[Cite as State v. Brownlee, 2018-Ohio-3841.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


STATE OF OHIO,                                   :      OPINION

                 Plaintiff-Appellee,             :
                                                        CASE NO. 2017-L-166
        - vs -                                   :

LAMAR BROWNLEE, JR.,                             :

                 Defendant-Appellant.            :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2017 CR
000692.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp,
Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For
Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Lamar Brownlee, Jr., appeals from the sentencing order of the

Lake County Court of Common Pleas, sentencing him to an aggregate term of 16 years

imprisonment. We affirm.

        {¶2}     On June 6, 2017, appellant, and two accomplices, were driving in

Willoughby, Ohio. Appellant pulled up to a Papa John’s restaurant; his accomplices
entered the establishment and robbed the same at gunpoint. They left with the cash

drawer, re-entered the vehicle, and appellant drove away.       The men subsequently

committed a similar armed robbery at a Papa Joe’s restaurant in Willoughby.       Police

were notified and were provided with a description of the vehicle, as well as a license

plate number.

      {¶3}   Officers ultimately located a vehicle matching the description and an

active pursuit ensued. Officers deployed a spike strip which successfully deflated the

vehicle’s front and rear passenger-side tires. The vehicle eventually crashed at the

intersection of State Route 2 westbound I-271 split.

      {¶4}   Appellant fled on foot and was eventually apprehended. In the vehicle,

officers found two semi-automatic revolvers with extended magazines. The firearms

matched the description of the weapons used in the robberies; officers also found a

black neoprene mask, cell phones, two electronic scales, a black skull cap, and the

cash drawers from the pizza shops.

      {¶5}   Appellant was indicted on the following charges: Count One, aggravated

robbery, a felony of the first degree, in violation of R.C. 2911.01(A)(1), with an

accompanying firearm specification, pursuant to R.C. 2941.145, and a forfeiture

specification, pursuant to R.C. 2941.1417 and R.C. 2981.04; Count Two, aggravated

robbery, a felony of the first degree, in violation of R.C. 2911.01(A)(1), with an

accompanying firearm specification, pursuant to R.C. 2941.145, and a forfeiture

specification, pursuant to R.C. 2941.1417 and R.C. 2981.04; Count Three, kidnapping,

a felony of the first degree, in violation of R.C. 2905.01(A)(2), with an accompanying

firearm specification, pursuant to R.C. 2941.145 and a forfeiture specification, pursuant




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to R.C. 2941.1417 and R.C. 2981.04; Count Four, kidnapping, a felony of the first

degree, in violation of R.C. 2905.01(A)(2), with an accompanying firearm specification,

pursuant to R.C. 2941.145 and a forfeiture specification, pursuant to R.C. 2941.1417

and R.C. 2981.04; Count Five, improperly handling firearms in a motor vehicle, a felony

of the fourth degree, in violation of R.C. 2923.16(B), with an accompanying forfeiture

specification, pursuant to R.C. 2941.1417 and R.C. 2981.04; Count Six, failure to

comply with order or signal of police officer, a felony of the third degree, in violation of

R.C. 2921.331(B), with an accompanying firearm specification, pursuant to R.C.

2941.145 and a forfeiture specification, pursuant to R.C. 2941.1417 and R.C. 2981.04;

Count Seven, receiving stolen property, a felony of the fourth degree, in violation of R.C.

2913.51(A), with an accompanying firearm specification, pursuant to R.C. 2941.145 and

a forfeiture specification, pursuant to R.C. 2941.1417 and R.C. 2981.04; Count Eight,

having weapons while under disability, a felony of the third degree, in violation of R.C.

2923.13(A)(3), with an accompanying forfeiture specification, pursuant to R.C.

2941.1417 and R.C. 2981.04; and Count Nine, possessing criminal tools, a felony of the

fifth degree, in violation of R.C. 2923.24, with an accompanying forfeiture specification,

pursuant to R.C. 2941.1417 and R.C. 2981.04. A plea of “not guilty” was entered on

appellant’s behalf.

       {¶6}   Appellant subsequently withdrew his plea of “not guilty,” and entered a

plea of “guilty” to Count One and Count Two with their accompanying specifications.

The trial court entered a nolle prosequi on the remaining counts at the state’s request.

The matter proceeded to sentencing at which the trial court ordered appellant to serve

prison terms of five years on both Count One and Count Two, to be served




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consecutively to one another; appellant was also ordered to serve two three-year terms

for the firearm specifications, for an aggregate term of 16 years imprisonment.

