State v. Lightner

2024 Ohio 736

• Court: Ohio Court of Appeals
• Decided: February 29, 2024
• Docket: 112850
• Status: Published

Opinion

[Cite as State v. Lightner, 2024-Ohio-736.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 112850 v. :

MAURICE LIGHTNER, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: February 29, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-22-673090-A and CR-22-675509-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Mary Grace Tokmenko, Assistant Prosecuting Attorney, for appellee.

Culleen Sweeney, Cuyahoga County Public Defender, and John T. Martin, Assistant Public Defender, for appellant.

KATHLEEN ANN KEOUGH, A.J.:

Defendant-appellant, Maurice D. Lightner (“Lightner”), appeals from

the trial court’s judgment, rendered after his guilty pleas, sentencing him to consecutive sentences totaling five years in prison. Finding no merit to the appeal,

we affirm.

I. Background

The record reflects that on April 19, 2022, the police executed a search

warrant at Lightner’s home and recovered 90 grams of fentanyl, 20 grams of crack

cocaine, four grams of Ecstasy, and four handguns. As a result of the search,

Lightner was indicted on August, 4, 2022, in Cuyahoga C.P. No. CR-673090 in an

eight-count indictment that charged him with two counts of drug trafficking, two

counts of drug possession, and one count each of possession of criminal tools,

endangering children, having weapons while under disability, and receiving stolen

property, with various accompanying firearm and forfeiture specifications.

On October 24, 2022, while CR-673090 was pending, the police

stopped a car in which Lightner was a passenger for a traffic violation and discovered

fentanyl, cocaine, and a scale and razor with cocaine residue on it under Lightner’s

seat. As a result of the stop, Lightner was indicted in Cuyahoga C.P. No. CR-675509

with three counts of drug trafficking, three counts of drug possession, and one count

of possessing criminal tools, all with various forfeiture specifications.

At a plea hearing on April 11, 2023, Lightner pleaded guilty in CR-

673090 to one count of drug trafficking, a felony of the third degree; one count of

child endangering, a first-degree misdemeanor; and one count of having a weapon

while under disability. In CR-675509, he pleaded guilty to one count of drug

trafficking, a third-degree felony; and possession of criminal tools, a felony of the fifth degree. Lightner appeared at the plea hearing in a wheelchair; he told the court

that he had a stroke in December 2022.

At the subsequent sentencing hearing, the trial court reviewed

Lightner’s criminal history before sentencing him. The court found that he had a

criminal history that began as a juvenile in 1999. (Tr. 26.) The court noted that in

2002, Lightner was adjudicated delinquent on a third-degree felony drug trafficking

case in juvenile court, and in 2004, he was adjudicated delinquent in two drug-

related cases. (Tr. 26-27.)

The trial court found that in 2010, Lightner was charged in common

pleas court with carrying concealed weapons and drug trafficking. (Tr. 27.) He was

sentenced to community-control sanctions but violated the sanctions on several

occasions. Id. In 2014, while he was on probation, Lightner pleaded guilty to

attempted drug trafficking and drug possession in another case. Id. He was

sentenced to probation, which he violated, and was eventually sentenced to nine

months in prison. Id. In 2017, Lightner was charged in another drug trafficking

case and sentenced to 20 months in prison. (Tr. 28.) After Lightner’s release from

prison in 2018, he was charged in a case in Shaker Heights Municipal Court and

another in Cleveland Municipal Court. Id.

The trial court found that in April 2022, Lightner was “caught with

fentanyl in an amount significant enough to kill an entire high school full of children.

50 grams.” (Tr. 28.) The court found that even after the April 2022 arrest, Lightner did not “change [his] ways” or “stay clean,” and in October 2022, while out on bond

on the first case, was caught with more drugs, including fentanyl. Id.

The trial court noted that as a drug-court judge, he has seen the

devastation caused by people who “sling fentanyl like it’s Halloween candy.” (Tr.

29.) The court stated that it did not feel sorry for Lightner, even though he was in a

wheelchair because of his stroke, “because I know there are mothers and fathers out

there who are without their children completely.” (Tr. 29.) The judge told Lightner,

“Your mom is in the back of the courtroom. You’re still alive. I am sure that there

are others out there because of your dealings that are without children, that are

without partners, that are without parents and mothers and fathers.” Id.

The judge then told Lightner that he would be receiving consecutive

sentences “because of your criminal history and because you have been arrested on

one case and picked up another case.” Id. The judge sentenced Lightner in CR-

675509 to concurrent prison sentences totaling 36 months and in CR-673090 to

concurrent prison sentences totaling 24 months, and ordered that CR-673090

would be served consecutively to CR-675509, for a total term of 60 months in prison.

(Tr. 29-30.)

The trial judge stated, “This is a five-year sentence. I find that five

years is not disproportionate to the actions that you took in these cases and I find it

necessary to protect the public.” (Tr. 30.) The court further found that CR-675509

was committed while Lightner was awaiting trial on CR-673090, and that his criminal history demonstrated that consecutive terms were “necessary to protect the

public.” (Tr. 30-31.) Lightner now appeals from this sentence.

II. Law and Analysis

In his single assignment of error, Lightner challenges the imposition

of consecutive sentences.

We review 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. Under R.C. 2953.08(G)(2), an appellate court may increase, reduce,

modify, or vacate and remand a challenged felony sentence if the court clearly and

convincingly finds either that the record does not support the sentencing court’s

findings under various sentencing statutes, including R.C. 2929.14(C)(4), or the

sentence is contrary to law.

Under Ohio law, sentences are presumed to run concurrently unless

the trial court makes the required findings under R.C. 2929.14(C)(4). State v.

Gohagan, 8th Dist. Cuyahoga No. 107984, 2019-Ohio-4070, ¶ 28; State v. Bonnell,

140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 20-22. To impose

consecutive sentences, the trial court must find that (1) consecutive sentences are

necessary to protect the public from future crime or to punish the offender, (2)

consecutive sentences are not disproportionate to the seriousness of the offender’s

conduct and to the danger the offender poses to the public, and (3) at least one of

the following applies: (1) The offender committed one or more of the multiple offenses while awaiting trial or sentencing, while under a sanction, or while under postrelease control for a prior offense;

(2) At least two of the multiple offenses were committed as part of one or more courses of the conduct, and the harm caused by two or more of the offenses 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; or

(3) 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).

The trial court is not “required to give a talismanic incantation of the

words of the statute, provided that the necessary findings can be found in the record

and are incorporated into the sentencing entry.” Id. “[A] word-for-word recitation

of the language of the statute is not required, and as long as the reviewing court can

discern that the trial court engaged in the correct analysis and can determine that

the record contains evidence to support the findings, consecutive sentences should

be upheld.” Id. at ¶ 29. When considering whether the trial court has made the

requisite findings, we must view the trial court’s statements on the record “in their

entirety.” See, e.g., State v. Wells, 8th Dist. Cuyahoga No. 109787, 2021-Ohio-2585,

¶ 74; State v. Aguilar, 8th Dist. Cuyahoga No. 109283, 2021-Ohio-841, ¶ 22; State v.

Blevins, 2017-Ohio-4444, 93 N.E.3d 246, ¶ 21, 23 (8th Dist.).

Lightner contends that his consecutive sentence is contrary to law

because the trial court failed to make the second R.C. 2929.14(C)(4) finding, known

as the proportionality finding. This finding requires the court to 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.” In making the

proportionality finding, the trial court stated that “five years is not disproportionate

to the actions that you took in these cases and I find it necessary to protect the

public.” (Tr. 30.) Lightner concedes that the trial court made the first part of the

proportionality finding but asserts that the trial court did not find that consecutive

sentences are not disproportionate to the danger he poses to the public. His

argument is without merit.

With respect to the proportionality finding, the “essential question” is whether the record of the sentencing hearing “makes it clear” that the court considered both (1) the seriousness of the offender’s conduct and (2) the danger the offender poses to the public and “compared those factors to the sentence imposed on the defendant and determined that comparison supported the imposition of the consecutive sentence.”

State v. Hervey, 8th Dist. Cuyahoga No. 110775, 2022-Ohio-1498, ¶ 20, quoting

State v. Tolbert, 8th Dist. Cuyahoga No. 110249, 2022-Ohio-197, ¶ 48. The record

reflects that the trial court did exactly that.

Specifically, after reviewing Lightner’s extensive criminal history

involving drug trafficking, the court found that in CR-673090, Lightner was caught

with 50 grams of fentanyl, “an amount significant enough to kill an entire high

school full of children.” (Tr. 28.) The court found that only six months later,

Lightner was found with more drugs, including fentanyl, as well as a scale and a

razor with cocaine residue on it. The judge stated that as a drug-court judge, he was

well aware of the devastation caused by defendants such as Lightner who sell fentanyl, and that undoubtedly there are individuals in the community who lost

their partner or parent because of Lightner’s drug dealing. (Tr. 29.) Significantly,

the trial judge also told Lightner that he was fortunate that the state dropped the

first-degree felony drug trafficking charge in CR-673090 to a third-degree felony

drug trafficking charge, thereby reducing the prison time the court could impose

from 11 years to three years. (Tr. 29.) The judge told Lightner that was “a pretty

nice discount” because the judge would have sentenced him to 11 years. (Tr. 28-29.)

On this record, after considering the trial court’s statements at the

sentencing hearing in their entirety, it is apparent that the court considered the

seriousness of Lightner’s drug dealing and the danger his drug dealing posed to the

public, and then, after comparing those factors to the 36 month sentence in CR-

675509 and the 24 month sentence in CR-673090, determined that the comparison

supported the imposition of consecutive sentences. See Hervey, 8th Dist. Cuyahoga

No. 110775, 2022-Ohio-1498, at ¶ 21, citing Tolbert, 8th Dist. Cuyahoga No. 110249,

2022-Ohio-197, at ¶ 48. Accordingly, although the judge did not use the express

statutory language of the second part of the proportionality finding, it is clear that

the court found that consecutive sentences are not disproportionate to the danger

Lightner poses to the public. Lightner’s consecutive sentences are not contrary to

law and, therefore, the assignment of error is overruled.

Judgment affirmed.

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

The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

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

of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

EILEEN T. GALLAGHER, J., and MARY J. BOYLE, J., CONCUR