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State v. Ewing

Court of Appeals of Ohio, Second District, Montgomery

January 10, 2020

STATE OF OHIO Plaintiff-Appellee
v.
ALEXANDER EWING Defendant-Appellant

          Criminal Appeal from Common Pleas Court Trial Court No. 2018-CR-3567

          MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee

          THOMAS M. KOLLIN, Atty. Reg. No. 0066964, Attorney for Defendant-Appellant

          OPINION

          TUCKER, J.

         {¶ 1} Defendant-appellant Alexander Ewing appeals from his conviction in the Montgomery County Court of Common Pleas following his plea of guilty to two counts of felonious assault, an attendant firearm specification, and one count of discharge of a firearm on or near prohibited premises. Specifically, Ewing challenges his 11-year prison sentence; he alleges that his sentence is contrary to the statutory sentencing factors. Our review reveals that the sentence is not contrary to the law and is supported by the record. Therefore, the judgment of the trial court is affirmed.

         I. Facts and Procedural Background

         {¶ 2} On September 6, 2018, Ewing was working at a gas station located on Main Street in Dayton. During Ewing's shift, Aric Ringer entered the store and began taunting Ewing, who was working behind the checkout counter.[1] Ewing and Ringer had engaged in a verbal argument for several minutes when another customer, Carl Milliner, entered the store and went to the coffee machine. Eventually, Ringer reached across the counter and slapped Ewing. At this point, Ewing retrieved a gun that was hidden on his person and began firing at Ringer. Ringer was shot multiple times before he ran out of the store. During the shooting, Milliner was grazed by a bullet. Ewing followed Ringer outside and continued to fire at him. Ringer was shot in the back. Ringer ran across Main Street to the parking lot of another store. Ewing did not cross the street, but he stood at the edge of the street and continued to fire at Ringer. Ringer was shot in the arm. Ewing hid the gun and fled the scene.

         {¶ 3} Following an investigation, Ewing was indicted on two counts of felonious assault (serious physical harm) in violation of R.C. 2903.11 (A)(1), two counts of felonious assault (deadly weapon) in violation of R.C. 2903.11(A)(2), one count of discharge of a firearm on or near prohibited premises (physical harm) in violation of R.C. 2923.162(A)(3)/(C)(3), one count of tampering with evidence (alter/destroy) in violation of R.C. 2921.12(A)(1), and one count of carrying a concealed weapon (loaded/ready at hand) in violation of R.C. 2923.12(A)(2). The four felonious assault counts carried attendant firearm specifications.

         {¶ 4} Following plea negotiations, Ewing entered a plea of guilty to two counts of felonious assault and one count of discharge of a firearm at or near prohibited premises. The plea also included one of the attendant firearm specifications. In exchange, the State dismissed the remaining counts and firearm specifications. The parties did not reach an agreement as to sentencing other than an agreement to a minimum sentence of eight years. Following a sentencing hearing, the trial court sentenced Ewing to eight-year prison terms on each count, to be served concurrently. The trial court also sentenced Ewing to a three-year prison term for the firearm specification, to be served consecutively to the eight-year sentence, for an aggregate sentence of 11 years.

         {¶ 5} Ewing appeals.

         II. Analysis

         {¶ 6} Ewing's sole assignment of error is as follows:

THE TRIAL COURT FAILED TO ADEQUATELY CONSIDER THE SENTENCING STATUTES PURSUANT TO ORC 2929.11-2929.12, ABUSING ITS DISCRETION IN SENTENCING APPELLANT.

         {¶ 7} Ewing contends that the trial court abused its discretion in sentencing because it failed to ...


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