State v. Lemmings

2021 Ohio 3285

• Court: Ohio Court of Appeals
• Decided: September 20, 2021
• Docket: CA2021-01-001
• Status: Published

Opinion

[Cite as State v. Lemmings, 2021-Ohio-3285.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLINTON COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2021-01-001

: OPINION - vs - 9/20/2021 :

JUSTIN R. LEMMINGS, :

Appellant. :

CRIMINAL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS Case No. CRI 19500101

Andrew T. McCoy, Clinton County Prosecuting Attorney, and Katie Wilkin, for appellee.

The Law Office of John D. Hill, LLC, and John D. Hill, Jr., for appellant.

HENDRICKSON, J.

{¶1} Appellant, Justin R. Lemmings, appeals from the sentence imposed by the

Clinton County Court of Common Pleas following his guilty plea to four counts of felonious

assault. For the reasons set forth below, we affirm appellant's sentence.

{¶2} On May 28, 2019, appellant, then 18 years old, was released from electronic

monitoring imposed pursuant to a juvenile court dispositional order. Appellant then spent

the afternoon drinking alcohol. Despite being under the influence, appellant drove a 2002 Clinton CA2021-01-001

Chevrolet Impala through Wilmington, Clinton County, Ohio. Four of appellant's friends

rode along in the vehicle with appellant.

{¶3} Appellant briefly parked at a Kroger grocery store, where an altercation

occurred between appellant, one of his passengers, and another individual. Appellant flew

into a fit of rage and drove off with his passengers still in the vehicle. Appellant sped and

drove recklessly, running stop signs and traffic lights in downtown Wilmington. Appellant

refused pleas from his passengers to slow down, pull over, or stop his vehicle. When one

of his passengers, the mother to appellant's children, reminded appellant of his children,

appellant stated "Fuck you and fuck them." When another passenger asked appellant to

stop the vehicle, appellant stated, "No, you bitches are dying with me."

{¶4} As appellant approached a busy intersection, a vehicle driven by Ashley Davis

turned on a green light. Davis' vehicle was occupied by her three daughters, eight-year-old

twins L.D. and A.D. and six-year-old K.D. Appellant ran a red light and struck Davis' vehicle

so hard that the imprint of his front license plate could be seen in the frame of Davis' vehicle.

An investigation into the accident revealed that appellant's vehicle had been traveling at a

speed of 97 m.p.h. five seconds before it struck Davis' vehicle. Although appellant had hit

his brakes, his vehicle was still traveling 62 m.p.h. at the time of the collision. Subsequent

testing of appellant revealed he had a blood-alcohol level of 0.114 and THC in his system.

{¶5} Davis and her three daughters suffered serious physical injuries as a result of

the accident. Davis had to be transported by air to a hospital in Dayton. She suffered a

severed aorta, which required immediate heart surgery, as well as fractured vertebrae,

multiple rib fractures, injury to her spleen, abdominal bleeding, a lacerated kidney, and

fractures to her hands. K.D. suffered a craniotomy emergency, which required her to be

transported from the local hospital to Cincinnati Children's Hospital by air care. K.D. had

an epidural hematoma, which is bleeding in the brain between the membrane and the skull,

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a depressed skull fracture, a fractured right orbital, an attenuated left orbital, and multiple

bruises and lacerations throughout her body. K.D. had emergency surgery to have a metal

plate, or a craniotomy plate, installed in her skull and had to relearn how to walk and talk.

A.D. and L.D. suffered multiple bruises and lacerations about their bodies and faces. A.D.

also suffered a fracture of the pelvis wing bone and adjacent muscular hematoma.

{¶6} In addition to their physical injuries, Davis and her three daughters have also

experienced psychological trauma as a result of the accident. Davis, L.D., and A.D.

participate in therapy. L.D. and A.D. have been seen by licensed psychologists and have

been diagnosed with PTSD and separation anxiety. They also suffer with difficulty sleeping

and have nightmares about the accident. L.D., in particular, struggles with memories of the

accident, as she remained conscious throughout the crash and recalls the blood, injuries,

and painful sounds her mother and K.D. made while awaiting help. Since the accident, K.D.

has suffered from impulse control issues and an inability to manage her emotions.

