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State v. Theodorou

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 21, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
APOSTOLOS N. THEODOROU DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-607318-A

          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.

         {¶1} Defendant-appellant, Apostolos N. Theodorou ("Theodorou"), appeals his sentence following a guilty plea. For the reasons that follow, we affirm and remand.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.[1]

         {¶5} Theodorou now appeals, raising four assignments of error.

         I. Sentence Unsupported by the Record

         {¶6} 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.

         {¶7} 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.

         {¶8} 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 to law.

         {¶9} 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, ΒΆ 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 ...


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