[Cite as State v. Butler, 2011-Ohio-2406.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95764




                                     STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                           LAWRENCE BUTLER, III
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-541288

        BEFORE:            S. Gallagher, J., Cooney, P.J., and Keough, J.

        RELEASED AND JOURNALIZED: May 19, 2011
ATTORNEY FOR APPELLANT

Michael H. Murphy
20325 Center Ridge Road
Suite 512
Rocky River, OH 44116


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Nathaniel Tosi
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113




SEAN C. GALLAGHER, J.:

      {¶ 1} Appellant Lawrence Butler, III, appeals his sentence on various

counts of aggravated robbery and forgery. For the reasons stated herein, we

affirm the judgment of the trial court.

      {¶ 2} On June 29, 2010, Butler and his girlfriend violently attacked

and robbed five victims at a movie theater. They demanded money from the

victims and used a large metal pipe to assault the victims.    One of the

victims suffered a fractured skull with head trauma. Another sustained a

head injury that required 15 staples. The others suffered contusions and
trauma as well. The assailants fled the scene and used one of the victims’

credit cards to purchase items at a convenience store. Butler was indicted

under a 22-count indictment, containing charges of aggravated robbery,

felonious assault, forgery, and theft.

      {¶ 3} Butler entered a plea deal with the state and entered a plea of

guilty to five counts of aggravated robbery and three counts of forgery. The

court nolled the remaining counts and proceeded directly to sentencing.

      {¶ 4} The state presented victim impact statements and photographs of

the injuries suffered by two of the victims. Butler also made a statement,

and family members spoke on his behalf. Butler stated he was drinking on

the night of the incident, claimed he did not remember what happened, and

expressed remorse. Among other arguments, defense counsel argued against

the imposition of consecutive sentences and informed the court that Butler

had no adult criminal history and six prior juvenile adjudications.

      {¶ 5} The trial court disagreed with defense counsel and found

consecutive sentences to be appropriate. The court imposed prison terms on

the five aggravated robbery counts, respective to each victim, of three, four,

eight, three, and three years. The court also imposed prison terms of six

months on each of the three forgery counts. Counts 2 and 3 were ordered to

be served consecutive to each other and to all other terms, which were to run
concurrently.   Butler received a total sentence of 15 years in prison.

Postrelease control was also imposed.

      {¶ 6} Butler   timely   appealed   his   sentence.    He   raises   three

assignments of error for our review under which he claims the trial court

erred by (1) failing to make findings of fact prior to the imposition of

consecutive sentences, (2) failing to properly sentence him under statute and

State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, and (3)

imposing consecutive terms of incarceration rather than concurrent terms.

      {¶ 7} First, Butler claims that the trial court was required to make

findings and provide reasons for imposing consecutive sentences. In State v.

Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, the Ohio Supreme

Court held Ohio’s former consecutive-sentencing statutory provisions, R.C.

2929.14(E)(4) and 2929.41(A), were unconstitutional.       The court recently

held in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768,

that these provisions were not revived by the United States Supreme Court’s

decision in Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517,

and that “[t]rial court judges are not obligated to engage in judicial

fact-finding prior to imposing consecutive sentences unless the General

Assembly enacts new legislation requiring that findings be made.”         Id. at

paragraphs one and two of the syllabus.        Accordingly, we reject Butler’s

argument.
      {¶ 8} Second, Butler claims the trial court failed to comply with

applicable sentencing statutes and abused its discretion in imposing

consecutive sentences.     In Kalish, 120 Ohio St.3d 23, the Ohio Supreme

Court set forth a two-step procedure for reviewing felony sentences, as

follows: “ * * * First, [appellate courts] must examine the sentencing court’s

compliance with all applicable rules and statutes in imposing the sentence to

determine whether the sentence is clearly and convincingly contrary to law.

If this first prong is satisfied, the trial court’s decision in imposing the term of

imprisonment is reviewed under the abuse of discretion standard.” Id.

      {¶ 9} The record in this case reflects that defense counsel articulated

the statutory factors in arguing against the imposition of consecutive

sentences. Though Butler claims the court failed to consider his criminal

history, the record reflects that defense counsel specifically stated Butler’s

criminal history on the record before the court. The trial court imposed a

sentence that was within the permissible statutory range.            Further, the

sentencing entry reflects that the court considered all the required factors of

the law and found that prison was consistent with the purpose of R.C.

2929.11. The trial court imposed an aggregate sentence of 15 years. Butler

provided no evidence as to sentences given to similarly situated offenders.

Upon this record, we cannot conclude that his sentence was contrary to law.
      {¶ 10} We next consider whether the trial court abused its discretion.

An abuse of discretion implies that the court’s attitude is unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d

217, 219, 450 N.E.2d 1140.       The record reflects the violent nature of the

assault and the seriousness of the injuries involved. The court heard several

victim statements, heard from the defendant and family members on his

behalf, and heard defense counsel’s argument against consecutive sentences,

which included Butler’s criminal record.        The court did not impose a

maximum sentence for any of the offenses and imposed different prison terms

in consideration of the seriousness of the injuries to each victim. The court

only imposed consecutive terms for the two counts relating to the victims who

suffered severe head injuries.      Upon our review, we find no abuse of

discretion by the trial court.

      {¶ 11} Finally, Butler argues that the trial court erred by imposing

consecutive terms. Here again, he claims the trial court failed to consider his

lack of an adult criminal record.        As discussed above, the trial court

considered defense counsel’s argument against consecutive sentences, which

included Butler’s criminal history. However, in light of the seriousness of

the offenses and the severity of the injuries to two of the victims, the trial

court imposed consecutive sentences on two of the counts. For the reasons
discussed above, we find no error with regard to the sentence imposed by the

trial court.

      {¶ 12} Butler’s assigned errors are overruled.

      Judgment affirmed.

      It is ordered that appellee recover from 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

conviction 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.



SEAN C. GALLAGHER, JUDGE

COLLEEN CONWAY COONEY, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