Appellant was charged on a 20-count indictment consisting of 11 counts of felonious

assault, six counts of aggravated vehicular assault, two counts of abduction, and one count

of endangering children. On December 8, 2020, following plea negotiations, appellant pled

guilty to four counts of felonious assault with a deadly weapon in violation of R.C.

2903.11(A)(2), felonies of the second degree, in exchange for the remaining counts being

dismissed.

{¶7} After engaging appellant in a Crim.R. 11(C) plea colloquy, the trial court

accepted appellant's guilty pleas and found that the pleas were knowingly, intelligently, and

voluntarily entered. The court then heard arguments from the state and defense as to

sentencing, although the court indicated it would not impose a sentence until the following

week. After hearing from the state, the victims, family members of the victims, defense

counsel, and appellant, the court ordered that a presentence-investigative report ("PSI") be

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prepared and continued the sentencing hearing.

{¶8} On December 15, 2020, the court sentenced appellant to five-year prison

terms on each of the felonious assault counts. The court ordered the prison terms be served

consecutively to one another. In accordance with the Reagan Tokes Law, R.C. 2929.144,

the aggregate sentence imposed was an indefinite prison term of 20 to 22.5 years.

{¶9} Appellant appealed his sentence, raising two assignments of error.

{¶10} Assignment of Error No. 1:

{¶11} THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES

AGAINST [APPELLANT], AS THE STATUTORY FINDINGS UNDERPINNING THE

IMPOSITION OF SUCH SENTENCES WAS UNSUPPORTED BY THE RECORD.

{¶12} In his first assignment of error, appellant argues the trial court erred by

sentencing him to consecutive prison terms because the record does not support the

imposition of consecutive sentences.

{¶13} This court reviews felony sentences pursuant to the standard of review set

forth in R.C. 2953.08(G)(2) to determine whether the imposition of those sentences is

clearly and convincingly contrary to law. State v. Julious, 12th Dist. Butler No. CA2015-12-

224, 2016-Ohio-4822, ¶ 8. Pursuant to that statute, an appellate court may modify or vacate

a sentence only if it determines 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.'" State v. Harp, 12th Dist. Clermont No. CA2015-12-096, 2016-Ohio-4921,

¶ 7, quoting State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. A sentence is not

clearly and convincingly contrary to law where the trial court considers the purposes and

principles of sentencing as set forth in R.C. 2929.11, as well as the seriousness and

recidivism factors listed in R.C. 2929.12, and sentences a defendant within the permissible

statutory range. State v. Brandenburg, 12th Dist. Butler Nos. CA2014-10-201 and CA2014-

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10-202, 2016-Ohio-4918, ¶ 9.

{¶14} Pursuant to R.C. 2929.14(C)(4), a trial court must engage in a three-step

analysis and make certain findings before imposing consecutive sentences. State v. Dillon,

12th Dist. Madison No. CA2012-06-012, 2013-Ohio-335, ¶ 9. First, the trial court must find

that the consecutive sentence is necessary to protect the public from future crime or to

punish the offender. Id., citing R.C. 2929.14(C)(4). Second, the trial court must find that

consecutive sentences are not disproportionate to the seriousness of the offender's conduct

and to the danger the offender poses to the public. Id. Third, the trial court must find that

one of the following applies:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, 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.

R.C. 2929.14(C)(4)(a)-(c).

{¶15} "A trial court satisfies the statutory requirement of making the required findings

when the record reflects that the court engaged in the required analysis and selected the

appropriate statutory criteria." State v. Setty, 12th Dist. Clermont Nos. CA2013-06-049 and

CA2013-06-050, 2014-Ohio-2340, ¶ 113. In imposing consecutive sentences, the trial court

is not required to provide a word-for-word recitation of the language of the statute or

articulate reasons supporting its findings. Id. Nevertheless, the record must reflect that the

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trial court engaged in the required sentencing analysis and made the requisite findings. Id.

The court's findings must thereafter be incorporated into its sentencing entry. State v.

Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 10.

