[Cite as State v. Merriweather,

.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 09 MA 160 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) HASSAN MERRIWEATHER ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2008-CR-349C

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503

For Defendant-Appellant: Atty. Martin E. Yavorcik 3736 Boardman-Canfield Road Suite 3 Canfield, Ohio 44406

JUDGES:

Hon. Cheryl L. Waite Hon. Joseph J. Vukovich Hon. Mary DeGenaro Dated: May 20, 2010 WAITE, J. -2-

{¶1} Appellant Hassan Merriweather is appealing his eight-year prison

sentence. He was involved in the robbery and shooting death of Demar Flores on

March 17, 2008. Four people were charged in the Mahoning County Court of

Common Pleas as codefendants in the crime. Appellant eventually pleaded guilty to

one count of complicity to aggravated robbery, a first degree felony with a potential

prison term of ten years. Appellant argues that he should have received a shorter

prison sentence because he cooperated in the trial of his codefendant Reginald

Gilchrist; because he had virtually no prior criminal record; and because he showed

true remorse at the sentencing hearing. Appellant argues that the court should have

considered this mitigating evidence at sentencing. The record reveals that the trial

court considered all the appropriate sentencing factors and criteria, and imposed a

sentence within the range of sentences permitted by law. The state asked for the

maximum prison term to be imposed, and the court imposed only an eight-year

prison term. It is apparent that the court considered some mitigating evidence at

sentencing, particularly since the court imposed less than the maximum ten-year

prison term. The sentence is neither clearly and convincingly contrary to law nor an

abuse of discretion, and the conviction and sentence are affirmed.

{¶2} Appellant was indicted on March 27, 2008, on one count of complicity to

aggravated robbery, R.C. 2911.01(A)(1), a first degree felony. There was an

accompanying three-year gun specification, R.C. 2941.145. Counsel was appointed

to represent Appellant. Three other codefendants were indicted at the same time.

Charles E. Smith, Jr., was indicted for aggravated murder. Reginald Gilchrist and -3-

Sarah Beck were indicted for complicity to aggravated murder and aggravated

robbery.

{¶3} On June 10, 2009, Appellant agreed to enter into a Crim.R. 11 plea

agreement. He pleaded guilty to complicity to aggravated robbery, and the

prosecutor agreed to dismiss the gun specification. The court held a plea hearing,

advised Appellant of the rights he was waiving by entering the guilty plea, and then

accepted the plea. There was no agreement as to sentencing. The court held the

sentencing hearing on August 12, 2009. The prosecutor stated that two

codefendants had pleaded guilty and that Reginald Gilchrist’s case had gone to trial,

but he was acquitted. Appellant had agreed to testify against Reginald Gilchrist, but

gave inconsistent testimony at trial. (8/12/09 Tr., p. 3.) The prosecutor also stated

that Appellant could have been charged with aggravated murder but was not

because of his initial cooperation in the case. (8/12/09 Tr., pp. 2-3.) The prosecutor

recommended that the court impose the maximum prison term of ten years.

{¶4} Appellant’s attorney stated that Appellant’s only prior criminal record

consisted of a misdemeanor offense in Pennsylvania, and that there was little risk of

recidivism. He agreed with the prosecutor that Appellant gave inconsistent testimony

at the trial of Reginald Gilchrist. He noted that, unlike the other codefendants,

Appellant stayed at the scene of the crime and attempted to comfort the victim before

the police arrived. He stated that Appellant was in over his head as the crime

unfolded and that he did not intend for the victim to get shot. Appellant’s attorney

told the court that Appellant had endured a difficult life, including being shot as a -4-

child. Appellant gave a statement at the hearing, testifying that he was sorry for his

involvement with the crime and that what happened was “beyond my free will”.

(8/12/09 Tr., p. 9.)

{¶5} The court stated that it considered the record, the oral and written

statements presented at sentencing, the prosecutor’s recommendation, the

presentence investigation, the principles and purposes of sentencing in R.C.

2929.11, and the seriousness and recidivism factors in R.C. 2929.12. The court

sentenced Appellant to eight years in prison. The sentencing entry was filed on

August 13, 2009, and this timely appealed followed on September 14, 2009.

ASSIGNMENT OF ERROR

{¶6} “THE TRIAL COURT ERRED WHEN IT IMPOSED A SENTENCE

THAT WAS AN ABUSE OF DISCRETION.”

