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State v. Ware

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 14, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
DEVONTAE WARE DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-613905-B

          ATTORNEY FOR APPELLANT Susan J. Moran.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Kelly N. Mason Assistant Prosecuting Attorney.

          BEFORE: E.A. Gallagher, A.J., Boyle, J., and Laster Mays, J.

          JOURNAL ENTRY AND OPINION

          EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE.

         {¶1} Defendant-appellant Devontae Ware appeals his sentence after he pled guilty to one count of aggravated robbery with a one-year firearm specification. He contends that his seven-year sentence violates the principles and purposes of sentencing under R.C. 2929.11 because it is inconsistent with, and disproportionate to, the lesser sentence imposed on his codefendant for his role in the same robbery. Ware also contends that his sentence is contrary to law because the trial court failed to consider the relevant seriousness and recidivism factors set forth in R.C. 2929.12(B) and (E) during sentencing. Ware requests that his sentence be modified to match the sentence imposed on his codefendant or that his sentence be vacated and the case remanded for resentencing. For the reasons that follow, we affirm the trial court's judgment.

         Factual and Procedural Background

         {¶2} On February 8, 2017, Ware and Nathaniel Hill were charged by a Cuyahoga County Grand Jury in a five-count indictment arising out of a robbery of a Huntington Bank branch in Brooklyn, Ohio. On November 28, 2016, Ware and Hill used a gun to rob a bank teller stealing approximately $3, 000 in cash. They were each charged with two counts of aggravated robbery, two counts of kidnapping and one count of theft. Each of the charges included one-year and three-year firearm specifications.

         {¶3} On June 22, 2017, Ware pled guilty to an amended count of aggravated robbery, a first-degree felony, with a one-year firearm specification. The remaining counts were nolled. The court ordered a presentence investigation report ("PSI") and scheduled the case for sentencing. A sentencing hearing was held on July 17, 2017.

         {¶4} At the sentencing hearing, the state described the events that led to the charges against Ware and Hill. The state indicated that Ware was the one who held the gun and pointed it at the teller's chest during the robbery. Defense counsel asserted that the gun was a "toy gun * * * made to look real" and that it was "not capable of any projectiles going through it." The state disputed this claim and indicated that the firearm has never been recovered. Ware had no prior criminal record. Ware addressed the court and acknowledged the "big mistake" he had made. He apologized for his actions and the harm he had caused the bank, the bank's employees and his family. Although none of the victims appeared at the sentencing hearing, the trial court noted that one of the bank tellers had submitted a victim impact statement in which she indicated that the incident had given her "nightmares and playbacks of the defendant and the codefendant [sic] yelling at her, " had caused her to have "panic attacks whenever she sees someone with a yellow hoodie" and that "doing her job is difficult because she pictures this scene over and over in her head."

         {¶5} The trial court sentenced Ware to an aggregate prison sentence of seven years - one year on the firearm specification to be served prior to and consecutive to six years on the underlying aggravated robbery offense - and five years' mandatory postrelease control. The trial judge indicated that in sentencing Ware she considered the record, the oral statements by the state, Ware and defense counsel, the PSI, the victim impact statement, the purposes and principles of sentencing under R.C. 2929.11, the seriousness and recidivism factors relevant to the offense and the offender under R.C. 2929.12 and the need for deterrence, incapacitation, rehabilitation and restitution. The trial court's July 17, 2017 sentencing journal entry further reflects that, in sentencing Ware, the trial court "considered all required factors of the law."

         {¶6} Ware appealed his sentence, raising the following assignment of error for review:

The trial court erred in imposing a sentence which was contrary to the principles and purposes of the felony sentencing guidelines in that the sentence was not proportionate to the offender's conduct and was inconsistent with that of his co-defendant.

         Law ...


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