Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-17-613748-A
ATTORNEY FOR APPELLANT Britta M. Barthol
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Shannon M. Musson Assistant County
BEFORE: Blackmon, J., E.T. Gallagher, P.J., and Stewart, J.
JOURNAL ENTRY AND OPINION
PATRICIA ANN BLACKMON, J.
Daniel R. Rosario ("Rosario") appeals his five-year
prison sentence for robbery and community control sanctions
("CCS") violations and assigns the following error
for our review:
I. The trial court imposed a sentence that is contrary to law
when it failed to make all the factual findings necessary to
sentence appellant to consecutive sentences under R.C.
Having reviewed the record and pertinent law, we affirm. The
apposite facts follow.
On June 27, 2017, Rosario pled guilty to one count of robbery
in violation of R.C. 2911.02(A)(1), a second-degree felony,
with a one-year firearm specification. On July 26, 2017, the
court sentenced Rosario to three years in prison for the
robbery, to run consecutive to one year in prison for the
firearm specification. The court also found Rosario to be in
violation of CCS previously imposed in State v.
Rosario, Cuyahoga C.P. Nos. CR-14-582320 (Apr. 22, 2015)
and CR-14-591138 (Apr. 22, 2015). The court sentenced Rosario
to one year in prison for violating his CCS and ran this
sentence consecutive to the four-year sentence in the case at
hand. Rosario now appeals his five-year prison sentence.
Sentencing Standard of Review
R.C. 2953.08(G)(2) provides, in part, that when reviewing
felony sentences, the appellate court's standard is not
whether the sentencing court abused its discretion; rather,
if this court "clearly and convincingly finds that (1)
"the record does not support the sentencing court's
findings under" R.C. Chapter 2929 or (2) "the
sentence is otherwise contrary to law, " then we may
conclude that the court erred in sentencing. See also
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59
A sentence is not clearly and convincingly contrary to law
"where the trial court considers the purposes and
principles of sentencing under R.C. 2929.11 as well as the
seriousness and recidivism factors listed in R.C. 2929.12,
properly applies post-release control, and sentences a
defendant within the permissible statutory range."
State v. A.H., 8th Dist. Cuyahoga No. 98622,
2013-Ohio-2525, ¶ 10.
Pursuant to R.C. 2929.11(A), the two overriding purposes of
felony sentencing are "to protect the public from future
crime by the offender and others, " and "to punish
the offender using the minimum sanctions that the court
determines accomplish those purposes * * *."
Additionally, the sentence imposed shall be
"commensurate with and not demeaning to the seriousness
of the offender's conduct and its impact on the victim,
and consistent with sentences imposed for similar crimes
committed by similar offenders." R.C. 2929.11(B).
Furthermore, in imposing a felony sentence, "the court
shall consider the factors set forth in [R.C. 2929.12(B) and
(C)] relating to the seriousness of the conduct [and] the
factors provided in [R.C. 2929.12(D) and (E)] relating to the
likelihood of the offender's recidivism * * *." R.C.
2929.12. However, this court has held that "[a]lthough
the trial court must consider the principles and purposes of
sentencing as well as the mitigating factors, the court is
not required to use particular language or make specific
findings on ...