[Cite as State v. Peal, 2012-Ohio-6007.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97644
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
SAMUEL PEAL
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-535664
BEFORE: E. Gallagher, J., Stewart, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: December 20, 2012
ATTORNEY FOR APPELLANT
James E. Valentine
323 Lakeside Avenue
Suite 450
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Daniel A. Cleary
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} This case is an appeal from the sentence imposed in the Cuyahoga County
Court of Common Pleas. For the following reasons, we affirm the decision of the trial
court.
{¶2} On November 4, 2009, Peal was involved in a drug-related
robbery-homicide in which one victim was killed and another was injured. A
Cuyahoga County grand jury indicted Peal for aggravated murder under R.C.
2903.01(A) with a felony murder specification and one- and three-year firearm
specifications; aggravated murder under R.C. 2903.01(B) with a felony murder
specification and one- and three-year firearm specifications; two counts of aggravated
robbery under R.C. 2911.01(A)(1) each with one- and three-year firearm specifications;
aggravated robbery under R.C. 2911.01(A)(3) with one- and three-year firearm
specifications; two counts of kidnapping under R.C. 2905.01(A)(2) each with one- and
three-year firearm specifications and having weapons under disability under R.C.
2923.13(A)(3).
{¶3} Appellant pleaded not guilty to all charges and elected to proceed to a jury
trial. On April 14, 2011, the jury returned a verdict of not guilty on the two aggravated
murder counts, but was unable to reach a verdict on the remaining charges, including
the lesser included offense of murder under Count 2. The trial court accepted the
partial verdict and declared a mistrial on the remaining counts.
{¶4} Before appellant’s second trial on the remaining counts began, the parties
reached a plea agreement. Pursuant to the agreement, appellant pleaded guilty to one
count of involuntary manslaughter under R.C. 2903.04(A), a first-degree felony, with a
one-year firearm specification.
{¶5} On November 3, 2011, the court conducted a plea hearing and the parties
agreed to proceed immediately to sentencing. The trial court heard testimony from both
sides, and before pronouncing sentence stated the following:
Mr. Peal, the court has considered all of this information, all of the purposes
and principles of felony sentencing. The appropriate recidivism and
seriousness factors required by law. Considering the factors appropriate
for the following sentence based on things that have been put on the record
here, incorporating all of the information that I learned in the trial as well.
{¶6} The trial court then sentenced appellant to a sentence of ten years on the
involuntary manslaughter charge to be served prior to, and consecutive with, a one-year
sentence on the firearm specification. Appellant timely filed his notice of appeal.
{¶7} Appellant’s sole assignment of error states:
The trial court abused its discretion by considering matters of which
Appellant had not been convicted when sentencing Appellant.
{¶8} Appellant’s assignment of error rests on his argument that the trial court’s
statement during sentencing, that it had “incorporat[ed] all of the information that I
learned in the trial as well,” indicates that the trial court improperly “consider[ed] an
offense for which Appellant was not convicted.” We disagree.
{¶9} We review a trial court’s sentencing decisions according to the two-step
process announced by the Ohio Supreme Court in State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124. First, we “examine the sentencing court’s
compliance with all applicable rules and statutes in imposing the sentence to determine
whether the sentence is clearly and convincingly contrary to law.” Id. at ¶ 4. Second,
if the first prong of the test is satisfied, we review the sentencing decision for an abuse
of discretion. Id. As stated in Kalish, an abuse of discretion is “more than an error of
law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.” Id. at ¶ 19 (internal quotation marks and citations omitted).
{¶10} Appellant concedes that the trial court’s sentencing satisfies the first prong
of our Kalish analysis. Under R.C. 2929.14(A)(1),1 a first-degree felony carries a term
of between three and ten years. Because involuntary manslaughter is a first-degree
felony, and appellant was sentenced to ten years on that count, the sentence was not
clearly and convincingly contrary to law. Therefore, our analysis focuses only on the
second prong of the Kalish test, whether the trial court abused its discretion.
{¶11} As this court stated in State v. Smith, 8th Dist. No. 76919, 2000 Ohio App.
LEXIS 3512 (Aug. 3, 2000), “it is well established that, a trial court may not impose a
greater sentence upon an offender because of its belief that the offender committed a
more serious offense than that for which he has been convicted.” Id. at *3, citing
As noted by the state during sentencing, Peal committed this offense prior to the enactment of H.B.
1
86, as such, he was sentenced under the prior statutory scheme.
Columbus v. Jones, 39 Ohio App.3d 87, 89–90, 529 N.E.2d 947 (10th Dist.1987). In
Jones, the Tenth District Court of Appeals wrote that such a sentencing error “serves to
destroy the effectiveness of the right to jury trial” by allowing the judge’s personal
beliefs to outweigh the opinion of the jury. Jones at 90.
