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State v. Harb

Court of Appeals of Ohio, Eighth District

June 27, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
MICHAEL M. HARB DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-564226

ATTORNEY FOR APPELLANT Carol Jackson

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor Erin Stone Assistant County Prosecutor

BEFORE: Kilbane, J., Celebrezze, P.J., and McCormack, J.

JOURNAL ENTRY AND OPINION

MARY EILEEN KILBANE, JUDGE

{¶ 1} Defendant-appellant, Michael Harb, in his sole assignment of error, argues that the trial court erred in imposing a 20-year sentence for aggravated robbery, felonious assault, kidnapping, aggravated burglary, grand theft, and theft. We disagree and affirm the trial court.

{¶ 2} On July 6, 2012, defendant was indicted pursuant to a seven-count indictment in connection with the June 21, 2010 break-in at the Garfield Heights home of Alice Prybor ("Alice"), age 60, and her mother Helen Prybor ("Helen"), age 90. In Count 1, defendant was charged with aggravated burglary in violation of R.C. 2911.11(A)(1). Counts 2 and 3 charged him with kidnapping in violation of R.C. 2905.01(A)(2) and (A)(3). Count 4 charged him with felonious assault in violation of R.C. 2903.11(A)(1). Count 5 charged him with aggravated robbery in violation of R.C. 2911.01(A)(3). Count 6 charged him with grand theft in violation of R.C. 2913.02(A)(1), and Count 7 charged him with theft in violation of R.C. 2913.02(A)(5).

{¶ 3} On September 24, 2012, defendant pled guilty to all charges. The defendant was referred for a presentence investigation. The court also heard from Alice who described defendant's early morning invasion into her home and his vicious attack upon her that resulted in a "blowout fracture" to her eye and other injuries. She has had numerous eye surgeries, including the placement of a permanent plate to support her eye.

{¶ 4} The trial court held a sentencing hearing on October 25, 2012. The court merged the kidnapping charge in Count 2 with the aggravated robbery charge in Count 5, and merged the kidnapping charge in Count 3 with the felonious assault charge in Count 4. The state elected to proceed to sentencing on Counts 3 and 5.

{¶ 5} The record indicated that after the defendant broke into the home, he could have simply taken a purse left on the kitchen table, but instead proceeded to the living room and assaulted Alice and went through the pockets of her clothing. His DNA was found on her clothing. He threatened to kill her and stole her tax refund check. Alice sustained orbital and nasal fractures. The record also indicated that defendant has not expressed remorse for his actions. His attorney stated that Alice's niece, an acquaintance of the defendant, had gone to Alice's home approximately three hours earlier asking for money. Defense counsel acknowledged that the defendant took things from the home, but denied that he beat Alice. The record indicates that the defendant has three prior offenses, and the instant matter is his second felony conviction. Defendant was given probation in the prior misdemeanor matters; however, he violated the terms of his probation in those cases.

{¶ 6} The court sentenced the defendant to ten years of imprisonment for aggravated burglary in Count 1, a consecutive ten-year term for aggravated robbery in Count 5, a concurrent ten-year term for kidnapping in Count 3, and concurrent twelve-month terms for the theft offenses in Counts 6 and 7.

{¶ 7} Defendant appeals, raising the following sole assignment of error for our review:

The trial court erred in sentencing the Appellant to the consecutive terms of imprisonment.

{ΒΆ 8} In reviewing a felony sentence, we take note of R.C. 2953.08(G)(2), which ...


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