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State v. Kibble

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 25, 2017


         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-595318-E

          ATTORNEYS FOR APPELLANT Mark Stanton Cuyahoga County Public Defender BY: Noelle A. Powell Assistant Public Defender

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Ryan J. Bokoch Yasmine M. Hasan Assistant Prosecuting Attorneys

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



         {¶1} Defendant-appellant Romeo Kibble appeals his sentences following his guilty pleas in the Cuyahoga County Court of Common Pleas to eight counts of aggravated robbery, 18 counts of kidnapping, improperly handling a firearm in a motor vehicle, carrying a concealed weapon and possessing criminal tools. For the following reasons, we affirm in part, and reverse in part.

         Facts and Procedural Background

         {¶2} Kibble was involved in a string of robbery and kidnapping offenses in which eight separate defendants, including his brother Rodney Kibble, were charged. He pled to the above offenses on September 16, 2015. At sentencing, the trial court merged as allied offenses the kidnappings associated with the various aggravated robbery offenses and the state elected that Kibble be sentenced on the aggravated robberies. The trial court imposed seven-year prison terms on each count of aggravated robbery and each count of kidnapping that was not merged as an allied offense. The court also imposed prison terms of 18 months for Kibble's improperly handling firearms in a motor vehicle and carrying a concealed weapons charges and 12 months for his possessing criminal tools charge. The court ordered the prison terms for these offenses to be served concurrently to each other but consecutive to two of the 3-year firearm specifications attached to his aggravated robbery and kidnapping counts. Pursuant to R.C. 2929.14(B)(1)(g) the court was required to run the first two firearm specifications consecutive to each other for a six-year prison term. All remaining firearm specifications were order to be served concurrently. Kibble's aggregate prison sentence was 13 years. The trial court also ordered Kibble to pay restitution in the amounts of $400 for an iPhone, $1, 000 to Sun Valley and $100 to the United Dairy Farmers.

         Law and Analysis

         I. Sentence Consistency

         {¶3} In his first assignment of error, Kibble argues that his sentence is inconsistent with the sentence of one of his codefendants, Michael Bates, in that they both received cumulative prison terms of 13 years despite Kibble's belief that he deserved a lesser sentence than Bates due to his cooperation with law enforcement after his arrest.

         {¶4} Pursuant to R.C. 2929.11(B) a sentence imposed for a felony shall be "consistent with sentences imposed for similar crimes committed by similar offenders." Pursuant to this court's decision in State v. Jones, 8th Dist. Cuyahoga Nos. 103290 and 103302, 2016-Ohio-7702, an appellate court can reverse a felony sentence if it finds by clear and convincing evidence that the record does not support the sentence consistent with principles and purposes of felony sentencing set forth in R.C. 2929.11 and the seriousness and recidivism factors set forth in R.C. 2929.12. Id. at ¶ 108, citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23. Sentences found to be inconsistent with R.C. 2929.11 and 2929.12 by clear and convincing evidence on the record are "contrary to law" for the purposes of R.C. 2953.08(A)(4). Id. at ¶ 108. The clear and convincing standard is not to be confused with an "abuse of discretion" standard that was explicitly rejected by the legislature when it amended R.C. 2953.08(G) in 2000.[1]Under the clear and convincing standard, an appellate court is not to reverse a sentence merely because it disagrees with the discretion exercised by the trial court. Instead, reversals are limited to only the egregious instances where the record demonstrates by clear and convincing evidence that the trial court's sentence contradicts the mandates of the relevant sentencing statutes. Marcum at ¶ 23.

         {¶5} In this instance Kibble's two consecutive terms stemming from his three-year firearm specifications were mandated by R.C. 2929.14(B)(1)(g). Like Kibble, Bates received a six-year prison term for two consecutive three-year firearm specifications. Reducing Kibble's argument to the relevant aspect of his sentencing, he complains that he received the seven-year prison sentence for aggravated robbery that Bates received for the same offense. Kibble believes this is inconsistent because he was not properly credited for cooperating with police after he was arrested.

         {¶6} It is not the responsibility of the court to provide consideration to a defendant who has cooperated with law enforcement officers nor should it be expected by any party. The primary responsibility of the judiciary is to fairly and impartially settle disputes according to the law. Should the state be of the opinion that an individual has provided valuable information and seeks to reward him/her ...

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