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State v. Stewart

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 2, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
TAYLOR STEWART DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-15-602090-A and CR-16-603218-A

         JUDGMENT: AFFIRMED

          ATTORNEY FOR APPELLANT Rachel A. Kopec

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor Christine M. Vacha Assistant County Prosecutor

          BEFORE: Stewart, J., E.A. Gallagher, P.J., and Blackmon, J.

          JOURNAL ENTRY AND OPINION

          MELODY J. STEWART, J.

         {¶1} Defendant-appellant Taylor Stewart challenges his 54-month sentence after being convicted of two felonies and a misdemeanor. Stewart first argues that the trial court did not properly consider the purposes of felony sentencing as required by R.C. 2929.11 and the seriousness and recidivism factors contained in R.C. 2929.12. Second, he argues that the court wrongfully imposed a consecutive sentence under R.C. 2929.14(C)(4). Finding no merit to Stewart's arguments, we affirm the trial court.

         {¶2} While awaiting trial on an indictment for two counts of felonious assault and one count of domestic violence, amongst other charges, Stewart was indicted again for subsequent crimes committed against the same victim. The second indictment consisted of one count of violating a protective order and one count of intimidation of a crime victim or witness.

         {¶3} Stewart subsequently pleaded guilty to charges from both indictments. From the first indictment, he pleaded guilty to attempted felonious assault, a felony of the third degree. The remaining counts from that indictment were nolled. From the second, he pleaded guilty to attempted intimidation of a crime victim or witness, a felony of the fourth degree, and violating a protective order, a misdemeanor of the first degree.

         {¶4} The court sentenced Stewart to 36 months in prison for the attempted felonious assault, 18 months in prison for the attempted intimidation, and time served for the protective order violation. The court ordered that his sentences run consecutively.

         {¶5} R.C. 2953.08 limits an appellate court's ability to review felony sentences. As relevant to this case, an appellate court may modify a sentence only if the court "clearly and convincingly finds * * * [t]hat the sentence is otherwise contrary to law." R.C. 2953.08(G)(2). As such, this court does not review a sentence for abuse of discretion. See State v. Akins, 8th Dist. Cuyahoga No. 99478, 2013-Ohio-5023, ¶ 15.

         {¶6} In his first assignment of error, Stewart argues that his sentence is contrary to law because the trial court imposed a prison sentence without properly considering the requisite statutory factors from R.C. 2929.11 and 2929.12. He does not dispute the fact that his sentence falls within the statutory range for the offenses committed.

         {¶7} R.C. 2929.11 directs a court to consider the "overriding" purposes of felony sentencing: (1) "protection of] the public from future crime by the offender or others, " and (2) "punish[ing] the offender." R.C. 2929.11(A). The court is to accomplish these purposes using "minimum sanctions" and without placing any "unnecessary burden on state or local government resources." Id. To achieve these purposes, a court must also consider the need for incapacitation, deterrence, rehabilitation, and restitution. Id. An appropriate sentence is thus one "reasonably calculated" to achieve the overriding purposes of felony sentencing and is "commensurate with, " while "not demeaning the seriousness" of, the conduct and its impact. R.C. 2929.11(B).

         {¶8} R.C. 2929.12 invests the trial court with discretion to "determine the most effective way to comply with the purposes and principles of sentencing." R.C. 2929.12(A). In doing so, the court must consider applicable factors from divisions (B) and (C) relating to the "seriousness of the conduct, " and divisions (D) and (E) relating to recidivism. Id. The statute also permits the trial court to consider "any other ...


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