State v. Lewis

2024 Ohio 67

• Court: Ohio Court of Appeals
• Decided: January 11, 2024
• Docket: 112574
• Status: Published

Opinion

[Cite as State v. Lewis, 2024-Ohio-67.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 112574 v. :

TIMOTHY M. LEWIS, SR., :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: January 11, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-641305-A

Appearances:

Flowers & Grube and Louis E. Grube, for appellant.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Christine M. Vacha, Assistant Prosecuting Attorney, for appellee.

ANITA LASTER MAYS, P.J.:

Defendant-appellant Timothy M. Lewis, Sr. (“Lewis”) appeals the

imposition of consecutive sentences arising from guilty pleas and convictions. We

affirm the trial court’s judgment. I. Background

On June 27, 2019, Lewis was indicted for the following:

Count 1, rape, felony of the first degree, in violation of R.C. 2907.02(A) (1)(B), with a sexually violent predator specification attached.

Count 2, gross sexual imposition, a felony of the third degree, in violation of R.C. 2907.05(A)(4) with a sexually violent predator specification attached.

Count 3, rape, a felony of the first degree, in violation of R.C. 2907.02(A)(1)(B) with a sexually violent predator specification attached.

Count 4, gross sexual imposition, a felony of the third degree, in violation of R.C. 2907.05(A)(4) with a sexually violent predator specification attached.

The charges arose from allegations of sexual conduct involving three

minor relatives. On July 17, 2019, 26-year-old Lewis was granted a bond reduction

and placed on a GPS monitor. On January 31, 2022, the parties set a jury trial date

for May 9, 2022. In February 2022, Lewis was in court for GPS violations, several

failures to report, passing through the exclusion zones where the alleged victims

resided, making unauthorized stops on the way to work, and testing positive for

marijuana and alcohol. His bond conditions were reinstated, and GPS reinstalled.

The trial court was advised of Lewis’s struggle to catch the bus to his

temporary job in Solon and maintain cell phone service due to budget constraints.

Lewis explained that he was working on the marijuana problem but used it to deal

with emotional issues. The probation officer advised Lewis to speak with a

counselor regarding his dependency. Lewis’s stops at the store on the way to work

were to use his cash card to obtain bus fare. Lewis also advised that the occasional vehicular passes through

exclusion zones occurred unintentionally when he was able to get rides to work.

Lewis also explained he had only been informed of one exclusion zone and that one

of the zone violations listed were for an area where the alleged victim no longer

resided. Lewis accepted the trial court’s offer to test negative for marijuana during

a 45-day day window rather than wait in jail.

On March 21, 2022, Lewis appeared in court to address additional

GPS violations. The 34 minutes spent at the basketball court located underneath his

grandmother’s residence with whom he resided was for a family balloon release for

a brother who had committed suicide several years earlier. The two nine-minute

periods at the basketball court on two evenings were to take the dog out. Two eight-

minute stops on two days at 3:06 p.m. occurred when Lewis received a ride home by

a coworker who stopped at their residence on the way. He also went to the basketball

court two other occasions for about nine minutes at approximately 7:40 p.m. Lewis

explained that the first basketball court visit was for a family balloon release on the

third anniversary of Lewis’s brother’s suicide and the other two times to take the dog

out. The two private residence stops at 3:06 p.m. occurred on days when the

coworker who gave Lewis a ride from work stopped at their residence on the way.

The trial court noted that Lewis had been on house arrest for two and one-half years

and determined that Lewis’s movement would no longer be restricted except for the

exclusion zones. On May 9, 2022, the parties appeared for trial. Defense counsel

explained that he was waiting for a medical certification crucial to Lewis’s defense

and requested a continuance. The state advised that one of the alleged victims and

the victim’s parent were not being cooperative so Counts 1 and 4 would probably be

dismissed. Trial was rescheduled for August 1, 2022.

On June 6, 2022, Lewis appeared in court to answer the state’s claim

that Lewis rode through part of an exclusion zone that the state said “was not an

intentional stop.” Since Lewis was informed of the exclusion area on May 20, 2022,

he was arrested. The state could not tell the trial court where Lewis was at within

the zone or his proximity to the excluded source, and he was at home by the time of

his arrest. Lewis had not tested positive for marijuana since early 2022. The trial

court decided to remove the GPS monitor that Lewis had been wearing for almost

three years, though he remained under supervised release.

On August 1, 2022, the defense requested another continuance as co-

counsel was in trial. Trial was rescheduled for the tenth time to October 17, 2022.

On October 17, 2022, Lewis failed to appear by 10:09 a.m. for the 10:00 a.m. trial

and a capias was issued. On November 1, 2022, Lewis appeared and advised the

trial court that when his shift in Solon ended at 6:45 a.m., his wallet was missing

from his locker and his cell phone screen was broken. He walked home from Solon

to Cleveland and emailed his attorney two days later. Counsel reminded the trial

court that Lewis had always been communicative and attendant and appeared of his

own volition. Lewis was taken into custody. On February 1, 2023, Lewis entered a guilty plea to Counts 2 and 3,

as amended, for gross sexual imposition, a third-degree felony under R.C.

2907.05(A)(4). Counts 1 and 4 were nolled. Lewis was referred for a presentence

investigation (“PSI”).

At the March 1, 2023 sentencing, Lewis cited mitigating factors for

the trial court’s consideration. Lewis was one and one-half years old in 1995 when

he and his eight siblings were placed in separate foster homes due to their mother’s

struggles with drug issues. Lewis returned to his mother’s home in 2002 and at the

age of 13 helped to run the household to prevent him and his siblings from being

removed again. He was diagnosed with post-traumatic stress disorder and anxiety

and used marijuana and alcohol as coping mechanisms. Lewis had no criminal

record. His brother, who was still in the foster care system at the time of trial, was

also charged with committing similar offenses involving the victims. His case was

pending before a different judge.

One of Lewis’s brothers committed suicide a few years prior to trial,

an uncle died of a heart attack, and his mother and grandmother suffered strokes.

Lewis paid rent to help his grandmother and worked consistently prior to entering

a plea. Each incident occurred a single time. The affected family members desired

to put the acts behind them that occurred several years before the 2019 indictments.

Lewis decided to enter a plea because the matter had been going on for three years

and he was tired of fighting it. The defense requested a community-control sanction

with substance abuse treatment and counseling. On March 2, 2023, Lewis was sentenced to five years on Count 2 and

three years on Count 3 to be served consecutively for a total term of eight years and

declared to be a Tier II sex offender. Lewis appeals.

II. Assignment of Error

Lewis’s single assignment of error is that the trial court committed

plain error by imposing consecutive sentences because the record clearly and

convincingly does not support any of the necessary factual findings.

III. Discussion

“It is well-settled that a sentence that is contrary to law is plain error

and an appellate court may review it for plain error.” State v. Efford, 8th Dist.

Cuyahoga Nos. 112077, 112078, 2023-Ohio-3360, ¶ 17, citing State v. Dowdell, 8th

Dist. Cuyahoga No. 111026, 2022-Ohio-2956, ¶ 9, citing State v. Whittenburg, 8th

Dist. Cuyahoga No. 109700, 2022-Ohio-803, ¶ 6. A trial court’s failure to make the

required R.C. 2929.14(C)(4) consecutive-sentence findings is contrary to law which

constitutes plain error. Id., citing State v. Ayers, 10th Dist. Franklin No. 13AP-371,

2014-Ohio-276, ¶ 15.

An appellate court reviews felony sentences under the standard set

forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

59 N.E.3d 1231, ¶ 16. Consecutive sentences may be challenged by arguing (1) the

sentence is contrary to law due to the trial court’s failure to make the requisite R.C.

2929.14(C)(4) requirements pursuant to R.C. 2953.08(G)(2)(b); or (2) the record

“‘clearly and convincingly’” does not support the court’s R.C. 2929.14(C)(4) findings pursuant to R.C. 2953.08(G)(2)(a). State v. Trujillo, 8th Dist. Cuyahoga No. 112442,

2023-Ohio-4068, ¶ 41, citing State v. Reindl, 8th Dist. Cuyahoga Nos. 109806,

109807, and 109808, 2021-Ohio-2586, ¶ 13; State v. Nia, 2014-Ohio-2527, 15

N.E.3d 892, ¶ 16 (8th Dist.).

Clear and convincing evidence is that measure or degree of proof which is more than a mere “preponderance of the evidence,” but not to the extent of such certainty as is required “beyond a reasonable doubt” in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22, quoting Cross

v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.

A trial court is not required to recite the statutory language verbatim,

nor is it required to state its reasons to support its findings “‘“provided that the

necessary findings can be found in the record and are incorporated in the sentencing

entry.””’ State v. Saxon, 8th Dist. Cuyahoga No. 111493, 2023-Ohio-306, at ¶ 17,

quoting State v. Sheline, 8th Dist. Cuyahoga No. 106649, 2019-Ohio-528, ¶ 176,

quoting State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.

The trial court stated:

The problem when we’re dealing with victims who are children is that the impact on those victims is great. I mean, this is something that they’re going to live with and something that’s going to keep replaying itself in their head.

So while I knew that I was going to send you to prison, the question is for how long. I understand that you don’t have a prior record and I understand that you’re all family, and I know this is tearing the family apart, because, on one hand, again, they want you to pay, and another hand, you’re the brother, you’re the father—not the father, the son, the grandson, et cetera. But I just feel that this is serious, and I don’t know—I don’t think it deserves a slap on the wrist. I just don’t. I think that this is something that—I understand your background as well when you’re taken from your own parent at a young age and you’re put into the system. I understand that there is a lot of trauma in your life as well. But now there is trauma for these two kids, especially the young girl as well as the guy. Even though he is older now and he was older at the time, it still is something that he won’t forget.

