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State v. Whitaker

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 11, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
JU'VONTAY WHITAKER, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-17-615971-A and CR-17-618295-A

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Christine M. Vacha, Assistant Prosecuting Attorney, for appellee.

          Allison S. Breneman, for appellant

          JOURNAL ENTRY AND OPINION

          MICHELLE J. SHEEHAN, J.

         {¶ 1} Ju'Vontay Whitaker appeals from his sentence of seven years in prison by the trial court for his conviction of robbery and attempted felonious assault. Upon review of the record, we find his appeal to be meritorious. The record reflects that, in sentencing Whitaker to consecutive maximum terms for his convictions of two third-degree felony offenses, the trial court explicitly relied on Whitaker's "prior convictions," when he had none. As such, we are constrained to find that Whitaker's sentence is not supported by the record and remand the matter to the trial court for resentencing.

         Procedural Background

         {¶ 2} Whitaker appeals from his sentence in two separate cases. Both cases were transferred from the juvenile court. In Cuyahoga C.P. No. CR-17-615971-A, he was charged with two counts of aggravated robbery, two counts of robbery, and two counts of kidnapping, all accompanied with both one-year and three-year firearm specifications. The charges stemmed from an incident on September 10, 2015, when a clerk at "My Way Deli" was robbed at gunpoint by three suspects. Whitaker was subsequently identified as one of the three suspects, although he stated to the police that he stayed in the car while the others went inside to rob the store. Under a plea agreement, he pleaded guilty to robbery, a third-degree felony, accompanied with a one-year firearm specification.

         {¶ 3} In Cuyahoga C.P. No. CR-17-618295-A, Whitaker was charged with aggravated robbery, felonious assault, and kidnapping. The charges stemmed from an incident on April 14, 2016, while he was an eleventh grader at the Learning Center. In a fight after school, he struck a fellow student. When the victim fell to the ground, Whitaker kicked him repeatedly and walked off. Another fellow student then came over and took the victim's phone and belt. Under the plea agreement, Whitaker pleaded guilty to attempted felonious assault, also a third-degree felony. As part of the plea agreement, Whitaker agreed to consecutive sentences for the two cases.

         {¶ 4} Before the sentencing hearing, the court ordered a presentence investigation report for its review. At the sentencing hearing, Whitaker apologized for his conduct. His counsel also pleaded for leniency on his behalf. Counsel reported that Whitaker had no prior record of juvenile delinquency and had not been in trouble with the law until the two instant cases. Counsel also reported that Whitaker finished high school while in the juvenile detention center, where he has been held for nearly 21 months for the instant cases. Whitaker's mother also pleaded for leniency. She stated that her son had not been in trouble until these two cases and that she was told by his teacher in the detention center that he helped tutor the students there.

         {¶ 5} In CR-615971, the trial court imposed a maximum prison term of 36 months for robbery, in addition to the one-year term for the gun specification; in CR-618295, the court also imposed a maximum prison term of 36 months for the attempted felonious assault. Whitaker received a total prison term of seven years for his offenses in these two cases. He was given credit for 21 months for time served. On appeal, he presents the following assignment of error for our review:

The trial court abused its discretion by imposing a prison sentence contrary to R.C. 2929.14 and the purposes and principles of the felony sentencing guidelines.

         {¶ 6} Although Whitaker's assignment of error references R.C. 2929.14 ("Basic Prison Terms"), he argued that the trial court failed to properly weigh the seriousness and recidivism factors set forth in R.C. 2929.12 or consider the purposes and principles of the felony sentencing guidelines in R.C. 2929.11 throughout his assignment of error.

         R.C. 2929.11 and 2929.12

         {¶ 7} In imposing a sentence for a felony, the trial court is to consider the sentencing principles and factors set forth in R.C. 2929.11 ("Purposes of felony sentencing") and 2929.12 ("Seriousness and recidivism factors"). The applicable version of R.C. 2929.11 provides that a sentence imposed for a felony shall be guided by the overriding purposes of protecting the ...


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