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State v. Webster

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 16, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE
v.
MARCELLUS LAWRENCE WEBSTER, DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-597924-B

          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, J.

          JOURNAL ENTRY AND OPINION

          EILEEN A. GALLAGHER, P.J.

         {¶1} 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.

         Facts and Procedural Background

         {¶2} 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.

         {¶3} 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.

         Law and Analysis

         {¶4} 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 R.C. 2953.08(D)(1).

         {¶5} 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.

         {¶6} 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.

         {¶7} 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 ΒΆ 12. If the state and defendant jointly recommend a sentencing range, the defendant ...


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