Appellant now appeals and assigns the following as error:

      {¶7}   “The trial court erred by sentencing the defendant-appellant to consecutive

prison sentences totaling 16 years.”

      {¶8}   Appellant claims the trial court’s statutory findings, pursuant to R.C.

2929.14(C)(4) and R.C. 2929.12, were not supported by the record and thus his

sentence is contrary to law.

      {¶9}   An appellate court generally reviews felony sentences under the standard

of review set forth in R.C. 2953.08(G)(2), which states:

      {¶10} The court hearing an appeal under division (A), (B), or (C) of this
            section shall review the record, including the findings underlying the
            sentence or modification given by the sentencing court.

      {¶11} The appellate court may increase, reduce, or otherwise modify a
            sentence that is appealed under this section or may vacate the
            sentence and remand the matter to the sentencing court for
            resentencing. The appellate court’s standard for review is not
            whether the sentencing court abused its discretion. The appellate
            court may take any action authorized by this division if it clearly and
            convincingly finds either of the following:

      {¶12} (a) That the record does not support the sentencing court’s findings
            under division (B) or (D) of section 2929.13, division (B)(2)(e) or
            (C)(4) of section 2929.14, or division (I) of section 2929.20 of the
            Revised Code, whichever, if any, is relevant;

      {¶13} (b) That the sentence is otherwise contrary to law.

      {¶14} Appellate courts “‘may vacate or modify any sentence that is not clearly

and convincingly contrary to law’” only when the appellate court clearly and convincingly

finds that the record does not support the sentence. State v. Wilson, 11th Dist. Lake




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No. 2017-L-028, 2017-Ohio-7127, ¶18, quoting State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, ¶23.

      {¶15} The Ohio Supreme Court has held, R.C. 2929.11 and R.C. 2929.12 do not

require judicial fact-finding. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, ¶42;

State v. Macko, 11th Dist. Lake No. 2016-L-022, 2017-Ohio-253, ¶75. “Rather, in

sentencing a defendant for a felony, a court is merely required to consider the purposes

and principles of sentencing in R.C. 2929.11 and the statutory * * * factors in R.C.

2929.12.” Macko, supra, citing Foster, supra.

      {¶16} Further, R.C. 2929.14(C)(4) provides, in relevant part, as follows regarding

consecutive felony sentences:

      {¶17} If multiple prison terms are imposed on an offender for convictions
            of multiple offenses, the court may require the offender to serve the
            prison terms consecutively if the court finds that the consecutive
            service is necessary to protect the public from future crime or to
            punish the offender and that consecutive sentences are not
            disproportionate to the seriousness of the offender’s conduct and to
            the danger the offender poses to the public, and if the court also
            finds any of the following:

      {¶18} (a) The offender committed one or more of the multiple offenses
            while the offender was awaiting trial or sentencing, was under a
            sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18
            of the Revised Code, or was under post-release control for a prior
            offense.

      {¶19} (b) At least two of the multiple offenses were committed as part of
            one or more courses of conduct, and the harm caused by two or
            more of the multiple offenses so committed was so great or unusual
            that no single prison term for any of the offenses committed as part
            of any of the courses of conduct adequately reflects the
            seriousness of the offender’s conduct.

      {¶20} (c) The offender’s history of criminal conduct demonstrates that
            consecutive sentences are necessary to protect the public from
            future crime by the offender.




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       {¶21} “In order to impose consecutive terms of imprisonment, a trial court is

required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing

hearing and incorporate its findings into its sentencing entry[.]” State v. Bonnell, 140

Ohio St.3d 209, 2014-Ohio-3177, ¶37. Otherwise, the sentence is contrary to law. Id.

The trial court has no obligation, however, to engage in a “word-for-word recitation” of

the language in the statute or to set forth its reasons to support its findings, as long as

they are discernible in the record. Id. at ¶28-29. “[A]s long as the reviewing court can

discern that the trial court engaged in the correct analysis and can determine that the

record contains evidence to support the findings, consecutive sentences should be

upheld.” Id. at ¶29.

       {¶22} Appellant does not claim the trial court failed to make the proper findings

under R.C. 2929.14(C)(4); rather, he maintains the findings were not supported by the

record. With respect to the consecutive sentence, the trial court found, at the sentencing

hearing:

       {¶23} I find that those consecutive sentences are necessary to protect the
             public from future crime and to appropriately punish you and that
             these sentences are not disproportionate to the seriousness of your
             conduct and the danger that you pose to the public.

       {¶24} And I find that at least two of these offenses were committed as
             part of a course of criminal conduct and that the harm caused by
             the two of these offenses was so great or unusual that no single
             prison term for any of these offenses adequately reflects the
             seriousness of your conduct.

       {¶25} The foregoing was incorporated into the trial court’s judgment entry.

       {¶26} The record demonstrates that the robberies were committed at gunpoint

and the victim-impact statements reveal at least two of the employees who were

working at the restaurants suffered short-term emotional trauma.            Although the



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statements do not provide any great detail into the nature of the anxiety and fear these

employees experienced, they do convey the sense of alarm and fright they had when

the firearms were brandished.      Given the nature of the crimes, the trial court could

conclude the harm was sufficiently great and unusual to support consecutive prison

terms.

         {¶27} Next, appellant contends the trial court failed to give adequate

consideration to various mitigating factors that militated in favor of a less severe

sentence. Appellant first asserts the trial court failed to consider he was under strong

provocation from his accomplices to aid in committing the robberies. He asserted they

threatened him and his family’s safety if he did not cooperate.

         {¶28} During the sentencing hearing, the trial court engaged appellant in a

lengthy discussion regarding his claims that he was forced to be the driver and

participated only out of fear for his and his family’s safety. The record demonstrates

that, even though appellant claimed he was under duress to aid in the commission of

two armed robberies, there was evidence to the contrary as well.            Before he was

apprehended, he ran from authorities. And, once he was caught, he did not advise

police he was compelled at gunpoint to be the getaway driver. Rather, he told police he

was approached by his accomplices with offers for “a ride” in their vehicle and when he

entered, he was an innocent bystander to the subsequent robberies. In light of these

points, as well as appellant’s eventual revised story that he only participated out of fear,

the court rejected appellant’s purported justification. The court stated, on record, “I think

you three guys planned this. You were going to be the driver, they were going to go in

and you did it[.]” In light of appellant’s plea, as well as the surrounding circumstances,




                                             7
the court was entitled to reject appellant’s assertion that he was provoked or forced into

participating in the robberies.

       {¶29} Appellant next notes that, even though he is criminally culpable as an

accomplice, the trial court failed to adequately consider that he had no contact with the

firearms or the actions that took place in the businesses.          Even though appellant

characterizes himself as simply an accomplice, it is well-settled that, as an accomplice,

he is criminally responsible to the same degree as the principal offender and, in fact,

may be prosecuted for the principal offense. See e.g. State v. Graven, 52 Ohio St.2d

112, 115-116 (1977). Thus, regardless of whether appellant came into contact with the

weapons used in the robberies and did not participate as a principal, the trial court was

not required to treat these points as mitigating factors.

       {¶30} Appellant additionally underscores that the trial court gave little weight to

any of the recidivism-less-likely factors under R.C. 2929.12(E). He points out that even

though he had been involved in certain criminal activities during the five months leading

up to the crime, he had led an otherwise law-abiding life for many years.              While

appellant’s factual points regarding his criminal record are accurate, they do not

necessitate the conclusion that he would be unlikely to reoffend. The pre-sentence

investigation report indicates that since February 2016, five criminal cases have been

filed against him, including the instant case.             Only one of these cases is a

misdemeanor, and two of the remaining felony cases are pending, including a federal

firearms-theft case. In light of appellant’s recent criminal activities, the court did not err

in giving little weight to the recidivism-less-likely factors.




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       {¶31} Finally, appellant maintains the trial court erred when it found he did not

show genuine remorse. He claims he felt and demonstrated such remorse during the

sentencing hearing and the trial court erred in discounting his expressions.      While

appellant did apologize during sentencing, he also did not appear to accept full

responsibility for the crimes to which he pleaded.      By claiming he was forced or

provoked into assisting his co-defendants, he eschewed accountability. And, in light of

the surrounding circumstances of the crimes, the court found appellant’s claims not

credible.   In drawing this conclusion, the court could also reasonably conclude

appellant’s apologies were similarly disingenuous.

       {¶32} Appellant’s assignment of error lacks merit.

       {¶33} For the reasons discussed in this opinion, the judgment of the Lake

County Court of Common Pleas is affirmed.



DIANE V. GRENDELL, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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