State v. Wells

2013 Ohio 3809

Opinion

[Cite as State v. Wells, 2013-Ohio-3809.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION Nos. 99305, 99306, and 99307

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

RONALD DAVON WELLS DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-566206, CR-564784, and CR-566207

BEFORE: Keough, J., Rocco, P.J., and Kilbane, J.

RELEASED AND JOURNALIZED: September 5, 2013 ATTORNEY FOR APPELLANT

Michael H. Murphy 20325 Center Ridge Road, Suite 512 Rocky River, Ohio 44116

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Adam Chaloupka Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, J.:

{¶1} In this consolidated appeal, defendant-appellant, Ronald Wells (“Wells”),

appeals the trial court’s imposition of consecutive sentences. For the reasons that follow,

we affirm.

{¶2} In July 2012, Wells was indicted in Cuyahoga C.P. No. CR-564784 on one

count each of drug trafficking, drug possession, and possession of criminal tools. While

out on bond for this case and on postrelease control on another case, Wells committed

two separate robberies on two, but consecutive days.

{¶3} In Cuyahoga C.P. No. CR-566206, Wells was charged with two counts of

aggravated robbery each containing repeat violent offender and one- and three-year

firearm specifications, and a notice of prior conviction. He was also charged with having

a weapon while under disability. This case was referred to as the “casino case” because

Wells robbed two patrons of their winnings at gunpoint outside the Horseshoe Casino in

downtown Cleveland.

{¶4} In Cuyahoga C.P. No. CR-566207, Wells was indicted with three counts of

kidnapping, two counts of aggravated burglary, five counts of aggravated robbery, three

counts of felonious assault, and one count each of having a weapon while under disability

and grand theft. A majority of these counts carried repeat violent offender and one- and

three-year firearm specifications, and a notice of prior conviction. This indictment arose from a home invasion of Wells’s family friend where Wells’s co-defendant physically

assaulted a victim.

{¶5} On October 17, 2012, Wells pled guilty on the drug case to drug possession

with forfeiture specifications. On October 31, Wells pled guilty on the home invasion

case to one amended count each of kidnapping, aggravated burglary, and aggravated

robbery, including all attendant specifications and notices, except the repeat violent

offender specification, which was deleted by the state. Wells also pled guilty to grand

theft and having a weapon while under disability. On that same day, he also pled guilty

on the casino case to the weapon while under disability charge and an amended count of

aggravated robbery, including the one- and three-year firearm specifications and the

notice of prior conviction. The repeat violent offender specification was again deleted

by the state.

{¶6} The trial court sentenced Wells to 17 months on the drug case to be served

concurrently with the casino case, Cuyahoga C.P. No. CR-566206. Regarding the casino

case, the court imposed a total sentence of ten years — merging the firearm specifications

into the three-year specification to be served prior and consecutive to the base sentence of

seven years on the aggravated robbery charge. The court imposed a sentence of 36

months on the weapon under disability charge to be served concurrently with the ten-year

sentence. The court ordered that this ten-year sentence be served consecutively to the

home invasion case, Cuyahoga C.P. No. CR-566207. {¶7} Finally, on the home invasion case, the court sentenced Wells to eight years

on each count of kidnapping, aggravated burglary, and aggravated burglary, to be served

concurrently. The court also merged all the firearm specifications into one three-year

specification to be served prior and consecutive to the eight-year base sentence on the

underlying offenses. Finally, the court imposed a prison sentence of 36 months on the

weapon while under disability charge and 15 months on the grand theft charge, to be

served currently with the eight-years imposed on the first-degree felonies. Wells’s total

prison sentence on the home invasion case was eleven years, to be served consecutively to

the casino case, Cuyahoga C.P. No. CR-566206.

{¶8} Accordingly, Wells’s total aggregate sentence for all three cases was 21

years. He now appeals his sentences setting forth two assignments of error.

{¶9} In his first assignment of error, Wells contends that the trial court erred

procedurally in imposing consecutive sentences. Specifically, Wells contends that

because the trial court failed to cite the subsection governing the imposition of

consecutive sentences under R.C. 2929.14 during sentencing it did not make the

necessary factual findings under R.C. 2929.14(C)(4). This argument has no merit and

we summarily reject it. As will be discussed under Wells’s second assignment of error,

the trial court strictly complied with R.C. 2929.14(C)(4) in imposing consecutive

sentences; its failure to state the appropriate subsection under R.C. 2929.14 does not

invalidate Wells’s sentence. {¶10} In his second assignment of error, Wells contends that the trial court abused

its discretion by imposing consecutive sentences.