{¶12} In Smith, the defendant was charged with rape but pleaded guilty to the
lesser offense of attempted gross sexual imposition. During the plea colloquy, the judge
stated that “[t]his Court finds it’s the worst kind of its case,” and after pronouncing
sentence said “and that’s the most I could do.” Smith at *2. We noted that “it is not
clear the trial court’s misstatement [that the offense was the “worst kind of its case”] had
any impact on the sentence it imposed.” However, “to dispel any doubt” and because
this court found an error regarding another aspect of the sentence, we remanded to the
lower court. Id. at *3.
{¶13} In Jones, a jury had acquitted the defendant of operating a motor vehicle
while intoxicated (OMVI) but found him guilty of driving without a valid license. The
trial court ordered the defendant to attend a four-day alcohol treatment program, which
“appropriately [might have been] used by a trial court as an alternative to imprisonment
for first-time offenders” of the OMVI ordinance and subsequently sentenced the
defendant to 180 days in jail. Jones at 87. The appellate court reversed and remanded
because the trial court’s requirement that defendant attend the treatment program
“indicate[d] that the trial court was considering the OMVI charge despite the jury’s not
guilty verdict” and the sentence imposed could only be “justified * * * if defendant had
been found guilty of OMVI.” Id. at 90.
{¶14} Appellant also cites this court’s opinion in Cleveland Hts. v. Seastead, 8th
Dist. No. 68875, 1995 Ohio App. LEXIS 4513 (Oct. 12, 1995). In Seastead, the
defendant pleaded no contest to a charge of criminal trespassing and the city dismissed a
charge of menacing by stalking. The trial court issued a partially suspended sentence on
the condition that the defendant agree to one year of probation, not have any convictions
for “any offense, specifically the offense of menacing or involving threats or
harassment,” obtain a “behavioral/anger management” assessment, and completing
counseling sessions. Id. at *1. This court reversed the lower court’s sentencing order
because the court’s reference during sentencing to “aggravating circumstances,” as well
as the various probation conditions imposed, “clearly related to” the dismissed menacing
by stalking charge and not the criminal trespassing charge, which Seastead had actually
pled guilty to. Id. at *2.
{¶15} We agree with the aforementioned proposition of law as stated and applied
by this court in Smith and Seastead and by the Tenth District in Jones. However, we do
not agree that the trial court’s statements during sentencing in this case, or the sentence
itself, constitute a similar abuse of discretion.
{¶16} The trial court’s statement that it had “incorporat[ed] all of the information
that I learned in the trial as well” does not indicate that the trial court based its sentence
on the aggravated murder charges of which appellant had been acquitted. This
statement implies nothing more than that the trial court was fulfilling its duties under
R.C. 2929.12, which requires the court to consider various “seriousness and recidivism”
factors before arriving at its sentencing decision. All of these factors could require the
trial court to “incorporat[e] all of the information that [it] learned in the trial” as well as
information gained during the plea colloquy itself.
{¶17} Furthermore, unlike the sentences and probation conditions imposed in
Jones and Seastead, there is no indication that the trial court’s sentence in this case was
reflective of any of the charges of which appellant had been acquitted. The record
indicates no irregularities in the trial court’s recital of postrelease control conditions;
indeed at one point the trial court noted that “[i]f you fail to report as I told you earlier,
you could possibly be punished by the Parole Authority, also indicted and punished by
that Court and that’s true of any other felony, as well.” (Emphasis added.) This
statement implies that the trial court’s postrelease control conditions were in line with
what would be imposed in any other case involving an involuntary manslaughter charge.
We can find nothing in the record indicating that any aspect of the sentence was “clearly
related to” the aggravated murder charges of which appellant had been acquitted.
{¶18} We find further support for our ruling in our previous opinion of State v.
Frankos, 8th Dist. No. 78072, 2001 Ohio App. LEXIS 3712 (Aug. 23, 2001). In
Frankos, the defendant was charged with rape but pleaded guilty to the lesser charge of
aggravated assault with the rape charges being dismissed. In rejecting the argument
(under Smith and Jones, as here) that the trial judge had improperly considered the rape
charge in the sentencing order, this court noted that the parties had not agreed as part of
the plea bargain that the judge would not consider “either the rape charges or the violent
sexual circumstances of the crime.” Id. at *3. Therefore, “we believe[d] that the
defendant received the benefit of his bargain * * *.” Id.
{¶19} As noted above, appellant’s sentence was within the statutory guidelines for
first-degree felony sentences. In the absence of statements clearly indicating that the
trial court was considering improper sentencing factors, we will not second guess the
trial court’s weighing of appropriate factors in arriving at its sentence.
{¶20} For the foregoing reasons, we find that the trial court’s sentencing order
was not “unreasonable, arbitrary or unconscionable” and does not constitute an abuse of
discretion. We therefore affirm the judgment of the trial court.
{¶21} Peal’s sole assignment of error is overruled.
{¶22} The judgment of the trial court is 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.
EILEEN A. GALLAGHER, JUDGE
MELODY J. STEWART, P.J., and
MARY EILEEN KILBANE, J., CONCUR