[Cite as State v. Roundtree, 2012-Ohio-3366.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97577



                                      STATE OF OHIO
                                                PLAINTIFF-APPELLEE

                                                 vs.


                                 DEVON ROUNDTREE
                                                DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                              Case Nos. CR-552402 and CR-545642

        BEFORE: Kilbane, J., Sweeney, P.J., and Jones, J.

        RELEASED AND JOURNALIZED:                      July 26, 2012
ATTORNEY FOR APPELLANT

Michael P. Maloney
24441 Detroit Road
Suite 300
Westlake, Ohio 44145

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
James M. Rice
Andrew Rogalski
Assistant County Prosecutors
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

      {¶1} Defendant-appellant, Devon Roundtree (“Roundtree”) appeals his sentence

in two separate criminal cases. Finding no merit to the appeal, we affirm.

      {¶2} In Case No. CR-545642, Roundtree was indicted in January 2011 and

charged with felonious assault in violation of R.C. 2903.11(A)(1).        The allegations

giving rise to this indictment were that Roundtree was involved in a fight with a juvenile

acquaintance. Roundtree pled guilty to an amended charge of aggravated assault in

violation of R.C. 2903.12(A)(1). The trial court sentenced Roundtree to two years of

community control sanctions in June 2011.

      {¶3} In July 2011, while on community control sanctions for Case No.

CR-545642, Roundtree was indicted in Case No. CR-552402. Roundtree was again

charged with felonious assault in violation of R.C. 2903.11(A)(1). This case, however,

involved a separate incident and a different victim. The allegations giving rise to this

indictment were that Roundtree and another male got into a fight over Roundtree’s

girlfriend, who was dating both men at that time. In September 2011, Roundtree pled

guilty to an amended charge of attempted felonious assault in violation of R.C. 2923.02

and 2903.11(A)(1).
       {¶4} In October 2011, a community control violation hearing and sentencing

hearing was held. In Case No. CR-545642, the trial court found Roundtree in violation

of his community control sanctions and sentenced him to six months in prison. In Case

No. CR-552402, the trial court sentenced Roundtree to two years in prison. The trial

court ordered that the sentences be served consecutive to each other, for a total of two and

one-half years in prison.

       {¶5} Roundtree now appeals, raising the following two assignments of error for

review.

                              ASSIGNMENT OF ERROR ONE

       The trial court erred in imposing consecutive prison terms upon [Roundtree]
       for his separate convictions.

                              ASSIGNMENT OF ERROR TWO

       The trial court        erred   in   sentencing   [Roundtree]   under   O.R.C.
       2929.14(A)(3)(a).

                                      Standard of Review

       {¶6} In reviewing a felony sentence, we take note of R.C. 2953.08(G)(2), which

provides in pertinent part:

       The court hearing an appeal * * * shall review the record, including the
       findings underlying the sentence or modification given by the sentencing
       court.

       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:
      (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;

      (b) That the sentence is otherwise contrary to law.

      {¶7} In addition, a sentence imposed for a felony shall be reasonably calculated

to achieve the two overriding purposes of felony sentencing: (1) “to protect the public

from future crime by the offender and others” and (2) “to punish the offender using the

minimum sanctions that the court determines accomplish those purposes.”              R.C.

2929.11(A).    The sentence imposed shall also be “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.” R.C. 2929.11(B).

                                 Consecutive Sentences

      {¶8} In the first assignment of error, Roundtree argues that the trial court failed

to make the necessary findings required under R.C. 2929.14(C) for the imposition of

consecutive sentences.

      {¶9} The General Assembly, through the enactment of House Bill 86 (“H.B.

86”), recently amended Ohio’s sentencing statutes.          Since H.B. 86 took effect on

September 30, 2011 and Roundtree was sentenced on October 20, 2011, the trial court

was required to sentence him under the new statutes.          Relevant to this appeal, the
revisions under H.B. 86 now require a trial court to make specific findings when

imposing consecutive sentences. Specifically, R.C. 2929.14(C)(4) provides as follows:

       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:

       (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.

       (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.

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

       {¶10} In the instant case, Roundtree was sentenced to six months in prison for his

community control sanctions violation in Case No. CR-545642 and two years in prison

for attempted felonious assault in Case No. CR-552402, to be served consecutively, for a

total of two and one-half years in prison. Roundtree argues that the record is deficient

with respect to the trial court’s findings under R.C. 2929.14(C)(4). We disagree.

       {¶11} The trial court’s specific findings prior to imposing consecutive sentences

are as follows:
[Y]ou know, my job isn’t just to punish you, but it’s to make sure that the
community is protected.

So when I look at your record, going back to May 11, 2006, you were
adjudicated delinquent on a criminal trespass. Then January 26th of 2007,
it looks like you were adjudicated delinquent on an adult assault with
disorderly conduct. You were on probation for that, and you were ordered
to participate in anger management because of the violence in that case.

In June 2008, you were adjudicated delinquent of disorderly conduct. You
were put back on probation. And then it looks like in July 2008[,] there’s
another disorderly conduct.

In September 2009, it looks like you were adjudicated delinquent of
domestic violence.

