State v. Cunningham
2017 Ohio 8333
| Ohio Ct. App. | 2017Background
- Defendant Bacarie L. Cunningham was indicted on multiple charges arising from at least three incidents, including burglary, petty theft, and receiving stolen property; he pleaded guilty to one burglary (second-degree), one attempted burglary (third-degree), and one count of receiving stolen property (fifth-degree).
- As part of a plea agreement the State amended one count; the court ordered a presentence investigation and held a sentencing hearing.
- At sentencing the court imposed consecutive prison terms: 5 years (burglary), 18 months (attempted burglary), and 10 months (receiving stolen property), totaling 7 years and 4 months.
- Cunningham appealed, arguing the trial court failed to properly consider the mitigating factors listed in R.C. 2929.12(C) (no expected physical harm; drug addiction/impairment; acceptance of responsibility/remorse).
- The trial court expressly addressed the R.C. 2929.12(C) factors, found some applied (e.g., no expected physical harm) but concluded R.C. 2929.12(B) seriousness factors (including that his relationship with victims facilitated the crimes and alleged organized criminal activity) outweighed mitigation; it also made the required consecutive-sentence findings under R.C. 2929.14(C)(4).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court failed to comply with R.C. 2929.12(C) when imposing sentence | State: Court considered R.C. 2929.12(C) and properly weighed factors; sentence supported by record | Cunningham: Court did not properly consider or give weight to mitigating factors under R.C. 2929.12(C) | Court: No error — court considered the statutory factors and permissibly found seriousness factors outweighed mitigation |
| Whether lack of expected physical harm required a lesser sentence | State: Although R.C. 2929.12(C)(3) applies, R.C. 2929.12(B) factors made conduct more serious | Cunningham: He did not cause or expect physical harm, so sentencing should be mitigated | Court: Found (C)(3) applied but properly discounted it because (B) factors (victim facilitation; organized activity) outweighed it |
| Whether drug addiction/impairment is substantial mitigating ground | State: Record shows planning and targeted theft that undercuts claim of impairment as mitigation | Cunningham: Chemical dependency substantially clouded judgment and mitigates culpability | Court: Rejected impairment mitigation — defendant acted deliberately and planned thefts, so addiction did not sufficiently mitigate |
| Whether guilty plea/acceptance of responsibility and remorse required leniency | State: Presentence report and conduct in jail undermined claimed remorse/acceptance | Cunningham: Plea and claimed remorse warrant lesser sentence | Court: Skeptical of remorse based on record; still imposed aggregate sentence below burglary maximum; no reversible error |
Key Cases Cited
- State v. King, 992 N.E.2d 491 (Ohio Ct. App. 2013) (trial court has discretion to impose any sentence within statutory range but must comply with R.C. 2929.11 and 2929.12)
- State v. Mathis, 846 N.E.2d 1 (Ohio 2006) (trial courts must consider R.C. 2929.11 and R.C. 2929.12 when sentencing)
- State v. Marcum, 59 N.E.3d 1231 (Ohio 2016) (appellate modification of sentence requires clear and convincing evidence that record does not support sentence or sentence is contrary to law)
- Cross v. Ledford, 120 N.E.2d 118 (Ohio 1954) (definition of clear and convincing evidence)
- State v. Bonnell, 16 N.E.3d 659 (Ohio 2014) (requirement that findings supporting consecutive sentences be made and incorporated into the record)