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State v. Cole

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 11, 2019

STATE OF OHIO, Plaintiff-Appellee,
GEORGE ALLEN COLE, Defendant-Appellant.

          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.



         {¶ 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 affirm.

         I. Background

         {¶ 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.

         {¶6} 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, [1] 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 Cole's ...

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