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State v. Robinson

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 13, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
MICHAEL D. ROBINSON, Defendant-Appellant.

          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

          EILEEN 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.

         I. 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 specification.

         {¶ 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.

         II. 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 ...


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