State v. Lunn

2021 Ohio 302

• Court: Ohio Court of Appeals
• Decided: February 3, 2021
• Docket: CT2020-0031
• Status: Published

Opinion

[Cite as State v. Lunn, 2021-Ohio-302.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs- Case No. CT2020-0031 NIKKI LUNN

Defendant-Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2019-0696

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 3, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

D. MICHAEL HADDOX GERALD G. SIMMONS Prosecuting Attorney 536 S. High Street Muskingum County, Ohio Columbus, Ohio 43215

TAYLOR P. BENNINGTON Assistant Prosecuting Attorney Muskingum County, Ohio 27 North Fifth Street P.O. Box 189 Zanesville, Ohio 43702-0189 Muskingum County, Case No. CT2020-0031 2

Hoffman, J. {¶1} Defendant-appellant Nikki Lunn appeals the judgment entered by the

Muskingum County Common Pleas Court convicting her of aggravated vehicular

homicide (R.C. 2903.06(A)(2)(a)) and attempted vehicular assault (R.C. 2923.02(A), R.C.

2903.08(B)(1)(c)) following her pleas of no contest, and sentencing her to an aggregate

term of incarceration of ninety-six months. Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On August 2, 2019, Appellant was traveling home from work on route 666

in Muskingum County. While driving, she received a text message from her mother-in-

law, who was babysitting Appellant’s two children. The text message said Appellant’s

one-year-old daughter was sick, and “The sooner you get here the better.” Appellant

attempted to pass cars in front of her in a marked no passing zone. During her attempt

to pass, she crashed into a motorcycle. A second motorcycle took evasive action,

crashing as well. As a result of the crash, Dustin Spence was killed, and Dustin Phillis

was seriously injured. Appellant had used marijuana earlier on the day of the crash. The

accident report stated there was no sign of pre-crash braking by Appellant’s vehicle.

{¶3} Appellant was indicted by the Muskingum County Grand Jury with two

counts of aggravated vehicular homicide, one count of aggravated vehicular assault, and

one count, of operating a motor vehicle under the influence of marijuana, one count of

operating a motor vehicle with a prohibited amount of marijuana in her urine, and one

count of operating a motor vehicle with a prohibited amount of marijuana metabolite in

her urine. Appellant entered a plea of no contest to one count of aggravated vehicular

homicide and one count of attempted vehicular assault, as amended from aggravated

vehicular assault. The State agreed to nolle the remaining charges. Muskingum County, Case No. CT2020-0031 3

{¶4} The case proceeded to a sentencing hearing in the Muskingum County

Common Pleas Court. The trial court sentenced Appellant to sixty months incarceration

for aggravated vehicular homicide and thirty-six months incarceration for attempted

vehicular assault, to be served consecutively for an aggregate sentence of ninety-six

months. It is from the May 7, 2020 judgment of the trial court Appellant prosecutes her

appeal, assigning as error:

I. THE TRIAL COURT’S SENTENCE OF APPELLANT IS

CONTRARY TO LAW IN CONTRAVENTION OF OHIO SENTENCING

STATUTES.

II. THE TRIAL COURT ERRED BY IMPOSING AN EIGHT YEAR

CONSECUTIVE SENTENCE IN VIOLATION OF THE EIGHTH

AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE

ONE (1) SECTION NINE (9) OF THE OHIO CONSTITUTION

PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT.

I.

{¶5} In her first assignment of error, Appellant argues the maximum consecutive

sentence of eight years as imposed by the trial court is contrary to law. She argues the

trial court’s conclusion the accident was not a result of Appellant’s child’s illness is not

supported by the record, and she demonstrated genuine remorse despite the trial court’s

suggestion she refused to accept personal responsibility for the crash. She further argues Muskingum County, Case No. CT2020-0031 4

the trial court should not have commented on her marijuana use, as her marijuana use

was not a contributing factor to the accident.

{¶6} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. R.C.

2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence

and remand for resentencing where we clearly and convincingly find either the record

does not support the sentencing court's findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.

State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659.

{¶7} In State v. Gwynne, 5th Dist. Delaware No. 16 CAA 12 0056, 2017-Ohio-

7570, this Court reviewed an aggregate sentence of 65 years incarceration imposed on

a 55-year-old former nurse’s aide for a variety of theft and burglary convictions arising out

of her employment at a nursing home. While we found no error in the trial court’s findings

regarding the necessity of imposing consecutive sentences pursuant to R.C.

2929.14(C)(4), we concluded the record did not support the trial court’s aggregate

sentence under R.C. 2929.11 and R.C. 2929.12, which govern the purposes of felony

sentencing and the trial court’s weighing of the seriousness and recidivism factors in

fashioning an appropriate sentence. In so concluding, this Court held as follows:

The sentence is an emotional response to very serious and

reprehensible conduct. However, the understandably strong feelings must

be tempered by a sanction clearly and convincingly based upon the record

to effectuate the purposes of sentencing. The sentence imposed here does Muskingum County, Case No. CT2020-0031 5

not do so. It is disproportionate to the conduct and the impact on any and

all of the victims either individually or collectively. It runs the risk of lessening

public respect for the judicial system. The imposition of a 65 year sentence

for a series of non-violent theft offenses for a first-time felon shocks the

consciousness. We therefore find by clear and convincing evidence that the

record does not support the sentence.

{¶8} Id. at ¶ 30.

{¶9} However, this Court’s decision was reversed by the Ohio Supreme Court in

State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169 (2019). The

Supreme Court held because Gwynne did not challenge any of her sentences individually,

this Court erred in reviewing the aggregate sentence pursuant to R.C. 2929.11 and R.C.

2929.12. Id. at ¶18. The Supreme Court noted Gwynne conceded the trial court made

the requisite findings before imposing consecutive sentences, and thus the sole issue for

this Court’s review was whether the record supported the trial court’s findings. Id. at ¶19.

{¶10} Appellant makes no argument either of her individual sentences was

contrary to law; rather, she argues the aggregate sentence of eight years is contrary to

law. Therefore, pursuant to the Ohio Supreme Court’s decision in Gwynne, supra, we

may only modify the sentence or remand for resentencing if we clearly and convincingly

find the trial court’s consecutive sentencing findings, made pursuant to R.C.

2929.14(C)(4), are not supported by the record. R.C. 2953.08(G)(2)(a).

{¶11} R.C. 2929.14(C)(4) provides: Muskingum County, Case No. CT2020-0031 6

(4) If multiple prison terms are imposed on an offender for convictions

of multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is

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 danger the offender poses to the public,

and if the court also finds any of the following:

(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.

{¶12} In the instant case, the trial court found the imposition of consecutive

sentences was necessary to protect the public from future crime or to punish Appellant,

and consecutive sentences are not disproportionate to the seriousness of Appellant’s Muskingum County, Case No. CT2020-0031 7

conduct and to the danger Appellant poses to the public. The court found 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 committed was so great or unusual

that no single prison term for any of the offenses committed as part of the course of

conduct adequately reflects the seriousness of Appellant’s conduct.

{¶13} While Appellant expressed great remorse at the sentencing hearing for the

death of Dustin Stevens and the injuries to Dustin Phillis, the trial court found she

continued to refuse to take responsibility for the crash:

THE COURT: Again, that – that’s exactly the point I’m making, the

lack of responsibility and remorse. I know you’re sorry that someone got

injured and you’re sorry that someone has died. Absolutely I believe that.

But the personal responsibility, I don’t see happening, because it was

because of your child. And it wasn’t because of your child that this

happened.

{¶14} Sent. Tr. 30.

{¶15} The trial court noted Appellant’s choices which led to the crash: she chose

to continue driving rather than pull to the side of the road to call to check on her child and

find out whether the illness was an emergency, and she chose to pass on a curve and a

hill, where the road was marked as a no passing zone with a double yellow line. Sent.

Tr. 27-28. The accident report found no evidence of pre-crash braking on the part of

Appellant’s vehicle. Sent. Tr. 28. Muskingum County, Case No. CT2020-0031 8

{¶16} Further, the trial court noted the number of letters he received from the

surviving victim, as well as the family and friends of the deceased victim. The trial court

quoted one letter which in the trial court’s opinion summed up the crash:

She says, I don’t consider it an accident. The steering wheel coming

off while driving is an accident. This happened because someone made a

choice. The choice to smoke weed before driving, not accidental. The

choice to speed, not accidental. The choice to pass someone on a double

yellow line, not accidental. These are all thoughts turned in to choices which

then turned in to actions. Actions that robbed our family of our sweet Dustin.

He was a son, brother, grandson, uncle, nephew, cousin and friend.

{¶17} Sent. Tr. 31.

{¶18} The trial court is in a better position than this court to assess whether

Appellant’s remorse included an acknowledgement of her personal responsibility for the

crash, and whether her actions were in fact motivated by an emergency involving her

child. See, e.g., State v. Eckliffe, 11th Dist. Lake No. 2001-L-105, 2002-Ohio-7136, ¶ 32.

{¶19} The trial court noted Appellant’s use of marijuana at several points in the

sentencing hearing. Appellant conceded she smoked marijuana the morning of the

accident, and the presentence investigation report set forth she smoked marijuana daily

from the age of sixteen until she was arrested for the instant crimes in November of 2019.

Sent. Tr. 19-20. Appellant argues the charges relating to driving under the influence of Muskingum County, Case No. CT2020-0031 9

marijuana were dismissed as part of the plea agreement, and she had a pharmacologist

who would have testified at trial marijuana was not a factor in this case.

{¶20} A sentencing court may consider charges that have been dismissed or

reduced pursuant to a plea agreement. State v. Parsons, 2013-Ohio-1281, 2013 WL

1289523, ¶ 18, citing State v. Starkey, 7th Dist. No. 06MA110, 2007-Ohio-6702, 2007 WL

4374457, ¶ 2; State v. Cooey, 46 Ohio St.3d 20, 35, 544 N.E.2d 895 (1989). In imposing

sentence, the trial court can also take into consideration the fact the charges were

reduced. Id. Furthermore, the trial court may consider uncharged crimes, as well as

charges that are dismissed in a plea agreement, as factors at sentencing. State v.

Starkey, 7th Dist. Mahoning No. 06 MA 110, 2007-Ohio-6702, ¶ 2.

{¶21} While Appellant argues she would have presented evidence at trial her

marijuana use played no role in the crash, such evidence is not part of the record before

this Court on appeal. Appellant was charged not only with driving under the influence of

marijuana, but also with one count of driving with a prohibited level of marijuana in her

urine, as well as one count of driving with a prohibited level of a marijuana metabolite in

her urine. She admitted to using marijuana at 8:00 a.m. on the day of the crash, with the

crash occurring around 3:30 in the afternoon. The presentence investigation report

further set forth she smoked marijuana daily from the age of sixteen until she was arrested

on the charges arising out of the crash in November, 2019. We find the trial court could

consider the evidence of her marijuana use in determining whether consecutive

sentences were appropriate in the instant case. Muskingum County, Case No. CT2020-0031 10

{¶22} Based on the record before this court, we do not clearly and convincingly

find the trial court’s findings in support of its imposition of consecutive sentences are not

supported by the record.

{¶23} The first assignment of error is overruled.

II.

{¶24} In her second assignment of error, Appellant argues the imposition of an

eight year aggregate sentence violates the constitutional prohibitions against cruel and

unusual punishment set forth in the United States and Ohio Constitutions.

{¶25} The Eighth Amendment to the United States Constitution prohibits

“[e]xcessive” sanctions. It provides: “Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflicted.” Section 9, Article I of the

Ohio Constitution sets forth the same restriction: “Excessive bail shall not be required;

nor excessive fines imposed; nor cruel and unusual punishments inflicted.”

{¶26} The Eighth Amendment does not require strict proportionality between

crime and sentence, but only forbids extreme sentences which 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). 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).

{¶27} Further, for purposes of the Eighth Amendment and Section 9, Article I of

the Ohio Constitution, proportionality review should focus on individual sentences rather Muskingum County, Case No. CT2020-0031 11

than on the cumulative impact of multiple sentences imposed consecutively. State v.

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.

{¶28} Appellant does not challenge the sentencing statutes pursuant to which she

was sentenced, nor does she argue she was not sentenced within a range permitted by

statute. Further, Appellant’s challenge is to the cumulative impact of her consecutive

sentences, which is not a proper consideration pursuant to Hairston, supra. We find

Appellant has not demonstrated her sentence constitutes cruel and unusual punishment

under the United States and Ohio Constitutions. Muskingum County, Case No. CT2020-0031 12

{¶29} The second assignment of error is overruled.

{¶30} The judgment of the Muskingum County Common Pleas Court is affirmed.

By: Hoffman, J. Gwin, P.J. and Wise, John, J. concur