[Cite as State v. Bauldwin,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96703

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

LINDSEY BAULDWIN DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-528042

BEFORE: S. Gallagher, J., Jones, P.J., and Keough, J.

RELEASED AND JOURNALIZED: December 15, 2011 ATTORNEY FOR APPELLANT

Brooke Deines Law Offices of Brooke Deines, LLC 815 Superior Avenue East Suite 1325 Cleveland, OH 44114

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

BY: Maxwell M. Martin Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113

SEAN C. GALLAGHER, J.:

{¶ 1} Appellant, Lindsey Bauldwin, a.k.a. Orlando Patterson, appeals from his

resentencing in the Cuyahoga County Court of Common Pleas. For the reasons stated

herein, we affirm the decision of the trial court.

{¶ 2} Appellant was charged in a four-count indictment with one count of

attempted murder (R.C. 2923.02 and 2903.02(A)), two counts of aggravated robbery

(R.C. 2911.01(A)(1) and 2911.01(A)(3)), and one count of kidnapping, all with one- and

three-year firearm specifications. He was found guilty by a jury on all counts. The trial court sentenced him to eight years on each count, to run concurrently. He was also

sentenced to three years for the firearm specifications, to run prior and consecutive to the

eight years for the underlying sentence. His total prison term was 11 years.

{¶ 3} On direct appeal, this court affirmed appellant’s conviction, but remanded

for resentencing. State v. Bauldwin, Cuyahoga App. No. 94876,

.1 This

court found that the charges of aggravated robbery and kidnapping were allied offenses of

similar import and subject to merger. Id. at ¶ 51.

{¶ 4} Upon remand, the state elected to proceed on Count 2, aggravated robbery

(R.C. 2911.01(A)(3)). The trial court proceeded to sentencing on that count and the

other remaining count of attempted murder.

{¶ 5} The state requested that the court impose the same sentence. Appellant and

his counsel advocated for a reduced sentence. The resentencing judge reviewed the

original sentencing entry and this court’s prior opinion, considered the fact pattern that

was presented, and commented on the seriousness of the charges and the injuries suffered

by the victim. He indicated that he would have imposed a harsher sentence, but he chose

to defer to the judgment of the prior judge, who was able to observe the trial and the

demeanor of the witnesses.

{¶ 6} After finding Counts 2, 3, and 4 are allied, the court imposed a prison

sentence of eight years each on Counts 1 and 2, to run concurrently. The court also

1 The underlying facts of the case were set forth in that opinion and are incorporated herein. Id. at ¶ 2-6. merged the gun specifications into a single three-year gun specification, to be served prior

to and consecutive with all other sentences. Appellant received a total prison term of 11

years. The court also imposed a mandatory five-year term of postrelease control. In its

journal entry, the court indicated that it considered all required factors of the law and

found that prison is consistent with the purpose of R.C. 2929.11.

{¶ 7} Appellant filed this appeal, raising two assignments of error for our review.

His first assignment of error provides as follows: “The resentencing court abused its

discretion by failing to properly consider felony sentencing guidelines when it imposed an

eleven-year prison term upon appellant.”

{¶ 8} In State v. Kalish,

,

,

, the

Ohio Supreme Court set forth a two-step approach that appellate courts are to apply when

reviewing felony sentences: “First, they 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. at ¶ 26.

{¶ 9} In this case, appellant’s sentence was within the statutory range for the

offenses he committed. The trial court’s entry reflects that it found a prison term to be

consistent with the purpose of R.C. 2929.11 and that it considered all required factors.

Additionally, the trial court properly imposed postrelease control. Therefore, appellant’s sentence is not clearly and convincingly contrary to law. See id. at ¶ 18. Appellant does

not dispute this.

{¶ 10} Appellant claims the trial court abused its discretion when imposing the

sentence by failing to properly consider the felony-sentencing guidelines. He complains

of the lack of reference to any R.C. 2929.12 factors. However, a trial court is not

required to provide any reasons in imposing sentence, and a record may be silent as to

judicial findings. See id. at ¶ 12, citing State v. Foster,

,

,

. Moreover, “R.C. 2929.11 and 2929.12 * * * are not

fact-finding statutes * * *. Instead, they serve as an overarching guide for trial judges to

consider in fashioning an appropriate sentence.”

{¶ 11} While appellant argues the trial court did no more than give a cursory

glance to the facts and defer to the judgment of the original sentencing judge, we are not

persuaded by this argument. The record reflects that the trial court reviewed this court’s

prior opinion, the facts presented in the case, the serious nature of the offenses, and the

serious injuries suffered by the victim. The court also heard statements from counsel and

appellant. It was to appellant’s benefit that some deference was given to the original

sentencing judge’s decision, as the resentencing judge believed a harsher sentence was

warranted. We find nothing that prohibits a resentencing judge from giving some

consideration to the original sentence. Indeed, the trial judge has the benefit of

observing the trial and the demeanor of the witnesses. Finally, the court’s journal entry

clearly expresses that it gave consideration to all required factors of the law. Accordingly, we find no abuse of discretion by the trial court and overrule appellant’s

first assignment of error.

{¶ 12} Appellant’s second assignment of error provides as follows: “The sentence

is void because the resentencing court failed to comply with [Crim.R. 32].”

{¶ 13} Appellant argues that the resentencing court failed to apprise him of his

appellate rights pursuant to Crim.R. 32(B). We find appellant’s reliance on State v.

Hunter, Cuyahoga App. No. 92626,

, to be misplaced.

{¶ 14} This court indicated in State v. Thomas, Cuyahoga App. No. 94788,

, ¶ 38, as follows: “Although the trial court in this case failed to advise

Thomas of his appellate rights under Crim.R. 32, we find Hunter to be distinguishable

and the error here to be harmless. In Hunter, the defendant was not given appointed

counsel and filed his appeal pro se. Here, this court granted Thomas’s motion for

delayed appeal, and subsequently appointed appellate counsel to represent him in the

appeal. Accordingly, we conclude that any argument relative to the omission is moot.”

See, also, State v. Gray, Cuyahoga App. No. 81474,

, ¶ 21 (failure to

advise of right to appeal at resentencing hearing was harmless). Other courts have

rejected similar arguments where no prejudice is shown. See State v. Gordon, Summit

App. No. 25317,

; State v. Duncan, Henry App. No. 7-02-10,

, ¶ 12; State v. Middleton, 12th Dist. No. CA2004-01-003,

. {¶ 15} Likewise, in this case we find any error in failing to inform appellant of his

appellate rights under Crim.R. 32(B) was harmless because he was able to effect a timely

appeal through counsel and has not shown any prejudice. Appellant’s second assignment

of error is 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

LARRY A. JONES, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR