Court of Appeals of Ohio, Eighth District, Cuyahoga
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
BEFORE: E.A. Gallagher, A.J., Boyle, J., and Laster Mays, J.
JOURNAL ENTRY AND OPINION
A. GALLAGHER, ADMINISTRATIVE JUDGE.
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.
and Procedural Background
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
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.
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."
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."
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.