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State v. McDaniel

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 24, 2018


          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-600835-C

          ATTORNEYS FOR APPELLANT Mark C. Stanton Cuyahoga County Public Defender Cullen Sweeney John T. Martin Assistant County Public Defenders.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: James D. May Anthony Thomas Miranda Assistant County Prosecutors.

          BEFORE: Jones, J., Boyle, P.J., and S. Gallagher, J.


          LARRY A. JONES, SR, J.

         {¶1} Defendant-appellant DeWayne McDaniel ("McDaniel") appeals his sentence, rendered after he pleaded guilty to four criminal offenses. For the reasons that follow, we affirm.

         {¶2} McDaniel and coconspirators Lamont Weakley ("Weakley") and Melissa Coles ("Coles") were involved in a scheme to use the personal information stolen from patients of American Dental Centers to obtain fraudulent lines of credit and make purchases at various retail stores. They used the stolen patient information to create fake driver's licenses and identification cards in the names of the victims, establish lines of credit in the names of the victims, and make various purchases, including purchases of jewelry, clothing, gift cards and cell phones using the credit that had been established.

         {¶3} In December 2015, the trio were charged in a 45-count indictment. Weakley proceeded to trial on 34 of the 45 counts and was convicted of 20 counts. Coles, who had no prior felony record, pleaded guilty to an amended indictment and testified against Weakley at trial.

         {¶4} McDaniel entered into plea negotiations with the state and pleaded guilty to an amended indictment. He pleaded guilty to one count of conspiracy to engage in a pattern of corrupt activity and one count of identity fraud, felonies of the third degree. He also pleaded guilty to one count of aggravated theft and one count of attempted money laundering, felonies of the fourth degree. As part of the plea agreement, McDaniel agreed that none of the offenses merged for the purposes of sentencing.

         {¶5} The trial court sentenced McDaniel to a total of six years in prison and ordered him to pay $37, 000 in restitution, jointly and severally liable with his codefendants. The sentence consisted of consecutive terms.

         {¶6} McDaniel filed a notice of appeal and filed one assignment of error for our review:

I. The trial court misunderstood the sentencing law regarding consistency and proportionality at the time it sentenced appellant.

         {¶7} Weakley also appealed his convictions. After McDaniel filed his appellate brief, this court issued its decision in State v. Weakley, 8th Dist. Cuyahoga No. 105293, 2017-Ohio-8404, vacating Weakley's convictions and remanding the case to the trial court. McDaniel moved this court to reopen briefing. This court granted his motion and McDaniel filed a supplemental assignment of error:

II. The trial court imposed a sentence contrary to law and violated appellant's due process rights when it imposed a sentence upon appellant that was inconsistent with and disproportionate to the sentence imposed upon his more culpable co-defendant.

         {¶8} In the first assignment of error, McDaniel claims that his sentence should be reversed because it is unclear that the trial court sentenced him with a "full understanding of the law."

         {¶9} R.C. 2953.08(G)(2) provides, in part, that when reviewing felony sentences, the appellate court's standard for review 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. 2929.14(C)(4), " or that (2) "the sentence is otherwise contrary to law, " then we "may increase, reduce, or otherwise modify a sentence * * * or [a reviewing court] may vacate the sentence and remand the matter to the sentencing court for re-sentencing."

         {¶10} The Ohio Supreme Court has further explained:

[S]ome sentences do not require the findings that R.C. 2953.08(G) specifically addresses. Nevertheless, it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors in R.C. 2929.11 and 2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court 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.

         {¶11} In determining what sentence to impose, a sentencing court is required to consider the purposes and principles of sentencing pursuant to R.C. 2929.11 and the seriousness and recidivism factors under R.C. 2929.12. Under R.C. 2929.11(A), a felony sentence shall be reasonably calculated to achieve two overriding purposes: (1) to protect the public from future crimes by the offender, and (2) to punish the offender using the minimum sanctions the court determines will achieve those purposes. Further, under R.C. 2929.11(B), the sentence imposed for a felony must be commensurate with the seriousness of the offender's conduct and consistent with sentences imposed for similar crimes committed by similar offenders.

         {¶12} Under R.C. 2929.12(A), a court sentencing a felony offender has discretion to determine the most effective way to comply with the purposes and principles of sentencing outlined in the statute. In exercising its discretion, however, the sentencing court must consider the seriousness, recidivism, and other mitigating factors set forth in R.C. 2929.12. Id. Although the trial court must consider the purposes and principles of sentencing as well as the factors in R.C. 2929.12, the court is not required to use particular language or make specific findings on the record regarding its consideration of those factors. State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31.

         {¶13} In sentencing an offender to consecutive sentences, R.C. 2929.14(C)(4) provides that a trial court may impose consecutive sentences if the court finds that the consecutive service is (1) necessary to protect the public from future crime or to punish the offender, and (2) that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public. Additionally, the trial court must find that at least one of the following applies:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public ...

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