State v. MooreState v. Moore
Angelina Wagner, for appellant.
* * * * *
OSOWIK, J.
{¶ 1} This is a delayed appeal from a judgment of the Lucas County Court of Common Pleas, which sentenced appellant to a prison term of 11 years after the trial court accepted appellant‘s guilty plea and convicted him of one count of involuntary
I. Background
{¶ 2} This appeal originated from felony Lucas County Grand Jury indictments against appellant, James Everett Moore, for aggravated murder, murder, and aggravated robbery, each with firearm specifications. State v. Moore, 6th Dist. Lucas No. L-19-1032, 2020-Ohio-2653, ¶ 2. Appellee, state of Ohio, alleged that on November 18, 2017, appellant and a codefendant, who was tried separately, caused the death of another while committing an armed robbery. Prior to the conclusion of the jury trial, appellant entered a guilty plea to one count of involuntary manslaughter in violation of
{¶ 3} The January 25, 2019 sentencing hearing transcript is in the record. The trial court heard mitigating evidence from appellant and appellant‘s counsel, reviewed the undisputed presentence investigation report, reviewed victim impact statements written by the victim‘s family, and heard a victim impact statement presented by the victim‘s uncle. The trial court expressed in open court the requirement “to consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender and making restitution to the victim.”
So, in this case, there‘s no clarity from information this Court has received from [sic.] who actually pulled the trigger. There are theories. The State has its opinion on the matter, but it hasn‘t been established in court. And because of the complexities involved in this prosecution, this Defendant was initially charged with Aggravated Murder and Murder and Aggravated Robber with Firearm Specification.
Ultimately, the case was resolved at the level of a homicide that we call Involuntary Manslaughter. And so what is the appropriate sentence for this offense? This much I know, I know that no sentence that I impose here today is going to make the victim‘s family walk out of this courtroom saying, all right, we feel good about it all. * * *
So I‘m constrained by the law and the variables that are afforded to me in the context of this sentencing. * * * Mr. Moore wants to mitigate his responsibility in the death and says, in his statement to the Presentence Department, says it was supposed to be a robbery. Was supposed to go through [the victim‘s] pockets while someone else was holding him at
gunpoint. So he has fully acknowledged his culpability in the offense of Aggravated Robbery and also that would embody the Specification. Because even if he didn‘t hold the gun, the law says you‘re culpable and responsible for the acts of your co-conspirators. So if he had been convicted of that charge Aggravated Robbery and a Specification, he‘d been exposed to 14 years. So now his maximum exposure is 11 years. * * *
And so I say to you, Mr. Moore, your impact obviously had been devastating. You took a young man‘s life. You were involved in that course of criminal conduct, whether you literally pulled the trigger or not. * * *
It is the Order of the Court that his Defendant, Mr. Moore, serve a term of * * * 11 years in prison. This is a mandatory sentence as I discussed with you.
{¶ 5} On direct appeal, this court remanded for resentencing the trial court‘s mandatory 11-year prison sentence. Moore, 6th Dist. Lucas No. L-19-1032, 2020-Ohio-2653, at ¶ 13.
{¶ 6} Resentencing by the trial court occurred on January 5, 2021, and the transcript is in the record. Appellant again presented mitigating evidence to the trial court, including the sentencing his codefendant received for the same offense, his
{¶ 7} During the course of resentencing, the trial court referenced the prior sentencing hearing held on January 25, 2019. The trial court recalled the circumstances “which resulted in this negotiated resolution in the midst of the trial.” After two days of testimony and evidence presented to the jury by appellee, and prior to the testimony by appellant‘s codefendant, appellant pled guilty to involuntary manslaughter in exchange for dismissal of the original charges currently being tried. The trial court recalled at the January 25, 2019 sentencing, “this Court felt there should be a difference in sentence between Mr. Moore and any codefendant because the evidence to be offered by the State would have shown that Mr. Moore was the one who fired the shot that resulted in the death of the victim.” The trial court found appellant‘s conduct “was distinctly different than that of any other participant.” The trial court was aware the “compromised, negotiated resolution between Defendant, his Counsel and the State” favored appellant because “he was on trial for an offense if convicted, he would have been facing a life sentence.”
{¶ 8} The trial court concluded “my view on the matters haven‘t changed with this passing of time.” The trial court then expressly adopted its sentencing rationale from the prior sentencing hearing held on January 25, 2019, including the principles and purposes of sentencing under
{¶ 9} By judgment entry journalized on January 14, 2021, among other matters, the trial court ordered appellant to serve a nonmandatory prison term of 11 years. The trial court specifically stated in its entry that prior to sentencing it “considered the record, Presentence Report of defendant‘s statements and social background, oral statements, any victim impact statement, as well as principles and purposes of sentencing under
{¶ 10} Appellant sets forth two assignments of error in this appeal:
- The trial court record does not support the sentence imposed upon the Appellant by the trial court and the sentence is contrary to law.
