[Cite as State v. Butler, 2011-Ohio-2406.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95764
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
LAWRENCE BUTLER, III
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-541288
BEFORE: S. Gallagher, J., Cooney, P.J., and Keough, J.
RELEASED AND JOURNALIZED: May 19, 2011
ATTORNEY FOR APPELLANT
Michael H. Murphy
20325 Center Ridge Road
Suite 512
Rocky River, OH 44116
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Nathaniel Tosi
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶ 1} Appellant Lawrence Butler, III, appeals his sentence on various
counts of aggravated robbery and forgery. For the reasons stated herein, we
affirm the judgment of the trial court.
{¶ 2} On June 29, 2010, Butler and his girlfriend violently attacked
and robbed five victims at a movie theater. They demanded money from the
victims and used a large metal pipe to assault the victims. One of the
victims suffered a fractured skull with head trauma. Another sustained a
head injury that required 15 staples. The others suffered contusions and
trauma as well. The assailants fled the scene and used one of the victims’
credit cards to purchase items at a convenience store. Butler was indicted
under a 22-count indictment, containing charges of aggravated robbery,
felonious assault, forgery, and theft.
{¶ 3} Butler entered a plea deal with the state and entered a plea of
guilty to five counts of aggravated robbery and three counts of forgery. The
court nolled the remaining counts and proceeded directly to sentencing.
{¶ 4} The state presented victim impact statements and photographs of
the injuries suffered by two of the victims. Butler also made a statement,
and family members spoke on his behalf. Butler stated he was drinking on
the night of the incident, claimed he did not remember what happened, and
expressed remorse. Among other arguments, defense counsel argued against
the imposition of consecutive sentences and informed the court that Butler
had no adult criminal history and six prior juvenile adjudications.
{¶ 5} The trial court disagreed with defense counsel and found
consecutive sentences to be appropriate. The court imposed prison terms on
the five aggravated robbery counts, respective to each victim, of three, four,
eight, three, and three years. The court also imposed prison terms of six
months on each of the three forgery counts. Counts 2 and 3 were ordered to
be served consecutive to each other and to all other terms, which were to run
concurrently. Butler received a total sentence of 15 years in prison.
Postrelease control was also imposed.
{¶ 6} Butler timely appealed his sentence. He raises three
assignments of error for our review under which he claims the trial court
erred by (1) failing to make findings of fact prior to the imposition of
consecutive sentences, (2) failing to properly sentence him under statute and
State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, and (3)
imposing consecutive terms of incarceration rather than concurrent terms.
{¶ 7} First, Butler claims that the trial court was required to make
findings and provide reasons for imposing consecutive sentences. In State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, the Ohio Supreme
Court held Ohio’s former consecutive-sentencing statutory provisions, R.C.
2929.14(E)(4) and 2929.41(A), were unconstitutional. The court recently
held in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768,
that these provisions were not revived by the United States Supreme Court’s
decision in Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517,
and that “[t]rial court judges are not obligated to engage in judicial
fact-finding prior to imposing consecutive sentences unless the General
Assembly enacts new legislation requiring that findings be made.” Id. at
paragraphs one and two of the syllabus. Accordingly, we reject Butler’s
argument.
{¶ 8} Second, Butler claims the trial court failed to comply with
applicable sentencing statutes and abused its discretion in imposing
consecutive sentences. In Kalish, 120 Ohio St.3d 23, the Ohio Supreme
Court set forth a two-step procedure for reviewing felony sentences, as
follows: “ * * * First, [appellate courts] must 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.
If this first prong is satisfied, the trial court’s decision in imposing the term of
imprisonment is reviewed under the abuse of discretion standard.” Id.
{¶ 9} The record in this case reflects that defense counsel articulated
the statutory factors in arguing against the imposition of consecutive
sentences. Though Butler claims the court failed to consider his criminal
history, the record reflects that defense counsel specifically stated Butler’s
criminal history on the record before the court. The trial court imposed a
sentence that was within the permissible statutory range. Further, the
sentencing entry reflects that the court considered all the required factors of
the law and found that prison was consistent with the purpose of R.C.
2929.11. The trial court imposed an aggregate sentence of 15 years. Butler
provided no evidence as to sentences given to similarly situated offenders.
Upon this record, we cannot conclude that his sentence was contrary to law.
{¶ 10} We next consider whether the trial court abused its discretion.
An abuse of discretion implies that the court’s attitude is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d
217, 219, 450 N.E.2d 1140. The record reflects the violent nature of the
assault and the seriousness of the injuries involved. The court heard several
victim statements, heard from the defendant and family members on his
behalf, and heard defense counsel’s argument against consecutive sentences,
which included Butler’s criminal record. The court did not impose a
maximum sentence for any of the offenses and imposed different prison terms
in consideration of the seriousness of the injuries to each victim. The court
only imposed consecutive terms for the two counts relating to the victims who
suffered severe head injuries. Upon our review, we find no abuse of
discretion by the trial court.
{¶ 11} Finally, Butler argues that the trial court erred by imposing
consecutive terms. Here again, he claims the trial court failed to consider his
lack of an adult criminal record. As discussed above, the trial court
considered defense counsel’s argument against consecutive sentences, which
included Butler’s criminal history. However, in light of the seriousness of
the offenses and the severity of the injuries to two of the victims, the trial
court imposed consecutive sentences on two of the counts. For the reasons
discussed above, we find no error with regard to the sentence imposed by the
trial court.
{¶ 12} Butler’s assigned errors are overruled.
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, JUDGE
COLLEEN CONWAY COONEY, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR