7. Furthermore, we cannot
clearly and convincingly find that the record does not support the trial court’s findings.
{¶28} Accordingly, appellant’s first assignment of error is overruled.
B. Maximum Sentence
{¶29} In his second assignment of error, appellant challenges the trial court’s
imposition of the maximum 11-year sentence for his voluntary manslaughter conviction.
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 both the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the seriousness and recidivism factors set forth R.C. 2929.12.
State v. Seith, 8th Dist. Cuyahoga No. 104510, 2016-Ohio-8302, ¶ 12. R.C. 2929.11 and
2929.12 are not fact-finding statutes, and a trial court is not required to make specific
findings on the record regarding its consideration of those factors nor state its reasons for
imposing a maximum sentence or a particular sentence within the statutory range. Id.,
citing State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-Ohio-5234, ¶ 11. {¶30} In State v. Sergent, 148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, the
Ohio Supreme Court held that “‘[t]rial courts have full discretion to impose a prison
sentence within the statutory range and are no longer required to make findings or give
their reasons for imposing maximum, consecutive, or more than the minimum sentence.’”
Id. at ¶ 34, quoting State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470,
paragraph seven of the syllabus. This court has held that a trial court’s statement in its
sentencing journal entry that it considered the required statutory factors, without more, is
sufficient to fulfill its obligations under R.C. 2929.11 and 2929.12. State v. Paulino, 8th
Dist. Cuyahoga No. 104198, 2017-Ohio-15, ¶ 37.
{¶31} In the instant matter, appellant argues that the trial court’s reasons for
imposing the maximum sentence — particularly the court’s statements regarding the plea
agreement and the benefit appellant received therefrom — are contradicted and clearly
and convincingly unsupported by the record. Specifically, appellant takes issue with the
following statements made by the trial court at sentencing:
I mean, there is no question about it, this is a maximum sentence for the particular crime we’re talking about. To me it seems the benefit you received of the plea bargain was the reduction in the crime charged. I don’t know whether you are in fact guilty of murder. You are not being sentenced for murder, that’s for sure. But there is evidence here that if you went to trial would have certainly created a genuine issue of material fact, and would have allowed a jury to decide that you did in fact commit a murder for which a life sentence would have been imposed.
My point is, not to say that it is guaranteed that you would have been found guilty and gotten a life sentence, but to say that a life sentence was possible. And here, to paraphrase [the victim’s grandmother], 6, 11, 14 years, you are going to get out of prison. You are not going to spend the rest of your life in prison, whereas otherwise you might have. Again, recognizing explicitly that you weren’t adjudicated guilty of murder, that is for sure.
(Tr. 132-133.)
{¶32} Appellant argues that the trial court concluded the benefit from the parties’
plea agreement was “one-sided,” and that by pleading guilty, appellant eliminated the
possibility of being convicted of murder and receiving a life sentence. Appellant
contends that the benefit of the plea agreement was not one-sided, and that the state also
benefitted from the agreement by avoiding the embarrassment of appellant being
acquitted on all 12 counts at trial.
{¶33} Appellant further argues that the trial court failed to consider the possibility
that he could have been acquitted at trial. In support of his argument, appellant contends
that the limited record before the trial court at sentencing provided substantial evidence
that the victim was the aggressor and that the victim beat, pistol whipped, and may have
even fired a gun at appellant. As such, appellant asserts that “voluntary manslaughter
was likely the worst-case scenario for [him] if he’d gone to trial” and suggests that he
may have even prevailed at trial under a self-defense theory. Appellant’s brief at 8.
Finally, appellant asserts that by pleading guilty, he was “foregoing the very real
possibility of acquittal at trial.” Appellant’s brief at 9.
{¶34} Initially, we note that appellant’s argument is premised on the assumption
that the trial court imposed the maximum sentence because of the court’s view regarding
the benefit appellant received from the plea agreement, rather than the aforementioned
factors and considerations that prompted the court to impose consecutive sentences. {¶35} Generally, a trial court may not impose a sentence based upon a “‘crime
neither charged nor proven.’” State v. Dari, 8th Dist. Cuyahoga No. 99367,
2013-Ohio-4189, ¶ 15, quoting State v. Henley, 8th Dist. Cuyahoga No. 74305, 1998
Ohio App. LEXIS 5080 (Oct. 29, 1998). Furthermore, this court has held that a trial
court may not impose a greater sentence upon a defendant based upon the court’s belief
that the defendant committed a more serious crime than the charges for which he was
convicted. State v. Peal, 8th Dist. Cuyahoga No. 97644, 2012-Ohio-6007, ¶ 11, citing
State v. Smith, 8th Dist. Cuyahoga No. 76919, 2000 Ohio App. LEXIS 3512 (Aug. 3,
2000); see also Cleveland Hts. v. Seastead, 8th Dist. Cuyahoga No. 68875, 1995 Ohio
App. LEXIS 4513 (Oct. 12, 1995).
