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State v. Wimbley

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 3, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
BRIAN WIMBLEY DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-615802-A

          ATTORNEY FOR APPELLANT Rachel A. Kopec

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Scott C. Zarzycki Brian Lynch Assistant County Prosecutors

          BEFORE: McCormack, P.J., Celebrezze, J., and Keough, J.

          JOURNAL ENTRY AND OPINION

          TIM McCORMACK, PRESIDING JUDGE.

         {¶1} Defendant-appellant Brian Wimbley ("Wimbley") appeals the imposition of consecutive sentences following his convictions for participating in a criminal gang, robbery, receiving stolen property, having a weapon while under disability, aggravated robbery, and attempted robbery. For the reasons that follow, we affirm Wimbley's sentence.

         Procedural and Substantive History

         {¶2} The charges in this case stem from a significant amount of criminal activity that took place throughout the greater Cleveland area over the course of several months, including robbing a Sonic restaurant and robbing individuals at gunpoint.

         {¶3} On April 29, 2016, a complaint was filed in juvenile court alleging that Wimbley had committed one count of participating in a criminal gang in violation of R.C. 2923.41, three counts of aggravated robbery in violation of R.C. 2911.01(A)(1), seven counts of robbery in violation of R.C. 2911.02, five counts of kidnapping in violation of R.C. 2905.01(A)(2), one count of receiving stolen property in violation of R.C. 2913.51(A), one count of carrying a concealed weapon in violation of R.C. 2923.12(A)(2), and one count of having weapons while under disability in violation of R.C. 2923.13(A)(2). The aggravated robbery, robbery, and kidnapping counts each carried one- and three-year firearm specifications and criminal gang activity specifications.

         {¶4} Wimbley was subsequently bound over and ultimately indicted on the above charges.

         {¶5} On June 28, 2017, Wimbley pleaded guilty to one count of participating in a criminal gang, one count of robbery, one count of receiving stolen property, one count of having weapons while under disability, one count of aggravated robbery with a three-year firearm specification, and one count of attempted robbery. The remaining counts and specifications were dismissed as part of a plea agreement.

         {¶6} On July 26, 2017, the trial court sentenced Wimbley to five years in prison for participating in a criminal gang, seven years for robbery, 12 months for receiving stolen property, 24 months for having weapons while under disability, nine years in prison for aggravated robbery, and 36 months for attempted robbery. The three-year firearm specification was to be served prior to and consecutive to the other counts. The trial court ordered that the five years for participating in a criminal gang be served prior to and consecutive to the other counts, all of which were to be served concurrently, for a total sentence of 17 years.

         {¶7} Wimbley appealed his sentence, bringing one assignment of error for our review.

         Law ...


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