[Cite as State v. Harris, 2016-Ohio-4566.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 103526 

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

TABITHA HARRIS

DEFENDANT-APPELLANT 

JUDGMENT:

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-14-590377-A 

BEFORE: Boyle, P.J., S. Gallagher, J., and Blackmon, J. 

RELEASED AND JOURNALIZED: June 23, 2016 
ATTORNEY FOR APPELLANT 

Rick L. Ferrara 

2077 East 4th Street 

Second Floor 

Cleveland, Ohio 44114 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Mahmoud S. Awadallah 

Assistant County Prosecutor 

Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
MARY J. BOYLE, P.J.: 

{¶1} Defendant-appellant, Tabitha Harris, appeals her sentence, raising the following 

single assignment of error: 

The trial court acted contrary to law in sentencing appellant to a lengthy term in 

prison despite factors mitigating her conduct, nearly constituting a defense, her 

extremely limited criminal history, her mental health history, and her 

extraordinary family history. 

{¶2} Finding no merit to the appeal, we affirm. 

A. Procedural History and Facts

{¶3} In November 2014, Harris was indicted, along with two codefendants, on several 

counts, including rape, aggravated burglary, aggravated robbery, kidnapping, and gross sexual 

imposition, with the counts carrying one- and three-year firearm specifications. The rape count 

also carried a sexually violent predator specification, and the kidnapping counts carried a sexual 

motivation specification. 

{¶4} The facts giving rise to the indictment involved Harris and the two codefendants 

visiting the victim Jane Doe, who Harris was dating. Once invited inside Doe’s apartment, one 

of the codefendants pulled out a gun and made Doe and her friend (a male victim) strip their 

clothes and perform sexual acts on one another. The codefendants ultimately forced Doe to 

perform oral sex on them at gunpoint. Harris stood in the doorway of the bedroom watching 

and then returned to ransack the apartment. Before fleeing the apartment, the defendants 

threatened that they would kill the victims if they reported the incident to the police. 

{¶5} In April 2015, pursuant to a plea agreement, Harris ultimately withdrew her not 

guilty plea and pleaded guilty to an amended indictment on the following two charges: an 

amended Count 3, burglary in violation of R.C. 2911.12(A)(1) (felony of the second degree), and 
Count 5, aggravated robbery in violation of R.C. 2911.01(A)(1) (felony of the first degree). The 

remaining counts and specifications were nolled. The trial court accepted Harris’s guilty plea 

and referred Harris for a presentence investigation (“PSI”) by the probation department and a 

mitigation of penalty report by the court psychiatric clinic. 

{¶6} At sentencing, the prosecutor addressed the court and urged the trial court to 

impose a prison term. According to the state, Harris was the mastermind behind targeting and 

robbing the victims. And while Harris may not have intended for the codefendants to commit 

the sexual acts against Doe and the other victim, Harris set all of the offenses in motion by 

bringing the two codefendants over to Doe’s apartment. One codefendant, who already pleaded 

guilty, proffered that Harris came up with the idea to rob the victims. According to the 

codefendant, Harris stated that the victims had a lot of items in the apartment and that “it was a 

sweet lick.” 

{¶7} Defense counsel addressed the court and denied that Harris had plotted to rob 

Doe. Instead, Harris’s counsel indicated that Harris’s role in the criminal activity was a 

“spontaneous action” once inside the apartment and after one of the codefendants pulled out a 

gun. Defense counsel further explained that Harris was “high on K2,” which contributed to her 

faulty judgment to participate in the burglary and robbery. Defense counsel then detailed 

Harris’s extremely difficult upbringing, her mental health diagnoses, her recent efforts to tackle 

her substance abuse issues, and her lack of a criminal record — all as factors for placement in a 

community-based correctional facility instead of prison. 

{¶8} The trial court ultimately imposed six years in prison on each count, to run 

concurrently. 

B. Sentence
{¶9} In her sole assignment of error, Harris argues that the trial court acted contrary to 

law in imposing a six-year prison term because the trial court failed to consider 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. Specifically, Harris contends that the trial court did not properly 

consider her mitigating factors — such as her “terrible” childhood, her lack of any criminal 

record, her diagnosis of bipolar with depressive disorders, or her relatively limited role in the 

offenses. We disagree. 

{¶10} R.C. 2953.08(G)(2) states that when reviewing prison sentences, “[t]he appellate 

court’s standard for review is not whether the sentencing court abused its discretion.” Instead, 

the statute permits the appellate court to “‘increase, reduce, or otherwise modify a sentence * * * 

or may vacate the sentence and remand the matter to the sentencing court for resentencing’” if we 

determine that “‘the record clearly and convincingly * * * does not support the sentencing court’s 

findings under [various provisions]; [or] [t]hat the sentence is otherwise contrary to law.’” 

State v. Bement, 8th Dist. Cuyahoga No. 99914, 2013-Ohio-5437, ¶ 13, quoting R.C. 

2953.08(G)(2). 

{¶11} The trial court has the full discretion to impose any term of imprisonment within 

the statutory range, but it must consider the sentencing purposes in R.C. 2929.11 and the 

guidelines contained in R.C. 2929.12. State v. Holmes, 8th Dist. Cuyahoga No. 99783, 

2014-Ohio-603, ¶ 8. Indeed, 

[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. Simmons, 8th Dist. Cuyahoga No. 103538, 2016-Ohio-2644, ¶ 5, quoting State v. A.H., 

8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10. 

