Opinion
No. 106293
06-07-2018
STATE OF OHIO PLAINTIFF-APPELLEE v. MICHAEL MCLEAN DEFENDANT-APPELLANT
ATTORNEY FOR APPELLANT Ruth Fischbein-Cohen 3552 Severn Road, Suite 613 Cleveland, Ohio 44118 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Brian Lynch Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-618402-A BEFORE: Celebrezze, J., E.A. Gallagher, A.J., and Blackmon, J.
ATTORNEY FOR APPELLANT
Ruth Fischbein-Cohen
3552 Severn Road, Suite 613
Cleveland, Ohio 44118
ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor
BY: Brian Lynch
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendant-appellant, Michael McLean ("appellant"), brings the instant appeal challenging his convictions and the trial court's sentence for robbery. Specifically, appellant argues that his convictions were not supported by sufficient evidence and against the manifest weight of the evidence, and that his sentence is contrary to law because the trial court impermissibly punished him for exercising his right to trial. After a thorough review of the record and law, this court affirms.
I. Factual and Procedural History
{¶2} The instant appeal arose from an incident that occurred on June 15, 2017, near Playhouse Square in downtown Cleveland. The two victims in this case, Utpalendu Kabasi and Mihir Trivedi, were walking eastbound from Reserve Square. As the victims were walking, they were approached by a male that was later identified as appellant. Appellant became aggressive with the victims and ordered them to turn over all of their belongings. The victims did not comply with appellant's demand, but rather threatened to call the police. As a result, appellant punched one of the victims, Kabasi, in the face. The victims fled the scene, running westbound towards Reserve Square. Although appellant initially gave chase, the victims were able to evade him.
{¶3} The victims called the police when they returned to their apartment. The victims provided the responding officers with a description of appellant. After speaking with the victims, the officers patrolled the area and observed an individual jogging that matched the description provided by the victims. The officers administered a "cold stand" during which both victims confirmed that the individual the officers had in custody was the person that approached them and ordered them to turn over their belongings. As a result, the officers placed appellant under arrest.
A "cold stand" is a one-on-one showup identification. See In re T.W., 8th Dist. Cuyahoga No. 105346, 2017-Ohio-8875.
{¶4} In Cuyahoga C.P. No. CR-17-618402-A, the Cuyahoga County Grand Jury returned an indictment on June 22, 2017, charging appellant with two counts of robbery, second-degree felonies in violation of R.C. 2911.02(A)(2). Appellant pled not guilty to the indictment during his arraignment on June 29, 2017.
{¶5} A jury trial commenced on August 28, 2017. The state presented the testimony of the two victims, Cleveland Police Officer Aaron Petitt, and Cleveland Police Detective Stephan Williams. The defense did not present any witnesses.
{¶6} On August 30, 2017, the jury returned its verdict. The jury found appellant guilty on both robbery counts.
{¶7} The trial court held a sentencing hearing on August 31, 2017. The trial court sentenced appellant to a prison term of five years on both robbery counts, and ordered the counts to run concurrently.
{¶8} Appellant filed the instant appeal on September 25, 2017, challenging his convictions and the trial court's sentence. He assigns four errors for review:
I. The trial court violated [appellant's] right to a jury trial, thereby also violating his due process right.For ease of discussion, we will address appellant's assignments of error out of order. To the extent that appellant's assignments of error are interrelated, they will be addressed together.
II. It was error to charge and convict [appellant] for robbery.
III. There was insufficient evidence, and it was against the manifest weight of the evidence to convict [appellant] for robbery.
IV. It was error to convict [appellant] for more convictions than are authorized by law.
II. Law and Analysis
A. Sufficiency and Manifest Weight
{¶9} In his second and third assignments of error, appellant argues that his robbery convictions are not supported by sufficient evidence and against the manifest weight of the evidence.
{¶10} The test for sufficiency requires a determination of whether the prosecution met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
{¶11} In contrast to a sufficiency argument, a manifest weight challenge questions whether the state met its burden of persuasion. Bowden at ¶ 12. A reviewing court "weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." Thompkins at 388. A conviction should be reversed as against the manifest weight of the evidence only in the most "exceptional case in which the evidence weighs heavily against the conviction." Id.
