[Cite as State v. Kouns, 2017-Ohio-7497.]
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : MICHAEL P. KOUNS : Case No. 16-COA-035 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of Common Pleas, Case No. 15-CRI-183
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 7, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER R. TUNNELL JOSEPH F. SALZGEBER Ashland County Prosecuting Attorney P.O. Box 799 Brunswick, Ohio 44212 By: VICTOR R. PEREZ Assistant Prosecuting Attorney 110 Cottage Street Ashland, Ohio 44805 Ashland County, Case No. 16-COA-035 2
Baldwin,J.
{¶1} Appellant Michael P. Kouns appeals a judgment of the Ashland County
Common Pleas Court convicting him of engaging in a pattern of corrupt activity (R.C.
2923.32(A)(1)), complicity to trafficking in heroin (R.C. 2925.03(A)(1)(2)(C)(6), R.C.
2923.03(A)(1),(2) or (3)), complicity to trafficking in cocaine (R.C. 2925.03(A)(1)(2)(C)(4)),
R.C. 2923.03(A)(1),(2), or (3)), illegal assembly or possession of chemicals for the
manufacture of drugs (R.C. 2925.041(A)), and illegal cultivation of marijuana (R.C.
2925.04(A)(C)(5)(c)) upon a plea of guilty, and sentencing him to an aggregate term of
incarceration of twelve years. Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On October 30, 2015, a twenty-one count indictment was filed in the
Ashland County Common Pleas Court charging appellant with numerous drug-related
offenses. Pursuant to a negotiated plea, he entered guilty pleas to engaging in a pattern
of corrupt activity, complicity to trafficking in heroin, complicity to trafficking in cocaine,
illegal assembly or possession of chemicals for the manufacture of drugs, and illegal
cultivation of marijuana. He was found guilty of these five offenses, as well as four
forfeiture specifications. In exchange for the plea, the State moved to dismiss the
remaining sixteen counts of the indictment, as well as accompanying forfeiture
specifications and major drug offender specifications. The State further agreed to
recommend a sentence of no more than fourteen years.
{¶3} The trial court ordered a pre-sentence investigation. Prior to the sentencing
hearing, appellant filed a sentencing memorandum asking the trial court to impose a
sentence of five years or less, similar to the sentences imposed on his co-defendants. He Ashland County, Case No. 16-COA-035 3
argued he took an inferior role in the criminal enterprise as a “pill puppet” to co-defendant
Richard Lawless. He further argued he had become addicted to pain pills due to an
industrial injury and two car accidents, but for most of his life had supported his family
through legitimate employment.
{¶4} The trial court held a sentencing hearing on August 19, 2016. At the
hearing, appellant asked that he be sentenced similarly to his co-defendants, as they were
all pawns of Richard Lawless, who ran the drug operation. The State argued that despite
appellant’s cooperation against Lawless and his addiction problems, it stood by the
recommendation of fourteen years.
{¶5} Following the hearing, the court sentenced appellant to a term of
imprisonment of ten years for engaging in a pattern of corrupt activity, a term of three years
for complicity to trafficking in heroin, a term of three years for complicity to trafficking in
cocaine, a term of twenty-four months for illegal assembly or possession of chemicals for
the manufacture of drugs, and a term of twelve months for illegal cultivation of marijuana.
The sentences for complicity to trafficking in heroin, complicity to trafficking in cocaine,
and illegal cultivation of marijuana were ordered to run concurrently with each other and
with the sentence for engaging in a pattern of corrupt activity. The sentence for illegal
assembly or possession of chemicals for the manufacture of drugs was ordered to run
consecutively to the sentence for engaging in a pattern of corrupt activity but concurrently
with the other sentences, for an aggregate term of twelve years incarceration. It is from
this entry appellant prosecutes this appeal, assigning a single error:
{¶6} THE TRIAL COURT ERRED BY IMPOSING, CONTRARY TO LAW AND
THE CONSTITUTIONAL PROHIBITIONS AGAINST CRUEL AND UNUSUAL Ashland County, Case No. 16-COA-035 4
PUNISHMENT, CONSECUTIVE PRISON SENTENCES TOTALING TWELVE (12)
YEARS, INSTEAD OF TOTAL PRISON SENTENCE OF FIVE (5) YEARS OR LESS,
WHICH 12-YEAR SENTENCE WAS DISPROPORTIONATE WITH THE SENTENCES
IMPOSED ON HIS CO-DEFENDANTS.
{¶7} Appellant argues his sentence is disproportionate in comparison to those of
his co-defendants, and violates the Eighth Amendment’s prohibition against cruel and
unusual punishment.
