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State v. Rosario

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 29, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
DANIEL R. ROSARIO DEFENDANT-APPELLANT

          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 Prosecutor .

          BEFORE: Blackmon, J., E.T. Gallagher, P.J., and Stewart, J.

          JOURNAL ENTRY AND OPINION

          PATRICIA ANN BLACKMON, J.

         {¶1} 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. 2929.14.

         {¶2} Having reviewed the record and pertinent law, we affirm. The apposite facts follow.

         {¶3} 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.

         Felony Sentencing Standard of Review

         {¶4} 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 N.E.3d 1231.

         {¶5} 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.

         {¶6} 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).

         {¶7} 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 ...


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