State v. Witcher

2019 Ohio 1351

• Court: Ohio Court of Appeals
• Decided: April 11, 2019
• Docket: 107337
• Status: Published

Opinion

[Cite as State v. Witcher, 2019-Ohio-1351.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO :

Plaintiff-Appellee, :

No. 107337

v. :

DAVID WITCHER, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 11, 2019

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-619390-A

Appearances:

Brian McGraw, for appellant.

Michael C. O’Malley, Prosecuting Attorney, Maxwell Martin and Eben McNair, Assistant Prosecuting Attorneys, for appellee.

MARY EILEEN KILBANE, A.J.: Defendant-appellant, David Witcher (“Witcher”), appeals his

sentence following his guilty plea to voluntary manslaughter, felonious assault, and

tampering with evidence. For the reasons set forth below, we affirm.

In July 2017, Witcher was charged in a five-count indictment. Counts

1 and 2 charged him with the murder of David Anderson (“Anderson”) and carried

one- and three-year firearm specifications. Counts 3 and 4 charged him with

felonious assault and carried one- and three- year firearm specifications. Count 5

charged him with tampering with evidence and carried a one-year firearm

specification.

Pursuant to a plea agreement, Witcher pled guilty to: (1) Count 1,

which was amended to voluntary manslaughter with one- and three-year firearm

specifications; (2) Count 3, which was amended to delete both firearm

specifications; and (3) Count 5, tampering with evidence with the one-year firearm

specification. The remaining counts and specifications were nolled. As part of the

plea agreement, the state and Witcher agreed to a sentence between 18-25 years.

Both parties also agreed that Count 1 (involuntary manslaughter) and Count 3

(felonious assault) do not merge for the purposes of sentencing to avoid life in

prison.

Nearly one week later, the matter proceeded to sentencing. At

sentencing, the trial court heard from the state, defense counsel, and Witcher.

According to the state, Witcher was at Anderson’s home with Anderson and Anderson’s grandson the day before Anderson was murdered. Anderson’s grandson

left the home around midnight and, at that time, Anderson was still alive. The

grandson came back the next morning to check on Anderson and found him

deceased. Anderson’s gun was taken and Witcher was no longer in the home.

Anderson’s family knew Witcher. He worked with Anderson, and at times stayed

with Anderson. Anderson had been shot with his own weapon. Witcher’s DNA was

located under Anderson’s fingernails, as well as in the holster of Anderson’s gun.

Defense counsel advised the court that Witcher has no prior felony

convictions and had been diagnosed with several mental health issues. Defense

counsel explained that both Witcher and Anderson were drinking heavily during the

day in question. Anderson had a BAC of .197 when he was tested at the coroner’s

office. Anderson also carried, on a regular basis, a .380 caliber weapon, which he

kept in a holster on his person, including when he was home. According to Witcher,

Anderson was waving his gun around during an argument. Witcher became upset,

grabbed the gun, and at some point during the confrontation shot Anderson.

Witcher left the scene afterwards and hid the gun. Witcher explained to defense

counsel that because of the drinking, he was not thinking very clearly.

The trial court sentenced Witcher to an aggregate of 19 years in

prison. The court imposed three years on the firearm specification, plus eleven years

on the involuntary manslaughter charge in Count 1 for a total of fourteen years in

prison. For the felonious assault charge (Count 3), the court sentenced Witcher to

five years in prison, to be served consecutive to the fourteen years in Count 1. The court also sentenced Witcher to one year on the firearm specification, plus three

years on the tampering with evidence charge in Count 5 for a total of four years in

prison, to be served concurrent to the other counts.

Witcher now appeals, raising the following single assignment of error

for review:

Assignment of Error

The plea agreement recommended a sentencing range. The plea agreement was silent on consecutive sentences. The trial court failed to properly justify its consecutive sentences under [R.C.] 2929.14(C)(4)(b) when imposing the sentence.

Witcher acknowledges that as part of his plea, he agreed to a

sentencing range of 18 to 25 years and that the counts would not merge. He argues,

however, that the trial court did not address the findings necessary to impose a

consecutive sentence as required by R.C. 2929.14(C)(4)(a)-(c). He contends the trial

court gave no justification during sentencing and, in the journal entry, erroneously

asserted that Witcher had a criminal history that would justify consecutive

sentencing.

R.C. 2953.08 provides that a reviewing court may overturn the

imposition of consecutive sentences where it clearly and convincingly finds that the

“record does not support the sentencing court’s findings” under R.C. 2929.14(C)(4),

or the sentence is “otherwise contrary to law.” Id. at (G)(2)(a)-(b). Under R.C.

2953.08(D)(1), however, a sentence imposed upon a defendant is not subject to

appellate review if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in the case, and has been imposed by the

sentencing judge.

This court has previously found that the limitation on a defendant’s

ability to bring an appellate challenge to an agreed sentence applies to cases

involving range agreements, such as this case, and cases involving specific term

agreements. State v. Patterson, 8th Dist. Cuyahoga No. 106655, 2018-Ohio-4114, ¶

10, citing State v. Grant, 8th Dist. Cuyahoga No. 104918, 2018-Ohio-1759.

Moreover, the limitation applies to cases in which the sentence includes

nonmandatory consecutive sentences, regardless of whether there is any specific

agreement to nonmandatory consecutive sentences. Id. at ¶ 10, citing Grant at ¶ 24

and State v. Glaze, 8th Dist. Cuyahoga No. 105519, 2018-Ohio-2184; see also State

v. Sergent, 148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, ¶ 43 (where the Ohio

Supreme Court held that, in the context of a jointly recommended sentence that

includes nonmandatory consecutive sentences, “a trial court is not required to make

the consecutive-sentence findings set out in R.C. 2929.14(C)(4). Accordingly, when

a trial judge imposes such an agreed sentence without making those findings, the

sentence is nevertheless ‘authorized by law’ and not reviewable on appeal pursuant

to R.C. 2953.08(D)(1).”)

In light of the foregoing, we find that Witcher’s sentence is not subject

to appellate review. The record reveals that Witcher’s sentence was authorized by

law, despite the absence of an explicit agreement to consecutive sentences beyond

those statutorily required for firearm specifications. Patterson at ¶ 10. Additionally, the sentence was jointly recommended. The recommended sentence at the plea was

between 18 and 25 years. The court imposed a sentence of 19 years. Because

Witcher’s sentence fits within the three criteria under R.C. 2953.08(D)(1), his

sentence is not subject to appellate review. As a result, we affirm his sentence.

The sole assignment of error is overruled.

Judgment is 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 be sent to said 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.

____ MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

EILEEN A. GALLAGHER, J., and MICHELLE J. SHEEHAN, J., CONCUR