{¶12} Although we review credibility when considering the manifest weight of the evidence, we are cognizant that determinations regarding the credibility of witnesses and the weight of the testimony are primarily for the trier of fact. State v. Bradley, 8th Dist. Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact is best able "to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of the proffered testimony." State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. The jury may take note of any inconsistencies and resolve them accordingly, "believ[ing] all, part, or none of a witness's testimony." State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).
{¶13} Appellant was charged with two counts of robbery in violation of R.C. 2911.02(A)(2), which provides that "[n]o person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall * * * [i]nflict, attempt to inflict, or threaten to inflict physical harm on another[.]"
{¶14} In support of his sufficiency challenge, appellant argues that the state failed to establish beyond a reasonable doubt that either (1) he committed or attempted to commit a theft offense, or (2) that he inflicted, attempted to inflict, or threatened to inflict physical harm on the victims. We disagree.
1. Theft Offense
{¶15} Initially, we note that it is undisputed that appellant did not, in fact, take anything from either Kabasi or Trivedi. After reviewing the record, however, we find that the state presented sufficient evidence that appellant attempted to do so.
{¶16} Kabasi testified that appellant approached him and Trivedi "very aggressively and he asked us, just give him all we have[.]" (Tr. 125.) Kabasi explained that when appellant approached him, appellant stated, "[j]ust give me all you have. Just give me all you have. That's all." (Tr. 129.) Kabasi described appellant's tone as "very aggressive" and explained that "at every point [during the encounter], he wanted to hurt us or hurt me[.]" (Tr. 129-130.) When Kabasi and Trivedi told appellant to back off and leave them alone, Kabasi explained, "[appellant] didn't listen or anything and he just started to approach me very aggressively[.]" (Tr. 130.)
{¶17} Kabasi provided the following account of the incident on cross-examination:
the first thing [appellant] asked us or asked me, to be more precise, that if we had a gun or not, and then we started to talk to him that we don't have anything and just back off, don't — like don't try to bother us. So then he tried to be more aggressive and he approached me first at the first place and he started to yell at us or at me, Give me all you have, just give me everything you have, give me everything you have.(Tr. 148.) Appellant yelled "give me everything you have" a couple of times; he yelled loudly, and very aggressively, in a threatening manner. (Tr. 148.) When defense counsel asked if appellant tried to reach into Kabasi's pockets, Kabasi asserted, "[appellant] started to — he was approaching me and he was starting to, you know, get to me, but I was just telling him just don't bother us, back off[.]" (Tr. 149.)
{¶18} Trivedi testified that appellant approached him and Kabasi and asked them if they had any money. Trivedi described appellant's demeanor as "more aggressive. Hey, I need money right now." (Tr. 215.) He explained that appellant initially asked them for money, but then proceeded to "command" money from Trivedi and Kabasi.
{¶19} After appellant asked the victims if they had a gun, Trivedi testified that he asked them if they had any money on them. Appellant was just as loud when he asked this question as he was when he asked if they had a gun. Trivedi stated that they did not have any money on them. Thereafter, appellant "followed with a command — he followed with a statement saying, I need money right now. Give me some money." (Tr. 232.) Trivedi confirmed that appellant said, "I know that's money in your pocket. I need it. I need that money. Give me that money." (Tr. 232.) Trivedi explained that appellant said "that he sees my pocket full." (Tr. 232.) Trivedi asserted that his pocket looked full because he had his cell phone and wallet in the same pocket. Finally, although appellant did not take anything from him or Kabasi, Trivedi opined that appellant "was trying to rob us[.]" (Tr. 236-237.)
{¶20} The testimony of Kabasi and Trivedi, if believed, is sufficient to establish that appellant attempted to commit a theft offense.
2. Physical Harm
{¶21} Appellant further argues that the state failed to establish that he inflicted, attempted to inflict, or threatened to inflict physical harm. We disagree.
