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State v. Ross

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 14, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
LEON ROSS, III DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-616793-A

          ATTORNEY FOR APPELLANT Edward F. Borkowski, Jr.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Scott C. Zarzycki Mary M. Frey Assistant County Prosecutors Justice Center.

          BEFORE: Laster Mays, J., Boyle, P.J., and Blackmon, J.

          JOURNAL ENTRY AND OPINION

          ANITA LASTER MAYS, JUDGE.

         {¶1} Defendant-appellant, Leon Ross, III ("Ross"), appeals his sentence and asks this court to remand to the trial court for resentencing. We affirm.

         {¶2} Ross pleaded guilty to one count of aggravated robbery, a first-degree felony, in violation of R.C. 2911.01(A)(1); and one count of theft, a fourth-degree felony, in violation of R.C. 2913.02(A)(1). The trial court sentenced Ross to 6 years imprisonment for the aggravated robbery count and 12 months for the theft. The trial court ordered that the two sentences be served concurrently with each other, but consecutively to two unrelated prior cases.[1]

         I. Facts

         {¶3} The facts in this case were recited at the sentencing hearing by the assistant county prosecutor. He stated,

They were - the victim and the defendant were friends. They knew each other prior to this robbery. This wasn't a stranger robbery. The victim sought out the defendant to purchase some marijuana and he was car jacked. Similar facts to his other case that he had already - that he had already pled guilty to. This happened in November so it predated his other cases just to make the [c]ourt aware of that. And so we're asking for the appropriate sentence, so this is a separate and distinct aggravated robbery from another similar aggravated robbery, both with guns. Thanks.

(Tr. 26.)

         {¶4} During the sentencing hearing, the trial court engaged in a lengthy conversation with Ross regarding his criminal behavior and the effects his behavior has on the community. The trial court, while discussing the unrelated cases, focused on that fact that those cases also involved the possession of guns by Ross. Ross filed this appeal assigning two errors for our review:

I. The trial court erred by failing to make the required findings pursuant to R.C. 2929.14(C)(4) before imposing a consecutive sentence; and
II. The trial court erred by failing to merge allied offenses.

         II. Consecutive Sentences

         {¶5} In Ross's first assignment of error, he argues that the trial court erred by failing to make the required findings required under R.C. 2929.14(C)(4) before imposing consecutive sentences involving an existing sentence in an unrelated case.

We review felony sentences under the standard set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 16. R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a reviewing court may overturn the imposition of consecutive sentences where the 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 (2) "the sentence is otherwise contrary to law."

State v. Blevins, 8th Dist. Cuyahoga No. 105023, 2017-Ohio-4444, ¶ 13.

         {¶6} The consecutive sentence statute, Ohio R.C. 2929.14(C)(4), provides:

If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(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 ...

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