Court of Appeals of Ohio, Eighth District, Cuyahoga
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.
JOURNAL ENTRY AND OPINION
A. JONES, SR, J.
Defendant-appellant DeWayne McDaniel ("McDaniel")
appeals his sentence, rendered after he pleaded guilty to
four criminal offenses. For the reasons that follow, we
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.
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.
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.
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.
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
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
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
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."
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.
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
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, ¶
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
(c) The offender's history of criminal conduct
demonstrates that consecutive sentences are necessary to
protect the public ...