Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Richard Agopian
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor BY: Andrew J. Santoli Fallon Radigan
Assistant Prosecuting Attorneys
BEFORE: E.A. Gallagher, P.J., Kilbane, J., and S. Gallagher,
JOURNAL ENTRY AND OPINION
A. GALLAGHER, P.J.
Defendant-appellant Marcellus Webster appeals his consecutive
sentences following his guilty pleas to involuntary
manslaughter, aggravated robbery with a three year firearm
specification and grand theft in the Cuyahoga County Court of
Common Pleas. For the following reasons, we affirm.
and Procedural Background
Webster plead guilty to the above offenses on November 5,
2015. The parties reached a plea agreement whereby Webster
would receive a minimum sentence of ten years up to a maximum
of 20 years. The agreement further specified that
Webster's offenses would not merge as allied offenses and
that the parties stipulated to agreed consecutive sentencing
findings under R.C. 2929.14(C)(4). The trial court
specifically clarified that the agreement obviated its duty
to put on the record why Webster's sentences would be run
consecutive because it was an agreed aspect of the plea
agreement. Webster's trial counsel acknowledged his
agreement to these terms at the time of his plea.
At sentencing, the trial court imposed an 11-year prison term
on the involuntary manslaughter count, a three year prison
term on the aggravated robbery count to be served consecutive
to an attached three year firearm specification and a six
month prison term on the grand theft count. The trial court
ordered the prison terms for involuntary manslaughter and
aggravated robbery to be served concurrently but consecutive
to the six-month prison term for grand theft. Webster's
cumulative prison sentence for the counts in this case was 14
years and six months. The trial court further ordered the
cumulative sentence in this case to be served consecutive to
Webster's sentences in two separate and prior cases.
In his first assignment of error, Webster argues that the
trial court failed to consider his youth as a factor at
sentencing pursuant to R.C. 2929.11 and 2929.12. In his
second assignment of error, Webster argues that the trial
court failed to make the required consecutive sentencing
findings pursuant to R.C. 2929.14(C)(4). We find both of
Webster's assignments of error to be barred on appeal by
Pursuant to R.C. 2953.08(D)(1), a sentence imposed upon a
defendant is not subject to appellate review if the sentence
is authorized by law, has been recommended jointly by the
defendant and the prosecution in the case and is imposed by a
sentencing judge. A sentence is "authorized by law"
and not appealable within the meaning of R.C. 2953.08(D)(1)
"only if it comports with all mandatory sentencing
provisions." State v. Underwood, 124 Ohio St.3d
365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 20. If all three
conditions are satisfied, R.C. 2953.08(D)(1) prohibits any
appeals from sentences that otherwise challenge the
court's discretion in imposing a sentence, such as
whether the trial court complied with statutory provisions
such as R.C. 2929.11 and 2929.12. State v.
Akins-Daniels, 8th Dist. Cuyahoga No. 103817,
2016-Ohio-7048, ¶ 14, citing State v.
Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d
923, ¶ 22.
In State v. Sergent, Slip Opinion No.
2016-Ohio-2696, ¶ 30, the Ohio Supreme Court held that a
jointly recommended sentence that includes nonmandatory,
consecutive sentences qualifies as "authorized by
law" even where the trial court fails to make the
appropriate consecutive sentencing findings pursuant to R.C.
2929.14(C)(4). Id. . at ¶ 30.
The above limitations on a defendant's ability to
challenge an agreed sentence on appeal are equally applicable
to cases such as the present that involve a sentencing range
as opposed to a single definite sentence.
Akins-Daniels at ¶ 12. If the state and
defendant jointly recommend a sentencing range, the defendant