[Cite as State v. Echols, 2017-Ohio-1360.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 104483

STATE OF OHIO

 PLAINTIFF-APPELLEE

vs. 

THEO ECHOLS

 DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-15-600873-A 

 BEFORE: Blackmon, J., Keough, A.J., and Kilbane, J. 

 RELEASED AND JOURNALIZED: April 13, 2017
ATTORNEY FOR APPELLANT 

Ruth R. Fischbein-Cohen 

3552 Severn Rd., #613 

Cleveland, Ohio 44118

ATTORNEYS FOR APPELLEE

Michael C. O’Malley 

Cuyahoga County Prosecutor 

By: Kelly N. Mason 

Assistant County Prosecutor 

Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
PATRICIA ANN BLACKMON, J.: 

{¶1} Theo Echols (“Echols”) appeals from his felonious assault conviction and 

associated seven-year prison sentence, and assigns the following errors for our review: 

I. The court violated Theo Echols’ due process guarantee by neglecting to 

advise him that he has a right to appeal; and that he has other Crim.R. 32(B) 

rights. 

II. The court erred when it imposed a prison sentence which is contrary to 

law. 

{¶2} Having reviewed the record and pertinent law, we affirm. The apposite 

facts follow. 

{¶3} On April 10, 2015, Echols and three other males entered the Broadview 

Sports Tavern. Echols walked up to Henry L. Smith, IV (“Smith”) who allegedly was in 

a volatile relationship with Echols’s sister, and tapped him on the shoulder. When Smith 

turned around, Echols fired several shots at Smith, hitting him with four bullets. Smith 

survived the shooting. 

{¶4} On January 27, 2016, Echols pled guilty to one count of felonious assault in 

violation of R.C. 2903.11(A)(2), a second-degree felony, with a one-year firearm 

specification. On March 2, 2016, the court sentenced Echols to six years in prison for 

the assault, to run consecutively to one year in prison for the firearm specification. On 
May 26, 2016, this court granted Echols’s motion for leave to file a delayed appeal, 

appointed appellate counsel, and ordered a transcript of the lower court proceedings at the 

state’s expense. 

{¶5} In his first assigned error, Echols argues that, after imposing his prison 

sentence, the court failed to advise him of his appellate rights in violation of Crim.R. 

32(B). The state acknowledges that the court failed to follow the mandates of Crim.R. 

32(B); however, the state argues this failure amounts to harmless error because this court 

accepted Echols’s delayed appeal, appointed counsel, and provided for the transcript at no 

cost to Echols. 

{¶6} This court has consistently held that when a motion for delayed appeal is 

granted and appellate counsel is appointed, an appellant is not prejudiced and any error 

under Crim.R. 32(B) is harmless. State v. Thomas, 8th Dist. Cuyahoga No. 94788, 

2011-Ohio-214; State v. Hunter, 8th Dist. Cuyahoga No. 99472, 2013-Ohio-5022. 

{¶7} Accordingly, we find harmless error, and Echols’s first assigned error is 

overruled. 

{¶8} In his second assigned error, Echols argues that when imposing his prison 

sentence, the court did not make findings on the record, and/or the court’s findings were 

“based on the irrelevant and unsubstantiated information offered by the State * * *.” 

Echols claims that “[t]he aforestated renders the sentence contrary to law.” Specifically, 

Echols argues that his “idle talk from an Instagram” was “tainted” evidence that violated 
the rule against hearsay and the rule against “other acts” evidence. See Evid.R. 403 and 

404(B). 

{¶9} “The rules of evidence do not apply in sentencing hearings.” State v. 

Williams, 8th Dist. Cuyahoga No. 98934, 2013-Ohio-2201, ¶ 18. The sentencing court 

may consider “‘any reliable evidence in the record’ in sentencing a defendant.” Id., 

quoting State v. Hinton, 8th Dist. Cuyahoga No. 84582, 2005-Ohio-3427, ¶ 12. 

{¶10} R.C. 2953.08(G)(2) provides, in part, that when reviewing felony sentences, 

the appellate court’s standard of review 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 that (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. 