{¶22} Initially, we note that the state was not required to establish that appellant did, in fact, inflict physical harm on the victims. Rather, it is sufficient that he attempted to do so. R.C. 2901.01(A)(3) defines "physical harm to persons" as "any injury, illness, or other physiological impairment, regardless of its gravity or duration."
{¶23} Kabasi testified that when he and Trivedi told appellant to back off and threatened to call the police, appellant punched him in the face. Appellant did not back off the victims; rather, Kabasi explained that appellant "approached him very aggressively and he just — right then, he just — he punched me in my face[.]" (Tr. 130.) When defense counsel asked if appellant tried to reach into Kabasi's pockets, Kabasi asserted, "[appellant] started to — he was approaching me and he was starting to, you know, get to me, but I was just telling him just don't bother us, back off, and then just right then he just punched me." (Tr. 149.)
{¶24} Kabasi testified that appellant punched him so hard that he "kind of los[t his] balance[.]" (Tr. 132, 150.) As a result of the punch, Kabasi sustained a bruise on his face. (Tr. 150.) The responding officers offered to arrange medical treatment for Kabasi, but he declined.
{¶25} Trivedi testified that when appellant approached him and Kabasi and asked them if they had any money, appellant "attacked" Kabasi because appellant was in closer proximity to Kabasi than he was to Trivedi. (Tr. 214.) Appellant "attacked" when the victims told him to back off and threatened to call the police. Trivedi explained that "attacked" meant that appellant "swung his hand on [Kabasi's] face." (Tr. 215.) Trivedi did not recall whether appellant punched or slapped Kabasi. However, he asserted that Kabasi "was hurt" as a result of the strike. (Tr. 216.) When appellant punched Kabasi, Kabasi "was dumbstruck. He was standing there for a second," and "he was like kind of sluggish. He didn't move for a second[.]" (Tr. 216.)
{¶26} Trivedi testified that he and Kabasi were able to run away from appellant. When they returned to their apartment, Trivedi called the police. Trivedi explained that when he called the police, "I was really scared. I was like literally shaking. My voice was shaking and I was scared." (Tr. 220.)
{¶27} On cross-examination, Trivedi confirmed that appellant hit Kabasi so hard that it almost knocked him over. (Tr. 234.) Appellant did not take anything from him or Kabasi because he was unable to catch up to them when they ran away.
{¶28} Finally, on redirect examination, Trivedi acknowledged that he could not remember whether appellant punched or slapped Kabasi. He testified, however, that appellant's strike knocked Kabasi off balance. Trivedi opined that by striking Kabasi, appellant "was trying to rob us[.]" (Tr. 236-237.)
{¶29} The testimony of Kabasi and Trivedi, if believed, is sufficient to establish that appellant did, in fact, inflict physical harm on Kabasi by striking him in the face, and that he either attempted to inflict or threatened to inflict physical harm on Trivedi. Accordingly, we find that appellant's robbery convictions were supported by sufficient evidence.
{¶30} Although appellant's second and third assignments of error primarily focus on the sufficiency of the evidence, appellant also contends that his convictions are against the manifest weight of the evidence. In support of his manifest weight challenge, appellant argues that (1) there was no evidence corroborating Kabasi's testimony that appellant struck him in the face, and (2) the manifest weight of the evidence established that Kabasi did not suffer physical harm. These arguments are misplaced and entirely unsupported by the record.
{¶31} As noted above, the state was not required to prove beyond a reasonable doubt that appellant inflicted physical harm on Kabasi. It was sufficient for the state to establish that appellant attempted to do so. Nevertheless, the record reflects that appellant inflicted physical harm on Kabasi by striking him in the face. Furthermore, Kabasi's testimony that appellant struck him in the face was corroborated by Trivedi's testimony. Trivedi testified that appellant struck Kabasi in the face when the victims did not comply with appellant's orders.
{¶32} Appellant also appears to argue that the weight of the evidence established that Trivedi was not a victim, but rather a bystander. We disagree.
{¶33} The record reflects that a third friend was with Kabasi and Trivedi at the time of their encounter with appellant. However, Kabasi explained that the third individual was approximately 20 feet away from him and Trivedi during the encounter with appellant. Trivedi asserted that the third individual was "pretty far away" from him and Kabasi. (Tr. 230.)
