[Cite as State v. Wimbley, 2018-Ohio-1749.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 106171
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
BRIAN WIMBLEY
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-615802-A
BEFORE: McCormack, P.J., Celebrezze, J., and Keough, J.
RELEASED AND JOURNALIZED: May 3, 2018 ATTORNEY FOR APPELLANT
Rachel A. Kopec 1360 E. 9th Street, Ste. 910 Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor
By: Scott C. Zarzycki Brian Lynch Assistant County Prosecutors Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113
TIM McCORMACK, P.J.:
{¶1} Defendant-appellant Brian Wimbley (“Wimbley”) appeals the imposition of
consecutive sentences following his convictions for participating in a criminal gang, robbery,
receiving stolen property, having a weapon while under disability, aggravated robbery, and
attempted robbery. For the reasons that follow, we affirm Wimbley’s sentence.
Procedural and Substantive History
{¶2} The charges in this case stem from a significant amount of criminal activity that
took place throughout the greater Cleveland area over the course of several months, including
robbing a Sonic restaurant and robbing individuals at gunpoint.
{¶3} On April 29, 2016, a complaint was filed in juvenile court alleging that Wimbley
had committed one count of participating in a criminal gang in violation of R.C. 2923.41, three counts of aggravated robbery in violation of R.C. 2911.01(A)(1), seven counts of robbery in
violation of R.C. 2911.02, five counts of kidnapping in violation of R.C. 2905.01(A)(2), one
count of receiving stolen property in violation of R.C. 2913.51(A), one count of carrying a
concealed weapon in violation of R.C. 2923.12(A)(2), and one count of having weapons while
under disability in violation of R.C. 2923.13(A)(2). The aggravated robbery, robbery, and
kidnapping counts each carried one- and three-year firearm specifications and criminal gang
activity specifications.
{¶4} Wimbley was subsequently bound over and ultimately indicted on the above
charges.
{¶5} On June 28, 2017, Wimbley pleaded guilty to one count of participating in a
criminal gang, one count of robbery, one count of receiving stolen property, one count of having
weapons while under disability, one count of aggravated robbery with a three-year firearm
specification, and one count of attempted robbery. The remaining counts and specifications
were dismissed as part of a plea agreement.
{¶6} On July 26, 2017, the trial court sentenced Wimbley to five years in prison for
participating in a criminal gang, seven years for robbery, 12 months for receiving stolen property,
24 months for having weapons while under disability, nine years in prison for aggravated
robbery, and 36 months for attempted robbery. The three-year firearm specification was to be
served prior to and consecutive to the other counts. The trial court ordered that the five years
for participating in a criminal gang be served prior to and consecutive to the other counts, all of
which were to be served concurrently, for a total sentence of 17 years.
{¶7} Wimbley appealed his sentence, bringing one assignment of error for our review. Law and Analysis
{¶8} In Wimbley’s sole assignment of error, he argues that the trial court erred in
ordering consecutive sentences. According to Wimbley, the trial court failed to make the
necessary findings required to impose consecutive sentences under R.C. 2929.14(C)(4).
Further, he argues that the record does not clearly and convincingly support consecutive
sentences.
{¶9} Pursuant to R.C. 2953.08, a reviewing court may vacate or modify a felony
sentence if it finds by clear and convincing evidence that the record does not support any relevant
statutory findings or the sentence is contrary to law. State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22-23.
{¶10} R.C. 2929.14(C)(4) requires a sentencing court to make certain findings before
imposing consecutive sentences. First, the court must find that consecutive sentences are
necessary to protect the public from future crime or to punish the offender. R.C. 2929.14(C)(4).
The court must also 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. Id. Finally, the
court must find any one of the following:
(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 post-release 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.
R.C. 2929.14(C)(4). A trial court is required to make the findings described above at the
sentencing hearing and incorporate its findings into its sentencing journal entry. State v.
Hendricks, 8th Dist. Cuyahoga No. 101864, 2015-Ohio-2268, ¶ 12, citing State v. Bonnell, 140
Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 1.
