[Cite as State v. Roby,
2023-Ohio-1889.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111891
v. :
DENZELLE ROBY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 8, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-21-658126-B and CR-22-670915-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Carla Neuhauser, Assistant Prosecuting
Attorney, for appellee.
Buckeye Law Office and Craig W. Smotzer, for appellant.
ANITA LASTER MAYS, A.J.:
Defendant-appellant Denzelle Roby (“Roby”) appeals his sentence
and asks this court to vacate his sentence and remand to the trial court for
resentencing. We affirm the trial court’s decision and Roby’s sentence.
On July 2, 2020, in Cuyahoga C.P. No. CR-20-650048, the trial court
placed Roby on community-control sanctions for a conviction of domestic violence,
in violation of R.C. 2929.25(A). While under supervision for this case, Roby was
indicted on two additional cases, Cuyahoga C.P. Nos. CR-21-658126 and CR-22-
670915.
On March 23, 2022, in Cuyahoga C.P. No. CR-21-658126, Roby was
indicted on the following four counts: two counts of having weapons while under
disability, third-degree felonies, in violation of R.C. 2923.12(A)(2) and (3); one
count of carrying concealed weapons, a fourth-degree felony, in violation of
R.C. 2923.12(A)(2); and one count of improper handling of a firearm in a motor
vehicle, a fourth-degree felony, in violation of R.C. 2923.16(B).
On June 13, 2022, in Cuyahoga C.P. No. CR-22-670915, Roby was
indicted on the following three counts: one count of having weapons while under
disability, a third-degree felony, in violation of R.C. 2923.12(A)(2); one count of
carrying a concealed weapon, a fourth-degree felony, in violation of
R.C. 2923.12(A)(2); and one count of receiving stolen property, a fourth-degree
felony, in violation of R.C. 2913.51(A).
On July 26, 2022, Roby pleaded guilty in Cuyahoga C.P. No. CR-21-
685126 to one count of having weapons while under disability, in violation of
R.C. 2923.12(A)(2), a third-degree felony. The remaining counts were nolled. In
Cuyahoga C.P. No. CR-22-670915, Roby pleaded guilty to having weapons while
under disability, in violation of R.C. 2923.12(A)(2), a third-degree felony; and an
amended count of theft, in violation of R.C. 2913.52, a first-degree misdemeanor.
On August 25, 2022, at the sentencing hearing, the trial court
sentenced Roby to 36 months in prison and awarded Roby jail-time credit for each
case. At sentencing, in regards to Roby’s sentence, the trial court stated:
All right. Mr. Roby, I have reviewed your file. I have reviewed all your
information. I have some options for you; not the ones, unfortunately,
that you’re considering.
I want you to know that I did not think that your version of what you
had to say to me was entirely sincere. And I wanted to listen to you
and review everything, but when I’m being manipulated — I prefer
people to be just straight forward with me.
I’ve got your history here. I understand that you’ve suffered a lot of
trauma and I'm willing to work with you in some ways, which is why I
asked everybody to come up here. But, ultimately, the circumstances
here are just too much for me especially you getting into a police car
with a loaded firearm in your pocket with one in the chamber —
…
It was definitely their job to search you for sure, but the situation itself
is just incredibly frightening to the Court. So at this time the Court
having considered all of the required factors under 2929.11, 2929.12,
2929.13, at this time I sentence the defendant on each of the weapon
under disability counts to 36 months at Lorain Correctional
Institution.
I am going to order that those sentences be served concurrently to
each other and 180 days on the receiving stolen property.
I will give you credit in Case Number 658126 for 100 days and 670915
for 90 days. I am going to have you screened for a program at the
Allen Correctional Facility. It’s called Sugar Creek. And Ms. Gray and
I think you may qualify for the program. So that would be what I
would like you to participate in.
They have all the services that your mother and/or your family has
requested. So there’s job training, school, and everything that you
could possibly imagine. If you qualify for the program, that would be
the best program for you.
I’m also going to have Metro WRAP services linked back up with you
before you’re released so that you have mental health services when
you’re done.
I’m going to remind you that you face up to two years of postrelease
control, which means the parole board will supervise you and could
supervise you for up to two — two years. They could send you back to
prison for up to half of any sentence that I’ve given to you if you violate
any of their rules or their regulations.
