Consecutive sentences, jointly recommended sentence, R.C. 2953.08(D). Appellant's challenge to his consecutive sentences was barred by R.C. 2953.08(D)(1) because his jointly recommended sentence imposed pursuant to a plea agreement included nonmandatory consecutive sentences.
.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104484
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MARCELLUS LAWRENCE WEBSTER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-597924-B
BEFORE: E.A. Gallagher, P.J., Kilbane, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: March 16, 2017
ATTORNEY FOR APPELLANT
Richard Agopian
1415 West Ninth Street, 2nd Floor
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Andrew J. Santoli
Fallon Radigan
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:
{¶1} Defendant-appellant Marcellus Webster appeals his consecutive sentences
following his guilty pleas to involuntary manslaughter, aggravated robbery with a three
year firearm specification and grand theft in the Cuyahoga County Court of Common
Pleas. For the following reasons, we affirm.
Facts and Procedural Background
{¶2} Webster plead guilty to the above offenses on November 5, 2015. The
parties reached a plea agreement whereby Webster would receive a minimum sentence of
ten years up to a maximum of 20 years. The agreement further specified that
Webster’s offenses would not merge as allied offenses and that the parties stipulated to
agreed consecutive sentencing findings under R.C. 2929.14(C)(4). The trial court
specifically clarified that the agreement obviated its duty to put on the record why
Webster’s sentences would be run consecutive because it was an agreed aspect of the plea
agreement. Webster’s trial counsel acknowledged his agreement to these terms at the time
of his plea.
{¶3} At sentencing, the trial court imposed an 11-year prison term on the
involuntary manslaughter count, a three year prison term on the aggravated robbery count
to be served consecutive to an attached three year firearm specification and a six month
prison term on the grand theft count. The trial court ordered the prison terms for
involuntary manslaughter and aggravated robbery to be served concurrently but
consecutive to the six-month prison term for grand theft. Webster’s cumulative prison
sentence for the counts in this case was 14 years and six months. The trial court further
ordered the cumulative sentence in this case to be served consecutive to Webster’s
sentences in two separate and prior cases.
Law and Analysis
{¶4} In his first assignment of error, Webster argues that the trial court failed to
consider his youth as a factor at sentencing pursuant to R.C. 2929.11 and 2929.12. In
his second assignment of error, Webster argues that the trial court failed to make the
required consecutive sentencing findings pursuant to R.C. 2929.14(C)(4). We find both
of Webster’s assignments of error to be barred on appeal by R.C. 2953.08(D)(1).
{¶5} Pursuant to R.C. 2953.08(D)(1), a sentence imposed upon a defendant is not
subject to appellate review if the sentence is authorized by law, has been recommended
jointly by the defendant and the prosecution in the case and is imposed by a sentencing
judge. A sentence is “authorized by law” and not appealable within the meaning of R.C.
2953.08(D)(1) “only if it comports with all mandatory sentencing provisions.” State v.
Underwood,
, ¶ 20. If all three
conditions are satisfied, R.C. 2953.08(D)(1) prohibits any appeals from sentences that
otherwise challenge the court’s discretion in imposing a sentence, such as whether the
trial court complied with statutory provisions such as R.C. 2929.11 and 2929.12. State v.
Akins-Daniels, 8th Dist. Cuyahoga No. 103817,
, ¶ 22.
{¶6} In State v. Sergent, Slip Opinion No.
2016-Ohio-2696, ¶ 30
, the Ohio
Supreme Court held that a jointly recommended sentence that includes nonmandatory,
consecutive sentences qualifies as “authorized by law” even where the trial court fails to
make the appropriate consecutive sentencing findings pursuant to R.C. 2929.14(C)(4).
Id. at ¶ 30.
{¶7} The above limitations on a defendant’s ability to challenge an agreed
sentence on appeal are equally applicable to cases such as the present that involve a
sentencing range as opposed to a single definite sentence. Akins-Daniels at ¶ 12. If the
state and defendant jointly recommend a sentencing range, the defendant implicitly agrees
to all definite sentencing possibilities within that range. Id. at ¶ 12.
{¶8} In this case, there is no dispute that the trial court complied with all
mandatory sentencing provisions and his sentences are within the appropriate statutory
ranges for his offenses. Therefore, we find that Webster’s sentence was authorized by
law and pursuant to Underwood and Sergent, his assignments of error are not subject to
review on appeal.
{¶9} The judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant the 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 Cuyahoga
County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE
MARY EILEEN KILBANE, J., and
SEAN C. GALLAGHER, J., CONCUR