{¶16} Appellant concedes that the necessary findings under R.C. 2929.14(C)(4)

were made at his sentencing hearing and that the findings were included in his sentencing

entry. However, he argues that the record does not support the imposition of consecutive

sentences as "the length of his sentence was ultimately grossly disproportionate to the

nature of his conduct, the need to punish him, and the danger he posed to the community

at-large."

{¶17} We disagree with appellant's arguments and find that the trial court's R.C.

2929.14(C)(4) consecutive sentencing findings are supported by the record. The record

reflects that appellant has a significant criminal history dating back to when he was a

juvenile. The PSI revealed that appellant was first adjudicated delinquent for criminal

damaging when he was 12 years old. Between the ages of 12 and 17, appellant was

subsequently adjudicated delinquent for being an unruly child, disorderly conduct, underage

consumption of alcohol, multiple counts of possession of marijuana, multiple assaults,

vandalism, and criminal damaging. While on probation for those offenses, appellant had

more than 20 probation violations, which included continuing to test positive for marijuana

and benzodiazepines, cutting off his electronic monitoring bracelet, and consuming alcohol.

While a juvenile, appellant participated in the Stepping Stones program, was placed at

Basset House and a rehabilitation center, and also served several periods of detention at

various juvenile detention centers. None of these sanctions impacted appellant's conduct.

Shortly after turning 18, appellant was involved in a domestic violence incident and

subsequently pled guilty to a reduced charge of disorderly conduct. He continued to abuse

drugs and alcohol, including on the day of the accident that led to the felonious assault

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charges.

{¶18} On the morning of May 28, 2019, appellant was released from electronic

monitoring imposed as part of a juvenile court dispositional order. Mere hours later, he

drank alcohol and then drove while under the influence of alcohol and marijuana. In doing

so, appellant put himself, his passengers, and other members of the community at serious

risk of physical harm. Appellant ignored pleas from the passengers in his vehicle to stop

driving recklessly, to slow down, or stop the vehicle, telling his passengers "you bitches are

dying with me" as he drove at excessive speed and ignored traffic laws. Appellant struck

Davis' vehicle at 62 m.p.h. and caused significant harm to Davis and her daughters. All

four victims had to be rushed from the scene by helicopter or ambulance. Both Davis and

K.D. required emergency, life-saving surgeries. In addition to serious physical injuries,

consisting of broken bones, internal injuries, bruises, and lacerations, the victims also

suffered psychological harm as a result of appellant's actions – a harm that was

exacerbated due to the young age of K.D., A.D., and L.D. The victims are in therapy, with

A.D. and L.D. having been diagnosed with PTSD and separation anxiety. K.D., in turn,

suffers from impulse control issues and an inability to manage her emotions.

{¶19} Despite the significant harm he caused to his victims, appellant did not appear

genuinely remorseful for his actions. While in jail awaiting trial, appellant had multiple phone

conversations with family and friends wherein the accident or his victims were discussed.

One conversation occurred after appellant's bond hearing, wherein a relative of the victims

gave the court an update on the physical health of the victims. After hearing about the

conditions of the victims, appellant's response in a recorded jail call was that the victims'

relative "came to court talking shit." In other recorded phone calls, appellant is heard stating

that the legal trouble he faced had been "blown out of proportion" and that he can fake tears

and write a remorseful letter to the judge in an effort to get a lesser sentence. Rather than

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expressing genuine remorse for his actions and the harm he caused, appellant appeared

proud of his actions. At one point he asks the mother of his children, "You know I'm a

fucking gangster, right? I did all that shit and didn't even get a concussion." He also

appeared proud of the media coverage he was receiving, asking how many articles had

been written about him and the accident and laughing and joking that his mother has bought

out all the newspapers.

{¶20} Additionally, while in jail awaiting trial, appellant committed more than 20 jail

infractions. Appellant disrespected officers, disobeyed direct orders, fought with other

inmates, abused prescription medications, threatened to extort inmates possessing

contraband, attempted to bribe officers, and damaged security windows and the video

visitation kiosk.

