Opinion
No. 108024
08-29-2019
STATE OF OHIO, Plaintiff-Appellee, v. OLIVER SALNAVE, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Yasmine M. Hasan, Assistant Prosecuting Attorney, for appellee. Ruth R. Fischbein-Cohen, for appellant.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-18-632329-A and CR-18-632825-A
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Yasmine M. Hasan, Assistant Prosecuting Attorney, for appellee. Ruth R. Fischbein-Cohen, for appellant. PATRICIA ANN BLACKMON, P.J.:
{¶ 1} Oliver Salnave ("Salnave") appeals from the trial court's imposition of consecutive prison sentences in two felonious assault cases and assigns the following error for our review:
I. It was error to sentence Oliver Salnave to a consecutive sentence when in fact he showed remorse.
{¶ 2} Having reviewed the record and pertinent law, we affirm the trial court's judgment. The apposite facts follow.
{¶ 3} On July 21, 2018, Salnave shot a juvenile in her home. On August 28, 2018, Salnave shot a second juvenile. Both victims suffered injuries from the shootings, and both victims survived.
{¶ 4} On November 27, 2018, Salnave pled guilty to one count of felonious assault, a second-degree felony, with a three-year firearm specification in State v. Salnave, Cuyahoga C.P. No. CR-18-632329-A, and one count of felonious assault, a second-degree felony, in State v. Salnave, Cuyahoga C.P. No. CR-18-632825-A. On December 18, 2018, the court sentenced Salnave to the following:
At this time we'll start with case number 632329. You're sentenced to three years on the underlying firearm specification. That's to be served prior to and consecutive to the underlying sentence of two years for a total of five years of incarceration. With regard to case number 632825, you are sentenced to two years of incarceration. Those sentences will be run consecutive to each other for a total time of seven years in prison.
{¶ 5} It is from this order that Salnave appeals.
Felony sentencing standard of review
{¶ 6} R.C. 2953.08(G)(2) provides, in part, that when reviewing felony sentences, the appellate court's standard 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 (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.
{¶ 7} 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.
{¶ 8} 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).
{¶ 9} 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.
Consecutive Sentences
{¶ 10} Additionally, "to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry * * *." State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, & 37. Pursuant to R.C. 2929.14(C)(4), the court must find consecutive sentences are "necessary to protect the public from future crime or to punish the offender"; "not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public"; and at least one of the following three factors:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction * * *, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 11} In the case at hand, the court sentenced Salnave to two years in prison for each felonious assault conviction, which is the minimum prison term for a second-degree felony. R.C. 2929.14(A)(2). The court also sentenced Salnave to three years in prison for the firearm specification, which must be served consecutive to the prison term for the underlying felony. R.C. 2929.14(C)(1)(a). The court ran the two-year prison terms consecutively for a total sentence of seven years in prison. This sentence is within the statutory range.
{¶ 12} At the sentencing hearing, the state recommended "something more than the minimum sentence" and offered the testimony of several of the victims' family members. For example, the second victim's mother testified about the injuries both victims suffered. "My son played football, my son ran track, my son did shot put. He can never do it again. That 14-year-old girl, she danced, she had a life, she's paralyzed from the ankle down, and I don't think he should be given a chance to do to somebody else's kid, another parent, another sibling."
{¶ 13} The first victim's Mother also testified about the injuries to her daughter.
On July 21st to July 25th, my daughter was in the hospital because of what he did to [her]. Right before they discharged my daughter, they come to me and they tell me that where [Salnave] shot my daughter, where the bullet came out, that it severed her sciatic nerve. Mobility to flex her foot up and down, she cannot do that. The ability to move her toes, she's not allowed to do that. The feeling of her left calf, she can't feel that. She go to therapy, instead of my daughter enjoying her friends, going to the movies, going shopping, spending the night over each other [sic] houses, she can't do none of that. She's too scared to go anywhere.
{¶ 14} According to the record, Salnave was 19 years old when these shootings occurred and he has no history of criminal offenses. Defense counsel told the court that Salnave was remorseful about what happened and that Salnave shot the first victim accidentally. Several of Salnave's family members and friends gave statements to the court, essentially stating that Salnave was a good young man with no criminal record and they hoped he could learn from his mistakes. Salnave also spoke at his sentencing hearing and made the following statement:
The first thing I would like to say, I would like to apologize to the victims. Personally, I would like to apologize to [the first victim]. I didn't mean no harm to nobody. It was just something that happened at the wrong time that wasn't supposed to happen. It didn't happen like — it was an accident, like. * * * And the other one is not — I would just apologize to everybody. I know I was in the wrong. Everybody makes mistakes, nobody is perfect. * * * And I hope they get healthy and stronger and be able to do what they started out their life to do. That's a lesson to me to stay away from guns, it ain't a place for a young man like myself.
{¶ 15} The court stated the following prior to sentencing Salnave:
Before imposing sentence, this court will note it has considered the record, the oral statements made here today, [and] the presentence investigation report. The court has also considered the purposes and principles of sentencing under Revised Code Section 2929.11; the serious and recidivism factors relevant to the offense and the offender pursuant to Revised Code Section 2929.12, and the need for deterrence, incapacitation, rehabilitation, and restitution.
{¶ 16} The court then made the following findings on the record:
The court does have to consider that the defendant in this case has no record, but finds that consecutive sentences are necessary to protect the public from future crime or to punish the offender; that the consecutive sentences are not disproportionate to the seriousness of defendant's conduct and to the danger defendant poses to the public; and that at least two of the multiple offenses were committed in this case as part of one or more courses of conduct, and the harm caused by said multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of any other courses of conduct adequately reflects the seriousness of defendant's conduct.
{¶ 17} Upon review, we find that the record clearly and convincingly supports the sentencing court's findings under the felony sentencing statutes. The court considered the factors under R.C. 2929.11 and 2929.12 and sentenced Salnave to the minimum prison terms within the statutory range. Furthermore, the court found that the two shootings were committed as part of a course of conduct, in that they were committed about a month apart and there were two victims, both of whom were minors. See State v. Thome, 8th Dist. Cuyahoga No. 104445, 2017-Ohio-963, ¶ 16 ("where there are multiple victims, the imposition of consecutive sentences is reasonable to hold the defendant accountable for crimes committed against each victim"). We cannot say that the court erred by running the prison terms for the two shootings consecutively, and Salnave's assigned error is overruled.
{¶ 18} Judgment affirmed.
It is ordered that appellee recover from appellant 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 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. /s/_________
PATRICIA ANN BLACKMON, PRESIDING JUDGE FRANK D. CELEBREZZE, JR., J., and
RAYMOND C. HEADEN, J., CONCUR