{¶7} Subsequent to the holdings in State v. Foster,

, 2006-

Ohio-856,

, trial courts have, “full discretion to impose a prison

sentence within the statutory range and are no longer required to make findings or

give their reasons for imposing maximum, consecutive, or more than the minimum

sentences.”

at paragraph seven of the syllabus. Under R.C. 2953.08(G)(2)(b),

appellate courts must use a two-step approach in reviewing felony sentences,

examining whether the sentence is clearly and convincingly contrary to law and

whether the trial court abused its discretion in imposing the penalty. State v. Gratz,

7th Dist. No. 08MA101,

; State v. Gray, 7th Dist. No. 07MA156,

. First, we must “examine the sentencing court's compliance -5-

with all applicable rules and statutes in imposing the sentence to determine whether

the sentence is clearly and convincingly contrary to law.” State v. Kalish,

,

,

. In examining all applicable rules

and statutes, courts must consider R.C. 2929.11 and R.C. 2929.12. Id. at ¶13-14. If

the sentence is clearly and convincingly not contrary to law, the second step of

review is to determine whether the trial court's exercise of discretion in selecting a

sentence within the permissible statutory range constitutes an abuse of discretion.

Id. at ¶17. 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. Kalish, at ¶19.

{¶8} Appellant concedes that the sentence is not clearly and convincingly

contrary to law. Instead, Appellant argues that the sentence represents an abuse of

discretion because the trial court failed to properly consider R.C. 2929.11 and

2929.12. Certainly, the principles and purposes of sentencing in R.C. 2929.11 and

the seriousness and recidivism factors in R.C. 2929.12 are an integral part of the

felony sentencing process. State v. Mathis,

,

,

. As Appellant acknowledges, the sentencing court need not make

findings regarding these statutes. A silent record raises the rebuttable presumption

that the sentencing court considered all the proper statutory sentencing criteria.

State v. James, 7th Dist. No.

,

, ¶50. Appellant has not

pointed to anything in the record, or to any omission from the record, that indicates

an abuse of discretion. -6-

{¶9} The trial judge specifically stated that she considered R.C. 2929.11 and

2929.12 in determining the appropriate sentence. Furthermore, the record contains

evidence supporting the imposition of a harsher penalty rather than a less severe

penalty. The robbery resulted in a murder, which is arguably the most serious form

that a robbery can take. Appellant had already received an immediate benefit of his

plea bargain when the firearm specification was dropped, thus removing a mandatory

three-year prison term that would have been added to his sentence on the robbery.

The court may consider charges that are eventually dropped when it is formulating its

sentence. State v. Wiles (1991),

,

. The record

also indicates that Appellant received a benefit by being charged with the lesser

crime of complicity to aggravated robbery rather than complicity to aggravated

murder.

{¶10} Appellant believes that his remorse for the crime should have been a

factor at sentencing, but the record is somewhat contradictory about his remorse.

Although he did say he was sorry for his participation in the crime, he also said that

his actions were somehow beyond his free will, which seems to indicate a denial of

responsibility. Appellant stated that he did not wish for the crime to occur, but

nothing in the record corroborates that statement. He admitted that he was present

at the scene of the crime to sell illegal drugs, so he intended to commit some type of

crime when the robbery and shooting occurred. He stated that he cooperated in the

prosecution of his codefendants, but also admits that he gave contradictory testimony

during the trial of Reginald Gilchrist. It is not clear what impact Appellant’s -7-

contradictory testimony had on Mr. Gilchrist’s trial, which resulted in an acquittal, but

the fact that he gave contradictory testimony indicates a certain lack of cooperation

rather than a reason to impose a less severe sentence. Thus, Appellant’s supposed

mitigating circumstances do not really lend support for imposing a less severe

sentence. Even with his weak mitigating evidence, the trial court decided to impose

less than the maximum sentence, indicating that the court did consider the mitigating

circumstances that Appellant discusses in this appeal.

{¶11} The eight-year prison term is within the range of sentences available to

the trial court, and there is no abuse of discretion found in the record. The court

considered the principles and purposes of felony sentencing in R.C. 2929.11, and the

seriousness and recidivism factors in R.C. 2929.12. Therefore, Appellant’s

assignment of error is overruled and the judgment of the trial court is affirmed.

Vukovich, P.J., concurs.

DeGenaro, J., concurs.