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State v. Bell

Court of Appeals of Ohio, Eighth District

July 18, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
DWAYNE BELL DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-560295

ATTORNEYS FOR APPELLANT Anita Barthol Staley, Judith M. Kowalski

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor, Brian R. Radigan Assistant County Prosecutor.

BEFORE: Boyle, P.J., Rocco, J., and Blackmon, J.

JOURNAL ENTRY AND OPINION

MARY J. BOYLE, P.J.:

{¶ 1} This case came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1.

{¶2} Defendant-appellant, Dwayne Bell, appeals his sentence. He raises one assignment of error for our review, i.e., that "[t]he trial court erred by sentencing [him] to 24 months" in prison. Finding no merit to his appeal, we affirm.

Procedural History

{¶3} In March 2012, Bell was indicted on charges of rape, gross sexual imposition, kidnapping with a sexual motivation specification, aggravated burglary, and disrupting public services. The charges arose after Bell allegedly went to the victim's home, forced his way into her apartment, and forced her to have sexual intercourse with him.

{¶ 4} In July 2012, Bell withdrew his former plea of not guilty and pleaded guilty to amended counts of attempted abduction in violation of R.C. 2923.02 and 2905.02, a felony of the fourth degree, and burglary in violation of R.C. 2911.12(A)(3), a felony of the third degree. The remaining counts and specifications were nolled.

{¶ 5} The trial court sentenced Bell to concurrent prison terms of 24 months for burglary and 12 months for abduction, for a total of 24 months in prison. The trial court further advised Bell that he would be subject to a discretionary period of up to three years of postrelease control when he was released from prison. It is from this judgment that Bell appeals.

Standard of Review

{¶6} An appellate court must conduct a meaningful review of the trial court's sentencing decision. State v. Johnson, 8th Dist. No. 97579 , 2012-Ohio-2508, ¶ 6, citing State v. Hites, 3d Dist. No. 6-11-07, 2012-Ohio-1892, ¶ 7. Specifically, R.C. 2953.08(G)(2) provides that our review of a defendant's sentence is not an abuse of discretion. An appellate court must "review the record, including the findings underlying the sentence or modification given by the sentencing court." Id . If an appellate court clearly and convincingly finds either that (a) "the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant"; or (b) "the sentence is otherwise contrary to law, " then "the appellate court may increase, reduce, or otherwise modify a sentence * * * or may vacate the sentence and remand the matter to the sentencing court for resentencing." Id.

{¶7} Because none of the circumstances under R.C. 2953.08(G)(2)(a) are relevant here, [1] then this court may only "increase, reduce, or otherwise modify [Bell's] sentence * * * or may vacate [his] sentence and remand the matter to the sentencing court for resentencing" if we clearly and convincingly find ...


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