State v. Flanigan

2019 Ohio 1682

• Court: Ohio Court of Appeals
• Decided: May 3, 2019
• Docket: L-18-1120
• Status: Published

Opinion

[Cite as State v. Flanigan, 2019-Ohio-1682.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-18-1120

Appellee Trial Court No. CR0201801355

v.

Robert Lamar Flanigan DECISION AND JUDGMENT

Appellant Decided: May 3, 2019

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

Laurel A. Kendall, for appellant.

SINGER, J.

{¶ 1} Appellant, Robert Lamar Flanigan, appeals from the May 8, 2018 judgment

of the Lucas County Court of Common Pleas, where he was sentenced to five years of

incarceration for robbery in violation of R.C. 2911.02(A)(2) and (B), a felony of the

second degree. Finding no error, we affirm. Background

{¶ 2} Appellant was alleged to have grabbed a Marco’s Pizza employee as she left

work, forcing her back into the restaurant. He then forced employees into the bathroom

and proceeded to rob the restaurant, getting away with $200.

{¶ 3} On February 27, 2018, appellee, the state of Ohio, indicted appellant for

kidnapping in violation of R.C. 2905.01(A)(2) and (C), a felony of the first degree, and

for robbery in violation of R.C. 2911.02(A)(2) and (B), a felony of the second degree.

{¶ 4} Appellant initially pled not guilty, however, on April 17, 2018, he withdrew

his not-guilty plea and pled guilty to the robbery. The court proceeded with its Crim.R.

11 colloquy, found appellant made a knowing, voluntary plea, and accepted the plea.

Appellee dismissed the kidnapping charge in exchange for the plea. The matter was set

for sentencing on April 30, 2018.

{¶ 5} The trial court sentenced appellant to five years in prison for the robbery.

The judgment entry was e-journalized on May 8, 2018, and appellant timely appeals.

Assignment of Error

{¶ 6} Appellant asserts the trial court failed to comply with R.C. 2929.11 and

2929.12, when imposing his five-year prison sentence. Appellee contends the court

considered the necessary criteria in compliance with R.C. 2929.11 and 2929.12.

{¶ 7} Appellate courts review felony sentences under the standard set forth in R.C.

2953.08(G)(2), which provides that an “appellate court may vacate or modify a felony

sentence on appeal only if it determines by clear and convincing evidence that the record

2. does not support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” See State v Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002,

59 N.E.3d 1231, ¶ 1.

{¶ 8} R.C. 2929.11(A) provides, in pertinent part, “[t]he overriding purposes of

felony sentencing are to protect the public from future crime by the offender and others

and to punish the offender using the minimum sanctions.” It follows, “the sentencing

court shall consider the need for incapacitating the offender, deterring the offender and

others from future crime, rehabilitating the offender, and making restitution to the victim

of the offense, the public, or both.” See R.C. 2929.11(A); State v. Craig, 6th Dist. Wood

No. WD-14-061, 2015-Ohio-1479, ¶ 10. A felony sentence, therefore, “shall be

reasonably calculated to achieve the two overriding purposes * * * set forth in [R.C.

2929.11(A)], commensurate with and not demeaning to the seriousness of the offender’s

conduct and its impact upon the victim, and consistent with sentences imposed for similar

crimes committed by similar offenders.” See R.C. 2929.11(B); Craig.

{¶ 9} R.C. 2929.12(A) pertinently provides, “a court that imposes a sentence

under this chapter upon an offender for a felony has discretion to determine the most

effective way to comply with the purposes and principles of sentencing.” In this

determination, “R.C. 2929.12 provides a non-exhaustive list of factors the court must

consider in determining the relative seriousness of the underlying crime and the

likelihood that the defendant will commit another offense in the future.” State v.

Kronenberg, 8th Dist. Cuyahoga No. 101403, 2015-Ohio-1020, ¶ 26. “The factors

include: (1) the physical, psychological, and economic harm suffered by the victim, (2)

3. the defendant’s prior criminal record, (3) whether the defendant shows any remorse, and

(4) any other relevant factors.” Id.

{¶ 10} A sentencing court is not required to use specific language or make specific

findings to demonstrate that it considered the applicable sentencing criteria under R.C.

2929.11 and 2929.12. See State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793

(2000).

{¶ 11} At the April 30, 2018 sentencing hearing in this case, the trial court

elaborated on the criteria it considered, as follows:

Sentencing hearing having been held pursuant to Revised Code

2929.19, this Defendant was afforded all rights he is entitled to under

Criminal Rule 32. I’ve considered your records, statements you’ve made,

the presentence report that was prepared, I’ve considered the principles and

purposes of sentencing under 2929.11.

I’ve balanced the seriousness and recidivism factors as I’m obligated

to do under 2929.12. Again, this Defendant on April 17th entered a plea of

guilty to Count 2 Robbery, a felony of the second degree.

It is the sentence of the Court that you are ordered to serve a term of

five years with the Ohio Department Rehabilitation and Corrections.

{¶ 12} Further, the May 8, 2018 sentencing journal entry states: “The court has

considered the record, oral statements, any victim impact statement and presentence

report prepared, as well as the principles and purposes of sentencing under R.C. 2929.11,

4. and has balanced the seriousness, recidivism and other relevant factors under R.C.

2929.12.”

{¶ 13} Based on the statements made at sentencing and in the sentencing entry, we

hold the trial court considered the relevant sentencing criteria and complied with R.C.

2929.11 and 2929.12. Appellant fails to show by clear and convincing evidence that the

record does not support the trial court’s findings under relevant statutes or that his

sentence is otherwise contrary to law.

{¶ 14} Accordingly, appellant’s sole assignment of error is not well-taken.

Conclusion

{¶ 15} The May 8, 2018 judgment of the Lucas County Court of Common Pleas is

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/.

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