{¶36} A plea agreement does not, however, preclude the trial court’s consideration
of the underlying facts of the case in determining the appropriate sentence to impose.
State v. Frankos, 8th Dist. Cuyahoga No. 78072, 2001 Ohio App. LEXIS 3712 (Aug. 23,
2001); State v. Clayton, 8th Dist. Cuyahoga No. 99700, 2014-Ohio-112, ¶ 18. Thus, the
trial court is permitted to consider the original charge when imposing its sentencing.
Peal at ¶ 18.
{¶37} This court faced a similar argument in State v. Smith, 8th Dist. Cuyahoga
No. 101387, 2014-Ohio-5553. There, the defendant-appellant was charged in a
three-count indictment with drug trafficking, drug possession, and possession of criminal
tools. The parties reached a plea agreement under which the state dismissed the drug
trafficking count and appellant pled guilty to the remaining two counts. On appeal, appellant challenged the trial court’s sentence, arguing that “the trial court’s comments [at
sentencing] demonstrate that the court based the sentences solely on the [trafficking]
charge that had been dismissed.” Id. at ¶ 12. This court rejected appellant’s argument
and affirmed the trial court’s sentence, explaining:
the record reflects the trial court relied on required statutory considerations,
relevant information, and the circumstances underlying Smith’s case. The
trial court’s statements do not reflect that the dismissed charge was “the
sole basis for the sentence.” State v. Clayton, 8th Dist. Cuyahoga No.
99700, 2014-Ohio-112, ¶ 19. Rather, the statements indicate only that the
court believed Smith was lying to it. Reeves, at ¶ 35. Moreover,
concurrent terms of twelve months were within the statutory parameters.
(Emphasis added.) Smith at ¶ 17.
{¶38} In the instant matter, the trial court’s sentence for appellant’s first-degree
felony was within the permissible statutory range under R.C. 2929.14(A)(1). The trial
court’s sentencing journal entry provides, in relevant part, “the court considered all
required factors of the law. The court finds that prison is consistent with the purpose of
R.C. 2929.11.” Aside from the trial court’s notation in its sentencing entry that it
“considered all required factors of the law” including, specifically, R.C. 2929.11, the
record reflects that the trial court did, in fact, consider both R.C. 2929.11 and 2929.12
when sentencing appellant. {¶39} Appellant acknowledges that during the sentencing hearing, the trial court
referenced “the provisions of Chapter 2929 of the Ohio Revised Code.” (Tr. 129.)
Furthermore, the trial court stated that it considered appellant’s PSI. The PSI’s “offense
summary” provides, in relevant part, “[appellant] got up from the fight and the
codefendant[, Jean Blevins,] handed [appellant] the .45 caliber handgun. The victim and
his girlfriend reportedly began to walk away from the fight and towards their vehicle
when [appellant] began shooting towards the victim.” The PSI also included a
“defendant’s version” of the incident, which provided, in relevant part,
[a Heartless Felons gang member], along with six or seven other people, including the victim, came to the bar and confronted [appellant]. * * * Once they all left the bar, [appellant] stated “they all started jumping me. I was all by myself.”
According to [appellant], while they were outside, someone told the victim to go get the gun and he did. The victim told the people who were beating on [appellant] to get out of the way and he started chasing [appellant] down with the gun, [appellant] stated. The victim began shooting at [appellant], and [appellant] tripped. When he tripped, [appellant] fell to the ground, where the victim began pistol whipping him. [Appellant] stated someone knew him from the bar and pulled the victim off of him. The victim then started chasing that guy and the rest of the group, including [the Heartless Felons member], began jumping [appellant] again. According to [appellant, the Heartless Felon] had a gun. He fumbled with it and [appellant] ended up retrieving it from him. [Appellant] stated, “[e]verybody was shooting. I ran and fired back behind me blindly. At least three or four others were shooting. I dropped the gun in the parking lot and ran.”
{¶40} The trial court stated that it considered the statements made by the state,
defense counsel, appellant, the victim’s fiancée, and the victim’s grandmother.
{¶41} The prosecutor asserted that appellant has a prior record going back to 2003, receiving stolen property motor vehicle; 2006, a felony two drug trafficking; 2010, felony five drug possession; 2010, felony drug possession. And while this case was being investigated, [appellant] was arrested and charged with CCW, drug trafficking, and having a weapon [while] under disability.
(Tr. 88-89.)
{¶42} The trial court inquired as to whether there was evidence that the victim
discharged a gun during the altercation. The prosecutor stated that there was a video of
the altercation and that the parties disputed whether the video displayed the victim
handling a gun. The prosecutor further explained that testing was conducted and there
was no gunshot residue on the victim’s hands. The trial court inquired as to whether the
eyewitnesses who reported the victim had a gun were associated with appellant. The
prosecutor asserted that “[t]here [were] two sides to the story.” (Tr. 90.)
{¶43} Defense counsel stated that appellant showed genuine remorse for the victim
and the victim’s family. Defense counsel provided the following factual account of the
incident:
[o]ut in the parking lot there are three other individuals that — including [the victim] — that confronted [appellant]. Once they confronted [appellant], a fight ensued.
[Appellant] was tossed to the ground, and he was pistol whipped. There are three people that indicate that [the victim] had a pistol and was beating my client about the head.
(Tr. 110.) Defense counsel emphasized that one of the witnesses who did not know
appellant and was not connected to appellant in any way observed the victim with a handgun. Finally, defense counsel opined that appellant was “in fear of his life” because
the victim had a handgun and at least one shot was fired in appellant’s direction.
{¶44} The trial court indicated that it considered the state’s sentencing
memorandum and defense counsel’s sentencing memorandum. Defense counsel’s
sentencing memorandum provided, in relevant part, that the eyewitnesses
each indicate that the victim * * * was: 1) the aggressor; 2) had a pistol; 3) was “pistol whipping” and beating [appellant] along with several of [the victim’s] friends; 4) [e]ither [the victim] or one of his friends shot a weapon at [appellant]; 5) [appellant] attempted to escape but could not; 6) [d]ue to being beat up with a firearm and shot at, [appellant] fired a weapon in haste in order to keep his assailants away and to prevent death or great bodily harm.
On the other hand, the state’s sentencing memorandum provided, in relevant part,
[p]olice and witnesses identified [appellant] fighting with the victim. The victim is seen with an out-stretched arm and what is believed to be a weapon. At one point in the altercation, [appellant] goes to the ground. [Appellant] walks away, but he does not leave. Instead, [appellant] returns armed with a firearm. When the victim turns and leaves the scene, [appellant] comes after the victim. [Appellant] fires a fatal shot into the victim’s back.
Upon investigation, police learn that the co-defendant hands [appellant] a firearm. [Appellant] shoots the victim in the back. [Appellant] runs away and tosses the gun. The victim dies from that gunshot wound.
{¶45} The trial court considered that when appellant was arrested for drug
trafficking on December 17, 2014, he was in possession of a different gun than the gun
that had been used during the October 2014 nightclub shooting. Finally, the trial court
considered appellant’s criminal history, which the trial court described as “unremitting”
and noted that it included violent crimes. Appellant’s criminal history includes convictions for robbery, abduction, and having weapons while under disability; 1 drug
possession;2 drug trafficking and drug possession;3 and receiving stolen property.4
{¶46} Regarding appellant’s assertion that a voluntary manslaughter conviction
would have been the “worst case scenario” had he exercised his right to trial, we find that
the limited record regarding the circumstances surrounding the nightclub shooting
contained evidence upon which a factfinder could have rejected appellant’s contention
that he shot the victim based upon serious provocation or in self-defense. According to
the PSI’s offense summary, the victim was walking away from the fight when appellant
began shooting at him. Furthermore, according to the state’s sentencing memorandum,
appellant walked away from the fight, obtained a firearm, returned to the fight, and shot
the victim in the back as the victim was leaving the scene.
{¶47} For all of the foregoing reasons, we cannot say that appellant’s sentence is
unsupported by the record or contrary to law. The trial court did not err by imposing the
maximum 11-year sentence for appellant’s voluntary manslaughter conviction.
{¶48} Appellant’s second assignment of error is overruled.
III. Conclusion
1 CR-10-540745-A
2 CR-10-539842-A 3 CR-06-478998-B
4 CR-03-438546-ZA {¶49} After thoroughly reviewing the record, we find that the trial court did not err
by imposing consecutive sentences and appellant’s sentence is not contrary to law.
{¶50} 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 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.
FRANK D. CELEBREZZE, JR., JUDGE
TIM McCORMACK, P.J., and ANITA LASTER MAYS, J., CONCUR