Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
Gregory Scott Robey ATTORNEY FOR APPELLANT
Michael C. O'Malley Cuyahoga County Prosecutor By:
Patrick Lavelle Andrew F. Rogalski Assistant County
Prosecutors ATTORNEYS FOR APPELLEE
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, A.J.
Defendant-appellant, Apostolos N. Theodorou
("Theodorou"), appeals his sentence following a
guilty plea. For the reasons that follow, we affirm and
In 2016, Theodorou sold heroin laced with fentanyl to his
friend, Travis Wilson, who subsequently died from an
overdose. In June 2016, Theodorou was named in a
fifteen-count indictment charging him with eight counts of
drug trafficking, three counts of drug possession, and one
count each of involuntary manslaughter, corrupting another
with drugs, tampering with evidence, and possessing criminal
tools. The indictment contained one-year firearm
specifications and sought forfeiture of four firearms.
In February 2017, Theodorou pleaded guilty to an amended
count of involuntary manslaughter, a felony of the third
degree (Count 1); corrupting another with drugs, a
second-degree felony (Count 2); trafficking, a fourth-degree
felony (Counts 5 and 9); drug possession, a felony of the
fourth degree (Count 13); and possessing criminal tools, a
fifth-degree felony (Count 15). As part of the plea
agreement, Theodorou agreed to forfeit the four firearms in
his possession. The court found that Counts 1 and 2 were
allied offenses, and the state elected that Theodorou be
sentenced on Count 2.
The trial court sentenced Theodorou to a total of five years
in prison. It denied Theodorou's request to waive fines,
ordering that he pay the mandatory minimum fine of $7, 500.
However, the court waived court costs and elected not to
suspend Theodorou's driving privileges.
Theodorou now appeals, raising four assignments of error.
Sentence Unsupported by the Record
In his first assignment of error, Theodorou contends that the
trial court erred when it imposed a five-year prison term
that is not supported by the record.
Appellate review of felony sentences is governed by R.C.
2953.08, which provides that when reviewing felony sentences,
this court 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, if applicable, or the
sentence is contrary to law. R.C. 2953.08(G)(2). A sentence
is contrary to law if (1) the sentence falls outside the
statutory range for the particular degree of offense, or (2)
the trial court failed to consider the purposes and
principles of felony sentencing set forth in R.C. 2929.11 and
the sentencing factors in R.C. 2929.12. State v.
Hinton, 8th Dist. Cuyahoga No. 102710, 2015-Ohio-4907,
¶ 10, citing State v. Smith, 8th Dist. Cuyahoga
No. 100206, 2014-Ohio-1520, ¶ 13. When a sentence is
imposed soley after consideration of the factors in R.C.
2929.11 and 2929.12, appellate courts "may vacate or
modify any sentence that is not clearly and convincingly
contrary to law only if the appellate court finds by clear
and convincing evidence that the record does not support the
sentence." State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23.
In this case, Theodorou was sentenced on a number of charges
- the most egregious being corrupting another with drugs, a
second-degree felony, and was sentenced to a prison term of
five years. The five-year sentence is within the statutory
range for a second-degree felony. See R.C.
2929.14(A)(2) (range is two to eight years in prison). The
sentences for the remaining offenses - two trafficking
charges (12 months each), drug possession (12 months), and
possessing criminal tools (6 months) - were ordered to run
concurrent with each other, for a total prison sentence of
five years. Therefore, the prison term itself is not contrary
Additionally, the record reflects that the trial court
considered the purposes and principles of felony sentencing
set forth in R.C. 2929.11 and the seriousness and recidivism
sentencing factors in R.C. 2929.12. The trial court's
journal entry of sentence states, "[t]he court
considered all required factors of the law. The court finds
that prison is consistent with the purpose of R.C.
2929.11." These statements alone are sufficient to
satisfy the trial court's obligations under the law.
State v. Clayton, 8th Dist. Cuyahoga No. 99700,
2014-Ohio-112, ¶ 9. The trial court is not required to
make any findings in support of the factors contained in R.C.
2929.11 or 2929.12. See, e.g., State v. Gay, 8th
Dist. Cuyahoga No. 103641, 2016-Ohio-2946, ¶ 23.
Nevertheless, the trial court discussed on the record the
purposes and principles of felony sentencing under
R.C.2929.11 and the serious and recidivism factors contained
in R.C. 2929.12. Therefore, the sentence is not contrary to