COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59470 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : ROBERT A. MINNIEFIELD : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 3, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. 234764-A. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Melody A. White Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Thomas P. Gill, Esq. Thomas E. Malloy, Esq. 75 Public Square Building Suite #1320 Cleveland, Ohio 44113 -2- SWEENEY, JAMES D., J.: Defendant-appellant Robert A. Minniefield ("Minniefield"), aka "Tall Bob," appeals from the sentence imposed by the trial court following his plea of guilty. For the reasons adduced below, we affirm. The record reveals that Minniefield was indicted on December 29, 1988, on seven counts, the offenses having occurred on December 18, 1988. The seven counts are: (1) aggravated murder of one William Childs [R.C. 2903.01] with felony murder and gun specifications; (2) aggravated robbery of Mr. Childs [R.C. 2911.01] with a gun specification; (3) possession of criminal tools [R.C. 2923.24], to-wit, a sawed-off shotgun, with violence and gun specifications relating to Mr. Childs; (4) aggravated robbery of Kelly Zbiegien [R.C. 2911.01] with a gun specification; (5) drug law [R.C. 2925.11], to-wit, cocaine in less than bulk amount; (6) aggravated robbery of Gregory Gray [R.C. 2911.01] with a gun specification; and (7) felonious assault of Mr. Gray [R.C. 2903.11] with a gun specification./1\ On June 15, 1989, in open court with counsel present, Minniefield retracted his plea of not guilty and entered a plea of guilty to: (1) aggravated murder with a gun specification under count one; (2) aggravated robbery as charged in count two; and (3) aggravated robbery as charged in count six. The /1\ Defendant's half-brother, Robert W. Minniefield, was a co- defendant in the trial court case below. A separate notice of appeal has been filed on his behalf in appellate case number 59164. -3- remaining counts and specifications were nolled. Minniefield was then referred to the probation department for a presentence report and a drug and alcohol assessment. Journal Vol. 867, page 75, journalized June 21, 1989. On June 27, 1989, the court conducted a sentencing hearing on Minniefield in open court with counsel present. The defendant expressed his remorse and requested the imposition of a minimum sentence only. The court had before it the presentence report as well as the drug assessment. The court, finding that it believed the defendant to have a greater responsibility for the offense than his half-brother, sentenced Minniefield to: twenty years to life on count one; five to twenty-five years each on counts two and six, concurrent with each other, but consecutive to the sentence on count one; three years actual for the gun specification, consecutive to all other sentences; and payment of court costs. Journal Vol. 870, page 687, journalized July 10, 1989. On July 7, 1989, the defendant filed a motion to reduce the sentence so that all sentences would run concurrent except for the three year gun specification. This motion was overruled on August 24, 1989, by the trial court. The sole assignment of error raised in this appeal provides: THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING CONSECUTIVE TERMS OF INCARCERATION FOR APPELLANT'S CONVICTIONS OF THREE FELONY COUNTS. -4- R.C. 2929.12 provides:/2\ 2929.12 [Discretion of court in determining minimum term of imprisonment for felony.] (A) In determining the minimum term of imprisonment to be imposed for a felony for which an indefinite term of imprisonment is imposed, the court shall consider the risk that the offender will commit another crime and the need for protecting the public from the risk; the nature and circumstances of the offense; the victim impact statement prepared pursuant to section 2947.051 [2947.05.1] of the Revised Code, if a victim impact statement is required by that section; and the history, character, and condition of the offender and his need for correctional or rehabilitative treatment. (B) The following do not control the court's discretion, but shall be considered in favor of imposing a longer term of imprisonment for a felony for which an indefinite term of imprisonment is imposed: (1) The offender is a repeat or dangerous offender; (2) Regardless of whether the offender knew the age of the victim, the victim of the offense was sixty-five years of age or older or permanently and totally disabled at the time of the commission of the offense; (3) The victim of the offense has suffered severe social, psychological, physical, or economic injury as a result of the offense. (C) The following do not control the court's discretion, but shall be considered in favor of imposing a shorter minimum term of imprisonment for a felony for which an indefinite term of imprisonment is imposed: /2\ This version of the statute was in effect at the time of the sentencing. It has since been amended effective November 20, 1990. -5- (1) The offense neither caused nor threatened serious physical harm to persons or property, or the offender did not contemplate that it would do so; (2) The offense was the result of circumstances unlikely to recur; (3) The victim of the offense induced or facilitated it; (4) There are substantial grounds tending to excuse or justify the offense, though failing to establish a defense; (5) The offender acted under strong provocation; (6) The offender has no history of prior delinquency or criminal activity, or has led a law-abiding life for a substantial time before commission of the present offense; (7) The offender is likely to respond quickly to correctional or rehabilitative treatment. (D) The criteria listed in divisions (B) and (C) of this section do not limit the matters that may be considered in determining the minimum term of imprisonment to be imposed for a felony for which an indefinite term of imprisonment is imposed. (Emphasis added.) Appellant argues that the court failed to weigh the factors set forth in R.C. 2929.12 in sentencing appellant to consecutive minimum terms of incarceration. This argument lacks merit. Sentencing rests within the sound discretion of the trial court, provided the sentence imposed is within the limits set by the statute. State v. Henry (1987), 37 Ohio App. 3d 3, 10. "However, the record must demonstrate the trial court considered the criteria set -6- forth in R.C. 2929.12 and did not act arbitrarily in sentencing the defendant. State v. Seals (Oct. 31, 1985), Cuyahoga App. No. 49448, unreported. A pre-sentence report or some evidence the judge considered these would satisfy the law. Id." State v. Harris (August 1, 1991), Cuyahoga App. No. 58969, unreported, at 5. In this case, defendant's sentence is within the statutory limits. Furthermore, the court had before it the presentence report and the drug/alcohol assessment. Defense counsel and the defendant addressed the court at some length in an effort to show mitigation and seek leniency from the court in sentencing. The court also based its sentence on the belief that defendant was more responsible than the co-defendant for the offenses at issue. There is no indication from the record that the court did not consider all the relevant factors under R.C. 2929.12. State v. Adams (1988), 37 Ohio St. 3d 295; State v. O'Dell (1989), 45 Ohio St. 3d 140, 147. From this record, we must presume that the court considered the appropriate sentencing criteria. Id. Therefore, we conclude that the court did not abuse its discretion in sentencing the defendant to the minimum terms and making certain counts consecutive to one another. Assignment overruled. Judgment affirmed. -7- It is ordered that appellee recover of appellant its 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. DAVID T. MATIA, P.J., and PETER C. ECONOMUS, J. CONCUR* JAMES D. SWEENEY JUDGE (*SITTING BY ASSIGNMENT: Judge Peter C. Economus of the Mahoning County Common Pleas Court.) N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .