GALLIPOLIS — A Gallia County man accused of robbing the Gallipolis Walmart while wielding a knife in April of last year was recently resentenced in the Gallia County Court of Common Pleas after having a portion of his sentence reversed by the Court of Appeals of Ohio, Fourth Appellate District.
Travis Wade Sims, 21, Cheshire, was recently sentenced to four years in the Ohio Department of Rehabilitation and Correction after having his original 10-year sentence overturned.
Sims was charged with aggravated robbery after he allegedly pulled a knife on a Gallipolis Walmart loss prevention officer on April 3, 2010.
After witnesses were interviewed in this case, it was discovered that, on the day in question, the defendant had used a knife to remove a watch from its package and placed it on his arm before exiting the store.
Before the suspect could flee the scene, an officer with loss prevention identified himself to the defendant and attempted to stop Sims by grabbing his shirt. The defendant then struck the loss prevention officer in the ear and brandished a knife.
After freeing himself from the officer, Sims fled the scene in a white Ford Mustang that was pulled over by police shortly thereafter at a business located north of Gallipolis.
During a one-day jury trial held on September 21, 2010, the jury returned a guilty verdict to aggravated robbery, a first degree felony, after deliberating for approximately one hour in this case.
On October 13, 2010, the defendant was sentenced in the common pleas court to serve 10 years in a state penal facility — the maximum sentence for a first degree felony.
An appeal was later filed in this case contending that the trial court “abused its discretion” when it imposed a 10-year sentence; that the defendant was denied the opportunity for a meaningful appeal because the trial court did not specify its justification for imposing the maximum possible sentence; that the defendant received ineffective defense counsel as his counsel did not object to the court’s 10-year sentence; that the trial court erred because it imposed a six-month repayment period for court costs while not informing the defendant of that order during sentencing; and that the defendant’s conviction for aggravated robbery is against the “manifest weight of the evidence” in this case.
In a judgement entry filed by the fourth district court of appeals on January 9, 2012, the appeals court upholds a portion of the trial court’s judgement, while reversing it in part.
The entry, prepared by Appeals Court Judge Roger L. Kline, agrees with Sims contention that his prison sentence is disproportionate with his offense as “the trial court used an element of the offense to elevate the seriousness of the offense during sentencing.”
According to the entry, the presence of a deadly weapon is required in every aggravated robbery case and, as the trial court used the fact that Sims utilized a knife during the offense to elevate his sentence, it erred in sentencing.
The entry reads, “because the trail court based its justification on an element of the offense, the court abused its discretion when it found Sims’ offense to be more serious for sentencing purposes.”
The appeals court therefore vacated Sims’ sentence for aggravated robbery and ordered the case to be remanded to the trial court for resentencing.
As to Sims’ other complaints in his appeal, the court of appeals found Sims’ contention of inadequate opportunity for an appeals review due to the trial court’s lack of a justification for sentencing, as well as his allegation of ineffective counsel assistance in this case moot, or debatable, due to their vacation of his 10-year prison sentence. The court declined address to those issues.
As to the defendant’s complaint that the trial court did not inform him of the six-month period to repay court costs during the sentencing hearing, the appeals court overruled that assignment of error as the court costs in any case are distinct and not a portion of the criminal punishment.
The appeals court also disagreed with Sims’ contention that the evidence does not support his conviction. The entry states that, based upon eye witness testimony, “there was substantial evidence upon which the jury could find the elements of Sims’ aggravated robbery offense proven beyond a reasonable doubt. Consequently, Sims’ aggravated robbery conviction is not against the manifest weight of the evidence.”
The entry further states that Appeals Judge Peter B. Abele concurs in the opinion in this case, while Judge William H. Harsha, concurs in part and dissents as to the trial court’s duty to advise the defendant of a payment scheduled for court costs during a sentencing hearing.
During resentencing, Sims was ordered to serve four years in prison and given credit for 14 days served. He was further informed of a five-year, mandatory period of post-release control in this case and ordered to have no contact with Walmart. The defendant was remanded into the custody of the Ross Correctional Institution.