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State of Ohio v. Sergio M. Davis

October 21, 2011

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
SERGIO M. DAVIS, DEFENDANT-APPELLANT.



Criminal Appeal from the Lake County Court of Common Pleas, Case No. 10 CR 000212.

The opinion of the court was delivered by: Diane V. Grendell, J.

Cite as State v. Davis,

OPINION

Judgment: Affirmed.

{¶1} Defendant-appellant, Sergio Davis, appeals from the Judgment Entry of Sentence of the Lake County Court of Common Pleas, sentencing him to an aggregate term of twelve years in prison for Aggravated Robbery, Having Weapons While Under Disability, and Grand Theft of a Motor Vehicle. The issue to be decided in this case is whether a trial court's discussion of all relevant sentencing factors constitutes careful and substantial deliberation of the statutory considerations for sentencing. For the following reasons, we affirm the decision of the court below.

{¶2} On March 12, 2010, Davis was involved in a robbery incident. According to the victim, when giving Davis a ride home after playing pool together, Davis used a firearm to strike him, and then stole his motor vehicle.

{¶3} On May 17, 2010, Davis was indicted by the Lake County Grand Jury on the following: Aggravated Robbery (Count One), a felony of the first degree, in violation of R.C. 2911.01(A)(1); Aggravated Robbery (Count Two), a felony of the first degree, in violation of R.C. 2911.01(A)(3); Robbery (Count Three), a felony of the second degree, in violation of R.C. 2911.02(A)(2); Felonious Assault (Count Four), a felony of the second degree, in violation of R.C. 2903.11(A)(1); Felonious Assault (Count Five), a felony of the second degree, in violation of R.C. 2903.11(A)(2); Having Weapons While Under Disability (Count Six), a felony of the third degree, in violation of R.C. 2923.13(A)(2); and Grand Theft of a Motor Vehicle (Count Seven), a felony of the fourth degree, in violation of R.C. 2913.02(A)(1). Counts One through Five each had a repeat violent offender specification, pursuant to R.C. 2941.149, as well as a firearm specification, pursuant to R.C. 2941.145. Counts Six and Seven each had a firearm specification.

{¶4} On October 26, 2010, Davis pled guilty to Count Two, Aggravated Robbery, with the repeat violent offender specification, and Count Seven, Grand Theft of a Motor Vehicle. Davis pled guilty, by way of North Carolina v. Alford (1970), 400 U.S. 25, to the firearm specification on Count Two and Count Six, Having Weapons While Under Disability. The State filed a Nolle Prosequi on the remaining counts of the Indictment. The matter was referred to the Probation Department for a presentence investigation report (PSI).

{¶5} A sentencing hearing was held on November 22, 2010. At the hearing, Davis, as well as Davis' mother, fiancee, and a friend, spoke on his behalf. Davis apologized for his actions, explained he was using drugs at the time of the offense, and stated that he had sought treatment for his drug problem. The court noted that Davis "takes no responsibility for his actions." The court also found that there is a high risk of recidivism due to Davis' past convictions, which included Robbery, and Davis "has not responded favorably in the past to sanctions." The trial court sentenced Davis to nine years in prison for Aggravated Robbery, three years for Having Weapons While Under Disability, and one year for Grand Theft of a Motor Vehicle, to be served concurrent with each other. The court also sentenced Davis to a three-year mandatory term for the firearm specification, to be served consecutive with the nine-year term, for a total term of imprisonment of twelve years.

{¶6} Davis timely appeals and raises the following assignment of error:

{¶7} "The trial court erred by sentencing the defendant-appellant to a twelve-year prison sentence."

{¶8} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the 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 sentences." Id. at paragraph seven of the syllabus. In light of Foster, this court has held that the trial court has full discretion to sentence within the statutory ranges. State v. Weaver, 11th Dist. No. 2006-L-113, 2007-Ohio-1644, at ¶33; State v. Martin, 11th Dist. No. 2006-L-191, 2007-Ohio-2579, at ¶19.

{¶9} "In applying Foster to the existing statutes, appellate courts must apply a two-step approach. First, they must examine the sentencing court's compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court's decision shall be reviewed under an abuse-of-discretion standard." State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, at ¶4.

{ΒΆ10} A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. "The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender." R.C. 2929.11(A). A court imposing a sentence for a felony "has discretion to determine the most effective way to comply with the purposes and principles of sentencing set forth in section 2929.11 of the Revised Code." R.C. 2929.12(A). "In the exercise of this discretion, a court 'shall consider' the non-exclusive list of ...


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