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State of Ohio v. Donald Atwell

September 30, 2011

STATE OF OHIO APPELLEE
v.
DONALD ATWELL
APPELLANT



Trial Court Nos. CR0200902671 CR0200903452 CR0201001889

The opinion of the court was delivered by: Osowik, P.J.

Cite as State v. Atwell,

DECISION AND JUDGMENT

{¶1} This is a consolidated appeal of the Lucas County Court of Common Pleas stemming from a two-year array of felony criminal activity occurring from 2009-2010, for which appellant was ultimately indicted on multiple felony offenses. Subsequent to the initial set of crimes, appellant was indicted on one count of theft, in violation of R.C. 2913.02(A)(1) and (B)(2) and 2913.71(A), a fifth degree felony; one count of attempted failure to comply with an order or signal of a police officer, in violation of R.C. 2921.331(B) and (C)(5)(a)(ii), a fourth degree felony; one count of robbery, in violation of R.C. 2911.02(A)(2), a second degree felony; one count of failure to comply with an order or signal of a police officer, in violation of R.C. 2921.331(B) and (C)(5)(a)(ii), a third degree felony; and a second count of robbery, in violation of R.C. 2911.02(A)(2), a second degree felony.

{¶2} Pursuant to a negotiated plea agreement encompassing all of the initial charges, appellant entered guilty pleas to theft and attempted failure to comply in exchange for dismissal of the remaining charges. In addition, appellant agreed to serve as a witness for appellee in unrelated criminal cases. Appellant was released under a supervised own recognizance ("SOR") bond.

{¶3} Three days after being released on bond, appellant robbed a female patron at a Toledo gas station of $300 in cash. This incident was captured and recorded on the station's video surveillance system. Following this incident, appellant was indicted on a new count of robbery, in violation of R.C. 2911.02(A)(2), a felony of the second degree. In July 2010, appellant pled guilty to robbery pursuant to a second plea agreement encompassing all cases. Appellant was sentenced to a total term of incarceration of eight and one-half years. A timely notice of appeal was filed.

{¶4} From that judgment, appellant sets forth the following assignment of error:

{¶5} "1. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING MAXIMUM, CONSECUTIVE SENTENCES ON TWO CHARGES, CONSECUTIVE SENTENCES OVERALL, AND A 20-YEAR SUSPENSION OF APPELLANT'S OPERATOR'S LICENSE."

{¶6} The following undisputed facts are relevant to this appeal. Donald Atwell, appellant, has an extensive criminal history. On August 28, 2009, appellant was recorded on video surveillance stealing a purse from a bar patron and fleeing the bar premises. Appellant conveyed the victim's credit cards and purse to an accomplice, who subsequently purchased items at a Best Buy store with the stolen funds.

{¶7} In addition, appellant fled from the Toledo Police in a car which he did not own nor have the permission to use. Appellant refused to stop the motor vehicle, drove at speeds upwards of 90 miles per hour, drove the vehicle towards oncoming police officers, and finally crashed the vehicle. Following the crash, appellant fled the scene and led the police on a foot chase prior to being apprehended.

{¶8} On April 26, 2010, appellant entered a no contest plea to theft and to an amended charge of attempted failure to comply with an order or signal of a police officer. As a condition of this agreement, appellant agreed to testify as a witness for appellee in an unrelated criminal case. In exchange, the state agreed to dismiss the remaining charges. Pursuant to this agreement, the trial court released appellant from custody under his own recognizance.

{¶9} On May 6, 2010, while released on bond, appellant approached a woman at a gas station. Appellant told the victim to give him her money. She refused and a struggle ensued. Appellant forcibly stole in excess of $300 from the victim. The victim had just cashed a check. The entire incident was recorded on video security surveillance at the gas station. Appellant was indicted for one count of robbery, in violation of R.C. 2911.02(A)(2), a felony of the second degree.

{¶10} Appellant entered into another plea agreement. He entered a plea of no contest to the new robbery offense. In exchange, the state agreed to dismiss the repeat violent offender specification of this charge at the sentencing hearing.

{ΒΆ11} On July 26, 2010, the trial court proceeded to sentencing. Appellant was explicitly warned of the potential maximum sentencing. Following a thorough and clear explanation of all of the potential consequences of the plea agreement, appellant affirmed his agreement to the negotiated plea deal. The record reflects that the trial court considered the record, oral statements, victim impact statement and presentence report, as well as the principles and purposes of sentencing under R.C. 2929.11. The trial court also factored in the clear threat of ...


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