- The trial court erred by considering dismissed and nolle‘d cases as a basis for imposing a maximum sentence on the convicted charge, resulting in a violation of Appellant‘s rights to due process and fundamental fairness.
A. Contrary to Law
{¶ 11} In support of his first assignment of error, appellant argues his 11-year prison sentence is contrary to law in violation of
{¶ 12} We review appellant‘s challenge to his felony sentencing pursuant to
{¶ 13} Although “contrary to law” is an undefined term, the Ohio Supreme Court clearly guides us that, ”
{¶ 14} We recently stated in State v. Wilson, 6th Dist. Lucas No. L-21-1037, 2021-Ohio-3768, ¶ 22, the following:
Moreover, under Jones, an appellate court may not “independently weigh the evidence in the record and substitute its judgment for that of the trial court concerning the sentence that best reflects compliance with
R.C. 2929.11 and2929.12 ,” nor may it “modify or vacate a sentence based on its view that the sentence is not supported by the record under [those statutes].” Jones at ¶ 39, 42; see also State v. Toles, Slip Opinion No. 2021-Ohio-3531, ¶ 1 (Affirming sentencing judgment under the authority of Jones). Accordingly, we are precluded from reviewing a felony sentence “where -- as here -- the appellant‘s sole contention is that the trial court improperly considered the factors ofR.C. 2929.11 or2929.12 when fashioning that sentence.” State v. Stenson, 6th Dist. Lucas No. L-20-1074, 2021-Ohio-2256, ¶ 9, citing Jones at ¶ 42; see also State v. Orzechowski, 6th Dist. Wood No. WD-20-029, 2021-Ohio-985, ¶ 13-14 (“In light of Jones, assigning error to the trial court‘s imposition of sentence as contrary to law based solely on its consideration ofR.C. 2929.11 and2929.12 is no longer grounds for this court to find reversible error.“).
B. Dismissed Charges
{¶ 16} In support of his second assignment of error, appellant argues his resentence of 11 nonmandatory years must be vacated due to the trial court‘s consideration of dismissed charges. Citing State v. Blake, 3d Dist. Union No. 14-03-33, 2004-Ohio-1952, ¶ 5, appellant argues the trial court violated his due process rights by exhibiting a bias that appellant was guilty of the dismissed charges. Appellant concludes “the court‘s reference to what Appellant could have been sentenced to if convicted under the dismissed charges was improper and the sentence should therefore be reversed.”
{¶ 17} In Blake, the Third District Court of Appeals acknowledged that a “trial court may consider allegations that form the basis of charges dismissed pursuant to a plea agreement when sentencing a defendant.” Id. The Third District then stated the trial court‘s discretion was limited and “cannot indicate a bias toward the defendant indicating that the trial court believes that the defendant is guilty of the charges which were dismissed.” Id., citing State v. Fisher, 11th Dist. Lake No. 2002-L-020, 2003-Ohio-3499, ¶ 20-27. The Eleventh District Court of Appeals in Fisher found the Ohio Supreme Court “has held that considering evidence relating to a past dismissed charge at the
{¶ 18} It is undisputed appellant pled guilty to one count of involuntary manslaughter in violation of
{¶ 19} The trial court sentenced appellant to an 11-year prison term pursuant to the applicable sentencing statute for a first-degree felony, which authorizes definite prison terms between three and 11 years.
{¶ 20} We further find the trial court is not required to make any special findings before imposing the maximum sentence within the authorized statutory range. State v. Thompson, 6th Dist. Sandusky No. S-18-049, 2019-Ohio-4505, ¶ 17, citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 13. Nevertheless, the record shows the trial court specifically stated at the January 5, 2021 resentencing hearing
{¶ 21} We disagree with appellant that the trial court exhibited an unconstitutional bias when it considered, as part of many other sentencing factors, evidence in the record regarding the aggravated robbery with firearm specification offenses that were dismissed as a result of the plea agreement. Wiles at 78. The sentencing record shows that even if the trial court disregarded appellant‘s admissions in the presentence investigation report regarding the dismissed offenses, the trial court considered other evidence, including the entire record, oral statements, the written and oral victim impact statements and the requirements of
{¶ 22} This court has held that a defendant‘s constitutional rights are not violated when receiving the maximum sentence within the statutory range, even where the trial court used evidence learned about other dismissed, indicted offenses. State v. Young, 6th Dist. Erie No. E-05-013, 2006-Ohio-728, ¶ 21. This court has further held that there is no
{¶ 23} For the foregoing reasons we do not find clear and convincing evidence the trial court violated appellant‘s due process rights by exhibiting a sentencing bias that appellant was guilty of the dismissed charges. Appellant‘s second assignment of error is not well-taken.
III. Conclusion
{¶ 24} On consideration whereof, we find that substantial justice has been done in this matter. The judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
Mark L. Pietrykowski, J.
JUDGE
Thomas J. Osowik, J.
JUDGE
Christine E. Mayle, J.
CONCUR
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.