{¶34} Nevertheless, we cannot conclude that the jury clearly lost its way in determining that Trivedi was, in fact, a victim. Kabasi testified that Trivedi was standing next to him during this encounter with appellant. Kabasi advised the responding officers that the "whole incident happened only to us, me and [Trivedi], on that spot." (Emphasis added.) (Tr. 143.) Kabasi asserted that Trivedi was "very close to [him]" during the encounter with appellant. (Tr. 145.)
{¶35} Although Trivedi opined that appellant was closer in proximity to Kabasi, Trivedi testified that appellant moved closer to both of them and ordered them to give him money. On cross-examination, Trivedi opined that Kabasi was approximately two to three feet away from him during their encounter with appellant. Furthermore, when appellant ordered the victims to give him money, he specifically referenced the items that were in Trivedi's pocket. Trivedi explained that appellant said, "I know that's money in your pocket. I need it. I need that money. Give me that money." (Tr. 232.) Trivedi stated that appellant said "that he sees my pocket full." (Tr. 232.) Trivedi testified that his pocket looked full because he had his cell phone and wallet in the same pocket. Finally, Trivedi testified that appellant "was trying to rob us[.]" (Emphasis added.) (Tr. 236-237.)
{¶36} After reviewing the record, we cannot say that this is "an exceptional case" in which the jury clearly lost its way and created such a manifest miscarriage of justice that appellant's convictions were against the manifest weight of the evidence. Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. The jury, as the trier of fact, had sufficient information, and was in the best position to weigh the credibility of the witnesses. Furthermore, the jury "was free to believe all, part, or none of the testimony of each witness." State v. Colvin, 10th Dist. Franklin No. 04AP-421, 2005-Ohio-1448, ¶ 34; State v. Smith, 8th Dist. Cuyahoga No. 93593, 2010-Ohio-4006, ¶ 16.
{¶37} For all of the foregoing reasons, we find that appellant's convictions were supported by sufficient evidence and are not against the manifest weight of the evidence. Accordingly, appellant's second and third assignments of error are overruled.
B. Allied Offenses
{¶38} In his fourth assignment of error, appellant, relying on the arguments set forth in his second and third assignments of error, argues that only one robbery occurred — the robbery count pertaining to Kabasi. As such, appellant contends that the trial court erred by sentencing him on both robbery counts.
{¶39} Based on our resolution of appellant's second and third assignments of error, we find no merit to appellant's argument. Appellant's robbery convictions were supported by sufficient evidence and are not against the manifest weight of the evidence.
{¶40} Appellant appears to argue that the two robbery offenses were allied offenses of similar import and, thus, the trial court erred by imposing concurrent sentences on each count. In support of his argument, appellant directs this court to State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923.
{¶41} It is well established that for purposes of the allied offenses statute, R.C. 2941.25, "a 'conviction' consists of a guilty verdict and the imposition of a sentence or penalty." (Emphasis sic.) State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 12, citing State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 135, and State v. McGuire, 80 Ohio St.3d 390, 399, 686 N.E.2d 1112 (1997). In Underwood, the Ohio Supreme Court held that a trial court is required to merge allied offenses of similar import at sentencing. Id. at ¶ 27. The court explained that even when a trial court imposes concurrent sentences, "a defendant is prejudiced by having more convictions than are authorized by law." Id. at ¶ 31.
{¶42} In the instant matter, to the extent that appellant is arguing that the two robbery offenses were allied offenses of similar import, we initially note that appellant did not raise the issue of merger or object to his sentence in the trial court. Accordingly, appellant has forfeited all but plain error. State v. Johnson, 8th Dist. Cuyahoga No. 105424, 2018-Ohio-1387, ¶ 27, citing State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21-25. Crim.R. 52(B) provides that, "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." To prevail on a claim of plain error, the defendant must demonstrate that but for the error, the outcome of the proceedings clearly would have been different. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two of the syllabus; Rogers at ¶ 22.
