Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-14-590944-B.
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and John D. Kirkland, Assistant Prosecuting
Attorney, for appellee.
Allison S. Breneman, for appellant.
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, JUDGE.
1} Defendant-appellant, George Allen Cole, appeals
from the sentence imposed by the trial court upon
resentencing, arguing that the court erred in imposing
consecutive sentences. Finding no merit to the appeal, we
2} Cole, his brother, and his girlfriend were
indicted in three cases relating to six burglaries that
occurred from July 19, 2014, through August 26, 2014, in
Cleveland, Fairview Park, and Rocky River. In Cuyahoga C.P.
No. CR-14-590944-B, Cole was charged with four counts of
burglary, four counts of theft, two counts of criminal
damaging, and one count each of forgery and misuse of credit
cards. In Cuyahoga C.P. No. CR-14-589681-A, Cole was charged
with burglary and theft. In Cuyahoga C.P. No. CR-14-588878-B,
Cole was charged with burglary, theft, and criminal damaging.
3} Cole was also charged in Cuyahoga C.P. No.
CR-14-585523-A with drug possession and endangering children.
He pleaded no contest to the indictment, and the case was
continued for sentencing after Cole's trial on the
remaining three cases. (Cole's codefendants pleaded
guilty to amended indictments in the three cases.)
4} The state's theory at trial was that Cole and
his brother would "case" westside neighborhoods in
broad daylight, looking for houses in which the homeowners
had left for work. State v. Cole, 8th Dist. Cuyahoga
Nos. 103187, 103188, 103189, and 103190, 2016-Ohio-2936,
¶ 4. Cole drove his girlfriend's SUV and would drop
his brother off near the intended targets, while he waited in
the SUV. Id. Cole's brother would break into the
homes and steal jewelry, coins, and other valuables.
Id. Cole's girlfriend would then take the
valuables to various pawn shops and sell them. Id.
The group kept a logbook that detailed the homes they had
burglarized and the properties they were targeting.
Id. at ¶ 5.
5} After a five-day trial during which the jury
heard from 24 witnesses and viewed over 90 exhibits, the jury
convicted Cole of all charges. Id. at ¶ 30. The
trial court subsequently sentenced him to an aggregate term
of 48 years in prison. Id.
On appeal, Cole challenged, among other alleged errors, the
sufficiency and manifest weight of the evidence supporting
his convictions. Id. at ¶ 32. This court
affirmed all of Cole's convictions, with the exception of
two burglary counts in Cuyahoga C.P. No. CR-14-590944-B. This
court determined that on those two counts (Counts 26 and 29),
the state had failed to establish the "likely to be
present" element of R.C. 2911.12(A)(2). Id. at
¶ 45. This court found, however, that the evidence
supported a finding of guilty on the lesser included offense
of burglary under R.C. 2911.12(A)(3), a third-degree felony.
Id. at ¶ 46. Accordingly, this court modified
the trial court's judgment of conviction on Counts 26 and
29 to find Cole guilty of burglary under R.C. 2911.12(A)(3),
and remanded with instructions that the court resentence him
on those counts. Id.
7} Cole also argued on appeal that his 48-year
prison sentence was "greatly disproportionate" to
that of his brother and girlfriend, and amounted to
"cruel and unusual punishment." Id. at
¶ 74. He argued further that the trial court had failed
to make the requisite statutory findings to impose
consecutive sentences, his 48-year prison sentence "was
inconsistent with felony guidelines and an abuse of the trial
court's discretion," and the record did not support
consecutive sentences. Id. at ¶ 74, 88.
8} After noting that its analysis did not apply to
the two burglary counts upon which Cole was to be
resentenced,  this court rejected Cole's argument
that the trial court had failed to sentence him consistently
with the other offenders and that his sentence was harsher
than theirs because he chose to go to trial rather than take
a plea. Id. at ¶ 83. This court found there was
no evidence in the record that the trial court acted
vindictively in imposing the sentence, and that Cole had
failed to provide any such evidence. Id.
9} This court also rejected Cole's argument that
his sentence should have been more "in line" with
the 21-year sentence his brother received. Id. at
¶ 84. This court found that Cole was convicted of more
offenses than his brother and, further, that Cole's
brother showed remorse, while Cole showed none. Id.
at ¶ 91. Further, this court found that at sentencing,
the trial court "considered Cole's extensive
criminal history, his presentence investigation report, the
arguments of counsel, Cole's statement, and what occurred
during trial, including Cole's troubling behavior,"
which this court noted included "making gestures and
mouthing words to female jurors and the trial judge
herself." Id. at ¶ 86. This court
concluded that "there is no doubt that by the time Cole
was sentenced, the trial court had gained a greater
appreciation of the details of the charged crimes and insight
into Cole's character, having presided over a lengthy
trial that included 24 witnesses and 91 exhibits."
Id. Accordingly, this court found that in imposing