[Cite as State v. Cargill, 2016-Ohio-5932.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103902



                                       STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                      MARIO CARGILL
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-15-593983-A

        BEFORE:            McCormack, J., Keough, P.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: September 22, 2016
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

By: Erika B. Cunliffe
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, OH 44113



ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Frank Romeo Zeleznikar
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

       {¶1} Defendant-appellant Mario Cargill appeals from the prison sentence of nine

years that he received after pleading guilty to robbery and felonious assault charges.

Cargill claims his sentence was inconsistent with the lesser punishment imposed on his

codefendant.    After a review of the record and applicable law, we find no merit to the

appeal and affirm the trial court’s judgment.

       {¶2} On March 3, 2015, Henry Colon argued with his girlfriend Christa

Zychowski, Cargill’s codefendant, over money. A physical altercation ensued between

the two.   After the altercation, Colon left the house, which he shared with his mother.

While Colon was gone, Zychowski contacted and sought involvement from her friends

Cargill and Cargill’s cousin, James Gray. Colon arrived back home around midnight

and went to bed. After Colon was sound asleep, Zychowski let Cargill and Gray inside

the house.     The two men awoke Colon from his sleep and attacked him.            Cargill

strangled Colon until Colon lost consciousness. Colon came to; Gray then struck him

with a shotgun. Cargill and Gray demanded money from Colon, beating him until he

surrendered $446 in his possession. The attack awakened Colon’s mother, and Cargill

and Gray attacked her as well.   They then threatened to kill Colon and his mother if they

were to contact the police.

       {¶3} Gray died a week later in a shooting, an incident that was not tied to the

attack on Colon.     Cargill and Zychowski were each charged with two counts of
aggravated burglary, two counts of aggravated robbery, two counts of felonious assault,

two counts of kidnapping, and accompanying one- and-three-year firearm specifications

on each count.

       {¶4} Under a plea agreement, Cargill pleaded guilty to one count of robbery, one

count of felonious assault, both second-degree felonies, and accompanying one-year

firearm specification on each count.         There was no jointly agreed-upon sentence in

Cargill’s plea agreement.    In its sentencing memorandum, the state asked the court to

impose the maximum prison term.

       {¶5} Before sentencing Cargill, the trial court stated that it would take into

consideration Cargill’s pleading guilty prior to his codefendant Zychowski, though the

court did not make any promises regarding Colon’s sentence. The court went on to

recount Cargill’s criminal history, including his convictions of drug possession, probation

violation, disorderly conduct, domestic violence, and theft.         The court, citing its

consideration of the seriousness of the offenses and recidivism factors, imposed the

maximum eight years for Cargill’s robbery offense and one year for the firearm

specification, for a total of nine years.     The court also imposed a concurrent five-year

term for his offense of felonious assault.

       {¶6} Shortly after Cargill was sentenced, his codefendant Zychowski pleaded

guilty to the same offenses: one count of robbery, one count of felonious assault, and

accompanying one-year firearm specification on each count.              In contrast, under
Zychowski’s plea agreement, there was a jointly recommended six-year prison term.

The trial court imposed six years on her accordingly.

      {¶7} When Cargill learned of Zychowski’s shorter prison term, he filed a delayed

appeal. His sole assignment of error states:

      The sentence imposed here was contrary to law and violated Mario Cargill’s

      right to due process because it was inconsistent with and disproportionate to

      the sentence the same judge imposed on his equally culpable codefendant.

      {¶8} When reviewing felony sentences, we apply the standard of review set forth

in R.C. 2953.08(G)(2).     State v. Marcum, Slip Opinion No. 2016-Ohio-1002. R.C.

2953.08(G)(2) specifies that an appellate court may increase, reduce, modify, or vacate

and remand a challenged felony sentence if the court clearly and convincingly finds either

that the record does not support the sentencing court’s findings or the sentence is

otherwise “contrary to law.”

