[Cite as State v. Perkins, 2019-Ohio-88.]


                 Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                       Nos. 106877 and 107155



                                            STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                            CORY PERKINS

                                                       DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                Case Nos. CR-17-618690-A, CR-17-617762-A and CR-17-623157-A

        BEFORE: Keough, J., E.T. Gallagher, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: January 10, 2019
ATTORNEY FOR APPELLANT

Russell S. Bensing
600 IMG Building
1360 East Ninth Street
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Frank Romeo Zeleznikar
       James Moss
Assistant County Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113


KATHLEEN ANN KEOUGH, J.:

       {¶1}    In these consolidated appeals, defendant-appellant, Cory Perkins, appeals from the

trial court’s judgment sentencing him to consecutive sentences totaling eleven years in prison.

Perkins contends that the consecutive sentences were not supported by the record. For the

reasons that follow, we affirm.

                                        I. Background

       {¶2}    In November 2017, Perkins pleaded guilty in three cases that arose from his

robberies of three banks over four days in May 2017.

       {¶3}    In Cuyahoga C.P. No. CR-17-617762, regarding the robbery of PNC bank on May

20, 2017, Perkins pleaded guilty to robbery in violation of R.C. 2911.02 and abduction in

violation of R.C. 2905.02.
       {¶4}    In Cuyahoga C.P. No. CR-17-618690, regarding the robbery of Huntingon Bank

on May 22, 2017, Perkins pleaded guilty to robbery in violation of R.C. 2911.02 and abduction in

violation of R.C. 2905.02.

       {¶5}    In Cuyahoga C.P. No. CR-17-623157, regarding the robbery of Key Bank on May

23, 2017, Perkins pleaded guilty to robbery in violation of R.C. 2911.02 and abduction in

violation of R.C. 2905.02.

       {¶6}    All of the robbery and abduction offenses were third-degree felonies. Perkins

committed these offenses while he was on community control in Cuyahoga C.P. No.

CR-15-597566, in which he had pleaded guilty to theft, aggravated theft, and money laundering.

       {¶7}    At sentencing, the trial court merged the abduction count with the robbery count

in each case, and the state elected to proceed to sentencing on each robbery offense. The trial

court sentenced Perkins to four years each in Cuyahoga C.P. Nos. CR-17-618690 and

CR-17-617762, and to three years in Cuyahoga C.P. No. CR-17-623157. The court ordered that

the sentences would be served consecutively, for an aggregate term of eleven years in prison, and

concurrent with CR-15-597566, in which the trial court had revoked Perkins’s community

control sanctions and imposed nine months in prison. This appeal followed.

                                     II. Law and Analysis

       {¶8} In his single assignment of error, Perkins contends that the trial court erred in

imposing consecutive sentences because they were “clearly and convincingly unsupported by the

record.”

       {¶9} R.C. 2929.14(C) allows the court to require on offender to serve consecutive

multiple prison terms for convictions on multiple offenses. Consecutive sentences may be

imposed if the trial court finds that (1) a consecutive sentence is necessary to protect the public
from future crime or to punish the offender, (2) consecutive sentences are not disproportionate to

the seriousness of the offender’s conduct and to the danger the offender poses to the public, and

(3) one of the following applies — (a) the offender committed one or more of the multiple

offenses while awaiting trial or sentencing, (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, or (c) the offender’s history demonstrates consecutive sentences are

necessary to protect the public. Id.

       {¶10} There are two ways a defendant can challenge consecutive sentences on appeal.

First, the defendant can argue that consecutive sentences are contrary to law because the court

failed to make the necessary findings required by R.C. 2929.14(C). State v. Williams, 8th Dist.

Cuyahoga No. 100488, 2014-Ohio-3138, ¶ 4. Second, the defendant can argue that the record

does not support the findings made under R.C. 2929.14(C)(4). Id.

       {¶11} In imposing consecutive sentences in this case, the trial court stated:

       So you’re looking at an aggregate of 11 years. I’ll run them consecutive. The
       reason[s] why I’m running them consecutive are the following reasons:
       consecutive sentences are necessary to protect the public from future crime and to
       punish the offender, they’re not disproportionate to your conduct and the danger
       that you pose to the public.

       You committed one of these offenses or all of them while you were under
       community control sanctions in case number 597566.

       The offenses were also committed as part of a course of conduct and that harm
       caused by two or more multiple offenses was so great or unusual that no single
       prison term for any of the offenses would adequately reflect the seriousness of the
       crime.
       And finally, once again, your history of criminal conduct demonstrates that
       consecutive sentences are necessary.
       {¶12} Perkins does not dispute that the trial court made all the findings required by R.C.

2929.14(C). Rather, he contends that the consecutive sentences should be vacated because the

trial court’s findings were not supported by the record.

       {¶13} Pursuant to R.C. 2953.08(G)(2)(a), a reviewing court may vacate or modify

consecutive sentences if it finds by clear and convincing evidence that the record does not

support the findings made under R.C. 2929.14(C)(4). State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22.

       “Clear and convincing evidence is that measure or degree of proof which is more
       than a mere ‘preponderance of the evidence,’ but not to the extent of such
       certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which
       will produce in the mind of the trier of facts a firm belief or conviction as to the
       facts sought to be established.”

Id. at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three

of the syllabus.

       {¶14} As this court has stated:

       It is important to understand that the “clear and convincing” standard applied in
       R.C. 2953.08(G)(2) is not discretionary. In fact, R.C. 2953.08(G)(2) makes it
       clear that “[t]he appellate court’s standard for review is not whether the
       sentencing court abused its discretion.” As a practical consideration, this means
       that appellate courts are prohibited from substituting their judgment for that of the
       trial judge.

       It is also important to understand that the clear and convincing standard used by
       R.C. 2953.08(G)(2) is written in the negative. It does not say that the trial judge
       must have clear and convincing evidence to support its findings. Instead, it is the
       court of appeals that must clearly and convincingly find that the record does not
       support the court’s findings. In other words, the restriction is on the appellate
       court, not the trial judge. This is an extremely deferential standard of review.

State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 20-21 (8th Dist.).

       {¶15} We have no basis for concluding that the record does not support the court’s

findings under R.C. 2929.14(C)(4). The trial court considered the robbery offenses, weighed the
need to both protect the public and punish Perkins, and evaluated the proportionality of the

punishment to Perkins’s conduct. Further, the court noted that Perkins had a lengthy criminal

history prior to these offenses, much of it involving “theft-related offenses, burglaries, robberies,

aggravated burglaries, thefts, [and] forgeries.” And the court found that Perkins was serving a

term of community control sanctions for other theft offenses when he committed these offenses.

       {¶16} Perkins argues, however, that consecutive sentences were not warranted because

although he admittedly has a substantial criminal history, many of his prior convictions were due

to his drug use and did not involve violence.          He argues further that he suffered from

post-traumatic stress syndrome, which played a part in his criminal activities.          Finally, he

contends that no weapons were used and no harm was inflicted on anyone during the commission

of the robberies.

       {¶17} But these are the very same arguments defense counsel raised in the trial court at

sentencing. (Tr. 30-31.) Perkins’s argument, therefore, seems to be that the trial court abused

its discretion by not giving enough weight to these factors when imposing consecutive sentences.

 But R.C. 2953.08(G)(2) makes clear that our standard of review is not whether the sentencing

court abused its discretion. Thus, Perkins cannot prevail on this argument. Williams, 8th Dist.

Cuyahoga No. 100488, 2014-Ohio-3138, at ¶ 12, citing State v. Smith, 8th Dist. Cuyahoga No.

100206, 2014-Ohio-1520, ¶ 17.

       {¶18} We find nothing demonstrating that in imposing consecutive sentences, the trial

court relied on a fact that was demonstrably wrong (for example, attributing to Perkins a prior

conviction that did not exist), in which case the trial court’s findings would be clearly erroneous.

 On the record before us, we cannot say that the trial court’ findings under R.C. 2929.14(C)(4)
were not supported by the record or erroneous in any respect. The assignment of error is

therefore overruled.

       {¶19} 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.




KATHLEEN ANN KEOUGH, JUDGE

EILEEN T. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
