Court of Appeals of Ohio, Eighth District, Cuyahoga
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.
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
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.
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 ...