I’m going to remind you as well that if you’re on postrelease control
and you commit a new felony, the sentencing judge can terminate
postrelease control and give you a consecutive sentence up to the
greater of 12 months or the remaining period of your postrelease
control.
Metro’s WRAP services are done with a woman by the name of Robin
Elmore and she typically goes to meet people before they’re released.
She is one of the best of our forensic liaisons, so I’m certain that you’ll
be able to be reconnected to services.
I’m going to include on my entry that you will be considered for and
screened for the Sugar Creek program. I would like you to qualify for
that. And if you do, that would be I think the best of the services that
you could receive.
I’m going to waive your court costs and order that you be remanded
and transported. Good luck, Mr. Roby.
(Tr. 48, 50-53).
Roby filed this timely appeal and assigned one error for our review:
The record clearly and convincingly fails to support the imposition of
the maximum sentence upon the appellant.
I. Standard of Review
An individual’s right to appeal is found in R.C. 2953.08. “We review
felony sentences under the standard of review set forth in R.C. 2953.08(G)(2).”
State v. Artis, 8th Dist. Cuyahoga No. 111298, 2022-Ohio-3819, ¶ 11, citing State v.
Marcum,
146 Ohio St.3d 516,
2016-Ohio-1002,
59 N.E.3d 1231, ¶ 1, 21.
Under R.C. 2953.08(G)(2), an appellate court may increase, reduce,
modify, or vacate and remand a challenged felony sentence if the court
clearly and convincingly finds either that the record does not support
the sentencing court’s findings as required by certain sentencing
statutes, or the sentence is “otherwise contrary to law.”
Id.
The trial court must consider several factors when sentencing a
defendant maximum or minimum term.
“A trial court’s imposition of a maximum prison term for a felony
conviction is not contrary to law as long as the sentence is within the
statutory range for the offense, and the court considers the purposes
and principles of felony sentencing set forth in R.C. 2929.11 and the
seriousness and recidivism factors set forth in R.C. 2929.12.”
Id. at ¶ 13, quoting State v. Seith, 8th Dist. Cuyahoga No. 104510, 2016-Ohio-8302,
¶ 12, citing State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-Ohio-
5234, ¶ 10, 16; see also State v. Pate, 8th Dist. Cuyahoga No. 109758, 2021-Ohio-
1089, ¶ 3 (a court’s imposition of any prison term, even a maximum term, for a
felony conviction is not contrary to law if the sentence is within the statutory range
for the offense and the trial court considers R.C. 2929.11 and 2929.12).
R.C. 2929.11 and 2929.12 list several factors that the trial court must
consider. However, “R.C. 2929.11 and 2929.12 are not fact-finding statutes and
although the trial court must ‘consider’ the factors, it is not required to make specific
findings on the record regarding its consideration of those factors, even when
imposing a more-than-minimum sentence.” Artis at ¶ 13, citing Pate at ¶ 6. “Indeed,
consideration of the factors is presumed unless the defendant affirmatively shows
otherwise.” Id., citing State v. Wright,
2018-Ohio-965,
108 N.E.3d 1109, ¶ 16 (8th
Dist.). “Furthermore, a trial court’s statement in its sentencing journal entry that it
considered the required statutory factors is sufficient to fulfill its obligations under
R.C. 2929.11 and 2929.12.”
Id., citing State v. Sutton, 8th Dist. Cuyahoga
Nos. 102300 and 102302,
2015-Ohio-4074, ¶ 72; State v. Clayton, 8th Dist.
Cuyahoga No. 99700,
2014-Ohio-112, ¶ 9.
II. Law and Analysis
In Roby’s sole assignment of error, he argues that the trial court erred
by sentencing him to a maximum sentence because the record clearly and
convincingly demonstrates that the imposition of the maximum penalty is
unwarranted and does not serve the requirements of R.C. 2929.11. Roby makes no
argument that his maximum sentences did not fall within the statutory range. We
note that our review of the offenses and corresponding sentences demonstrates that
the sentences were within the statutory range.