And then December 26th of 2010, you were picked up for felonious assault
[in Case No. CR-545642] that you did plead to aggravated assault, and I
placed you on probation. And then the day after your probation or later
that day, you picked up another felonious assault [in Case No. CR-552402]
of which you pled guilty to an attempted felonious assault, a felony of the
third degree.

***

So as a result of violating your probation, as I said, on a previous day you
pled guilty to one count of aggravated assault, felony of the fourth degree.
I am going to find that since you clearly violated by picking up a crime of
violence, considering all the [relevant] serious and recidivism factors,
ensuring that [the] public is protected, * * * I’m going to run [Roundtree’s
six month prison term in Case No. CR-545642] consecutive to the prison
term in Case Number 552402.

***

And I’m going to find that a consecutive prison term is necessary to protect
the community and punish the offender, and it’s not disproportionate.

I also find that the harm was so great or unusual that a single term doesn’t
adequately protect or reflect the seriousness of this conduct. And, * * *
you were on probation for aggravated assault and either later that day or the
next day you went and committed another crime of violence, and attempted
        felonious assault, where someone was severely injured. And I find that
        your conduct in your history shows that a consecutive sentence is needed to
        protect the public.

        {¶12} Contrary to Roundtree’s assertion, we find that the trial court complied with

the dictates of R.C. 2929.14(C)(4) and made all the required findings to support the

imposition of consecutive sentences.       The trial judge found that the imposition of

consecutive sentences would not be disproportionate to the seriousness of Roundtree’s

conduct and to the danger that he poses to the public.          The trial judge considered

Roundtree’s history of criminal conduct and emphasized that the first or second day that

he was on probation in Case No. CR-545642, he committed the attempted felonious

assault in Case No. CR-552402, where someone was severely injured. Therefore, we

find that the trial court articulated the necessary findings consistent with the directives of

R.C. 2929.14(C)(4).

                          Attempted Felonious Assault Sentence

        {¶13} In the second assignment of error, Roundtree argues that the trial court erred

when it sentenced him under R.C. 2929.14(A)(3)(a) to two years in prison. Roundtree

claims that the trial court should have sentenced him under R.C. 2929.14(A)(3)(b)

because none of the offenses listed in R.C. 2929.14(A)(3)(a) apply to his attempted

felonious assault conviction in Case No. CR-552402. R.C. 2929.14(A)(3)(a) provides

that:

        [f]or a felony of the third degree that is a violation of section 2903.06,
        2903.08, 2907.03, 2907.04, or 2907.05 of the Revised Code or that is a
        violation of section 2911.02 or 2911.12 of the Revised Code if the offender
        previously has been convicted of or pleaded guilty in two or more separate
       proceedings to two or more violations of section 2911.01, 2911.02,
       2911.11, or 2911.12 of the Revised Code, the prison term shall be twelve,
       eighteen, twenty-four, thirty, thirty-six, forty-two, forty-eight, fifty-four, or
       sixty months.

       {¶14} R.C. 2929.14(A)(3)(b) provides that: “[f]or a felony of the third degree that

is not an offense for which division (A)(3)(a) of this section applies, the prison term shall

be nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.”

       {¶15} In the instant case, a review of the record reveals the trial court was under

the impression that the possible prison term for Roundtree’s attempted felonious assault

conviction was either 12, 18, 24, 30, 36, 42, 48, 54 or 60 months. At the sentencing

hearing, defense counsel asked the trial court to give Roundtree a one-year sentence under

the new sentencing guidelines because of Roundtree’s previous assault. The trial judge

agreed, noting that Roundtree “gets the benefit of the lower because I feel that the longer

sentence range applies to aggravated vehicular homicide and assaults.” The trial court

then considered Roundtree’s criminal history and noted that Roundtree was on

community control sanctions when he committed the new offense. The trial court stated:

       [I]n considering all of the relevant serious and recidivism factors and
       ensuring that the public is protected from future crime and you are
       punished, I do feel * * * that a prison term is appropriate and I feel like in
       this particular case, the lowest prison term of one year is not appropriate
       since you were on probation and just placed on probation at the time that
       you committed this new offense of violence.

       So I find that imposing a two-year prison term is appropriate.

       {¶16} While the trial court appeared to be under the impression that the minimum

sentence for Roundtree’s attempted felonious assault conviction was 12 months,
Roundtree’s two-year sentence was within the statutory range. See State v. Green, 8th

Dist. No. 96966, 2012-Ohio-1941, ¶ 32; State v. Stein, 8th Dist. No. 97395,

2012-Ohio-2502, ¶ 8; State v. Williams, 8th Dist. No. 96813, 2012-Ohio-1830, ¶ 43

(where this court has found that if the sentence is within the statutory range, the sentence

is not contrary to law). Roundtree does not claim that he was prejudiced, the trial court

stated its reasons for imposing the two-year sentence, and the sentence does not exceed

the maximum statutory term of 36 months. See R.C. 2929.14(A)(3)(b). Therefore,

Roundtree’s two-year prison sentence in Case No. CR-552402 is not contrary to law, and

thus, is proper under R.C. 2953.08(G)(2).

       {¶17} Accordingly, the first and second assignments of error are overruled.

       {¶18} Judgment is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       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.




MARY EILEEN KILBANE, JUDGE

JAMES J. SWEENEY, P.J., and
LARRY A. JONES, SR., J., CONCUR