{¶8} The Eighth Amendment does not require strict proportionality between
crime and sentence, but only forbids extreme sentences that are grossly disproportionate
to the crime. State v. Weitbrecht, 86 Ohio St.3d 368, 373, 715 N.E.2d 167 (1999), quoting
Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680 (1991),(Kennedy, J., concurring
in part and in judgment). In Solem v. Helm, 463 U.S. 277, 290–292, 103 S.Ct 3001, 3010–
3011, 77 L.Ed.2d 637, 649–50 (1983), the United States Supreme Court set forth a three-
part test for determining whether a sentence is disproportionate to the crime: (i) the gravity
of the offense and the harshness of the penalty; (ii) the sentences imposed on other
criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the
same crime in other jurisdictions. A sentence does not violate the constitutional prohibition
against cruel and unusual punishment unless the sentence is so grossly disproportionate
to the offense as to shock the sense of justice in the community. State v. Chaffin, 30 Ohio
St.2d 13, 59 O.O.2d 51, 282 N.E.2d 46 (1972).
{¶9} Further, for purposes of the Eighth Amendment and Section 9, Article I of
the Ohio Constitution, proportionality review should focus on individual sentences rather
than on the cumulative impact of multiple sentences imposed consecutively. State v. Ashland County, Case No. 16-COA-035 5
Hairston, 118 Ohio St.3d 289, 888 N.E.2d 1073, 2008–Ohio–2338, ¶ 20. Where none of
the individual sentences imposed on an offender are grossly disproportionate to their
respective offenses, an aggregate prison term resulting from consecutive imposition of
those sentences does not constitute cruel and unusual punishment. Id. As a general rule,
a sentence that falls within the terms of a valid sentencing statute cannot constitute cruel
and unusual punishment. Id. at ¶ 21.
{¶10} A defendant alleging disproportionality in felony sentencing has the burden
of producing evidence to “indicate that his sentence is directly disproportionate to
sentences given to other offenders with similar records who have committed these
offenses.” State v. Ewert, 5th Dist. Muskingum No. CT2012–0002, 2012-Ohio-2671, 2012
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[Cite as State v. Kouns, 2017-Ohio-7497.]
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : MICHAEL P. KOUNS : Case No. 16-COA-035 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of Common Pleas, Case No. 15-CRI-183
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 7, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER R. TUNNELL JOSEPH F. SALZGEBER Ashland County Prosecuting Attorney P.O. Box 799 Brunswick, Ohio 44212 By: VICTOR R. PEREZ Assistant Prosecuting Attorney 110 Cottage Street Ashland, Ohio 44805 Ashland County, Case No. 16-COA-035 2
Baldwin,J.
{¶1} Appellant Michael P. Kouns appeals a judgment of the Ashland County
Common Pleas Court convicting him of engaging in a pattern of corrupt activity (R.C.
2923.32(A)(1)), complicity to trafficking in heroin (R.C. 2925.03(A)(1)(2)(C)(6), R.C.
2923.03(A)(1),(2) or (3)), complicity to trafficking in cocaine (R.C. 2925.03(A)(1)(2)(C)(4)),
R.C. 2923.03(A)(1),(2), or (3)), illegal assembly or possession of chemicals for the
manufacture of drugs (R.C. 2925.041(A)), and illegal cultivation of marijuana (R.C.
2925.04(A)(C)(5)(c)) upon a plea of guilty, and sentencing him to an aggregate term of
incarceration of twelve years. Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On October 30, 2015, a twenty-one count indictment was filed in the
Ashland County Common Pleas Court charging appellant with numerous drug-related
offenses. Pursuant to a negotiated plea, he entered guilty pleas to engaging in a pattern
of corrupt activity, complicity to trafficking in heroin, complicity to trafficking in cocaine,
illegal assembly or possession of chemicals for the manufacture of drugs, and illegal
cultivation of marijuana. He was found guilty of these five offenses, as well as four
forfeiture specifications. In exchange for the plea, the State moved to dismiss the
remaining sixteen counts of the indictment, as well as accompanying forfeiture
specifications and major drug offender specifications. The State further agreed to
recommend a sentence of no more than fourteen years.
{¶3} The trial court ordered a pre-sentence investigation. Prior to the sentencing
hearing, appellant filed a sentencing memorandum asking the trial court to impose a
sentence of five years or less, similar to the sentences imposed on his co-defendants. He Ashland County, Case No. 16-COA-035 3
argued he took an inferior role in the criminal enterprise as a “pill puppet” to co-defendant
Richard Lawless. He further argued he had become addicted to pain pills due to an
industrial injury and two car accidents, but for most of his life had supported his family
through legitimate employment.
{¶4} The trial court held a sentencing hearing on August 19, 2016. At the
hearing, appellant asked that he be sentenced similarly to his co-defendants, as they were
all pawns of Richard Lawless, who ran the drug operation. The State argued that despite
appellant’s cooperation against Lawless and his addiction problems, it stood by the
recommendation of fourteen years.
