[Cite as State v. Blackley, 2014-Ohio-3140.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100574




                                       STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                               MATTHEW BLACKLEY
                                                        DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-13-572013-A

        BEFORE: Rocco, J., Jones, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: July 17, 2014

                                                  -i-
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Chief Public Defender
By: Cullen Sweeney
       John T. Martin
Assistant Public Defenders
310 Lakeside Avenue
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Kristin Karkutt
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:

       {¶1} Defendant-appellant Matthew Blackley appeals from the sentence he received

after he pleaded guilty to a charge of gross sexual imposition and a charge of interference

with custody.

       {¶2} Blackley presents one assignment of error. He argues that the sentence

imposed is contrary to law because the trial court imposed a prison term of the same

length on him as the court did on his codefendant, Devon McIntyre, who pleaded guilty to

a charge of rape. Blackley asserts that his sentence is disproportionate to the crime

committed.

       {¶3} Upon a review of the record, this court cannot find error. Consequently,

Blackley’s sentence is affirmed.

       {¶4} Blackley and McIntyre originally were charged in this case on four counts,

viz., forcible rape of a child under the age of 13, which carried a penalty of life in prison,

kidnapping with a sexual motivation specification, interference with custody, and

contributing to the delinquency of a child. Both men pleaded not guilty to the charges.

       {¶5} The record reflects McIntyre subsequently changed his plea to guilty to the

rape count and one of the misdemeanor counts in exchange for the state’s dismissal of the

others. While McIntyre awaited sentencing, Blackley chose to reject the same offer from

the state and to take the case to a jury trial.

       {¶6} After the victim’s mother testified, the state proposed a second offer to

Blackley.    The state offered to amend the rape charge to a charge of gross sexual
imposition and to dismiss two counts if Blackley would plead guilty to the charge of gross

sexual imposition and to the charge of contributing to the delinquency of a child.

Blackley decided to accept the state’s offer.

       {¶7} The trial court conducted a thorough colloquy with Blackley. Blackley

acknowledged that he understood that the trial court could impose a prison term from one

to five years. The trial court thereafter accepted his pleas and dismissed the other two

counts. The trial court then scheduled Blackley’s sentencing to take place at the same

time as McIntyre’s, requested the prosecutor to provide any background information she

possessed about Blackley, and also requested the defendants’ attorneys to prepare

sentencing memoranda.

       {¶8} When the trial court called the case for sentencing, it stated that it had

reviewed the items provided by counsel. The court heard from the prosecutor, who

stated that the victim “always maintained that both defendants forcibly raped her,” and the

victim’s family members, one of whom read a statement that the 11-year old victim

composed. The court also heard from the defendants’ attorneys and family members.

Finally, each of the defendants spoke.

       {¶9} McIntyre apologized for his behavior, although he provided an unlikely

explanation for it and blamed it on Blackley. Blackley, however, claimed that he had

entered his guilty plea only because he “let an 11-year old girl have sex in [his]

apartment” and he was “ashamed of it.”          Blackley also stated his “belief” that the
explanation for the fact that his DNA was on the victim’s underwear had to be “cross

contamination from some point [when the victim went] in[to] the bathroom.”

         {¶10} The trial court remained unpersuaded by Blackley’s version of the incident.

After imposing a five-year prison sentence on McIntyre for the rape conviction, the court

also imposed a five-year prison term on Blackley for his gross sexual imposition

conviction.

         {¶11} Blackley appeals from his sentence with the following single assignment of

error.

               I. The trial court imposed a sentence contrary to law and violated

         Appellant’s due process rights when it imposed a maximum sentence upon

         Appellant that was inconsistent with and disproportionate to the sentence

         imposed upon his more culpable co-defendant.

         {¶12} Blackley argues that his five-year prison sentence for committing gross

sexual imposition, a third-degree felony, is disproportionate to the five-year prison

sentence McIntyre received for committing rape, a first-degree felony.         This court

disagrees.

         {¶13} In reviewing felony sentences such as the one imposed in this case, the

appellate court’s standard “is not whether the sentencing court abused its discretion”;

rather, only if this court “clearly and convincingly” finds that “the sentence is * * *

contrary to law,” does this court have the authority to “increase, reduce, or otherwise
modify a sentence * * * or * * * vacate the sentence and remand the matter to the

sentencing court for resentencing.” R.C. 2953.08(G)(2).

      {¶14} R.C. 2929.11(B) provides:

             A sentence imposed for a felony shall be reasonably calculated to

      achieve the two overriding purposes of felony sentencing set forth in

      division (A) of this section, 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.

(Emphasis added.)

      {¶15} Sentencing in Ohio is not accomplished according to a tightly controlled

grid system similar to federal sentencing guidelines.     State v. Dawson, 8th Dist.

