[Cite as State v. Williams, 2014-Ohio-3138.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 100488



                                       STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                RAE QUON WILLIAMS
                                                        DEFENDANT -APPELLANT




                                               JUDGMENT:
                                                AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                              Case Nos. CR-13-574173, CR-13-574251,
                                         and CR-13-574971

        BEFORE: Stewart, J., Boyle, A.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED:                       July 17, 2014
ATTORNEY FOR APPELLANT

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


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Maxwell M. Martin
          Margaret A. Troia
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:

       {¶1} Defendant-appellant Rae Quon Williams pleaded guilty to charges in three

separate cases, was convicted, and sentenced. The court ordered him to serve two of the

three sentences consecutively. Williams’s sole complaint on appeal is that the court

failed to make the findings necessary to impose consecutive sentences.

       {¶2} Williams pleaded guilty to one count of robbery in Cuyahoga C.P.

CR-13-574173; one count of robbery in CR-13-574251; and one count of felonious

assault in CR-13-574971. The court sentenced Williams to serve 30 months on each of

the robbery counts and 18 months on the felonious assault count. It further ordered that

Williams serve the felonious assault count concurrently with the robbery counts, but that

he serve the robbery counts consecutively for a total sentence of 60 months.

       {¶3} R.C. 2929.14(C)(4) allows the court to require an offender to serve

consecutive multiple prison terms for convictions on multiple offenses. Consecutive

sentences can be imposed if the court finds that (1) a consecutive sentence is necessary to

protect the public from future crime or to punish the offender and (2) that consecutive

sentences are not disproportionate to the seriousness of the offender’s conduct and to the

danger the offender poses to the public. In addition to these two factors, the court must

find 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.

       {¶4} There are two ways that 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)(4).

See R.C. 2953.08(G)(2)(b); State v. Nia, 8th Dist. Cuyahoga No. 99387, 2014-Ohio-2527,

¶ 16; State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 11 (8th Dist.). Second, the

defendant can argue that the record does not support the findings made under R.C.

2929.14(C)(4). See R.C. 2953.08(G)(2)(a); Nia, supra. Williams argues that the court

failed in both respects.

       {¶5} Beginning with the findings necessary under R.C. 2929.14(C)(4), the court

stated the following at sentencing:

       I am imposing a consecutive prison term because I find that a consecutive
       prison term is necessary to protect the community and punish you. It’s not
       disproportional, and I find that the harm was so great or unusual that a
       single term does not adequately reflect the seriousness of the conduct, that
       being that you now have in front of me three cases, all that were committed
       within a very short time period.

       Two of those are robberies, felonies of the third degree where random
       individuals were robbed at gunpoint. You were an active participant in
       those robberies which I find to be extremely serious, and I find that your
       criminal history I already put on the record being that you already had an
       aggravated robbery from 2009, you were given the opportunity to have a
       community control sanction, probation, you violated it on a number of
       occasions and that you finally ended up going to the Ohio Department of
       Youth Services, so I find your criminal history being that you already have
       an aggravated robbery then when you came out you picked up additional
       cases, shows that a consecutive sentence is necessary to protect the public.

Tr. 34-35.

       {¶6} The court separately and distinctly made all the findings required by R.C.

2929.14(C)(4).    It found that consecutive sentences were necessary to protect the

community and punish Williams; that consecutive sentences were not disproportionate to

his conduct; and that his history of criminal conduct demonstrated that consecutive

sentences were necessary to protect the public. It follows that consecutive sentences

were not contrary to law.

       {¶7} Williams claims that the court’s findings “reveal[ ] little or no basis for

consecutive sentences.”     We take this assertion to be an argument that the court’s

findings were not supported by the record.

       {¶8} A reviewing court can increase, reduce, modify, or remand consecutive

sentences for resentencing only if it clearly and convincingly finds that the record does

not support the court’s findings to impose consecutive sentences under R.C.

2929.14(C)(4). See R.C. 2953.08(G)(2)(a). With R.C. 2953.08(G)(2) making it clear

that a reviewing court’s standard of review is not whether the sentencing court abused its

discretion, the reviewing court’s obligation is thus akin to the “clearly erroneous” factual

standard of review employed in federal courts. Under the clearly erroneous standard of

review, a reviewing court can only reverse if it is “left with the definite and firm
conviction that a mistake has been committed. United States v. United States Gypsum

Co., 333 U.S. 364, 395[, 68 S.Ct. 525, 97 L.Ed. 746] (1948).” Anderson v. Bessemer

City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). This standard of review

is, by any measure, “extremely deferential.” Venes, supra, at ¶ 21.

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

findings under R.C. 2929.14(C)(4). Apart from Williams having pleaded guilty in three

separate cases, two of which involved armed robbery with the use of a deadly weapon, he

had an extensive criminal juvenile record. The court noted that Williams had previously

been adjudicated delinquent in two different cases for engaging in conduct that, if

committed by an adult, would constitute the crimes of aggravated robbery, kidnapping,

and theft.   Williams was placed on probation for those juvenile adjudications, but

violated probation by failing to appear at a hearing. The first violation caused him to be

placed on home detention; the second violation resulted in his being placed in the custody

of the department of youth services.      Indeed, Williams was originally charged as a

juvenile in these current cases (he was 17 years old when he committed the offenses), but

was transferred to the general division of the court of common pleas for trial as an adult

on findings that, at the time he committed the three offenses, he was on parole for a prior

delinquency adjudication and that “the results of previous juvenile sanctions and

programs indicate that rehabilitation * * * will not occur in the juvenile system.”

       {¶10} Williams argues that there were factors militating against consecutive

sentences: he was not on parole or community control at the time of the offenses; his
accomplice was the one who held the gun during the robberies; and that nothing in the

record shows that his actions caused a harm so great and unusual that consecutive

sentences were warranted.

      {¶11} The difficulty with Williams’s argument is that the factors he cites in

mitigation of sentence were essentially the findings that the court made when imposing

consecutive sentences. For example, while it is true that Williams was not on parole or

community control at the time he committed the offenses, he had previously been

convicted of crimes and had twice violated his probation as a juvenile. In addition, his

claim that he did not hold the weapon used in the robberies and felonious assault does

nothing to detract from the seriousness of his conduct in participating in armed robberies

of random victims.

      {¶12} In any event, Williams cannot prevail on an argument that the court abused

its discretion by failing to give sufficient weight to factors in mitigation of sentence.

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

court abused its discretion, so Williams’s argument that the court failed to give greater

weight to certain factors is unreviewable. See State v. Smith, 8th Dist. Cuyahoga No.

100206, 2014-Ohio-1520, ¶ 17.

      {¶13} This is not a case where the court claimed to rely on a fact that the record on

appeal shows to be demonstrably wrong — for example, attributing to the defendant a

prior conviction that does not exist. In that case, the court’s findings would be clearly

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

assignment of error is overruled.

       {¶14} Judgment affirmed.

       It is ordered that appellee recover of appellant its 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 Cuyahoga

County Court of Common Pleas to carry this judgment into execution. 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.




MELODY J. STEWART, JUDGE

MARY J. BOYLE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