{¶12} In this case, Harris is not challenging the imposition of postrelease control. Nor is 

there any question that the trial court imposed a prison sentence within the statutory range for a 

first- and second-degree felony. The only issue is whether the trial court properly considered 

the felony sentencing guidelines, including her mitigation evidence. 

{¶13} R.C. 2929.11(A) provides that the “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.” R.C. 2929.11(B) 

requires that, in addition to achieving these goals, a sentence must be “commensurate with and 

not demeaning to the seriousness of the offender’s conduct and its impact upon the victim.” 

{¶14} Under R.C. 2929.12(A), trial courts must consider a nonexhaustive list of factors 

set forth in R.C. 2929.12(B), (C), (D), and (E), including the seriousness of the defendant’s 

conduct, the likelihood of recidivism, and “any other factors that are relevant to achieving those 

purposes and principles of sentencing.” 

{¶15} The record overwhelmingly establishes that the trial court properly considered the 

factors set forth in R.C. 2929.11 and 2929.12. First, “[a]lthough there is a mandatory duty to 

‘consider’ the statutory factors, the trial court is not required to explain its analysis of those 

factors in a given case.” State v. Wright, 8th Dist. Cuyahoga No. 100283, 2014-Ohio-3321, ¶ 

10; see also State v. Norris, 8th Dist. Cuyahoga No. 100640, 2014-Ohio-3590, ¶ 18 (“There is 

still no ‘mandate,’ however for the sentencing court to engage in any factual findings under R.C. 

2929.11 or 2929.12.”). Prior to imposing any sentence, the trial court expressly stated that it 

had reviewed both the PSI as well as the mitigation of penalty report. The trial court then heard 
from both the prosecutor and the defense counsel, who respectively detailed the factors that 

supported their position. It is clear from the record that the trial court considered R.C. 2929.11 

and 2929.12 prior to imposing the sentence. Further, the trial court expressly stated as much in 

the sentencing journal entry. 

{¶16} Further, although not required, the trial court even stated on the record its 

reasoning for imposing a six-year prison term on each count, noting the following: 

Your conduct in this case is such that it convinces me that you were a 

participant, the acts that took place inside of this residential area involving these 

two victims, while not necessarily your particular doing, but it’s clear that the 

aggravated robbery and the burglary are appropriate sentences that you pled guilty 

to, and there is sufficient conduct that supports that, and the nature of the event 

that took place, and the harm to these victims took place as a result of the conduct 

of others with whom you associated. 

I think that you knew that they were gang members, and when you 

associate with people in that regard, you run the risk of being involved to a point 

where you don’t think is — involved to a point that you can’t separate yourself 

from their conduct. I don’t think that you tried to separate yourself. You may 

have felt threatened to do so, but if you were threatened in that situation, clearly 

the victims were threatened, and you enabled that situation to develop and be what 

it is or what it was. 

So I think six years on the balance is an appropriate sentence, factoring in 

the seriousness of these charges, giving you some benefit for the less serious 

conduct involved, and also looking at your history which is not supportive of your 

conduct in this situation. 

You’ve had minor issues with regard to the criminal justice system. And 

this situation is clearly out of character to your past, but I suspect it’s related 

directly to your drug and alcohol issues that are documented in all of the papers 

here today, and I think was a contributing factor as you’ve acknowledged that you 

were smoking K2 at the time, either prior to or at that time. 

{¶17} To the extent that Harris argues that the trial court failed to afford her stated 

mitigating factors more weight, the trial court has the discretion to determine the weight to assign 

a particular statutory factor. As this court has previously explained, 
The weight that a sentencing court gives to a particular factor, however, is entirely 

within that court’s discretion in fashioning a sentence. State v. Arnett, 88 Ohio 

St.3d 208, 215, 724 N.E.2d 793 (2000). And we do not review a sentence that 

falls within the statutory range for an abuse of the court’s discretion. [State v.] 

Smith, 8th Dist. Cuyahoga No. 100206, 2014-Ohio-1520, at ¶ 17; [State v.] Akins

[8th Dist. Cuyahoga No. 99478, 2013-Ohio-5023] at ¶ 15; R.C. 2953.08(G)(2). 

We therefore have no authority to review whether the trial court abused its 

discretion when it has applied the felony sentencing criteria outlined in R.C. 

2929.11 and 2929.12. Smith. 

State v. Carrington, 8th Dist. Cuyahoga No. 100918, 2014-Ohio-4575, ¶ 27. 

{¶18} Thus, given that the trial court properly considered the purposes and principles of 

felony sentencing set forth in R.C. 2929.11 and the relevant seriousness and recidivism factors 

listed in R.C. 2929.12, we find no merit to Harris’s single assignment of error and overrule it. 

{¶19} Judgment affirmed. 

It is ordered that appellee recover from appellant the 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. 

 

 

MARY J. BOYLE, PRESIDING JUDGE 

SEAN C. GALLAGHER, J., and 

PATRICIA ANN BLACKMON, J., CONCUR