The Akron Legal News

Long-time criminal gets maximum sentence, appeals court rules

ANNIE YAMSON
Special to the Legal News
Published: April 7, 2014

A man who robbed three pharmacies to sustain his Oxycontin addiction had his conviction affirmed by the 2nd District Court of Appeals last week when it ruled that the Montgomery County Court of Common Pleas properly imposed the maximum sentence.

The defendant, Cole Midlam, was convicted of three counts of aggravated robbery and argued, upon appeal, that the trial court abused its discretion by imposing a “disproportionate, excessive and unreasonable” sentence.

The Montgomery County court had ordered Midlam to serve three concurrent 10-year prison sentences to be served concurrently with a 20-year sentence he was serving in Indiana.

The court also ordered restitution to CVS pharmacy in the amount of $8,226 and extradition costs totaling $208.

Case summary states that Midlam robbed two CVS pharmacies and one Walgreens to supply his drug addiction.

During one of the robberies, he threatened to shoot one of the employees, though no firearm specifications were attached to the charges against him because he claimed that he used a toy gun.

Midlam contended that the trial court did not make the necessary findings before imposing the maximum sentence but the district’s three-judge appellate panel found that it did not have to because it had ordered the sentences to run concurrently, “thereby lessening the impact of the maximum sentence,” according to the opinion issued by the court of appeals.

It also held that the trial court did not have to repeat its findings during sentencing.

“In setting forth its reasons for not making the necessary findings to overcome the presumption of a prison sentence, the trial court indicated its consideration of both the serious nature of Midlam’s offenses and his likelihood of reoffending,” wrote Judge Mike Fain on behalf of the appellate panel.

The trial court noted that Midlam committed three aggravated robberies between January and May 2012.

“You represented to the victims in all three cases that you have a gun,” the trial court stated. “But the victims in this case thought you had a real gun and in at least one of the robberies you threatened to shoot one of the victims.”

That robbery took place at the Walgreens. According to the police report, pharmacist Erica Baxter reported that a short white male approached the pharmacy area and told her to give him “all your Oxycontin and Opana ER 10.”

Baxter stated that she went back to the pharmacy area and returned with an unknown amount of Oxycontin at which point Midlam reminded her to “get all the Opana; if I have to say it again I’m going to shoot you.”

Before he left, Midlam apologized by saying “I’m really sorry about this.”

Additionally, the trial court noted Midlam’s extensive criminal history: “These are three aggravated robberies and you have admitted during this same time period committing, I believe, two other robberies, one in Greene County and one in Highland County.”

Midlam had convictions dating back to 1998 including eight juvenile offenses, three thefts, one burglary, five misdemeanors and, at the time of the pharmacy robberies, he was on probation for forgery in Pennsylvania.

He also had a prior felony for safecracking in 2000.

“The trial court considered both the seriousness of Midlam’s offenses and his inability, after previous juvenile and adult convictions, to conduct himself within the limits imposed by criminal law,” wrote Judge Fain. “In our view, the fact that the trial court did not re-cover this same ground before pronouncing sentence does not indicate that it failed to consider the purposes and principles of sentence.”

Judge Fain concluded by affirming the judgment of the Montgomery County court with Presiding Judge Jeffrey Froelich and Judge Michael Hall concurring.

The case is cited State v. Midlam, 2014-Ohio-1109.

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