{¶11} A sentence is not clearly and convincingly contrary to law “where the trial 

court considers the purposes and principles of sentencing under R.C. 2929.11 as well as 

the seriousness and recidivism factors listed in R.C. 2929.12, properly applies 

post-release control, and sentences a defendant within the permissible statutory range.” 

State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10. 

{¶12} Pursuant to R.C. 2929.11(A), the two overriding purposes of felony 

sentencing are “to protect the public from future crime by the offender and others,” and 

“to punish the offender using the minimum sanctions that the court determines 
accomplish those purposes * * *.” Additionally, the sentence imposed shall be 

“commensurate with and not demeaning to the seriousness of the offender’s conduct and 

its impact on the victim, and consistent with sentences imposed for similar crimes 

committed by similar offenders.” R.C. 2929.11(B). 

{¶13} Furthermore, in imposing a felony sentence, “the court shall consider the 

factors set forth in [R.C. 2929.12(B) and (C)] relating to the seriousness of the conduct 

[and] the factors provided in [R.C. 2929.12(D) and (E)] relating to the likelihood of the 

offender’s recidivism * * *.” R.C. 2929.12. However, this court has held that 

“[a]lthough the trial court must consider the principles and purposes of sentencing as well 

as the mitigating factors, the court is not required to use particular language or make 

specific findings on the record regarding its consideration of those factors.” State v. 

Carter, 8th Dist. Cuyahoga No. 103279, 2016-Ohio-2725, ¶ 15. 

{¶14} In the instant case, there is no question that Echols’s sentence of six years in 

prison for a second-degree felony is within the statutory range. R.C. 2929.14(A)(2). 

Furthermore, the one-year firearm specification to which Echols pled guilty must be 

served “consecutively to and prior to any prison term imposed for the underlying felony * 

* *.” R.C. 2929.14(C)(1)(a). 

{¶15} At the sentencing hearing, the court took the following into consideration: 

Echols has one prior felony that involved a firearm. He is mildly mentally retarded, has a 

“polysubstance abuse issue,” and suffers from post- traumatic stress disorder as a result of 

being the victim of a shooting. Echols knew that Smith had been convicted of multiple 
prior felonies and was dating Echols’s sister. Echols also knew that Smith was in that 

particular bar on the night in question because he recognized his sister’s car, which was 

parked out front. 

{¶16} When Smith saw Echols enter the bar, Smith tried to leave, but could not get 

away. Echols fired at least seven bullets at Smith while approximately 200 people were 

inside the bar. Bullets hit Smith in the left calf, the right hand, the left arm, and the 

abdomen. After shooting Smith, Echols put the gun back in his waistband and ran out of 

the bar “with the rest of the people trying to blend in with the crowd.” 

{¶17} According to the doctor who treated Smith, “if the shots to the stomach 

would have been a centimeter either way, it would have been fatal. He would have died 

on scene.” Echols showed some remorse by apologizing and acknowledging that it was 

not “supposed to happen the way it happened.” 

{¶18} The court found that there was no immediate provocation prior to the 

shooting, although Smith had a negative history with Echols’s sister. The court also 

found that Echols “took responsibility” for his actions, which was a mitigating factor. 

However, the court found that the aggravating factors outweighed this. 

The court has a responsibility to fashion a sentence that’s in line with the 

principles of sentencing, which is to punish the offender, send you on a 

course toward rehabilitation, protect society. We can’t have people going 

into clubs — you know, you stand before me, but for the grace of God, you 

would be sentenced to life. Now you’re going to have an opportunity to at 

some point in the future to reenter into society. Weighing all the factors — 

I mean, they’re very serious aggravating factors here. You did take 

responsibility. I’m not going to sentence you to a maximum sentence, but 

I’m going to sentence you to the one year firearm specification. And I’m 
going to — that will be followed by [a] six year sentence on the felony of 

the second degree. 

{¶19} Upon review, we find that the record supports the court’s findings and the 

sentence is not otherwise contrary to law. Accordingly, Echols’s second assigned error is 

overruled. 

{¶20} Sentence 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 be sent to the Cuyahoga County Court of 

Common Pleas 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. 

 

PATRICIA ANN BLACKMON, JUDGE 

KATHLEEN ANN KEOUGH, A.J., and 

MARY EILEEN KILBANE, J., CONCUR