State v. Batiste

154 N.E.3d 1220

2020 Ohio 3673

STATE of Ohio, Plaintiff-Appellee,

v.Taiwan BATISTE, Defendant-Appellant.

No. 108986

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: July 9, 2020

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Lindsay Raskin, Assistant Prosecuting Attorney, for appellee.

Allison S. Breneman, for appellant.

JOURNAL ENTRY AND OPINION

LARRY A. JONES, SR., J.:

{¶ 1} In this appeal, defendant-appellant Taiwan Batiste ("Batiste") challenges his 24-year prison sentence, which included consecutive terms. Batiste challenges the imposition of consecutive terms, and he also contends that the sentence constitutes cruel and unusual punishment and is an excessive sentence.

{¶ 2} For the reasons that follow, we vacate Batiste's sentence and remand the case for resentencing.

Procedural and Factual History

{¶ 3} The crimes that gave rise to this case occurred on January 30, 2018, when Batiste broke into a vehicle parked near the Beachland Ballroom and Tavern in Cleveland; Batiste stole property from the vehicle. A short time after breaking into the vehicle, Batiste approached two females from behind as they were walking to their vehicle after having attended a concert at Beachland. Batiste was wearing a ski mask and dark clothing and told the female victims, "[d]on't look back or I'll shoot." He then took one victim's purse, and the other victim's cell phone. Batiste began to walk away, but he returned to the victims and took one victim's backpack. He again threatened the victims telling them, "I have a gun. I'm going to shoot you. Don't turn around." The victims saw Batiste flee in a dark-colored vehicle and alerted law enforcement.

{¶ 4} Approximately 40 minutes later, law enforcement officials located Batiste sitting in a vehicle matching the description they had been given. On the front seat of the vehicle was the purse belonging to one of the victims. Law enforcement ordered Batiste out of the vehicle and conducted a pat-down search of him; they recovered a driver's license and debit card belonging to one of the victims. Law enforcement also found shards of glass on Batiste's clothing. The victims' property was returned to them. They were not physically harmed, and the two victims who were robbed while walking to their vehicle suffered no economic harm.

{¶ 5} In light of the above, Batiste was charged in a 14-count indictment as follows: Counts 1 and 2, aggravated robbery, with one- and three-year firearm specifications; Counts 3 and 4, abduction, with one- and three-year firearm specifications; Counts 5, 6, 7, and 8, theft; Counts 9, 10, and 11, misuse of credit cards; Count 12, theft; Count 13, petty theft; and Count 14, criminal damaging or endangering.

{¶ 6} At the time of indictment, Batiste was almost 27 years old and had no adult felony record; he had one 2009 juvenile adjudication for robbery, for which he was sentenced to community control sanctions. The sanctions were completed in 2010.

{¶ 7} Batiste maintained that he did not have a gun during the commission of the crimes. The two robbery victims did not see a gun, and no gun was recovered from Batiste's person or vehicle. After negotiations with plaintiff-appellee the state of Ohio, Batiste pled guilty to an amended Count 1, robbery, with a one-year firearm specification; amended Count 2, robbery; Counts 3 and 4, abduction; and Counts 5 and 12, theft. The remaining counts and firearm specifications were dismissed.

{¶ 8} As mentioned, the trial court sentenced Batiste to a 24-year prison term. The sentence was as follows: eight years on Count 1, robbery plus one year on the firearm specification, to be served prior to and consecutive to the underlying charge; eight years on Count 2, robbery; 36 months each on Counts 3 and 4, abduction; and 12 months each on Counts 5 and 12, theft. The trial court ordered Counts 5 and 12 to be served concurrent to each other, but consecutive to the other counts, which were all to be served consecutive to each other. Batiste now appeals, assigning the following two errors:

I. The trial court abused its discretion by imposing a consecutive prison sentence contrary to R.C. 2929.14 and the purposes and principles of the felony sentencing guidelines.

II. The trial court imposed an excessive sentence that subjects appellant to cruel and unusual punishment in violation of the Ohio Constitution Art. I, § 9.

