State v. Evans

[Cite as State v. Evans, 2021-Ohio-3679.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 110253
v. :

LESLIE EVANS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 14, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-636193-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney,
and Megan Helton and Eben O. McNair, Assistant Prosecuting
Attorneys, for appellee.

Maxwell Martin, for appellant.

MICHELLE J. SHEEHAN, J.:

Defendant-appellant Leslie Evans appeals from a consecutive prison

term of 23 years for his convictions of two counts of aggravated robbery. The trial

court imposed the term after this court remanded the case for resentencing because
the trial court failed to merge certain related offenses for sentencing. Evans argues

his sentence is contrary to law because the record does not support the maximum

sentence imposed on one of the two aggravated robbery offenses, or the consecutive

sentences imposed on the two aggravated robbery offenses. After a review of the

record and applicable law, we affirm the trial court’s judgment.

Substantive Facts and Procedural History

Evans was tried for aggravated robbery of a pharmacist and a security

guard in a CVS store. At trial, the evidence reflected that codefendant David Stewart

orchestrated a plan for Evans and another codefendant Tisean Young to rob the CVS

store located on Kinsman Road, Cleveland. Stewart drove Evans and Young to the

store and waited outside. Evans and Young entered the store, with Evans

brandishing a firearm. While Young forced the store customers to the back of the

store and contained them in the area, Evans went to the pharmacy and ordered the

pharmacist Michael Daloisio, at gunpoint, to open the safe where the narcotics were

stored. When Daloisio told Evans he could not open the safe because it was on a

timed lock, Evans pistol-whipped him in the head, causing his head to bleed.

Daloisio fell to the ground and Evans took his wallet and cell phone. Evans also took

a cell phone from the store’s security guard, Samuel Watkins. Young took two cell

phones from a customer, D.B., and threatened to shoot her if she was to look at him.
 Evans, Stewart, and Watkins were indicted in a joint 21-count

indictment.1 Evans and Stewart were tried in a joint jury trial. Young testified for

the state at the trial under a plea agreement. In the midst of the trial, Stewart

decided to plead guilty as well.

The jury found Evans guilty of 14 counts of offenses relating to the CVS

robbery: aggravated robbery, robbery, felonious assault, and theft of the pharmacist

Daloisio; robbery of D.B.; aggravated robbery, robbery, and theft of the security

guard; theft of the pharmacist’s credit cards; two counts of tampering with evidence;

having weapons while under disability; carrying a concealed weapon; and receiving

stolen property. The trial court found Count 5 (aggravated robbery pertaining to

Daloisio) and Count 6 (robbery pertaining to Daloisio) to be allied offenses, as well

as Count 12 (aggravated robbery pertaining to Watkins) and Count 13 (robbery of

Watkins).

After merging these offenses, the trial court imposed the following

consecutive terms: 11 years on Count 5 (aggravated robbery pertaining to Daloisio)

and three years on the attached firearm specification; two years on Count 10

(robbery pertaining to D.B.); six years on Count 12 (aggravated robbery pertaining

to Watkins); and three years on the gun specification attached to Count 7 (felonious

1The indictment included several counts relating to a Dollar General store robbery and a
Family Dollar store robbery, which were unrelated to the CVS robbery but occurred close
in time to the CVS robbery. At the end of the state’s case, the state dismissed the counts
relating to the Dollar General store robbery, and the jury found Evans not guilty of the
counts relating to the Family Dollar store robbery.
assault of Daloisio). The court imposed concurring terms on the remaining counts.

Evans received an aggregate term of 25 years.2

In his direct appeal, this court affirmed his convictions but remanded

the matter for resentencing, finding Count 12 (aggravated robbery pertaining to

Watkins) and Count 14 (theft pertaining to Watkins) are allied offenses of similar

import and should have been merged. This court therefore remanded the matter for

resentencing. State v. Evans, 8th Dist. Cuyahoga No. 108648, 2020-Ohio-3968.

Regarding his consecutive sentences, Evans argued the record does not support the

trial court’s imposition of consecutive sentences. He contended that concurrent

prison terms would be adequate to accomplish the felony sentencing purposes and

there was nothing in the record to warrant an aggregate prison term of 25 years in

this case. This court found the issue to be moot due to the remand for resentencing.