Cuyahoga No. 86417, 2006-Ohio-1083, ¶ 31.          There is a statutory mandate for

consistency in sentencing, however, ‘“consistency does not require that identical

sentences be imposed for co-defendants.”’ State v. Harder, 8th Dist. Cuyahoga No.

98409, 2013-Ohio-580, ¶ 7, and State v. Drobny, 8th Dist. Cuyahoga No. 98404,

2013-Ohio-937, ¶ 7, both quoting State v. Pruitt, 8th Dist. Cuyahoga No. 98080,

2012-Ohio-5418, ¶ 26.

      {¶16} Instead, an appellate court must examine the record, not in order to decide

whether the trial court “imposed a sentence that is in lockstep with others,” but to

determine “whether the sentence is so unusual as to be outside the mainstream of local
judicial practice.” Dawson at ¶ 31. “[D]istinguishing factors may justify dissimilar

treatment.” Id. Sentences should not be “one size fits all.” State v. Torres, 8th Dist.

Cuyahoga No. 99596, 2013-Ohio-5030, ¶ 83.

       {¶17} If the record of this case established that the trial court failed to ensure that

Blackley’s sentence was “consistent with sentences imposed for similar crimes committed

by similar offenders,” then the sentence would be contrary to law. This court presumes

that the sentence imposed by the trial court is correct absent evidence in the record to the

contrary. State v. Sherman, 8th Dist. Cuyahoga No. 97840, 2012-Ohio-3958, ¶ 15, citing

State v. Edwards, 8th Dist. Cuyahoga No. 82327, 2003-Ohio-5503, ¶ 32.

       {¶18} In pleading guilty to a charge of rape, McIntyre understood that he faced a

potential prison sentence of three to eleven years. Likewise, Blackley understood that by

pleading guilty to a charge of gross sexual imposition, he faced possible prison terms

ranging from one to five years. Both men thus received sentences within the statutory

range for their convictions.

       {¶19} Yet Blackley nevertheless disputes the fairness of the sentence the trial court

chose to impose simply because McIntyre’s sentence mirrored his own. It must be noted

that Blackley pleaded guilty to committing gross sexual imposition upon an 11-year-old

victim, a fact that would suggest a sentence in the higher end of the spectrum would be

appropriate. In addition, the trial court explained its decision to treat Blackley’s offense

as deserving of harsh punishment by stating:
             No sentence I impose here today will ever, ever resolve what

      happened to [the victim] that night. But [the defendants] will be punished

      for their conduct.

             ***

             The sentence I impose on you two gentlemen should be

      commensurate with and not demeaning to the seriousness of your conduct

      and its impact on the victim, and consistent with sentences for similar

      crimes by similar offenders. * * *

              You know, this case disturbs me. It disturbs me because we have a
      young 11 year old [girl] around in the apartment who is not smart enough to
      understand what she put herself in, and always trying to be older than what
      she is.

             And she runs into you, Mr. McIntyre. And Mr. McIntyre, she may
      have told you she was 17. * * * You’re not a dumb guy.

             You start hanging out with this girl * * * and I don’t know exactly
      what occurred in that apartment. But I do know that your DNA was found
      on her underwear. * * * [Y]ou made a few statements, you made a
      statement that it was consensual, that you had sex with her, that, yes, you
      did this. And then now today you come and tell me Mr. Blackley forced
      you to do this.

             I don’t know what occurred that night. But I do know you made a
      serious error in judgment that night. And you’re going to pay for that.

             ***

       Mr. Blackley, when I look at you, here, quite frankly, I don’t believe that you were
just the scapegoat and all you did wrong is you pled because you let them into your
apartment and they had sex.
              You know, you had a chance to try this case, and you accepted a plea to a felony of
      the third degree. And I think you got a great break on the deal. And I look at you * * * .
      I mean, you’re older, you’re smart, and you should have known better. * * *

             ***

             But what troubles me is your father stands here and is apologizing for you,

      apologizing to the victim.        But I don’t hear an apology from you, except

      cross-contamination and I pled and that’s it. I mean I heard more from your father than I

      did from you. And that bothers me.

(Emphasis added.)

      {¶20} From the foregoing comments, the trial court clearly decided that Blackley needed a

“stiffer” sentence for his conviction because, while McIntyre admitted committing a crime and

expressed his regret for harming the victim by his behavior, Blackley lacked appropriate remorse for his

role, whatever it was, in the incident.         State v. Perrine, 8th Dist. Cuyahoga No. 99534,

2013-Ohio-5738, ¶ 22.

      {¶21} Under these circumstances, this court cannot find that Blackley’s sentence is contrary to

law. His assignment of error, accordingly, is overruled.

      {¶22} The sentence is affirmed.

      It is ordered that appellee recovers 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.



_____________________________________
KENNETH A. ROCCO, JUDGE

LARRY A. JONES, SR., P.J., and
SEAN C. GALLAGHER, J., CONCUR
