[Cite as State v. Peal,

.]

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,

,

,

. 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,

(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,

, 89–90,

(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.

.

{¶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.

. 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.”

.

{¶14} Appellant also cites this court’s opinion in Cleveland Hts. v. Seastead, 8th

Dist. No. 68875,

(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,

(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