[Cite as State v. Mitchell, 2012-Ohio-701.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 96916



                                       STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                 DERRELL MITCHELL
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-547767

        BEFORE: Boyle, P.J., Celebrezze, J., and Jones, J.

        RELEASED AND JOURNALIZED:                        February 23, 2012

ATTORNEY FOR APPELLANT
Kelly A. Gallagher
P.O. Box 306
Avon Lake, Ohio 44012

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Jeffrey S. Schnatter
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113


       MARY J. BOYLE, P.J.:

       {¶1}    Defendant-appellant, Derrell Mitchell, appeals his sentence. He raises a sole

assignment of error for our review, claiming that his “sentence is contrary to law and violative of

due process because the trial court failed to consider whether the sentence was consistent with

the sentences imposed for similar crimes committed by similar offenders.” Finding no merit to

the appeal, we affirm.

       {¶2} The grand jury indicted Mitchell on 11 counts: aggravated murder (Count 1), murder

(Count 2), two counts of attempted murder (Counts 3 and 4), six counts of aggravated robbery

(Counts 5 - 10), and having a weapon while under a disability (Count 11). All of the counts

carried one- and three-year firearm specifications, notice of prior conviction specifications, and

repeat violent offender specifications, except having a weapon while under disability, which only

carried the one- and three-year firearm specifications.

       {¶3} Mitchell waived his right to a jury on the charge of having a weapon while under a

disability, as well as the repeat violent offender specification. The remaining charges and

specifications were tried to a jury.
       {¶4}    On March 29, 2011, the jury found Mitchell not guilty of aggravated murder and

the lesser included offense of murder (as charged in Count 1), and not guilty of the two counts of

attempted murder (Counts 3 and 4). A mistrial was declared on Count 2, murder, and all of the

aggravated robbery counts. After a bench trial on the charge of having a weapon while under a

disability with the firearm specifications, the trial court found Mitchell guilty.

       {¶5}    Upon the recommendation of the state, the trial court amended Count 2 to

involuntary manslaughter with the one- and three-year firearm specifications, notice of prior

conviction specification, and repeat violent offender specification. Mitchell pleaded guilty to

Count 2 as amended. The remaining aggravated robbery counts were nolled by the court.

       {¶6}    The trial court sentenced Mitchell to ten years in prison; three years for the

firearm specifications, to be served prior to and consecutive to the other terms, and seven years

for involuntary manslaughter, to be served concurrent to three years for having a weapon while

under a disability. The trial court further ordered that the ten years be served consecutive to a

sentence Mitchell received in a separate case, for a total of ten years and six months in prison.

The trial court further advised Mitchell that he would be subject to five years of postrelease

control upon his release from prison.

       {¶7}    It is from this judgment that Mitchell appeals, claiming the trial court erred when

it sentenced him without considering the consistency and proportionality of his sentence to

similar offenders.

       {¶8}    We review felony sentences pursuant to a two-prong standard set forth by the

Ohio Supreme Court in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124.

In Kalish, the court held that:
               In applying [State v. Foster,109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d
       470] to the existing statutes, appellate courts must apply a two-step approach.
       First, they 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 shall be reviewed under an abuse-of-discretion standard. Id. at ¶
       4, 845 N.E.2d 470.

       {¶9}    Mitchell maintains that the trial court did not comply with the mandates of R.C.

2929.11 when it sentenced him. Specifically, he maintains that the trial court did not sentence

him proportionately to the crimes committed or proportionately to similarly situated offenders.

       {¶10} Under R.C. 2929.11(B), a felony sentence must be, as relevant to this appeal,

“consistent with sentences imposed for similar crimes committed by similar offenders.”

       {¶11} But this court has held that in order to support a contention that his or her sentence

is disproportionate, a defendant must raise this issue before the trial court and present some

evidence, however minimal, in order to provide a starting point for analysis and to preserve the

issue for appeal.   State v. Breeden, 8th Dist. No. 84663, 2005-Ohio-510, 2005 WL 315370, ¶

80, citing State v. Woods, 8th Dist. No. 82789, 2004-Ohio-2700, 2004 WL 1172077.          Mitchell

did not raise this issue with the trial court nor did he present any evidence to the trial court.

Thus, there is nothing in the record to indicate that his sentence is impermissibly

disproportionate.

       {¶12} Mitchell’s sole assignment of error is overruled.

       {¶13} 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 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.


MARY J. BOYLE, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and LARRY A. JONES, J., CONCUR