{¶43} Pursuant to R.C. 2941.25(A), when the same conduct by the defendant "can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one." R.C. 2941.25(B), however, provides,
Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶44} Multiple offenses do not merge if (1) the offenses are dissimilar in import or significance, (2) the offenses were committed separately, or (3) the offenses were committed with a separate animus or motivation. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, syllabus. Two or more offenses are dissimilar within the meaning of R.C. 2941.25(B) "when the defendant's conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable." (Emphasis added.) Id. at syllabus.
{¶45} In this case, appellant's robbery convictions do not merge because they were committed against separate victims. Accordingly, the trial court did not commit plain error by sentencing appellant on both robbery counts.
{¶46} For all of the foregoing reasons, appellant's fourth assignment of error is overruled.
C. Trial Court's Sentence
{¶47} In his first assignment of error, appellant argues that his sentence is contrary to law because the trial court impermissibly punished him for exercising his right to contest the charges at trial rather than entering a plea.
A trial court may not sentence a defendant more severely simply because he exercised his right to trial. Columbus v. Bee, 67 Ohio App.2d 65, 425 N.E.2d 404 (10th Dist.1979). The United States Supreme Court has held that a trial court violates the Due Process Clause of the Fourteenth Amendment when the court, motivated by vindictiveness, imposes a harsher sentence than previously discussed prior to trial. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). A court may not punish an accused for rejecting a plea and electing to proceed to trial. State v. Shepherd, 8th Dist. Cuyahoga No. 97962, 2012-Ohio-5415, ¶ 68.State v. Sultaana, 2016-Ohio-199, 57 N.E.3d 443, ¶ 52-53 (8th Dist.).
However, vindictiveness is not presumed merely because the trial court imposed a stricter sentence than the one offered in plea negotiations. Id. In determining whether a court was motivated by vindictiveness to impose a harsher sentence, the record must affirmatively show retaliation as a result of the rejected plea bargain. Id.; see also State v. Warren, 125 Ohio App.3d 298, 307, 708 N.E.2d 288 (8th Dist.1998). There must be some positive evidence demonstrating a vindictive purpose on the court's part. Shepherd at ¶ 68.
{¶48} In the instant matter, appellant argues that during the sentencing hearing, the trial court "made it clear that [it] is punishing [appellant] for taking the matter to trial." Appellant's brief at 4. In support of his argument, appellant takes issue with a statement the trial court made during the sentencing hearing in which the trial court described appellant's case as "silly."
{¶49} During a discussion regarding appellant's criminal history, the trial court explained that appellant had previously been charged with (1) "receiving stolen property and multiple counts of forgery and identity theft and forging identity cards," and (2) drug trafficking and resisting arrest. (Tr. 301.) When appellant was charged with drug trafficking and resisting arrest, the trial court stated that it "gave [appellant] a break and ordered [him] into a dual diagnosis inpatient program." (Tr. 301.) The trial court emphasized that despite the fact that it had given appellant a break and provided counseling for him, appellant subsequently committed the robbery offenses on June 15, 2017. The trial court explained,
Cuyahoga C.P. No. CR-08-511391-B.
Cuyahoga C.P. No. CR-14-591422-A. --------
And we did everything that we possibly could to keep you from being the monster that you were on June 15th, 2017.(Tr. 301-302.)
Here's my frame of reference. My job is to protect the peace and the dignity of the State of Ohio. I have to take the dangerous guys off the street.
I know of your record. You're on probation to me. And you're beating people down in the streets. And then you come in here, and instead of talking to me like I've talked to you before, Michael, you take this silly case to trial. Okay?
{¶50} Appellant argues that the trial court's statement indicates that the court was punishing him for exercising his constitutional right to a jury trial. We disagree.
{¶51} After review, we find nothing in the record — including the trial court's statement with which appellant takes issue — suggesting that the trial court was either punishing appellant for exercising his constitutional right to a jury trial or was motivated by vindictiveness. Rather, we find that the trial court's statement about appellant's decision to take his "silly case" to trial, when taken in context, can reasonably be construed as an expression of the trial court's dissatisfaction with appellant's failure to (1) accept responsibility for his actions and show remorse, (2) respond favorably to sanctions previously imposed for his convictions, (3) take advantage of the counseling and treatment that the court previously provided him with, and (4) lead a law-abiding life after the court had previously showed him leniency. All of these considerations are permissible and relevant pursuant to the seriousness and recidivism factors set forth in R.C. 2929.12.
