State v. Lowery

2023 Ohio 4444, 231 N.E.3d 506

• Court: Ohio Court of Appeals
• Decided: December 8, 2023
• Docket: 2023-CA-4
• Status: Published

Opinion

[Cite as State v. Lowery, 2023-Ohio-4444.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Appellee : C.A. No. 2023-CA-4 : v. : Trial Court Case No. 22-CR-0288 : DARNELL LOWERY : (Criminal Appeal from Common Pleas : Court) Appellant : :

...........

OPINION

Rendered on December 8, 2023

NICOLE RUTTER-HIRTH, Attorney for Appellant

KADAWNI A. SCOTT, Attorney for Appellee

.............

TUCKER, J.

{¶ 1} Darnell Lowery appeals from his conviction following a guilty plea to one

count of aggravated burglary with a firearm specification.

{¶ 2} Lowery contends the trial court violated his Fifth Amendment privilege

against self-incrimination by considering as a sentencing factor his refusal to identify an

accomplice who participated in the crime with him. -2-

{¶ 3} We conclude that plain-error review applies and that the trial court’s

consideration of Lowery’s refusal to name his accomplice did not constitute an obvious

violation of the Fifth Amendment. Accordingly, the trial court’s judgment will be affirmed.

I. Background

{¶ 4} A grand jury indicted Lowery on one count of aggravated burglary, four

counts of kidnapping, four counts of aggravated robbery, and accompanying firearm

specifications. The charges stemmed from an incident in which Lowery and an

unidentified accomplice forced entry into a home and held six occupants at gunpoint while

threatening to rape and shoot them if they did not surrender money and personal property.

Lowery ultimately pled guilty to one count of aggravated burglary with a firearm

specification in exchange for dismissal of all other charges and specifications. The trial

court accepted the plea and made a finding of guilt.

{¶ 5} At sentencing, defense counsel opined that Lowery was remorseful, that his

actions were out of character, and that they were unlikely to recur. Lowery also addressed

the trial court, explaining that he was a new father and seeking leniency. He professed

deep sorrow and regret. In response, the prosecutor cited victim-impact statements and

noted that the six victims still lived in fear because Lowery had refused to disclose the

identity of his accomplice to a detective. In advocating for a maximum sentence, the

prosecutor stated:

* * * [The victims] were terrorized still by having to testify, by having

to face Darnell Lowery, the man that came into their house and terrorized

them along with a co-defendant who Mr. Lowery continues to refuse to give -3-

up.

You know, he had a long interview with Detective Jordan where, you

know, they kind of sat down man-to-man and had a heart-to-heart. It is what

it is. Darnell left his DNA at the scene. He left it on magazines there but he

wasn’t going to give up the man that pulled out his penis and threatened to

rape those victims.

***

So who is that other individual? Who is that monster? There’s a lot

of mistakes and I’ve heard a lot about accountability but I don’t see the

accountability here unless you are going to tell us what happened, who did

what. And I understand that there’s a code that we won’t understand and,

you know, Darnell told Detective Jordan there that in his interview originally

and I don’t know if that’s changed or not.

But, Your Honor, I believe that the only sentence that can punish him

appropriately within the sentencing guidelines is the maximum sentence to

what he pled to. Thank you.

Sentencing Transcript at 8-10.

{¶ 6} Following the prosecutor’s remarks, the trial court had the following exchange

with Lowery:

THE COURT: Would you like to tell us the name of the person you

committed this crime with?

THE WITNESS: Your Honor, I’ve taken accountability for my actions -4-

and being sorry for my actions.

THE COURT: I just asked you a question. Would you like to tell us

who you committed this crime with? You know there’s no honor in that. You

think you’re being honorable by not giving up somebody when the reality is

there’s 6 people out there terrified that there’s another person out there that

broke into their house and traumatized them so if you really want to do the

honorable thing you would tell these gentlemen who that person was.

THE WITNESS: I mean, that person’s not coming home for a long

time, may never come home.

THE COURT: Mr. Lowery, I’m not interested in having a conversation

with you about how you rationalize not giving this person up. If you would

like to tell these gentlemen who it is, it might help you.