{¶11} While the trial court must make the requisite findings at sentencing, Ohio courts
have consistently held that courts are not required to engage in a recitation of “magic words” in
order to validly impose consecutive sentences. State v. Gus, 8th Dist. Cuyahoga No. 85591,
2005-Ohio-6717, ¶ 30, citing State v. White, 135 Ohio App.3d 481, 486, 734 N.E.2d 848 (8th
Dist.1999), and State v. Moore, 8th Dist. Cuyahoga No. 84911, 2005-Ohio-4164, ¶ 7.
Therefore, when it is clear from the record that the trial court engaged in the “appropriate
analysis,” a reviewing court can conclude that the sentence complied with R.C. 2929.14(C)(4).
State v. Pavlina, 8th Dist. Cuyahoga No. 99207, 2013-Ohio-3620, ¶ 10, citing State v. Murrin,
8th Dist. Cuyahoga No. 83714, 2004-Ohio-3962, ¶ 12.
{¶12} After reviewing the record in this case, we conclude that the trial court made the
requisite findings under R.C. 2929.14(C)(4) and those findings were supported by the record.
{¶13} At sentencing, the trial court stated “I am imposing consecutive prison terms
because I find that consecutive sentences are necessary to protect the public from future crime.”
The court further stated “consecutive sentences are necessary to appropriately punish you.”
Both statements satisfy the first requirement of R.C. 2929.14(C)(4). The court went on to state
that “consecutive sentences are not disproportionate to the seriousness, Mr. Wimbley, of your conduct, and to the danger you pose to the public,” thus satisfying the second requirement of
R.C. 2929.14(C)(4).
{¶14} Finally, the trial court stated that at least two of the offenses were committed as
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[Cite as State v. Wimbley, 2018-Ohio-1749.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 106171
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
BRIAN WIMBLEY
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-615802-A
BEFORE: McCormack, P.J., Celebrezze, J., and Keough, J.
RELEASED AND JOURNALIZED: May 3, 2018 ATTORNEY FOR APPELLANT
Rachel A. Kopec 1360 E. 9th Street, Ste. 910 Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor
By: Scott C. Zarzycki Brian Lynch Assistant County Prosecutors Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113
TIM McCORMACK, P.J.:
{¶1} Defendant-appellant Brian Wimbley (“Wimbley”) appeals the imposition of
consecutive sentences following his convictions for participating in a criminal gang, robbery,
receiving stolen property, having a weapon while under disability, aggravated robbery, and
attempted robbery. For the reasons that follow, we affirm Wimbley’s sentence.
Procedural and Substantive History
{¶2} The charges in this case stem from a significant amount of criminal activity that
took place throughout the greater Cleveland area over the course of several months, including
robbing a Sonic restaurant and robbing individuals at gunpoint.
{¶3} On April 29, 2016, a complaint was filed in juvenile court alleging that Wimbley
had committed one count of participating in a criminal gang in violation of R.C. 2923.41, three counts of aggravated robbery in violation of R.C. 2911.01(A)(1), seven counts of robbery in
violation of R.C. 2911.02, five counts of kidnapping in violation of R.C. 2905.01(A)(2), one
count of receiving stolen property in violation of R.C. 2913.51(A), one count of carrying a
concealed weapon in violation of R.C. 2923.12(A)(2), and one count of having weapons while
under disability in violation of R.C. 2923.13(A)(2). The aggravated robbery, robbery, and
kidnapping counts each carried one- and three-year firearm specifications and criminal gang
activity specifications.
{¶4} Wimbley was subsequently bound over and ultimately indicted on the above
charges.
{¶5} On June 28, 2017, Wimbley pleaded guilty to one count of participating in a
criminal gang, one count of robbery, one count of receiving stolen property, one count of having
weapons while under disability, one count of aggravated robbery with a three-year firearm
specification, and one count of attempted robbery. The remaining counts and specifications
were dismissed as part of a plea agreement.
{¶6} On July 26, 2017, the trial court sentenced Wimbley to five years in prison for
participating in a criminal gang, seven years for robbery, 12 months for receiving stolen property,
24 months for having weapons while under disability, nine years in prison for aggravated
robbery, and 36 months for attempted robbery. The three-year firearm specification was to be
served prior to and consecutive to the other counts. The trial court ordered that the five years
for participating in a criminal gang be served prior to and consecutive to the other counts, all of
which were to be served concurrently, for a total sentence of 17 years.