{¶52} Appellant further takes issue with a statement that the trial court made after the jury returned its verdict. After the jury returned its guilty verdict on the robbery counts, appellant stated that he has no reason to rob anyone because he works and has a 17-month-old son. Appellant also asserted that "[t]he system is f[***ed] up." (Tr. 292.)
{¶53} The trial court opined that appellant was merely acting in an attempt to manipulate the jury and the criminal justice system and to make the jury feel bad for him. When appellant continued to interject, the trial court stated,
Excuse me. You didn't testify and you're not going to testify now. If you continue, you will be removed from the courtroom. What you should know is I agree wholeheartedly with your verdict and that [appellant] is not a person who comes to the Court without a substantial criminal record.(Tr. 292.) The trial court continued, explaining that it told appellant, through counsel, before the jury trial commenced that even if he "catch[es] the Hail Mary pass and get[s] the one out of 100 and get[s] a not guilty [verdict] on [the robbery charges], [he is] still going to the institution." (Tr. 292-293.)
As a matter of fact, [appellant] is on probation to the Court. [Appellant] has been indicted in five prior felony offenses in Cuyahoga County alone. [Appellant] is on probation to the Court for trafficking and resisting. Okay? He is going back to the institution on the probation violation as well as the new conviction.
{¶54} Appellant argues that this statement reveals the trial court's "disdain" for appellant's decision to take the case to trial and the court's displeasure with being burdened with the trial. We disagree.
{¶55} After review, we do not find the statements with which appellant takes issue as being indicative that the trial court was punishing him for taking his case to trial. Rather, it is evident that the trial court was merely explaining that there were two matters that would be addressed at sentencing — appellant's robbery convictions and his probation violation in CR-14-591422-A.
{¶56} The trial court's statements were consistent with the advisements that the court gave to appellant before the jury trial commenced. Before selecting the jury, the trial court acknowledged that appellant was on probation. The trial court asked defense counsel if appellant had considered a plea. Both defense counsel and appellant indicated that appellant wanted to take his chances at trial. The trial court advised appellant that because he was on probation, he could still be sentenced to prison — even if he was acquitted of the robbery counts at trial — if the trial court determined that there was probable cause that he violated probation. (Tr. 10-12.)
{¶57} Before the jury trial commenced, defense counsel explained that the state offered a plea agreement under which appellant would plead guilty to either a third-degree felony or two fourth-degree felonies. (Tr. 8.) The parties did not, however, discuss any particular sentence that would be agreed upon or recommended under the plea agreement.
{¶58} After reviewing the record, we do not clearly and convincingly find that appellant's sentence is contrary to law because it was imposed as a result of actual vindictiveness. See State v. Brownlee, 8th Dist. Cuyahoga No. 105116, 2018-Ohio-738, ¶ 45, citing State v. Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431, ¶ 16. The trial court's sentence on appellant's robbery convictions was within the statutory range set forth in R.C. 2929.14(A)(2), and the record reflects that the trial court considered the principles and purposes of felony sentencing set forth in R.C. 2929.11 and the seriousness and recidivism factors set forth in R.C. 2929.12. The record reflects that the trial court imposed the five-year prison sentences on the robbery convictions based on appellant's criminal history and conduct during the incident, not because appellant refused to enter a guilty plea.
{¶59} For all of the foregoing reasons, appellant's first assignment of error is overruled.
III. Conclusion
{¶60} After thoroughly reviewing the record, we find that appellant's convictions were supported by sufficient evidence and are not against the manifest weight of the evidence; the trial court did not commit plain error by imposing sentences on both of appellant's robbery convictions; the trial court's sentence is not contrary to law and we cannot clearly and convincingly conclude that it was the product of actual vindictiveness for appellant's decision to exercise his constitutional right to trial.
{¶61} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant's convictions having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. FRANK D. CELEBREZZE, JR., JUDGE EILEEN A. GALLAGHER, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR