Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-18-628485-A
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Carson M. Strang, Katherine E. Mullin, and Eben
McNair, Assistant Prosecuting Attorneys, for appellee.
Jonathan N. Garver, for appellant.
JOURNAL ENTRY AND OPINION
T. GALLAGHER, P.J.
1} Defendant-appellant, Michael Robinson, appeals
his consecutive sentence and claims the following error:
Since the findings necessary for the imposition of a
consecutive sentence on the drug possession offense charged
in Count VII of the indictment are not supported by the
evidence, the imposition of a consecutive sentence on Count
VII is contrary to law and a denial of due process of law.
2} We find no merit to the appeal and affirm the
trial court's judgment.
Facts and Procedural History
3} Robinson was charged in a seven-count indictment
with assault on a police officer, resisting arrest, having
weapons while under disability, carrying a concealed weapon,
improper handling of a firearm in a motor vehicle, receiving
stolen property, and drug possession. The drug possession
charge, set forth in Count 7 of the indictment, alleged that
Robinson knowingly possessed or used "a controlled
substance or a controlled substance analog" that was
"a compound, mixture, preparation, or substance
containing cocaine" in an amount less than five grams.
The drug possession charge also included a one-year firearm
4} Robinson pleaded guilty to all the charges in the
indictment. The prosecutor explained at the plea hearing that
the plea agreement did not include a reduction in the
charges. Instead, the state agreed to forego a reindictment
that would include a first-degree felony charge and firearm
specification in exchange for Robinson's agreement to
plead guilty to the current indictment. The prosecutor
further explained that if the case were re-presented to the
grand jury, the state would omit the drug possession charge
alleged in Count 7 because "the labs came back negative
on that count." (Tr. 4.) The prosecutor concluded that
even though there was no reduction in charges, "the
defendant is essentially getting a benefit by pleading guilty
to the indictment as currently charged rather than face
reindictment." (Tr. 4.) Robinson indicated that he
understood the terms of the plea agreement. (Tr. 14.) He also
denied that any threats or promises had been made against him
to induce his guilty pleas. (Tr. 8, 17.)
5} The court sentenced Robinson to 18 months for
assaulting a police officer, time served for resisting
arrest, 36 months for having a weapon while under disability,
18 months for carrying a concealed weapon, 18 months for
improperly handling a firearm in a motor vehicle, 18 months
for receiving stolen property, and one year for drug
possession to be served consecutive to the one-year on the
firearm specification attendant to that charge. The court
ordered the 36 months on the having weapons while under
disability charge and the two years on the drug possession
charge, including the one-year firearm specification, to be
served consecutive to each other and concurrent with all
other sentences, for an aggregate five-year prison term.
Robinson now appeals the imposition of consecutive sentences.
Law and Analysis
6} In his sole assignment of error, Robinson argues
the trial court's findings in support of consecutive
sentences are not supported by the record.
7} When reviewing felony sentences, we apply the
standard of review 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. R.C. 2953.08(G)(2) provides that an appellate court may
increase, reduce, modify, or vacate and remand a challenged
felony sentence if the court clearly and convincingly finds
either that the record does ...