Tr. 148-149.

The trial court continued:

With that being said, as to amended Count 2, the Defendant is sentenced to 5 years in prison.

As to the amended Count 3, I am going to sentence you to 3 years in prison. That time will run consecutive for a total time of 8 years in prison.

The Court finds that consecutive sentences are necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the dangers it would pose to the public.

Furthermore, the Court finds that at least two of the multiple offenses were committed as part of one or more courses of conduct and that the harm caused by the abuse on these children is great, and no single prison term for any of the offenses committed as part of the conduct adequately reflects the seriousness of the offender’s conduct.

The Court has taken into consideration the fact that he has no prior record. That is why the sentence is as it is and not more.

(Emphasis added.) Tr. 149-150.

Lewis expressed remorse to the trial court. The trial court heard at

sentencing, and the record contains the same in the PSI, the details of the sexual

misconduct and the impact that Lewis’s behavior had on the victims. The fact that familial relationships were involved has been painful and traumatic for the victims

and the family members.

After conducting a thorough review of the record, this court does not

find that the record clearly and convincingly fails to support the trial court’s findings.

We therefore find that Lewis has not demonstrated plain error. The assignment of

error is overruled.

IV. Conclusion

The trial court’s judgment is affirmed.

The court finds there were reasonable grounds for this appeal.

It is ordered that appellee recover from appellant costs herein taxed.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

____________________________________ ANITA LASTER MAYS, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, A.J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE OPINION); MARY J. BOYLE, J., CONCURS WITH THE SEPARATE CONCURRING IN JUDGMENT ONLY OPINION KATHLEEN ANN KEOUGH, A.J., CONCURRING IN JUDGMENT ONLY:

I concur with the decision affirming Lewis’s sentence that included

consecutive sentences. But I write separately to express my opinion that a defendant

does not need to object to the trial court’s imposition of consecutive sentences to

preserve the issue on appeal.

In State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d

1028, the lead opinion addressed and sustained Beasley’s challenge to the

imposition of consecutive sentences even though he did not object to the trial court

imposing consecutive sentences. Id. at ¶ 252-262. The dissenting opinion explicitly

pointed out that because the defendant did not object, he had waived all but plain

error. Id. at ¶ 268-280 (DeWine, J., dissenting). Because the Beasley majority did

not find that this impairment hindered the court’s review, I believe that the court

implicitly held that a defendant does not need to object to a trial court’s imposition

of consecutive sentences.

Additionally, the Twelfth District in State v. Morris, 12th Dist. Butler

No. CA2022-11-105, 2023-Ohio-3412, ¶ 26-28, recently addressed this issue when

the state, relying on State v. Whitaker, 169 Ohio St.3d 647, 2022-Ohio-2840, 207

N.E.3d 677, ¶ 166, suggested that the court’s standard of review is limited to plain

error because the defendant did not object after consecutive sentences were

imposed.

The relevant paragraph in Whitaker cites another capital case, State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, [¶ 152], Hunter, in turn, cites a third capital case, State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, [¶ 377]. In Whitaker, the appellant argued that a trial court erred by imposing consecutive sentences for noncapital counts in a capital case, and the supreme court determined that plain error review applied because the appellant failed to raise this argument at the sentencing hearing. Whitaker at ¶ 166. In Hunter, the supreme court applied plain error review to the appellant’s argument that the imposition of consecutive sentences in a capital case was unconstitutional. Hunter at ¶ 151-155. In Davis, the supreme court did not even mention plain error in the portion cited in Hunter, but instead stated that when the appellant objected to consecutive sentences but failed to raise the specific constitutional arguments he raised on appeal, those constitutional arguments were forfeited. Davis at ¶ 377.

While all three of these cases discuss either plain error review or forfeiture in the context of a challenge to consecutive sentences, none of these cases involve the type of argument before us today — that is, none involve a challenge to R.C. 2929.14(C)(4) consecutive sentence findings under R.C. 2953.08(G)(2). It is not clear that the Ohio Supreme Court in Whitaker, Hunter, or Davis intended to suggest that an offender who fails to object to consecutive sentences after they are imposed is limited to plain error review when the offender brings an appeal challenging R.C. 2929.14(C)(4) consecutive sentence findings under R.C. 2953.08(G)(2).

Id. at ¶ 26-28.

I agree with the Morris analysis, and based on Beasley, it is my

opinion that a defendant does not need to object to preserve appellate review

beyond that of plain error when challenging the consecutive-sentence findings

under R.C. 2929.14(C)(4). Because the majority opinion implies otherwise, I

respectfully concur in judgment only.