{¶11} We review consecutive sentences using the standard of review set forth in

R.C. 2953.08. State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 10

(holding that the standard of review set forth by the Ohio Supreme Court in State v.

Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, is no longer valid in light

of the enactment of H.B. 86 and the “revival” of statutory findings necessary for imposing

consecutive sentences).

{¶12} R.C. 2953.08(G)(2) provides two grounds for an appellate court to overturn

the imposition of consecutive sentences: (1) the sentence is “otherwise contrary to law”;

or (2) the appellate court, upon its review, clearly and convincingly finds that “the record

does not support the sentencing court’s findings” under R.C. 2929.14(C)(4). Venes at ¶

11; R.C. 2953.08(G)(2).

{¶13} The presumption in Ohio is that sentencing is to run concurrent, unless the

trial court makes the required findings for consecutive sentences set forth in R.C.

2929.14(C)(4). State v. Wells, 8th Dist. Cuyahoga No. 98428, 2013-Ohio-1179, ¶ 11;

R.C. 2929.41(A).

{¶14} Under current R.C. 2929.14(C)(4), when imposing consecutive sentences,

the trial court must first find the sentence is “necessary to protect the public from future

crime or to punish the offender.” Next, the trial court must find that consecutive

sentences are “not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public.” Finally, the trial court must find that one of the

following factors applies:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction * * *, 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 * * * 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.

R.C. 2929.14(C).

{¶15} Compliance with this statute “requires separate and distinct findings in

addition to any findings relating to purposes and goals of criminal sentencing.” Venes,

8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891 at ¶ 17, citing State v. Jones, 93 Ohio

St.3d 391, 399, 2001-Ohio-1341, 754 N.E.2d 1252. The failure to make these findings is

“contrary to law.” Id. at ¶ 12.

{¶16} In this case, we find that the trial court strictly complied with the

requirements of R.C. 2929.14(C)(4) prior to imposing consecutive sentences and our

review of the entire record supports the trial court’s findings.

{¶17} After the trial court discussed the overall underlying purposes and goals of

felony sentencing, it thoroughly discussed the factors and indicators under each section of

R.C. 2929.12. The court then imposed its sentence on each case. Following the imposition of each sentence, the court then considered whether the sentences in these

cases should be served consecutively, stating:

[T]his Court is of the opinion that consecutive sentences are necessary to protect the public from future crime or to punish you. You had just served time for two robberies. While you were on post-release control and bond here, you went out and committed two more serious robberies with a firearm.

The Court finds that this sentence is not disproportionate to the seriousness of your conduct and to the danger that you posed to the public. In one instance, your codefendant beat a person and sent him to the hospital, somebody you knew, and in another instance, they beat again — you call him your uncle and caused him to have injuries for which he did not seek medical treatment.

You frightened people that were robbed as they came out of the casino after their winnings.

The Court finds that you committed the two robberies, the two separate days, August 18th and August 19th, while you were awaiting trial on your drug case and while you were under a sanction of post-release control for a prior offense which was robbery. They were part of a course of conduct in order to satisfy your desire for drugs to have money for them as you were robbing people. Your history of criminal conduct since you were a juvenile is all violence: felonious assault, robberies, antisocial behavior by selling drugs and such. So I feel that consecutive sentences are necessary to protect the public from future crime by you.

{¶18} The trial court succinctly delineated each necessary finding under R.C.

2929.14(C)(4) when it imposed its sentence. Additionally, the trial court supported its

separate and distinct findings with facts from the record, although it was not obligated to

do so. This text-book approach made appellate review of the issues and the case simple. {¶19} Accordingly, we find that the trial court made all the necessary findings

prior to imposing consecutive sentences, those findings are supported by the record, and

Wells’s sentence is not contrary to law. The second assignment of error is overruled.

{¶20} 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

KENNETH A. ROCCO, P.J., and MARY EILEEN KILBANE, J., CONCUR