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State v. May

Court of Appeals of Ohio, Eighth District

June 27, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
KELLEN MAY DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-557228

ATTORNEYS FOR APPELLANT: Larry W. Zukerman Richard L. Fenbert Mark M. Jablonski Zukerman, Daiker & Lear.

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor, James Hofelich Assistant Prosecuting Attorney The Justice Center

BEFORE: Rocco, P.J., Blackmon, J., and E.T. Gallagher, J.

JOURNAL ENTRY AND OPINION

KENNETH A. ROCCO, PRESIDING JUDGE

{¶ 1} After entering a guilty plea to one count of attempted felonious assault, defendant-appellant Kellen May received the maximum sentence of 36 months in prison. He now appeals from that sentence, arguing that the trial court failed to consider R.C. 2929.11 and 2929.12 and imposed a term that was disproportionate to the one his codefendant Deandre May received.

{¶2} Upon a review of the record, this court cannot find support for May's argument. Consequently, his sentence is affirmed.

{¶ 3} May originally was indicted in this case as a result of a drive-by shooting incident at a "deli" with two codefendants. Seven counts of the eight-count indictment pertained to May and Deandre May, who is apparently his younger brother.

{¶ 4} The Mays both were charged with: 1) participating in a criminal gang; 2) and 3) felonious assault; 4) discharge of a firearm on or near prohibited premises; 6) improperly handling firearms in a motor vehicle; 7) vandalism; and 8) criminal damaging. The felonious assault charges also contained 5-year, 3-year; and 1-year firearm specifications, a criminal gang activity specification, and a forfeiture of a weapon specification. Counts 4 and 7 also contained 5-year, 3-year; and 1-year firearm specifications and a forfeiture of a weapon specification.

{¶ 5} Eight months later, the parties informed the trial court that they had arranged a plea bargain. According to the prosecutor, in exchange for the May brothers' guilty pleas to Count 3 and their promises to testify truthfully against the remaining codefendant, the state would amend Count 3 to include the attempt statute and the names of all the victims and to delete the criminal gang and firearm specifications, and the state also would dismiss all the other charges.

{¶ 6} The trial court conducted a thorough colloquy prior to accepting the brothers' guilty pleas. During the colloquy, May indicated he had dropped out of high school in the tenth grade. May's brother indicated he was three years younger, and he had just completed high school. Before concluding the proceeding, the trial court ordered the probation department to prepare presentence reports.

{¶7} When May's sentencing hearing took place, the trial court indicated it had reviewed the presentence report and asked May and his defense counsel to make statements. May told the court he had "learned [his] lesson" and was "sorry * * * for everything." His defense counsel pointed out that, although May had been the driver during the shooting, he had been cooperative with both the police and the prosecutor.

{¶ 8} The trial court began by noting that May had "an extensive record." The court further noted that May had violated his probation in his previous "domestic violence" case. At that point, the trial court asked "what gang" had been involved in the incident that led to May's current conviction, but when defense counsel reminded the court that the gang specifications had been dismissed, the court then asked how many persons were inside the deli when the shooting took place. The court stressed the fact that May had violated his probation in his earlier cases, asked May for a final comment, then sentenced him to serve 36 months in prison.

{ΒΆ9} According to the journal entry of sentence, "The Court considered all required factors of the law, " and found "that prison is consistent with the ...


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