      {¶9} A sentence is “contrary to law” if the sentence falls outside the statutory

range for the particular offense or the trial court fails to consider the purposes and

principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors in

R.C. 2929.12. E.g., State v. Hinton, 8th Dist. Cuyahoga No. 102710, 2015-Ohio-4907, ¶

10; State v. Carrington, 8th Dist. Cuyahoga No. 100918, 2014-Ohio-4575, ¶ 22.

      {¶10} Here, Cargill contends his sentence was contrary to law because it was

inconsistent with the sentence imposed on his codefendant. His claim is predicated on
R.C. 2929.11(B), which states that a felony sentence       should be “consistent with

sentences imposed for similar crimes committed by similar offenders.”

      {¶11} The courts have not interpreted the notion of consistency to mean equal

punishment for codefendants.      State v. Harder, 8th Dist. Cuyahoga No. 98409,

2013-Ohio-580, ¶ 7. Consistency is not synonymous with uniformity.       State v. Black,

8th Dist. Cuyahoga No. 100114, 2014-Ohio-2976, ¶ 12.           Rather, the consistency

requirement is satisfied when a trial court properly considers the statutory sentencing

factors and principles. State v. O’Keefe, 10th Dist. Franklin Nos. 08AP-724, 08AP-725

and 08AP-726, 2009-Ohio-1563, ¶ 41. “‘[C]onsistency is achieved by weighing the

factors enumerated in R.C. 2929.11 and 2929.12 and applying them to the facts of each

particular case.’” State v. Wells, 8th Dist. Cuyahoga No. 100365, 2014-Ohio-3032, ¶ 12,

quoting State v. Lababidi, 8th Dist. Cuyahoga No. 100242, 2014-Ohio-2267, ¶ 16.

Consistency “‘requires a trial court to weigh the same factors for each defendant, which

will ultimately result in an outcome that is rational and predictable.’”       State v.

Georgakopoulos, 8th Dist. Cuyahoga No. 81934, 2003-Ohio-4341, ¶ 26, quoting State v.

Quine, 9th Dist. Summit No. 20968, 2002-Ohio-6987, ¶ 12.

      {¶12} “Consistency accepts divergence within a range of sentences and takes into

consideration the trial court’s discretion to weigh statutory factors.” State v. Hyland,

12th Dist. Butler No. CA2005-05-103, 2006-Ohio-339. See also State v. Switzer, 8th

Dist. Cuyahoga No. 102175, 2015-Ohio-2954; State v. Armstrong, 2d Dist. Champaign

No. 2015-CA-31, 2016-Ohio-5263; State v. Murphy, 10th Dist. Franklin No. 12AP-952,
2013-Ohio-5599, ¶ 14. “Although the offenses may be similar, distinguishing factors

may justify dissimilar treatment.”       State v. Dawson, 8th Dist. Cuyahoga No. 86417,

2006-Ohio-1083. ¶ 31.

       {¶13} Thus, the fact that Cargill was sentenced to an aggregate prison term longer

than the term that his codefendant was sentenced to does not in itself establish a violation

of the consistency requirement set forth in R.C. 2929.11(B). Cargill claims he was less

culpable than his codefendant Zychowski.            This claim is without merit.      While

Zychowski let Cargill and Gray inside Colon’s home, it was Cargill and Gray who awoke

and then viciously attacked Colon, robbing him at gun point. Furthermore, although the

trial court stated it would take into account Cargill’s pleading guilty prior to his

codefendant, the court did not promise a punishment more lenient than his codefendant.

Rather, the trial court referenced Cargill’s significant criminal history and the violent

nature of his offenses and specifically cited its consideration of the seriousness and

recidivism factors, before sentencing Cargill to a maximum eight-year term for robbery

and a concurrent five-year term for felonious assault, in addition to one year for the gun

specification.   The dissimilarity in sentences between Cargill and his codefendant was

justified by clearly evident distinguishing factors and the codefendants’ conduct as

reflected on the record.     The trial court did not act clearly and convincingly contrary to

law in imposing a greater sentence on Cargill than on his codefendant.       The assignment

of error is without merit.

       {¶14} 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.



_____________________________________
TIM McCORMACK, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
ANITA LASTER MAYS, J., CONCUR