Law and Analysis

Consecutive Sentences

{¶ 9} In his first assignment of error, Batiste challenges his consecutive sentences. He contends that the trial court abused its discretion in imposing consecutive terms. R.C. 2953.08(G)(2) provides, in part, that when reviewing felony sentences, our standard is not whether the sentencing court abused its discretion; rather, if this court "clearly and convincingly" finds that (1) "the record does not support the sentencing court's findings under" R.C. Chapter 2929 or (2) "the sentence is otherwise contrary to law," then we may conclude that the court erred in sentencing. See also State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1 ; State v. Gwynne , 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, ¶ 16. Thus, we do not review felony sentencing for an abuse of discretion. Marcum at ¶ 10.

{¶ 10} As a general rule in Ohio, there is a presumption in favor of concurrent sentences unless the court makes the requisite findings under R.C. 2929.14(C)(4). State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 22-23. There are three distinct findings under R.C. 2929.14(C)(4) that must be made in imposing consecutive sentences:

(1) that consecutive sentences are necessary to protect the public from future crime or to punish the offender; (2) that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public; and (3) that one of the subsections (a), (b) or (c) applies.

State v. Price , 10th Dist. Franklin No. 13AP-1088, 2014-Ohio-4696, 2014 WL 5408505, ¶ 31, citing Bonnell .

{¶ 11} Subsections (a), (b), and (c) of R.C. 2929.14(C)(4) provide as follows:

(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 post-release 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.

{¶ 12} When imposing consecutive sentences, a trial court must state the required findings on the record at the sentencing hearing, and also incorporate its statutory findings into the sentencing entry. Bonnell at ¶ 29.

{¶ 13} Here, the trial court found that consecutive sentences were "necessary to protect the public from future crime" and that they were "necessary to punish the offender." The trial court further found that consecutive sentences were "not disproportionate to the seriousness of the offender's conduct * * * [and] not disproportionate to the danger the offender poses to the public." These findings satisfied the first two required findings that must be made under R.C. 2929.14(C)(4).

{¶ 14} In regard to the last finding that must be made, which can be either subsection (a), (b), or (c) of R.C. 2929.14(C)(4), the trial court found that Batiste's "history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. * * * The Court making that finding * * * notes again that he does have a prior robbery conviction as a juvenile and the Court does find that there were two separate instances of robbery in this case."

{¶ 15} Thus, the trial court made all the statutorily required findings for the imposition of consecutive sentences. Further, the findings were incorporated into the sentencing judgment entry, as required by Bonnell . Our inquiry does not end there, however. As this court stated in State v. Metz , 8th Dist. Cuyahoga, 2019-Ohio-4054, 146 N.E.3d 1190,

Our review of felony sentencing must be "meaningful." See State v. Bratton , 6th Dist. Lucas Nos. L-12-1219 and L-12-1220, 2013-Ohio-3293, 2013 WL 3936481, ¶ 8, citing State v. Carter , 11th Dist. Portage No. 2003-P-0007, 2004-Ohio-1181, 2004 WL 473642. In order to conduct a "meaningful review," we are required to review the entire record, including any reports that were submitted to the court (i.e., a presentence, psychiatric, or other investigative report), the trial record, and any statements made to or by the court at sentencing. See R.C. 2953.08(F)(1)-(3).

Metz at ¶ 92.

{¶ 16} The Metz court, citing R.C. 2953.08(G)(2) and Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 1, noted an appellate court has the authority to increase, reduce, or otherwise modify a sentence, if, after reviewing the entire record, the court finds, clearly and convincingly, that the record does not support the trial court's findings under relevant statutes or that the sentence is otherwise contrary to law. Metz at ¶ 93.

{¶ 17} As stated by the Ohio Supreme Court,

In the final analysis, * * * R.C. 2953.08(G)(2)(a) compels appellate courts to modify or vacate sentences if they find by clear and convincing evidence that the record does not support any relevant findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code.

Marcum at ¶ 22.

{¶ 18} Our review here leads us to find, by clear and...