State v. Hunter

2018 Ohio 3007

Opinion

[Cite as State v. Hunter, 2018-Ohio-3007.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, : CASE NO. CA2017-11-163

Plaintiff-Appellee, : OPINION 7/30/2018 : - vs - :

MARQUIS D. HUNTER, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2017-04-0633

Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government Services Center, 315 High Street, 11th Floor, Hamilton, OH 45011, for plaintiff-appellee

Repper-Pagan Law, Ltd., Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio 45044, for defendant-appellant

M. POWELL, J.

{¶ 1} Defendant-appellant, Marquis Hunter, appeals his 15-year prison sentence

imposed by the Butler County Court of Common Pleas following his guilty plea to involuntary

manslaughter with a firearm specification.

{¶ 2} Appellant was indicted in April 2017 on one count of murder with two firearm

specifications (using a firearm and discharging a firearm from a motor vehicle) and a repeat Butler CA2017-11-163

violent offender specification, and one count of having weapons while under disability. The

charges stemmed from allegations that on March 23, 2017, while sitting in a motor vehicle,

appellant killed Jaylen Kinney (the "victim") by shooting him multiple times with a firearm.

On September 7, 2017, appellant pled guilty to one count of involuntary manslaughter, a

felony of the first degree, with a discharging a firearm from a motor vehicle specification.

{¶ 3} On October 26, 2017, the trial court held a sentencing hearing. A presentence

investigation report ("PSI") ordered by the trial court indicated that appellant witnessed the

murder of his father when he was eight years old, was subsequently in counseling from the

ages of eight to ten, and was primarily reared by his maternal grandmother who was

physically abusive to him. The PSI further indicated that appellant was diagnosed with

PTSD while serving a prison term for a 2010 felonious assault conviction but that he did not

attend counseling.

{¶ 4} At the sentencing hearing, defense counsel submitted the report of Dr. Bobbie

Hopes, a clinical forensic psychologist, who had psychologically evaluated appellant at the

request of defense counsel. Dr. Hopes' report was appellant's primary mitigation evidence

and was admitted into evidence as Exhibit A.

{¶ 5} Based upon the report, defense counsel argued that as a result of witnessing

the murder of his father when he was only eight years old, appellant suffers from PTSD.

Appellant's PTSD was exacerbated and he became hypervigilant after he was shot in a bar

by a friend of the victim in February 2017, several weeks before the homicide. The victim

was present when appellant was shot in the bar. Fearing for his safety and that of his family,

appellant subsequently armed himself. On the night of the homicide, appellant was in the

backseat of a car, about to smoke marijuana before going into a bar, when "out of nowhere"

the victim and the person who had shot appellant approached appellant's car "in a menacing

way." Suffering from PTSD and greatly fearing for his life and that of his friends, appellant

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shot multiple times, ultimately killing the victim. Defense counsel admitted that appellant

was not sure whether the victim or the other man had a firearm, nonetheless appellant "was

scared to death" and reacted accordingly. Defense counsel further argued that appellant

had a very unstable life growing up. Based upon the foregoing, defense counsel argued

that (1) the victim induced the offense; (2) appellant acted under strong provocation; (3)

appellant acted under an imperfect but sincere belief his actions were necessary for self-

defense and the defense of his friends; and (4) appellant's killing of the victim was the

product of PTSD.

{¶ 6} In her report, Dr. Hopes expressed the opinion that appellant had been afraid

for his own safety and that of his family ever since he had been shot in February 2017, and

that the shooting had greatly exacerbated his PTSD symptoms which began after the

murder of his father. Dr. Hopes further opined that appellant was fearful, hypervigilant, and

guarded at the time of the homicide, and that whether his fears were real or somewhat

distorted by PTSD, appellant's fear "was genuine and he believed he had to protect himself

from others whom he believed meant to harm him."

{¶ 7} The state admitted that the victim approached appellant's car on the night of

the homicide but stated "there might be some dispute" as to why the victim did so. The

state indicated there was no evidence that the victim or his friends were armed that night.

The state observed that the victim was not the individual who shot appellant in February

2017 but conceded that the victim was with that individual when appellant was shot in the

bar.

{¶ 8} Upon considering this evidence and reviewing the PSI and Dr. Hopes' report,

the trial court sentenced appellant to a mandatory ten-year prison term for the involuntary

manslaughter, with a mandatory and consecutive 5-year prison term for the accompanying

firearm specification, for an aggregate 15-year prison term.

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{¶ 9} Appellant now appeals, raising one assignment of error:

{¶ 10} BY CLEAR-AND-CONVINCING EVIDENCE, THE SENTENCING RECORD

FAILS TO SUPPORT THE AGGREGATE 15-YEAR SENTENCE.

{¶ 11} Appellant argues the trial court erred in sentencing him to 15 years in prison

for his offenses because the trial court failed to consider the applicable "reduced-

seriousness factors" and "reduced-recidivism factors" under R.C. 2929.12(C) and

2929.12(E), respectively. Specifically, appellant asserts the trial court "wholly ignored" the

fact he shot the victim under strong provocation and the belief his actions were necessary

to protect himself and others, the victim facilitated the offense, appellant suffers from PTSD

which worsened after the February 2017 shooting, the homicide occurred in circumstances

unlikely to recur, appellant had begun to overcome his unstable and violent childhood, and

appellant expressed genuine remorse.

