[Cite as State v. Harder, 2013-Ohio-580.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98409




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                     ROBERT HARDER
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-555501

        BEFORE: S. Gallagher, P.J., Blackmon, J., and McCormack, J.

        RELEASED AND JOURNALIZED: February 21, 2013
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

By: John T. Martin
Assistant Public Defender
Courthouse Square Suite 200
310 Lakeside Avenue
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Gregory Mussman
       Denise J. Salerno
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, P.J.:

       {¶1} Defendant-appellant, Robert Harder (“defendant”), appeals his sentence,

arguing that it is contrary to law because he asserts it is inconsistent with the sentence the

trial court imposed on one of his codefendants. For the reasons that follow, we affirm.

       {¶2} In this case, defendant was indicted along with two codefendants, Erick

Stewart, III (“Stewart”)1 and Darrick L. Jones (“Jones”). Defendant pled guilty to two

counts of aggravated burglary, abduction, and attempted rape.                    The court referred

defendant to the probation department for a presentence investigation report.

       {¶3} Codefendants Jones and Stewart pled guilty to two counts of aggravated

burglary and abduction with firearm specifications.2

       {¶4} Defendant received a six-year prison term; Stewart received a five-year prison

term; and Jones received an eleven-year prison term.           Defendant appeals his sentence and

asserts the following assignment of error for our review:

       Appellant’s sentences on counts one and three are contrary to law and
       violate due process because the trial court failed to consider whether the
       sentence was consistent with sentences imposed for similar crimes
       committed by co-defendant Stewart and because the sentences imposed are
       inconsistent with Stewart’s sentences on those counts.




       1
           Sometimes the record refers to this codefendant as “Erick Stewar, II.”
       2
           Jones pled guilty to three-year firearm specifications, and Stewart pled guilty to a one-year
firearm specification.
       {¶5} A review of felony sentencing involves a two-step analysis: (1) whether the

trial court complied with all applicable rules and statutes to determine if the sentence was

clearly and convincingly contrary to law; and (2) whether the trial court abused its decision

by imposing the sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896

N.E.2d 124, ¶ 4.

       {¶6} Defendant contends that the trial court failed to consider consistency among

sentences as required by R.C. 2929.11(B). Particularly, defendant argues that he should

have received the same sentence as Stewart received for the two counts of aggravated

burglary.   While Stewart received a five-year sentence on those counts, it included a

one-year consecutive term for a firearm specification.      Accordingly, defendant argues

that he should have received four years on those counts, rather than the six-year term that

the court imposed on him. Defendant fails to address the eight-year prison term that

Jones received on those counts.

       {¶7} There is a distinction between consistent and identical sentences, which was

noted by this court in State v. Georgakopoulos, 8th Dist. No. 81934, 2003-Ohio-4341, ¶

26:

       “The legislature’s purpose for inserting the consistency language contained
       in R.C. 2929.11(B) is to make consistency rather than uniformity the aim of
       the sentencing structure. See Griffin and Katz, Ohio Felony Sentencing
       Law (2001), 59. Uniformity is produced by a sentencing grid, where all
       persons convicted of the same offense with the same number of prior
       convictions receive identical sentences. Id. Consistency, on the other
       hand, requires a trial court to weigh the same factors for each defendant,
       which will ultimately result in an outcome that is rational and predictable.
       Under this meaning of ‘consistency,’ two defendants convicted of the same
      offense with a similar or identical history of recidivism could properly be
      sentenced to different terms of imprisonment.”

Id., quoting State v. Quine, 9th Dist. No. 20968, 2002-Ohio-6987; see also State v.

Rowland, 1st Dist. No. C-000592, 2001 Ohio App. LEXIS 2088 (May 11, 2001)

(“Although we acknowledge the statutory mandate for consistency in sentencing,

consistency does not require that identical sentences be imposed for co-defendants.”);

State v. Pruitt, 8th Dist. No. 98080, 2012-Ohio-5418, ¶ 26, citing State v. Marshall, 8th

Dist. No. 89551, 2008-Ohio-1632; State v. Klepatzki, 8th Dist. No. 81676,

2003-Ohio-1529; State v. Richards, 8th Dist. No. 83696, 2004-Ohio-4633; State v. Harris,

8th Dist. No. 83288, 2004-Ohio-2854; State v. Dawson, 8th Dist. No. 86417,

2006-Ohio-1083 (although an offense may be similar, distinguishing factors may justify

dissimilar treatment); State v. Nelson, 11th Dist. No. 2008-L-072, 2008-Ohio-5535 (no

requirement that codefendants receive equal sentences).

      {¶8} There is a disparity among the sentences imposed among the codefendants in

this case, with the most notable deviation being for Jones, who received an eleven-year

prison term. Jones received an eight-year prison sentence on the aggravated burglary

counts, plus an additional three-year consecutive term for the gun specification.

Defendant’s sentence was significantly less than Jones’s sentence on the same counts. In

this appeal, however, defendant only focuses his arguments upon the difference between

the six-year prison sentence he received for the aggravated burglary counts in comparison

to the five-year prison term imposed on codefendant Stewart.
       {¶9} A review of the record reflects that the sentences imposed on defendant and

Stewart are consistent.   The trial court did consider the sentences imposed on the other

offenders.   First, the state explicitly referred the trial court to the victim impact

statements given at Stewart’s and Jones’s hearings.    The trial court had imposed sentence

on the codefendants before sentencing defendant.        True, defendant received a slightly

greater sentence on the aggravated burglary counts than Stewart did, but his behavior was

different, which the state pointed out at defendant’s sentencing hearing.        Specifically,

defendant bound a victim with a necktie and also attempted to rape her during the course

of the aggravated burglary.    Neither of the other codefendants engaged in that type of

behavior. Secondly, the state noted that defendant had items from the homes of both

victims in his possession, including clothes he had been wearing and jewelry. Also, the

record reflects that the trial court did take into consideration factors specific to defendant

in fashioning the sentence.    For example, the court reviewed defendant’s presentence

investigation report. Defense counsel indicated that this was defendant’s “first criminal

act as an adult.”   Defendant is 19 years old.      The court also considered letters and

comments from defendant’s family.

       {¶10} Before imposing sentence, the trial court cited the letters from defendant’s

family and defendant’s limited felony record in determining that a maximum sentence

would be inappropriate.    However, the court indicated that the crimes were very serious.

Defendant suggests that he received a package sentence as discussed in State v. Saxon, 109

Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824. He did not. The trial court properly
imposed a separate sentence for each individual offense: a six-year prison sentence was

imposed for the aggravated burglary counts, along with concurrent two-year prison terms

on the remaining charges.

       {¶11} Defendant has not established that his sentence is contrary to law or that the

trial court abused its discretion by imposing it. This assignment of error is overruled.

       {¶12} 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, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., and
TIM McCORMACK, J., CONCUR
