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State v. Blevins

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 22, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
BARRY BLEVINS DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-597731-A

          ATTORNEY FOR APPELLANT Russell S. Bensing

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Hannah Smith Brian Radigan Assistant Prosecuting Attorneys

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

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR., J.

         {¶1} Defendant-appellant, Barry Blevins ("appellant"), brings this appeal challenging the trial court's imposition of consecutive sentences. Specifically, appellant argues that the trial court imposed consecutive sentences without making the required findings under R.C. 2929.14(C)(4) and that the maximum sentence imposed by the trial court is not clearly and convincingly supported by the record. After a thorough review of the record and law, this court affirms.

         I. Factual and Procedural History

         {¶2} Appellant was indicted, entered a plea, and was sentenced in two separate criminal cases: Cuyahoga C.P. No. CR-14-592088-A and Cuyahoga C.P. No. CR-15-597731-A. This appeal pertains to the sentence imposed in the latter case. CR-14-592088-A

         {¶3} On December 23, 2014, the Cuyahoga County Grand Jury returned an eight-count indictment charging appellant with (1) drug trafficking, in violation of R.C. 2925.03(A)(2); (2) drug possession, in violation of R.C. 2925.11(A); (3) drug trafficking, in violation of R.C. 2925.03(A)(2); (4) carrying a concealed weapon, in violation of R.C. 2923.12(A)(2); (5) improperly handling a firearm in a motor vehicle, in violation of R.C. 2923.16(B); (6) receiving stolen property, in violation of R.C. 2913.51(A); (7) having weapons while under disability, in violation of R.C. 2923.13(A)(2); and (8) having weapons while under disability, in violation of R.C. 2923.13(A)(3). Counts 1 through 3 contained one-year firearm specifications and forfeiture specifications. Counts 4 through 8 contained forfeiture specifications. Appellant pled not guilty to the indictment.

         {¶4} On June 2, 2015, appellant entered a plea of no contest to all eight counts in the indictment. The trial court advised appellant of his constitutional rights and penalties implicated by his plea of no contest. Furthermore, based on the evidence proffered by the state, the trial court found appellant guilty on all counts and specifications. The trial court proceeded immediately to sentencing and imposed an aggregate three-year prison term.

         {¶5} On June 30, 2015, appellant filed an appeal challenging his convictions. This court determined that the trial court's June 2, 2015 sentencing journal entry did not accurately reflect what transpired during the sentencing hearing, and remanded the case to the trial court for a nunc pro tunc sentencing entry.

         {¶6} On January 12, 2016, the trial court issued a nunc pro tunc sentencing entry indicating that Counts 1 and 2 merged for sentencing purposes, and the state elected to sentence appellant on Count 1; Counts 7 and 8 also merged for sentencing purposes, and the state elected to sentence appellant on Count 7.

         {¶7} In State v. Blevins, 2016-Ohio-2937, 65 N.E.3d 146 (8th Dist), this court held that the trial court properly denied appellant's motion to suppress and affirmed appellant's convictions. Id. . at ¶ 2.

         CR-15-597731-A

         {¶8} On October 11, 2014, the victim, David Garrett, was shot and killed during an altercation outside of a nightclub on Cleveland's west side. On August 3, 2015, the Cuyahoga County Grand Jury returned a 12-count indictment charging appellant with (1) murder, in violation of R.C. 2903.02(A); (2) murder, in violation of R.C. 2903.02(B); (3) felonious assault, in violation of R.C. 2903.11(A)(1); (4) felonious assault, in violation of R.C. 2903.11(A)(2); (5) voluntary manslaughter, in violation of R.C. 2903.03(A); (6) involuntary manslaughter, in violation of R.C. 2903.04(A); (7) discharge of a firearm on or near prohibited premises, in violation of R.C. 2923.162(A)(3); (8) aggravated assault, in violation of R.C. 2903.12(A)(1); (9) aggravated assault, in violation of R.C. 2903.12(A)(2); (10) tampering with evidence, in violation of R.C. 2921.12(A)(1); (11) having weapons while under disability, in violation of R.C. 2923.13(A)(2); and (12) having weapons while under disability, in violation of R.C. 2923.13(A)(3). Counts 1 through 6 contained one- and three-year firearm specifications, notice of prior conviction specifications, and repeat violent offender specifications. Count 7 contained one- and three-year firearm specifications and a notice of prior conviction specification. Counts 8 and 9 contained one- and three-year firearm specifications. Appellant pled not guilty to the indictment.

