[Cite as State v. Merriweather, 2010-Ohio-2279.]

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. 
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{¶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 
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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 
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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, 109 Ohio St.3d 1, 2006-

Ohio-856, 845 N.E.2d 470, 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.” Id. 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, 2009-Ohio-695, ¶8; State v. Gray, 7th Dist. No. 07MA156, 

2008-Ohio-6591, ¶17. First, we must “examine the sentencing court's compliance 
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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, 120 Ohio 

St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶26. 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, 109 Ohio St.3d 54, 2006-Ohio-855, 846 

N.E.2d 1, ¶38. 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.07CO47, 2009-Ohio-4392, ¶50. Appellant has not 

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

an abuse of discretion. 
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{¶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), 59 Ohio St.3d 71, 78, 571 N.E.2d 97. 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 
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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.