{¶5} Following the hearing, the court sentenced appellant to a term of
imprisonment of ten years for engaging in a pattern of corrupt activity, a term of three years
for complicity to trafficking in heroin, a term of three years for complicity to trafficking in
cocaine, a term of twenty-four months for illegal assembly or possession of chemicals for
the manufacture of drugs, and a term of twelve months for illegal cultivation of marijuana.
The sentences for complicity to trafficking in heroin, complicity to trafficking in cocaine,
and illegal cultivation of marijuana were ordered to run concurrently with each other and
with the sentence for engaging in a pattern of corrupt activity. The sentence for illegal
assembly or possession of chemicals for the manufacture of drugs was ordered to run
consecutively to the sentence for engaging in a pattern of corrupt activity but concurrently
with the other sentences, for an aggregate term of twelve years incarceration. It is from
this entry appellant prosecutes this appeal, assigning a single error:
{¶6} THE TRIAL COURT ERRED BY IMPOSING, CONTRARY TO LAW AND
THE CONSTITUTIONAL PROHIBITIONS AGAINST CRUEL AND UNUSUAL Ashland County, Case No. 16-COA-035 4
PUNISHMENT, CONSECUTIVE PRISON SENTENCES TOTALING TWELVE (12)
YEARS, INSTEAD OF TOTAL PRISON SENTENCE OF FIVE (5) YEARS OR LESS,
WHICH 12-YEAR SENTENCE WAS DISPROPORTIONATE WITH THE SENTENCES
IMPOSED ON HIS CO-DEFENDANTS.
{¶7} Appellant argues his sentence is disproportionate in comparison to those of
his co-defendants, and violates the Eighth Amendment’s prohibition against cruel and
unusual punishment.
{¶8} The Eighth Amendment does not require strict proportionality between
crime and sentence, but only forbids extreme sentences that are grossly disproportionate
to the crime. State v. Weitbrecht, 86 Ohio St.3d 368, 373, 715 N.E.2d 167 (1999), quoting
Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680 (1991),(Kennedy, J., concurring
in part and in judgment). In Solem v. Helm, 463 U.S. 277, 290–292, 103 S.Ct 3001, 3010–
3011, 77 L.Ed.2d 637, 649–50 (1983), the United States Supreme Court set forth a three-
part test for determining whether a sentence is disproportionate to the crime: (i) the gravity
of the offense and the harshness of the penalty; (ii) the sentences imposed on other
criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the
same crime in other jurisdictions. A sentence does not violate the constitutional prohibition
against cruel and unusual punishment unless the sentence is so grossly disproportionate
to the offense as to shock the sense of justice in the community. State v. Chaffin, 30 Ohio
St.2d 13, 59 O.O.2d 51, 282 N.E.2d 46 (1972).
{¶9} Further, for purposes of the Eighth Amendment and Section 9, Article I of
the Ohio Constitution, proportionality review should focus on individual sentences rather
than on the cumulative impact of multiple sentences imposed consecutively. State v. Ashland County, Case No. 16-COA-035 5
Hairston, 118 Ohio St.3d 289, 888 N.E.2d 1073, 2008–Ohio–2338, ¶ 20. Where none of
the individual sentences imposed on an offender are grossly disproportionate to their
respective offenses, an aggregate prison term resulting from consecutive imposition of
those sentences does not constitute cruel and unusual punishment. Id. As a general rule,
a sentence that falls within the terms of a valid sentencing statute cannot constitute cruel
and unusual punishment. Id. at ¶ 21.
{¶10} A defendant alleging disproportionality in felony sentencing has the burden
of producing evidence to “indicate that his sentence is directly disproportionate to
sentences given to other offenders with similar records who have committed these
offenses.” State v. Ewert, 5th Dist. Muskingum No. CT2012–0002, 2012-Ohio-2671, 2012
WL 2196326, ¶ 33, citing State v. Breeden, 8th Dist. No. 84663, 2005-Ohio-510, 2005 WL
315370, ¶ 81.
{¶11} Appellant’s individual sentences were within the statutory range, and less
than the fourteen-year cap the State agreed to recommend as part of the negotiated plea
agreement.
{¶12} Although appellant argues his sentence is disproportionate to the five year
sentences given to his co-defendants, the record does not demonstrate details of their
convictions, the circumstances of their crimes, or their prior history. The trial court stated
at the sentencing hearing:
And quite frankly, I think even when considering the sentences of the
other Co-defendants in these cases based on what they were charged with
and the number of offenses that they were charged with, that the sentencing
recommendation of the State is pretty close to the ballpark of what
should be imposed in this case. Ashland County, Case No. 16-COA-035 6
{¶13} Tr. (2nd Sentencing Hearing) 12.
{¶14} The record does not support appellant’s claim that the court erred in this
determination.
{¶15} The assignment of error is overruled. The judgment of the Ashland County
Common Pleas Court is affirmed. Costs are assessed to
appellant.
By: Baldwin, J.
Delaney, P.J. and
John Wise, J. concur.