[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, 2016ATTORNEY FOR APPELLANT

Rick L. Ferrara 2077 East 4 th 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 44113MARY 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 mitiga ting her conduct, nearly c onstituting 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, al ong with two codefe ndants, on several counts, including rape, aggravated burglary, a ggravated robbery, kidnapping, and gross sexual imposition, with the counts carrying one- and three- year firearm specificati ons. The rape count also carried a sexually violent predator specification, and the ki dnapping counts carried a sexual motivation specification. {¶4} The facts giving rise to the indictme nt 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 door way 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 agreemen t, 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 vi olation of R.C. 2911.12(A)(1) (fel ony of the second degree), andCount 5, aggravated robbery in violation of R. C. 2911.01(A)(1) (felony of the first degree). The remaining counts and specificati ons were nolled. The trial c ourt accepted Harris’s guilty plea and referred Harris for a presentence investiga tion (“PSI”) by the proba tion 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 th e 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 ap artment. 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 c odefendants pulled out a gun. Defense counsel further ex plained that Harris was “high on K2,” which contributed to her faulty judgment to participate in the burglar y and robbery. Defense counsel then detailed Harris’s extremely difficult upbringi ng, her mental health diagnoses , her recent efforts to tackle her substance abuse issues, and he r lack of a criminal record — a ll as factors for placement in a community-based correctional facility instead of prison. {¶8} The trial court u ltimately 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 we ll as the seriousness and recidivism factors listed in R.C. 2929.12. Specifically, Harris conte nds that the trial court did not properly consider her mitigating factors — such as he r “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 review ing prison sentences, “[t]he appellate

court’s standard for review is not whether the se ntencing 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 clear ly and convincingly * * * does not support the sentencing court’s findings under [various provisions]; [or] [t]hat th e 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 “whe re the trial court considers the purposes and principles of sentencing under R.C. 2929.11 as well as the seriousness and recidivism factor s listed in R.C. 2929.12, properly applies post-release control, and sentences a defe ndant 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 th e 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 c ourt 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 offe nder and others and to punish the offender using

the minimum sanctions that the court determines accomplish t hose 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 o ffender’s conduct and its impact upon the victim.” {¶14} Under R.C. 2929.12(A), trial c ourts 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 ar e 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 heardfrom both the prosecutor and the defense counsel , who respectively deta iled the factors that supported their position. It is clear from the reco rd 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 th at it convinces me that you were a participant, the acts that took place inside of this residential area involving these two victims, while not necessa rily your particular doing , but it’s clear that the aggravated robbery and the burglary are a ppropriate sentences that you pled guilty to, and there is sufficient conduct that s upports that, and the nature of the event that took place, and the harm to these vi ctims 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 poi nt 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 we re 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 revi ew 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 c ourt properly considered the purposes and principles of felony sentencing set forth in R.C. 2929.11 and th e relevant seriousness a nd recidivism factors listed in R.C. 2929.12, we find no mer it to Harris’s single assignme nt 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 reas onable 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. Th e defendant’s conviction having been affirmed, any bail pending appeal is ter minated. 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