{¶21} Through his statements and actions, appellant has demonstrated a continued

lack of respect for the law or for the affect his actions have on others in the community. The

nature of appellant's crimes, his significant criminal history, his lack of genuine remorse,

and the continued danger he poses to the public support the imposition of consecutive

sentences. Accordingly, we find that the imposition of consecutive sentences is not

disproportionate to the seriousness of appellant's conduct or the danger he poses to the

public. Contrary to appellant's assertions, the imposition of consecutive sentences was

necessary to punish appellant and to protect the public from future crime by appellant. The

trial court's findings under R.C. 2929.14(C)(4) are not clearly and convincingly unsupported

by the record.

{¶22} As appellant's sentence is supported by the record and is not contrary to law,

we find that the trial court did not err in imposing consecutive sentences on appellant.

Appellant's first assignment of error is, therefore, overruled.

{¶23} Assignment of Error No. 2:

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{¶24} THE TRIAL COURT'S IMPOSITION OF TWENTY-TO-TWENTY-TWO YEAR

AGGREGATE SENTENCE AGAINST JUSTIN WAS NOT SUPPORTED BY THE RECORD

BEFORE IT, AND SUCH SENTENCE VIOLATED THE EIGHTH AMENDMENT'S

PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT.

{¶25} In his second assignment of error, appellant again challenges his sentence,

arguing that the imposed aggregate 20-to-22.5-year sentence was "effectively * * * a life

sentence," was "unconscionable under the circumstances," and amounted to a violation of

the Eighth Amendment to the United States Constitution. We find appellant's arguments to

be without merit.

{¶26} The Eighth Amendment to the United States Constitution provides that

"[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted." The amendment applies to the states pursuant to the Fourteenth

Amendment. See State v. Accorinti, 12th Dist. Butler Nos. CA2012-10-205 and CA2012-

11-221, 2013-Ohio-4429, ¶ 20, citing Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417

(1962).

{¶27} "[P]roportionality review in the context of cruel and unusual punishment does

not apply to aggregate sentences." State v. Rowland, 12th Dist. Warren No. CA2019-08-

084, 2020-Ohio-2984, ¶ 61. "[I]t is not the aggregate term of incarceration but, rather, the

individual sentences that are relevant." State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-

2338, ¶ 22. Therefore, "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 cumulative impact of multiple sentences imposed consecutively. 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. at ¶ 20.

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{¶28} Furthermore, "[i]t is generally accepted that punishments which are prohibited

by the Eighth Amendment are limited to torture or other barbarous punishments, degrading

punishments unknown at common law, and punishments which are so disproportionate to

the offense as to shock the moral sense of the community." McDougle v. Maxwell, 1 Ohio

St.2d 68, 69 (1964). A sentence that falls within statutory limitations is not excessive and

does not violate the constitutional prohibition against cruel and unusual punishment.

Rowland at ¶ 63; McDougle at 69.

{¶29} Here, each of appellant's individual prison terms fell within the range

authorized by R.C. 2929.14(A)(2)(a). As appellant was convicted of multiple second-degree

felonies, the court was permitted to impose a prison term of two, three, four, five, six, seven,

or eight years for each offense. The court elected to impose a term of five years for each

of the four counts of felonious assault with a deadly weapon – a term that is authorized by

law. Nothing about appellant's individual five-year sentences are "grossly disproportionate"

to his crime. Moreover, the individual sentences are not contrary to law as the trial court

considered the principles and purposes of felony sentencing and the seriousness and

recidivism factors set forth in R.C. 2929.11 and 2929.12, respectively, in imposing the

sentences.

{¶30} Accordingly, as the individual sentences imposed by the trial court are within

the range of penalties authorized by statute, they are not grossly disproportionate or

shocking to a reasonable person or to the community's sense of justice, and do not

constitute cruel and unusual punishment. Appellant's aggregate indefinite prison term of

20 to 22.5 years, which resulted from the consecutive imposition of the individual sentences,

does not violate the Eighth Amendment to the United States Constitution. See Hairston at

¶ 23. As discussed in our resolution of appellant's first assignment of error, the imposition

of consecutive sentences were supported by the record and were not disproportionate to

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his conduct or the danger he poses to the public.

{¶31} Appellant's second assignment of error is, therefore, overruled.

{¶32} Judgment affirmed.

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

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