A review of the transcript reflects that the trial court specifically
considered the purposes and principles of felony sentencing under R.C. 2929.11 and
2929.12 before sentencing Roby to maximum terms. (Tr. 50.) Additionally, the trial
court’s journal entries of sentencing in each case state that the court considered “all
required factors of the law” in imposing its sentence and found that “prison is
consistent with the purpose of R.C. 2929.11.” Accordingly, the trial court’s
imposition of maximum sentences was not contrary to law.
Nevertheless, Roby contends that he was working on establishing the
structure and routine of participating with his mental health care provider. He also
argues that the trial court sentenced him to the maximum because in one case, Roby
did not inform the police that he had a loaded weapon on his person until he was
transported to the police station. Roby acknowledges that his crimes were serious,
but contends that the judge was more upset about the loaded weapon than the
crimes themselves. Roby further argues that this language from the court
demonstrates that the court did not consider the factors under R.C. 2929.11.
Roby’s arguments are misplaced. The record reflects that the court
did consider the factors under R.C. 2929.11, which states, in part:
(A) A court that sentences an offender for a felony shall be guided by
the overriding purposes of felony sentencing. The overriding purposes
of felony sentencing are to protect the public from future crime by the
offender and others, to punish the offender, and to promote the
effective rehabilitation of the offender using the minimum sanctions
that the court determines accomplish those purposes without
imposing an unnecessary burden on state or local government
resources. To achieve those purposes, the sentencing court shall
consider the need for incapacitating the offender, deterring the
offender and others from future crime, rehabilitating the offender,
and making restitution to the victim of the offense, the public, or both.
(B) A sentence imposed for a felony shall be reasonably calculated to
achieve the three overriding purposes of felony sentencing set forth in
division (A) of this section, commensurate with and not demeaning to
the seriousness of the offender’s conduct and its impact upon the
victim, and consistent with sentences imposed for similar crimes
committed by similar offenders.
The court stated at sentencing:
So there’s job training, school, and everything that you could possibly
imagine. If you qualify for the program, that would be the best
program for you. I’m also going to have Metro WRAP services linked
back up with you before you’re released so that you have mental health
services when you’re done.
(Tr. 51.) This demonstrates that the trial court considered Roby’s effective
rehabilitation. The trial court also heard testimony of Roby’s reckless disregard
towards the court’s orders to not carry a weapon. The record demonstrates that
the trial court weighed the factors and acted accordingly. Roby had a previous
probation opportunity but was charged with two new cases; there was a need to
protect the public regarding his violation and not informing officers that he was in
possession of a weapon; and finally, the court’s referral for in-house prison services
to promote effective rehabilitation all demonstrate the court’s consideration of the
factors. We find that Roby has not demonstrated that the trial court did not
consider the factors of R.C. 2929.11.
Roby cites State v. Jones, 2016-Ohio-5923,
76 N.E.3d 417 (8th Dist.)
in support of his contention. In Jones, we stated:
We recognize the discretion afforded to trial courts to impose
sentences that are within the authorized statutory range, and that trial
courts are not required to make findings or give its reasons for
imposing more than the minimum or maximum sentences. Still, trial
courts are “not endowed with unreviewable discretion to sentence
within the statutory range.” State v. Morefield, 2d Dist. Clark
No. 2015-CA-4, 2015-Ohio-4713, ¶ 7.
Id. at ¶ 112.
In Jones, the court decided that it was unable to determine from the
record whether the maximum sentence imposed by the trial court was supported by
the record. However, in our instance case, the record is clear that the trial court’s
sentence was supported. Additionally, during oral argument, counsel withdrew his
reliance on Jones.1
Therefore, Roby’s sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
1Jones was reversed in State v. Jones, 163 Ohio St.3d 242,
2020-Ohio-6729,
169
N.E.3d 649. The Supreme Court of Ohio found that under R.C. 2953.08(G)(2)(a),
R.C. 2929.11 and 2929.12 are not among the statutory provisions listed to be reviewed.
Therefore, an appellate court is without authority to review a trial court’s determination
under R.C. 2929.11 and 2929.12.
It is ordered that a special mandate issue out of this court directing the
common pleas court 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.
______________________________________
ANITA LASTER MAYS, ADMINISTRATIVE JUDGE
MICHELLE J. SHEEHAN, J., and
MARY J. BOYLE, J., CONCUR