{¶ 12} We review the imposed sentence under the standard of review set forth in

R.C. 2953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio St.3d

516, 2016-Ohio-1002, ¶ 1. Pursuant to that statute, an appellate court may modify or vacate

a sentence only if the appellate court finds by clear and convincing evidence that the record

does not support the trial court's findings under relevant statutes or that the sentence is

otherwise contrary to law. A sentence is not clearly and convincingly contrary to law where

the trial court "considers the principles and purposes of R.C. 2929.11, as well as the factors

listed in R.C. 2929.12, properly imposes postrelease control, and sentences the defendant

within the permissible statutory range." State v. Aburas, 12th Dist. Clermont No. CA2017-

10-054, 2018-Ohio-1984, ¶ 9.

{¶ 13} In sentencing an offender for a felony, the trial court "shall be guided by the

overriding purposes of felony sentencing," which are to protect the public from future crime

by the offender and to punish the offender. R.C. 2929.11(A). A felony sentence must be

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reasonably calculated to achieve the purposes set forth in R.C. 2929.11(A) "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).

{¶ 14} When sentencing a defendant, a trial court is required to consider the

seriousness and recidivism factors set forth in R.C. 2929.12. State v. Arnett, 88 Ohio St.3d

208, 215 (2000). However, the trial court is not required to consider each sentencing factor,

but rather to exercise its discretion in determining whether the sentence satisfies the

overriding purpose of Ohio's sentencing structure. State v. Steger, 12th Dist. Butler No.

CA2016-03-059, 2016-Ohio-7908, ¶ 12. Furthermore, the trial court is not required to use

any specific language or make specific findings to demonstrate that it considered the

applicable sentencing factors. Arnett at 215; State v. K.W., 6th Dist. Erie No. E-16-051,

2017-Ohio-4338, ¶ 17. Merely stating that the trial court considered the sentencing factors

is enough. State v. Brimacombe, 195 Ohio App.3d 524, 2011-Ohio-5032, ¶ 11 (6th Dist.),

citing Arnett.

{¶ 15} We find no error in the trial court's decision to sentence appellant to 15 years

in prison for involuntary manslaughter with a specification of discharging a firearm from a

motor vehicle. During the sentencing hearing, the trial court expressly stated in open court

that it considered R.C. 2929.11 and 2929.12, the PSI, and Dr. Hopes' report:

The Court has considered purposes and principles of sentencing, weighed the recidivism and the seriousness factors. This defendant entered a plea and was convicted pursuant to that plea to an amended Count I, involuntary manslaughter, a felony in the first degree; also entered a plea of guilty to a five- year gun specification.

The Court has considered the information presented this afternoon, the pre-sentence investigation report, the report from Dr. Hokes (phonetic) entered into evidence as Exhibit A, the statement of the victim's mother this afternoon here on the

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record, his previous prison sentence, including that for felonious assault in 2010.

Prison is mandatory in this case. The Court will impose a mandatory sentence on Count I of 10 years [,] will not impose a fine. Furthermore, we will impose a five-year gun specification, that's a mandatory consecutive sentence[.]

{¶ 16} Furthermore, in its sentencing entry, the trial court specifically stated that it

"considered the record, the charges, the defendant's Guilty Plea, and findings as set forth

on the record and herein, oral statements, any victim impact statement and pre-sentence

report, as well as the principles and purposes of sentencing under [R.C.] 2929.11, and has

balanced the seriousness and recidivism factors of [R.C.] 2929.12[.]" Thus, based on the

record, it is clear the trial court properly considered the seriousness and recidivism factors

as required by R.C. 2929.12 and complied with its obligations under R.C. 2929.11 and

2929.12. Arnett, 88 Ohio St.3d at 215; K.W., 2017-Ohio-4338 at ¶ 20; and State v.

Petersen, 12th Dist. Clermont No. CA2016-11-074, 2017-Ohio-6940, ¶ 11.

{¶ 17} Appellant disagrees with the trial court's balancing of the seriousness and

recidivism factors in R.C. 2929.12 and the mitigation evidence. However, it is "[t]he trial

court [that], in imposing a sentence, determines the weight afforded to any particular

statutory factors, mitigating grounds, or other relevant circumstances." Steger, 2016-Ohio-

7908 at ¶ 18. It is apparent that the trial court did not consider the mitigating evidence to

be substantial enough to outweigh appellant's conduct of fatally shooting the victim. The

fact that the trial court chose to weigh various sentencing factors and the mitigation

evidence differently than how appellant would have weighed them does not mean that the

trial court erred in imposing appellant's prison sentence. State v. Evans, 12th Dist. Warren

No. CA2017-04-049, 2018-Ohio-916, ¶ 85. Upon reviewing the record, we find there is no

clear and convincing evidence the trial court erred in balancing the applicable factors in

R.C. 2929.12 and the mitigation evidence.

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{¶ 18} Appellant's assignment of error is overruled.

{¶ 19} Judgment affirmed.

S. POWELL, P.J., and PIPER, J., concur.

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