         {¶9} The parties reached a plea agreement. The state amended Count 5 by deleting the one-year firearm specification and the notice of prior conviction and repeat violent offender specifications. On August 1, 2016, appellant pled guilty to Count 5, voluntary manslaughter, a first-degree felony, and the underlying three-year firearm specification. The remaining counts and specifications charged in the indictment were nolled. The trial court ordered a presentence investigation report ("PSI") and set the matter for sentencing.

         {¶10} The trial court held a sentencing hearing on August 31, 2016. The trial court sentenced appellant to a prison term of 14 years: three years on the firearm specification to be served prior to and consecutively with 11 years on the voluntary manslaughter count. The trial court ordered appellant to serve this 14-year sentence consecutively with his three-year prison sentence in CR-14-592088-A.

         {¶11} On September 29, 2016, appellant filed the instant appeal challenging the trial court's sentence. He assigns two errors for review:

I. The trial court's imposition of consecutive sentences was contrary to law.
II. The trial court's imposition of maximum and consecutive sentences is clearly and convincingly unsupported by the record.

         II. Law and Analysis

         A. Consecutive Sentences

         {¶12} In his first assignment of error, appellant argues that the trial court failed to make the requisite findings pursuant to R.C. 2929.14(C)(4) prior to imposing consecutive sentences.

         {¶13} We review felony sentences under the standard set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 16. R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a reviewing court may overturn the imposition of consecutive sentences where the court "clearly and convincingly finds that (1) "the record does not support the sentencing court's findings under R.C. 2929.14(C)(4), " or (2) "the sentence is otherwise contrary to law."

         {¶14} R.C. 2929.14(C)(4) provides that in order to impose consecutive sentences, the trial court must find that consecutive sentences are (1) necessary to protect the public from future crime or to punish the offender, (2) that such sentences would not be disproportionate to the seriousness of the conduct and to the danger the offender poses to the public, and (3) that one of the following applies:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under postrelease control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
(_) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

         {¶15} Compliance with R.C. 2929.14(C)(4) requires the trial court to make the statutory findings at the sentencing hearing, which means that "'the [trial] court must note that it engaged in the analysis' and that it 'has considered the statutory criteria and specifie[d] which of the given bases warrants its decision.'" State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26, quoting State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). Further, the reviewing court must be able to discern that the record contains evidence to support the findings. State v. Davis, 8th Dist. Cuyahoga No. 102639, 2015-Ohio-4501, ¶ 21, citing Bonnell at ¶ 29. A trial court is not, however, required to state its reasons to support its findings, nor is it required to give a rote recitation of the statutory language, "provided that the necessary findings can be found in the record and are incorporated in the sentencing entry." Bonnell at ¶ 37.

         {¶16} In the instant matter, appellant concedes that the trial court made the first R.C. 2929.14(C)(4) finding. In making the first finding, the trial court stated, "I find that consecutive service is necessary to protect the public from future crime[.] * * * I also find it's necessary to adequately punish you for the crime." (Tr. 131-132.) Furthermore, regarding the third finding, appellant does not challenge the trial court's determination that R.C. 2929.14(C)(4)(b) and (c) applied. In making the third finding, the trial court stated,

I also find that the crimes were - at least two of these crimes were committed as part of one or more courses of conduct. And I find that the harm caused by the multiple offenses was so great that no single ...

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