{¶7} Wimbley appealed his sentence, bringing one assignment of error for our review. Law and Analysis
{¶8} In Wimbley’s sole assignment of error, he argues that the trial court erred in
ordering consecutive sentences. According to Wimbley, the trial court failed to make the
necessary findings required to impose consecutive sentences under R.C. 2929.14(C)(4).
Further, he argues that the record does not clearly and convincingly support consecutive
sentences.
{¶9} Pursuant to R.C. 2953.08, a reviewing court may vacate or modify a felony
sentence if it finds by clear and convincing evidence that the record does not support any relevant
statutory findings or the sentence is contrary to law. State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22-23.
{¶10} R.C. 2929.14(C)(4) requires a sentencing court to make certain findings before
imposing consecutive sentences. First, the court must find that consecutive sentences are
necessary to protect the public from future crime or to punish the offender. R.C. 2929.14(C)(4).
The court must also 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. Id. Finally, the
court must find any one of the following:
(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 post-release 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.
R.C. 2929.14(C)(4). A trial court is required to make the findings described above at the
sentencing hearing and incorporate its findings into its sentencing journal entry. State v.
Hendricks, 8th Dist. Cuyahoga No. 101864, 2015-Ohio-2268, ¶ 12, citing State v. Bonnell, 140
Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 1.
{¶11} While the trial court must make the requisite findings at sentencing, Ohio courts
have consistently held that courts are not required to engage in a recitation of “magic words” in
order to validly impose consecutive sentences. State v. Gus, 8th Dist. Cuyahoga No. 85591,
2005-Ohio-6717, ¶ 30, citing State v. White, 135 Ohio App.3d 481, 486, 734 N.E.2d 848 (8th
Dist.1999), and State v. Moore, 8th Dist. Cuyahoga No. 84911, 2005-Ohio-4164, ¶ 7.
Therefore, when it is clear from the record that the trial court engaged in the “appropriate
analysis,” a reviewing court can conclude that the sentence complied with R.C. 2929.14(C)(4).
State v. Pavlina, 8th Dist. Cuyahoga No. 99207, 2013-Ohio-3620, ¶ 10, citing State v. Murrin,
8th Dist. Cuyahoga No. 83714, 2004-Ohio-3962, ¶ 12.
{¶12} After reviewing the record in this case, we conclude that the trial court made the
requisite findings under R.C. 2929.14(C)(4) and those findings were supported by the record.
{¶13} At sentencing, the trial court stated “I am imposing consecutive prison terms
because I find that consecutive sentences are necessary to protect the public from future crime.”
The court further stated “consecutive sentences are necessary to appropriately punish you.”
Both statements satisfy the first requirement of R.C. 2929.14(C)(4). The court went on to state
that “consecutive sentences are not disproportionate to the seriousness, Mr. Wimbley, of your conduct, and to the danger you pose to the public,” thus satisfying the second requirement of
R.C. 2929.14(C)(4).
{¶14} Finally, the trial court stated that at least two of the offenses were committed as
part of one or more courses of conduct, and that the harm caused by two or more of the offenses
was so great or unusual that no single prison term could adequately reflect the seriousness of
Wimbley’s conduct. These statements show that the trial court made the necessary findings
under R.C. 2929.14(C)(4)(b). Therefore, the trial court made the required findings under R.C.
2929.14(C)(4) to support consecutive sentences.
{¶15} After a thorough review of the record, we are also not persuaded by Wimbley’s
argument that the record does not clearly and convincingly support consecutive sentences. The
record shows that the defendant was engaged in a violent, terrorizing crime spree, repeatedly
committing violent crimes against victims throughout the Cleveland area.
{¶16} For these reasons, Wimbley’s sentence is affirmed.
{¶17} 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
FRANK D. CELEBREZZE, JR., J., and KATHLEEN ANN KEOUGH, J., CONCUR