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State v. McGowan

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 26, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
LARRY ARTHUR McGOWAN DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-14-585017-A, CR-15-594005-A, and CR-16-610024-A

          ATTORNEY FOR APPELLANT Susan J. Moran

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Maxwell Martin Assistant Prosecuting Attorney

          BEFORE: Celebrezze, J., McCormack, P.J., and Keough, J.

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR., J.

         {¶1} Defendant-appellant, Larry McGowan (hereinafter "McGowan"), filed the instant appeal challenging the trial court's imposition of consecutive sentences. More specifically, McGowan argues that the imposition of consecutive sentences was not supported by the record, and the sentences were contrary to law because the trial court did not consider the purposes and principles of the sentencing guidelines. After a thorough review of the record and law, this court affirms.

         I. Factual and Procedural History

         {¶2} McGowan and the state reached a plea agreement under which McGowan agreed to plead guilty in three criminal cases pending against him. Pursuant to the plea agreement, the parties agreed to recommend an aggregate prison sentence of 25 years to life on all three cases.

         {¶3} First, in Cuyahoga C.P. No. CR-15-594005-A, McGowan pled guilty to 24 counts consisting of rape, kidnapping, aggravated robbery, and aggravated burglary related to violent physical attacks and rapes of five individual female victims. All counts in this indictment share a particular set of gruesome facts, where McGowan would physically attack strangers he encountered on the street and would then forcibly rape them, some at gunpoint and one at knifepoint. Further, all counts had accompanying firearm specifications and repeat violent offender specifications; however, all specifications were dismissed as part of the plea agreement. In this case, McGowan was sentenced to a cumulative prison term of ten years.

         {¶4} Second, in Cuyahoga C.P. No. CR-14-585017-A, McGowan pled guilty to aggravated murder and rape. McGowan raped and brutally attacked the victim in a semi-trailer truck lot. The victim died as a result of head, neck, and brain injuries sustained from being run over by a vehicle driven by McGowan. The victim was found with a large amount of mud in her mouth, airways, and stomach as a result of being run over by the vehicle. McGowan was sentenced to a prison term of 25 years to life.

         {¶5} Third, in Cuyahoga C.P. No. CR-16-610024-A, McGowan pled guilty to one count of felonious assault. In this case, McGowan assaulted a fellow inmate at Cuyahoga County jail while incarcerated on his other pending criminal charges. McGowan was sentenced to a prison term of five years.

         {¶6} On April 28, 2017, the trial court held a sentencing hearing on all three cases and imposed the sentences listed above. The trial court then ordered that all three sentences were to be served consecutive to one another for a cumulative aggregate sentence of 40 years to life. These cases were also to be served consecutive to Summit C.P. No. 12-12-3401. In that case, McGowan had been previously convicted of one count of rape and received an 11-year prison sentence. McGowan began serving the sentence for the Summit County case on September 17, 2013.

         {¶7} McGowan filed the instant appeal assigning a sole error for review: I. The trial court erred in imposing consecutive sentences as the sentence was not supported by the record and was contrary to law as it did not consider the purposes and principles of the felony sentencing guidelines.

         II. Law and Analysis

         {¶8} In his sole assignment of error, McGowan argues that the trial court erred in imposing consecutive sentences. More specifically, McGowan argues that the imposition of consecutive sentences was not supported by the record, and the sentences were contrary to law because the trial court did not consider the purposes and principles of the sentencing guidelines.

         {¶9} Our review of felony sentences is governed by R.C. 2953.08(G)(2). Pursuant to R.C. 2953.08(G)(2), "an appellate court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that the record does not support the trial court's findings under relevant statutes or that the sentence is otherwise contrary to law." State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. A sentence is contrary to law if (1) the sentence falls outside the statutory range for the particular degree of offense, or (2) the trial court failed to consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12. State v. Maddox, 8th Dist. Cuyahoga No. 105140, 2017-Ohio-8061, ¶ 31, citing State v. Hinton, 8th Dist. Cuyahoga No. 102710, 2015-Ohio-4907.

         {¶10} In the instant matter, McGowan argues that the trial court did not consider the purposes and principles of sentencing under R.C. 2929.11, as the court failed to consider the impact of the sentence on government resources and because the court incorrectly concluded that the offenses were a continuous course of conduct under R.C. 2929.14(C). McGowan also argues that he had a reasonable expectation that the trial court would implement the agreed sentence. As there are three distinct issues within McGowan's sole assignment of error, we address these issues separately.

         A. Purposes and Principles of Sentencing

         {¶11} R.C. 2929.11 directs a court to consider the "overriding" purposes of felony sentencing: (1) "protection of] the public from future crime by the offender or others," and (2) "punish[ing] the offender." R.C. 2929.11(A). The sentencing court is to accomplish these purposes using "minimum sanctions" and without placing any "unnecessary burden on state or local government resources." Id. To achieve these purposes, a court must also consider the need for incapacitation, deterrence, rehabilitation, and restitution. Id. An appropriate sentence is thus one "reasonably calculated" to achieve the overriding purposes of felony sentencing and is "commensurate with," while "not demeaning the seriousness" of, the conduct and its impact. R.C. 2929.11(B).

         {¶12} Pursuant to R.C. 2929.12, the trial court has discretion to "determine the most effective way to comply with the purposes and principles of sentencing." R.C. 2929.12(A). The court must consider applicable factors from divisions (B) and (C) relating to the "seriousness of the conduct," and divisions (D) and (E) relating to recidivism. Id. The statute also permits the trial court to consider "any other factors that are relevant to achieving those purposes and principles of sentencing." Id.

         {¶13} Our review of the sentencing hearing transcript demonstrates that the trial court considered the requisite sentencing factors pursuant to R.C. 2929.11. At the sentencing hearing, the trial court heard statements from the assistant prosecuting attorneys, several victims, several family members of victims, defense counsel, and from McGowan himself. The trial court then explained the purposes and principles of felony sentencing pursuant to R.C. 2929.11, stating:

And the overriding purpose of a sentence in a criminal case is to punish the offender and protect the public from future crime by the offender or others and to do so by using the minimum amount of consequences or sanctions to accomplish that and recognizing the need that we're trying to either deter crime in the future, recognize that someone has to be responsible for the conduct and the harm they've caused to others in the criminal context and, in certain situations, try to rehabilitate or provide restitution for others. And the sentence should be commensurate with those purposes. When we look at charges like this and when I look at charges like this, I have to evaluate the seriousness of these charges and listen to and be aware of the impact on the victims and the physical and psychological harm or serious harm that's occurred and then, is there anything that would make this less serious because of circumstances.

(Tr. 744.) The trial court then continued on, explaining the seriousness and recidivism ...


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