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State v. Anderson

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 8, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
LATWAN L. ANDERSON DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-603794-A

          ATTORNEYS FOR APPELLANT Mark A. Stanton Cuyahoga County Public Defender Jeffrey Gamso Assistant Public Defender

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor Ashley B. Kilbane Assistant County Prosecutor

          BEFORE: McCormack, P.J., Laster Mays, J., and Celebrezze, J.

          JOURNAL ENTRY AND OPINION

          TIM McCORMACK, PRESIDING JUDGE

         {¶1} Defendant-appellant Latwan Anderson appeals from his conviction for aggravated robbery, kidnapping, and tampering with evidence. For the reasons that follow, we affirm.

         {¶2} Anderson was charged in two cases for his involvement in three robberies. In Cuyahoga C.P. No. CR-16-603854, he was charged with one count of aggravated robbery, two counts of robbery, two counts of kidnapping, and one count of petty theft. All of the charges pertain to an incident that occurred on January 10, 2016, and five of the six counts included one- and three-year firearm specifications. In Cuyahoga C.P. No. CR-16-603794, Anderson was charged in an 18-count indictment that stems from an incident on January 24, 2016, and an incident on February 12, 2016. These charges included three counts of aggravated robbery (Counts 1, 7, and 12), nine counts of robbery (Counts 2-4, 8-10, and 13-15), three counts of kidnapping (Counts 5, 11, and 16), one count of petty theft (Count 6), one count of theft (Count 17), and one count of tampering with evidence (Count 18). The indictment included multiple one- and three-year firearm specifications and multiple forfeiture specifications.

         {¶3} On July 26, 2016, Anderson entered into a guilty plea to amended charges. In Case No. 603854, Anderson pleaded guilty to aggravated robbery in violation of R.C. 2911.01(A)(1) in Count 1, and the attendant one-year firearm specification, and kidnapping in violation of R.C. 2905.01(A)(2) in Count 5. All remaining charges and specifications were nolled. In Case No. 603794, Anderson pleaded guilty to aggravated robbery in violation of R.C. 2911.01(A)(1) in Count 1, and its attendant three-year firearm specification, aggravated robbery in violation of R.C. 2911.01(A)(1) in Count 7, and its attendant forfeiture specification, and tampering with evidence in violation of R.C. 2921.12(A)(1) in Count 18. All remaining charges and specifications were nolled.

         {¶4} On August 23, 2016, the trial court imposed a prison sentence. In Case No. 603854, the court sentenced Anderson to three years each on the aggravated robbery and the kidnapping, to be served concurrently, and one year on the firearm specification, to be served consecutively to the underlying charge, for a total of four years. In Case No. 603794, the court sentenced Anderson to three years each on the aggravated robberies in Count 1 and 7, as well as the attendant firearm specification, to be served consecutively, and 36 months on the tampering charge in Count 18, to be served concurrently, for a total of nine years. The total aggregate sentence for both cases was 13 years in prison.

         {¶5} Anderson now appeals his sentence, contending that consecutive sentences were not supported by the record "when no individual sentence involved is the maximum available for the offense and when the total time imposed for consecutive sentences is less than the maximum sentence for any one of the individual sentences made consecutive." Anderson essentially argues that the court erred in imposing consecutive sentences where it did not impose the maximum sentence on the individual offenses, because if the court finds that a sentence less than the maximum is sufficient, then the record does not support consecutive sentences. Anderson contends that this is particularly true when the individual sentences served consecutively do not amount to the available maximum sentence. We find no merit to Anderson's argument.

         {¶6} In reviewing felony sentences, we do not review the sentence for an abuse of discretion. R.C. 2953.08(G)(2); see also State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. Rather, we may increase, reduce, modify a sentence, or vacate and remand for resentencing if we clearly and convincingly find that the record does not support the sentencing court's statutory findings under R.C. 2929.14(C)(4) or the sentence is contrary to law. State v. Wenmoth, 8th Dist. Cuyahoga No. 103520, 2016-Ohio-5135, ¶ 12, citing R.C. 2953.08(G)(2).

         {¶7} A sentence is contrary to law if it falls outside the statutory range for the particular degree of offense or if the trial court fails to consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12. State v. Pawlak, 8th Dist. Cuyahoga No. 103444, 2016-Ohio-5926, ¶ 58. Courts have "full discretion" to impose a sentence within the applicable statutory range. State v. Collier, 8th Dist. Cuyahoga No. 95572, 2011-Ohio-2791, ¶ 15, citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the syllabus. Therefore, a sentence imposed within the statutory range is "presumptively valid." Collier at ¶ 15.

         {¶8} Here, Anderson does not dispute that he was sentenced within the statutory range for his offenses, and he does not argue that the court failed to consider the principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12. We must therefore determine whether we "clearly and convincingly find that the record does not support the sentencing court's statutory findings under R.C. 2929.14(C)(4)." Wenmoth; R.C. 2953.08(G)(2).

         {¶9} In order to impose consecutive sentences, the trial court must make findings set forth in R.C. 2929.14(C)(4) and incorporate those findings into the journal entry of sentence. State v. Bonnell,140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ΒΆ 37. R.C. 2929.14(C)(4) provides that the trial court must find that consecutive sentences are necessary to protect the public from future crime or to punish the offender, that such sentences would not be ...


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