Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Russell S. Bensing
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor BY: Hannah Smith Brian Radigan Assistant
BEFORE: Celebrezze, J., McCormack, P.J., and Laster Mays, J.
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR., J.
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.
Factual and Procedural History
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.
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.
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.
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
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.
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.
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.
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
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.
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.
Law and Analysis
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.
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
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
(_) The offender's history of criminal conduct
demonstrates that consecutive sentences are necessary to
protect the public from future crime by the offender.
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.
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 ...