All right. Everything you just said then is a bunch of BS about taking

responsibility, being remorseful. I don’t want to hear any more about that

because you just undermined all of that with your pathetic choice not to tell

these gentlemen who you committed that crime with.

Now, first off, in your statement to the probation department you said

you’ve been in the system your whole life and never really had a fair shot.

Really? In juvenile court where you got the B and E, you didn’t get

probation? When you got convicted of this attempted offense, this

misdemeanor in municipal court, your jail sentence was suspended. You

committed a disorderly conduct and you got probation. And then you’re -5-

convicted of two felony offenses, possession of drugs, a fifth-degree felony,

and attempted illegal conveyance, a fourth-degree felony, and you got

probation. And you got sent to West Central.

So let’s not say you’ve never gotten a fair shot. You said this was a

mistake. This is not a mistake. This is an aggravated burglary with a firearm

specification, a first-degree felony offense. That’s not a mistake. That was

a choice you made and to call it a mistake, just that tells me that you’re not

remorseful.

You said you ain’t really hurt no one. Like the Prosecutor said, I read

6 victim impact statements of people who are hurt terribly, maybe not

physically but they are traumatized. You say you’re not a menace to society.

You are. You say you don’t deserve a decade or more in prison. Thank God

that you don’t mete out justice in this community because you have no idea

what justice is. You do deserve that. You deserve every bit of it and you’re

going to get every bit of it.

The Court is going to order that you be sentenced to the maximum

penalty, an indefinite sentence of 11 to 16 and a half years in prison plus 3

years for the firearm specification. * * *

Id. at 10-13.

{¶ 7} The trial court journalized Lowery’s sentence in a January 31, 2023 judgment

entry of conviction. This appeal followed.

II. Analysis -6-

{¶ 8} Lowery’s sole assignment of error states:

THE SENTENCE IMPOSED UPON MR. LOWERY WAS

UNCONSTITUTIONAL BECAUSE IT WAS BASED UPON IMPROPER

FACTORS INCLUDING HIS FAILURE TO IDENTIFY HIS

CODEFENDANT, IN VIOLATION OF HIS FIFTH AMENDMENT RIGHTS

{¶ 9} Lowery contends the trial court violated his Fifth Amendment privilege

against self-incrimination by using his silence regarding the identity of his accomplice

against him. Specifically, he claims the trial improperly inferred a lack of remorse from his

refusal to reveal the accomplice’s name.

{¶ 10} Lowery summarizes his constitutional argument as follows;

In this case, the prosecutor argued Lowery’s failure to identify his

codefendant was an aggravating sentencing factor. In fact, he likened it to

refusing to accept responsibility. And it was clearly harmful because the

judge echoed the statements and based his sentence on his refusal to

identify his codefendant. Not only were the comments made, the record

indicates they were the basis for the sentence. It was an error for the

prosecutor to comment on Lowery invoking his Fifth Amendment rights and

improper for the trial court to base his sentence on the same. This

prejudicial error violated his constitutional rights. Therefore, Lowery’s case

is exponentially troubling because both the state and the Judge remarked

on Lowery’s implication [sic] of his Fifth Amendment rights, exacerbating

the error. -7-

Appellant’s Brief at 7-8.

{¶ 11} Given Lowery’s failure to object to the trial court’s inference of no remorse

from his refusal to identify his accomplice, we are limited to plain-error review. State v.

Brunson, 171 Ohio St.3d 384, 2022-Ohio-4299, 218 N.E.3d 765, ¶ 65-67 (applying plain-

error review where the defendant did not object to “the trial court’s consideration of his

decision to remain silent and waive allocution in finding that he lacked remorse”). Plain

error requires the existence of an obvious error and a reasonable probability that it

affected the outcome of the proceeding. State v. Hess, 2d Dist. Champaign No. 2022-

CA-24, 2023-Ohio-3658, ¶ 11.

{¶ 12} The Fifth Amendment privilege against self-incrimination generally applies

to sentencing hearings. Mitchell v. United States, 526 U.S. 314, 119 S.Ct. 1307, 143

L.Ed.2d 424 (1999). But its application is neither absolute nor universal in scope. In

Mitchell, the U.S. Supreme Court held that a guilty plea to drug-trafficking offenses did

not waive the privilege and that the defendant could not be compelled at sentencing to

reveal the quantity of drugs attributable to her. The drug quantity impacted the length of

the defendant’s sentence. The majority concluded that the Fifth Amendment precluded

the trial court from compelling the defendant either to provide that information or to have

an adverse inference drawn from her silence. Id. at 327-329. It held that the privilege

against self-incrimination prevented using the defendant’s “silence against her in

determining the facts of the offense at the sentencing hearing[.]” Id. at 330. The majority

left undecided, however, whether a defendant’s silence at sentencing may be used as

evidence of a lack of remorse. Id. -8-

{¶ 13} In Brunson, the Ohio Supreme Court did address the use of a defendant’s

silence at sentencing as evidence of a lack of remorse. The defendant in Brunson pled

not guilty and was convicted after a jury trial. He remained silent at sentencing, and the

trial court used that silence against him to infer a lack of remorse. The Ohio Supreme

Court cited Mitchell and recognized that the Fifth Amendment prohibits drawing negative

inferences from a defendant’s silence at sentencing when those inferences involve factual

determinations in the case. Brunson at ¶ 78. Where a defendant maintains his innocence

and proceeds to trial, the Ohio Supreme Court reasoned that inferring a lack of remorse

from silence at sentencing necessarily involves factual determinations regarding the

circumstances and details of the crime:

It is true that the state has no burden under R.C. 2929.12(D)(5) to

prove that a defendant lacks remorse. Rather, that provision requires a trial

court to consider whether “the offender shows no genuine remorse for the

offense” in its recidivism determination. R.C. 2929.12(A) and (D)(5). That

there is no burden on the state under R.C. 2929.12(D)(5) tends to support

the conclusion that an exception to the general rule against negative

inferences must apply in this situation.

The problem, however, is that for a defendant to have “remorse for

the offense,” the defendant must necessarily have committed or been

involved in the offense. This is based on the plain meaning of “remorse.” If

a defendant is remorseful at sentencing, that necessarily means that the

defendant has sadness, guilt, or regret for his or her involvement in the -9-

offense. While a defendant may have been found guilty of an offense by the

jury, this does not mean that the defendant committed the offense. And it

must be stated again that remorse is not the same as sympathy—a person

with remorse expresses it by acknowledging his or her wrongdoing.

Because “remorse” is a loaded term and showing remorse requires

a person to acknowledge that he or she committed an offense, a finding of

a lack of remorse necessarily goes “to factual determinations respecting the

circumstances and details of the crime” (emphasis sic), Mitchell, 526 U.S.

at 328, 119 S.Ct. 1307, 143 L.Ed.2d 424, because it implicates the

defendant’s role in the crime. For a criminal defendant who pleaded not

guilty and took the case to trial, thus maintaining his or her innocence, a

finding of a lack of remorse based on the defendant’s silence is to use that

silence to infer the defendant’s involvement in the crime. * * *

Id. at ¶ 79-81.

{¶ 14} We find the present case to be distinguishable from Brunson, and we see

no plain error in the trial court’s reliance on Lowery’s refusal to identify his accomplice as

evidence of a lack of remorse. As an initial matter, it is far from clear that Lowery’s silence

regarding his accomplice was in reliance on his Fifth Amendment privilege against self-

incrimination. “[P]opular misconceptions notwithstanding, the Fifth Amendment

guarantees that no one may be ‘compelled in any criminal case to be a witness against

himself’; it does not establish an unqualified ‘right to remain silent.’ A witness’

constitutional right to refuse to answer questions depends on his reasons for doing so, -10-

and courts need to know those reasons to evaluate the merits of a Fifth Amendment

claim.” Salinas v. Texas, 570 U.S. 178, 189, 133 S. Ct. 2174, 186 L. Ed. 2d 376 (2013).

{¶ 15} In Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622

(1980), the defendant pled guilty to two counts of using a telephone to facilitate heroin

distribution. The trial court imposed consecutive sentences based in part on the

defendant’s refusal to identify other members of the operation. On appeal, the defendant

argued that his refusal to cooperate by naming co-conspirators was protected by his Fifth

Amendment privilege against self-incrimination and, further, was justified by fears of

retaliation. The U.S. Supreme Court disagreed, reasoning:

These arguments would have merited serious consideration if they

had been presented properly to the sentencing judge. But the mere

possibility of unarticulated explanations or excuses for antisocial conduct

does not make that conduct irrelevant to the sentencing decision. The

District Court had no opportunity to consider the theories that petitioner now

advances, for each was raised for the first time in petitioner’s appellate brief.

Although petitioner knew that his intransigency would be used against him,

neither he nor his lawyer offered any explanation to the sentencing court.

Even after the prosecutor observed that the failure to cooperate could be

viewed as evidence of continuing criminal intent, petitioner remained silent.

Petitioner insists that he had a constitutional right to remain silent

and that no adverse inferences can be drawn from the exercise of that right.

We find this argument singularly unpersuasive. The Fifth Amendment -11-

privilege against compelled self-incrimination is not self-executing. At least

where the Government had no substantial reason to believe that the

requested disclosures are likely to be incriminating, the privilege may not

be relied upon unless it is invoked in a timely fashion. * * *

Id. at 559.

{¶ 16} The Roberts majority reasoned that “if petitioner believed that his failure to

cooperate was privileged, he should have said so at a time when the sentencing court

could have determined whether his claim was legitimate.” Id. at 560.

{¶ 17} Here nothing in the sentencing transcript or elsewhere suggests that Lowery

refused to identify his accomplice based on a fear of self-incrimination. To the contrary,

the only indication in the record is that his silence stemmed from allegiance to an

unspoken criminal code of honor. Under these circumstances, we find no obvious error

in the trial court’s failure to construe Lowery’s silence regarding his accomplice’s identity

as an invocation of the Fifth Amendment. Other federal and state courts have reached

the same conclusion. See United States v. Morgan, 145 F.3d 1343 (9th Cir.1998)

(“Morgan contends the district court violated his Fifth Amendment right against self-

incrimination when it cited his failure to cooperate with the government as a basis for

imposing a sentence at the upper end of the guideline range. Because Morgan did not

assert that his failure to disclose information regarding the robbery was privileged, the

sentencing court was free to consider his lack of cooperation in determining his

sentence.”); Island v. United States, 946 F.2d 1335, 1339 (8th Cir.1991) (“Island also

argues that his refusal to cooperate with law enforcement authorities was based on his -12-

Fifth Amendment right against self-incrimination and that the trial court improperly

penalized him for the exercise of this right. Nowhere in the record or transcript of the

sentencing hearing, however, can we find any indication of Island asserting his privilege

against self-incrimination before sentencing.”); United States v. Gray, 64 F. Appx. 251,

2003 WL 21242522 (D.C. Cir.2003) (“Assuming appellant had a Fifth Amendment

privilege that would have prohibited the district court from considering his silence at

sentencing in determining whether he had any remorse, appellant failed to articulate a

basis for asserting the privilege.”); United States v. Ortega, 188 F. Appx. 266, 2006 WL

1880342 (5th Cir.2006) (“Ortega argues that the district court committed plain error by

considering that Ortega had not cooperated with the Government in deciding to sentence

him to imprisonment rather than probation. This was not error. * * * Ortega argues that

consideration of his lack of cooperation violated his Fifth Amendment privilege against

self-incrimination. He did not assert the privilege in the district court and, thus, this issue

is deemed waived.”); United States v. Gerby, 41 F. Appx. 312, 317-18, 2002 WL 1023684

(10th Cir.2002) (“We have found no evidence in the record that Gerby ever asserted

before the district court that his failure to cooperate was based on a fear of self-

incrimination. Given the Supreme Court precedent that is on point * * * the district court

did not commit plain error.”); State v. Kaczynski, 258 Wis.2d 653, 654 N.W.2d 300, ¶ 9

(Wisc. App.2002), quoting Holmes v. State, 76 Wis.2d 259, 276, 251 N.W.2d 56 (1977)

(“It has long been the law in Wisconsin that, unless a defendant’s rights against self-

incrimination are implicated (and Kaczynski makes no claim that they are), it is ‘entirely

proper’ for a trial court ‘to consider on sentencing, the defendant’s cooperativeness as -13-

manifested by his refusal to name his accomplices.’ ”).

{¶ 18} Finally, the Ohio Supreme Court’s recent opinion in Brunson is

distinguishable from Lowery’s case. As set forth above, the Brunson majority found it

impermissible for a trial court to infer a lack of remorse from a defendant’s silence at

sentencing. The key distinguishing feature in Brunson is that the defendant there pled not

guilty and went to trial. The Ohio Supreme Court reasoned that inferring a lack of remorse

from silence under those circumstances necessarily involved using that silence to make

a finding regarding the facts of the case, namely the defendant’s involvement in the crime.

Here, however, Lowery’s involvement in the crime was undisputed. He pled guilty, thereby

admitting his participation. Brunson addressed only inferring a lack of remorse from

silence when a defendant does not plead guilty. Therefore, it did not resolve the issue

before us.

{¶ 19} In a post-Brunson case, the Eleventh District recently held that where a

defendant pleads guilty, inferring a lack of remorse from his silence at sentencing does

not violate the Fifth Amendment. State v. Gurto, 11th Dist. Ashtabula No. 2022-A-0045,

2023-Ohio-2351, ¶ 19-21. We note too that Ohio case law preceding Brunson permitted

a trial court to infer a lack of remorse from silence following a guilty plea without running

afoul of the Fifth Amendment. See State v. Duhl, 2d Dist. Champaign No. 2016-CA-30,

2017-Ohio-5492, ¶ 31 (“Duhl pled guilty to the crimes. Furthermore, * * * the court here

was not trying to draw adverse inferences about the circumstances of the crime in order

to punish Duhl more severely. Instead, the transcript clearly indicates that the trial court’s

focus was on whether Duhl was remorseful for the crimes he had committed.”); State v. -14-

Taft, 6th Dist. Huron No. H-18-003, 2019-Ohio-1565, ¶ 33, quoting Duhl at ¶ 31 (“[A] trial

court does not violate a defendant’s right against self-incrimination when it notes that the

defendant’s silence shows a lack of remorse or an unwillingness to take responsibility for

the crime because it is not using the silence ‘to draw adverse inferences about the

circumstances of the crime in order to punish [the defendant] more severely.’ ”). In light

of the foregoing authority, we see no obvious Fifth Amendment violation arising from the

trial court’s inference of a lack of remorse based on Lowery’s refusal to identify his

accomplice at sentencing.

{¶ 20} The case law cited by Lowery fails to persuade us otherwise. He first cites

State v. Smith, 173 Ohio App.3d 735, 2007-Ohio-6355, 880 N.E.2d 161 (2d Dist.) (“Smith

I”), and State v. Smith, 2d Dist. Clark No. 08-CA-37, 2009-Ohio-1041 (“Smith II”). In these

related cases, the defendant pled guilty to robbery and received a five-year prison

sentence. On appeal, we noted that the trial court appeared to have imposed the sentence

in part to penalize the defendant for his refusal to testify against an older brother. We then

stated:

We are troubled by the court’s placing such emphasis on the

appellant’s refusal to testify against his older brother. The Fifth Amendment

guarantees a criminal defendant’s right to stand silent, and courts may not

penalize defendants for exercising their constitutional rights. See North

Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656;

State v. Morris, 159 Ohio App.3d 775, 2005-Ohio-962, 825 N.E.2d 637;

State v. O’Dell (1989), 45 Ohio St.3d 140, 543 N.E.2d 1220. Because the -15-

trial court appears to have improperly penalized the appellant for asserting

his constitutional rights, we find the assignment of error well taken.

Id. at ¶ 28.

{¶ 21} On remand, the trial court imposed the same five-year sentence. In so

doing, it stated that it was not punishing the defendant for refusing to testify. The

defendant again appealed, and we upheld the sentence. As a preliminary matter, we

questioned the correctness of the prior ruling, pointing out that the cited case law involved

“defendants who exercised their right to go to trial.” Smith II at ¶ 12. In any event, we

found no error in the resentencing, reasoning:

At the sentencing hearing on remand, the trial court explained its

reasons for imposing upon Adam Smith the maximum five-year sentence.

It stressed the injury inflicted upon one victim, and the fact that Adam Smith

already obtained a good deal as a result of the reduction of one of the

Aggravated Robbery charges to Robbery, the dismissal of the other

Aggravated Robbery charge, and the dismissal of the Complicity and

Felonious Assault charges. At no point, during this sentencing hearing, did

the trial court express or imply that its decision to impose the maximum

sentence was based, even in part, upon Adam Smith's decision to stand

upon his right to remain silent. Accordingly, we conclude that this record

does not support Adam Smith’s claim that the maximum sentence imposed

upon him was a vindictive sentence in retaliation for his decision to stand

upon his constitutional rights. -16-

Id. at ¶ 17.

{¶ 22} In Smith I, we cited case law for the unassailable proposition that “courts

may not penalize defendants for exercising their constitutional rights.” Smith I at ¶ 28.

But the cases we cited had nothing to do with the issue now before us. Pearce involved

the imposition of a harsher sentence after a conviction on retrial. Morris involved

punishing a defendant at sentencing for having exercised his right to a jury trial, and O’Dell

addressed whether a trial court could rely on its perception that a defendant had

committed perjury to impose a harsher sentence. A review of Smith I and Smith II also

fails to reveal whether the defendant had invoked the Fifth Amendment at sentencing or

whether his silence was motivated by a fear of self-incrimination. Unlike Lowery’s case,

nothing in either opinion indicates that this court was conducting plain-error review. In any

event, unlike Smith I, we are unconvinced that the trial court penalized Lowery for

exercising a constitutional privilege against self-incrimination.

{¶ 23} Lowery next relies on State v. Hall, 179 Ohio App.3d 727, 2008-Ohio-6228,

903 N.E.2d 676 (10th Dist.). In that case, the trial court cited the defendant’s refusal to

testify against a co-defendant as evidence of a lack of remorse at sentencing. The Tenth

District found a Fifth Amendment violation and reversed. Notably, however, the

defendant’s own case remained pending when he was asked to testify against the co-

defendant who had been involved in the same criminal activity. The Tenth District seized

on this fact, reasoning:

It is undisputed that appellant refused to testify against Michael,

whose trial was scheduled to commence before appellant’s entry of a guilty

plea, even though appellant had previously expressed his willingness to -17-

enter into a plea agreement that had been offered to both him and Michael.

Thus, when requested to testify against Michael, appellant’s own case

remained pending, and appellant retained the constitutional privilege to

refuse to give testimony that could be used against him in his own case.

The trial court expressly mentioned appellant’s refusal to testify against

Michael immediately before announcing appellant’s sentence. * * *

Id. at ¶ 13.

{¶ 24} Here, of course, the trial court sought to have Lowery identify his accomplice

at sentencing, after he had pled guilty. This key fact distinguishes Hall and explains the

different outcome.

{¶ 25} The final case upon which Lowery relies is State v. Donald, 7th Dist.

Mahoning No. 08MA154, 2009-Ohio-4638. In Donald, the trial court penalized the

defendant at sentencing for not testifying at his trial, reasoning: “And the defendant, after

the victim and the police officer offered overwhelming testimony against him, chose not

to speak at all. So, evidently, he agreed that all that was true the way it was presented.”

Id. at ¶ 9. The Seventh District correctly held that the trial court’s reliance on the

defendant’s exercise of his Fifth Amendment right not to testify at trial was error. Donald

bears no similarity to Lowery’s case. Here the trial court did not penalize Lowery for not

testifying at trial. Lowery pled guilty, and the trial court cited his refusal to identify an

accomplice at sentencing as evidence of a lack of remorse. Based on our analysis above,

we find no plain error in the trial court’s doing so.

III. Conclusion -18-

{¶ 26} Lowery’s assignment of error is overruled, and the judgment of the Clark

County Common Pleas Court is affirmed.

EPLEY, J. and HUFFMAN, J., concur.