On remand, the trial court held a resentencing hearing. The trial court

merged all related counts pertaining to the robbery of Daloisio (Counts 5, 6, 8, 15,

and 21), finding them allied offenses. The state elected for Evans to be sentenced on

Count 5 (aggravated robbery), and the trial court imposed 11 years of imprisonment,

consecutive to a three-year term on the attached gun specification. The court also

found all related counts pertaining to the robbery of Watkins (Counts 12, 13, and 14)

to be allied offenses. The state elected for him to be sentenced on Count 12

2 While the trial court’s sentences on the 14 counts totaled 25 years, the trial court
mistakenly stated at the end of the sentencing hearing that the aggregate term was 23
years. The sentencing entry, however, correctly reflected a total term of 25 years of
imprisonment.
(aggravated robbery), and the trial court imposed a six-year term, consecutive to a

three-year term for the attached gun specification. The trial court ordered the prison

term for the two aggravated robbery offenses and the three-year term on the

attached gun specification in each offense to be served consecutively. Evans’s

consecutive term totals 23 years.

The court merged Counts 10 and 11 (relating to the robbery of D.B.) and

imposed two years on Count 10 elected by the state. The two-year term on Count 10,

as well as various terms on the remaining counts, are to be served concurrently.

Appeal

On appeal, Evans raises the following assignment of error:

Appellant’s sentence is contrary to law because the record does not
support the imposition of a maximum sentence or consecutive
sentence.

We review felony sentences under the standard of review set forth in

R.C. 2953.08(G)(2). See, e.g., State v. Cedeno-Guerrero, 8th Dist. Cuyahoga

No. 108097, 2019-Ohio-4580, ¶ 17, citing State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22. Pursuant to R.C. 2953.08(G)(2), when

reviewing felony sentences, an “appellate court may increase, reduce, or otherwise

modify a sentence,” or vacate a sentence and remand for resentencing if it “clearly

and convincingly finds” that “the record does not support the sentencing court’s

findings” under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I),

or “the sentence is otherwise contrary to law.”
 A. Maximum Sentence

We address first Evans’s claim regarding the maximum sentence of

11 years the trial court imposed on Count 5 (aggravated robbery pertaining to

Daloisio), a first-degree felony.

A sentence is contrary to law if (1) the sentence falls outside the

statutory range for the particular degree of offense, or (2) the trial court failed to

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

and the sentencing factors set forth in R.C. 2929.12. See, e.g., State v. Clay, 8th Dist.

Cuyahoga No. 108500, 2020-Ohio-1499, ¶ 26, and State v. Smith, 8th Dist.

Cuyahoga No. 100206, 2014-Ohio-1520, ¶ 13-14.

R.C. 2929.11 provides that when sentencing an offender for a felony,

the trial court shall be guided by the overriding purposes of felony sentencing,

which are (1) “to protect the public from future crime by the offender and others,”

(2) “to punish the offender,” and (3) “to promote the effective rehabilitation of the

offender using the minimum sanctions that the court determines accomplish those

purposes without imposing an unnecessary burden on state or local government

resources.” Furthermore, R.C. 2929.11(B) provides that a sentence shall be

“reasonably calculated” to achieve those overriding purposes “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.” R.C. 2929.12 sets forth seriousness and recidivism factors the

trial court should consider when imposing a felony sentence.
 Here, the transcript of the resentencing hearing reflects that the trial

court stated that it considered the purposes and principles of felony sentences and

found the prison sentence to be consistent with R.C. 2929.11.3 In addition, the

court’s journal entry stated that the trial court had considered all required factors

set forth by the law. As such, the maximum sentence imposed on Count 5 is not

contrary to law.

As to Evan’s claim that the maximum sentence is not supported by

the record, the Supreme Court of Ohio held in State v. Jones, 163 Ohio St.3d 242,

2020-Ohio-6729, 169 N.E.3d 649, that R.C. 2953.08(G)(2)(a) does not permit the

appellate court to modify or vacate a sentence based on the claim that there is a lack

of support in the record for the trial court’s findings under R.C. 2929.11 and 2929.12,

or the claim that there is a lack of support in the record for the sentence “as a whole”

under these two statutes. Id. at ¶ 29 and 30.

Nothing in R.C. 2953.08(G)(2) permits an appellate court to
independently weigh the evidence in the record and substitute its
judgment for that of the trial court concerning the sentence that best
reflects compliance with R.C. 2929.11 and 2929.12. In particular,
R.C. 2953.08(G)(2) does not permit an appellate court to conduct a
freestanding inquiry * * *.

Id. at ¶ 42. In light of the authority from the Supreme Court of Ohio, we find no

merit to Evans’s claim that his maximum sentence is not supported by the record.

3 The record reflects the trial court held the resentencing hearing on October 6, 2020, and

again on November 3, 2020. The second resentencing hearing was held apparently
because at the prior hearing the trial court inadvertently omitted the statement that it had
considered the purposes and principles of felony sentencing set forth in R.C. 2929.11.
 B. Consecutive Sentences

In contrast to maximum sentences, in order to impose consecutive

sentences, the trial court is required to make certain statutory findings.

R.C. 2929.14(C)(4) provides that the trial court can impose consecutive sentences if

it finds that consecutive sentences are necessary to protect the public from future

crime or to punish the offender, that such sentences would not be disproportionate

to the seriousness of the conduct and to the danger the offender poses to the public,

and that one of the following applies:

(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 postrelease 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.

A consecutive sentence may be challenged in two ways. 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), or the

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

2929.14(C)(4). See, e.g., State v. Smith, 8th Dist. Cuyahoga No. 108793, 2020-
Ohio-3666, ¶ 18; State v. Johnson, 8th Dist. Cuyahoga No. 102449, 2016-Ohio-1536,

¶ 7.

Here, at the resentencing hearing, the prosecutor asked the trial court

to impose consecutive sentences, noting that, although Stewart was the ringleader

of the CVS robbery, Evans recruited Young for the robbery and executed the robbery

in a violent manner. The prosecutor also pointed out that Evans, 19, had a fairly

extensive juvenile history: he had an unspecified felony of the fourth degree as well

as three separate domestic violence cases. He also had one prior adult case in

addition to his juvenile record.

The trial court made the following statutory findings:

I sentence you to consecutive sentences on Counts 5 and 12 because I
find that they’re necessary to protect the public and to punish the
offender. Consecutive sentences are not disproportionate to the
crimes which you committed, nor are they disproportionate to other
sentences that have been meted out around the State.

Further, I find the harm caused was so great or unusual that it is
necessary to give you consecutive sentences. And, finally, as recited
by the prosecutor, you have a criminal history of violence, and
therefore I find consecutive sentences are necessary for all those
reasons.

Evans does not claim that the trial court failed to make the statutorily

mandated findings; rather, he claims the record does not support the findings. He

argues that his codefendants received more lenient sentences; no one was killed or

permanently injured; and the security guard Watkins was not harmed during the

robbery.
 In making the consecutive findings, a trial court is not required to give

reasons supporting its decision to impose consecutive sentences. State v. Bonnell,

140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 27. Rather, “as long as the

reviewing court can discern that the trial court engaged in the correct analysis and

can determine that the record contains evidence to support the findings, consecutive

sentences should be upheld.” Id. at ¶ 29.

Our review of the transcript reflects that the trial court engaged in the

consecutive analysis and the record contains evidence to support its findings. The

record reflects that, although Evans was not the one orchestrating the armed

robbery, he recruited Young to the robbery and actively participated in it. The armed

robbery took place in a drug store frequently visited by the public and the brazen

conduct by Evans and his codefendant obviously terrorized the customers in the

store and potentially put their lives at risk. Evans brandished a firearm during the

robbery and pistol-whipped the pharmacist when told the narcotics safe could not

be opened. While his codefendants accepted the responsibility for their conduct and

pled guilty, Evans did not show any remorse for his offenses. These facts support

the trial court’s finding under R.C. 2929.14(C)(4) (consecutive sentences are

necessary to protect the public from future crime or to punish the offender and that

such sentences are not be disproportionate to the seriousness of the conduct and to

the danger the offender poses to the public).

The trial court also made a finding under R.C. 2929.14(C)(4)(c),

determining that Evans’s history of criminal conduct demonstrated that consecutive
sentences are necessary to protect the public from future crime by the offender. In

this regard, the record reflects that, as a juvenile, Evans had multiple juvenile

adjudication for domestic violence as well as a fourth-degree felony case, and, at 19,

he already had an adult case, in which he pleaded guilty to a first-degree

misdemeanor.

Our review reflects the trial court followed the statute for imposing

consecutive sentences. And, upon review, we do not clearly and convincingly find

that the record does not support the trial court’s findings under R.C. 2929.14(C)(4),

and therefore, affirm the consecutive sentences imposed by the trial court.

R.C. 2953.08(G)(2).

For all the foregoing reasons, the sole assignment of error is without

merit. The judgment of the trial court is affirmed.

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.

____________________________
MICHELLE J. SHEEHAN, JUDGE

MARY J. BOYLE, A.J., and
EILEEN T. GALLAGHER, J., CONCUR