STATE OF OHIO, Plaintiff-Appellee, v. JOSEPH D. PLYMALE, Defendant-Appellant.
Case No. 15CA1
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT GALLIA COUNTY
RELEASED: 6/3/2016
[Cite as State v. Plymale, 2016-Ohio-3340.]
Harsha, J.
Timothy Young, Ohio State Public Defender, and Nikki Trautman Baszynski, Assistant State Public Defender, Columbus, Ohio, for appellant.
C. Jeffrey Adkins, Gallia County Prosecuting Attorney, Eric R. Mulford & Britt T. Wiseman, Gallia County Assistant Prosecuting Attorneys, Gallipolis, Ohio, for appellee.
Harsha, J.
{¶1} After a jury convicted Joseph D. Plymale of seven crimes, he filed this appeal. First, Plymale argues that the aggravated murder, aggravated robbery, and related verdicts were against the manifest weight of the evidence because they were primarily supported by the self-serving and unreliable testimony of one witness, Christopher Bowman. But credibility generally is an issue for the trier of fact. Here the state introduced testimony of investigators and co-workers, DNA evidence, and surveillance video, all which corroborated Bowman‘s testimony, as well as evidence that Plymale lied to police. Based on this evidence the jury properly found the essential elements of the crimes proven beyond a reasonable doubt. Because the jury did not clearly lose its way or create a manifest miscarriage of justice, we reject Plymale‘s first assignment of error.
{¶3} Finally, Plymale asserts that the trial court erred when it sentenced him to consecutive sentences because the trial court did not make the statutorily required findings before imposing consecutive sentences. Because Plymale did not object to the imposition of consecutive sentences at the sentencing hearing, he waived all but plain error, which he has not established. He also contends that the trial court‘s justifications for imposing consecutive sentences are not supported by the record. However the record is replete with evidence to support the trial court‘s findings. Thus we overrule Plymale‘s third assignment of error.
{¶4} We affirm the judgment of the trial court.
I. FACTS
{¶6} At trial the state presented the testimony of Sheets‘s neighbor, Tammy Korn, who said that she heard a gunshot on the afternoon of Monday, February 3, 2014 and later that day she saw Sheets‘s garage door open and his white pickup truck gone. Korn attempted unsuccessfully to contact Sheets by telephone over the next several days. On Wednesday Korn and another neighbor, John Troyer, found Sheets‘s abandoned truck on Dan Jones Road. Korn returned home and called 911. Troyer testified that he saw Sheets‘s truck speeding away from Sheets‘s house on the same afternoon that Korn heard the gunshot, but he was unable to see the driver.
{¶7} Deputy Sheriff Brown responded to Korn‘s 911 call and located Sheets‘s abandoned truck. Brown went to Sheets‘s home and found Sheets‘s body and evidence of an altercation, but no evidence of a forced entry. The medical evidence showed that Sheets suffered a fatal gunshot wound, which punctured his right lung from the back and exited through his chest. They found an open gun safe that appeared to be missing guns, blood splatter marks inside the home, a bloody boot print on the carpet, and a pillowcase missing from a pillow in Sheets‘s bedroom.
{¶9} After investigators determined that the green Jeep belonged to Christopher Bowman, they brought him in for questioning on Friday, February 7, 2014, to determine what he might know about the identity of the driver of Sheets‘s truck. The jury reviewed the videotape of Bowman‘s questioning. On that videotape Bowman initially lied to the investigators but then, when the investigators told Bowman that his green Jeep and a white pickup truck were seen together on surveillance video, Bowman told investigators what had happened on Monday afternoon, February 3rd. He was very reluctant to identify the driver of the white pickup truck, claiming that the person was close to him and like a brother. Bowman finally identified the driver of the pickup truck as his cousin Joseph Plymale. Bowman said that Plymale had asked him to drive him out to his boss‘s house because Plymale‘s car was inoperable and he needed to speak to his boss. Bowman agreed and drove as Plymale directed. Plymale asked Bowman to drop him off down the road from his boss‘s house because Plymale said that he was afraid Bowman‘s Jeep would get stuck in the snow. Plymale told Bowman he would call him to get him when he was ready. Bowman drove around the area, taking photos of frozen waterfalls, while waiting for Plymale. At some point,
{¶10} Bowman drove to a park and was waiting when a white pickup truck approached with Plymale driving. Bowman stated that he was concerned when he saw Plymale driving a truck that did not belong to him. The two briefly drove around, with Plymale in the truck and Bowman in the Jeep, before stopping on Dan Jones Road. When they stopped Plymale showed Bowman a large number of guns in the cab of the truck and asked Bowman to help him load them into Bowman‘s Jeep. Bowman asked Plymale what was going on, but Plymale told him he didn‘t want to know. Plymale abandoned the truck on the road and rode with Bowman back to Plymale‘s apartment where the two unloaded the guns into Plymale‘s storage unit. Bowman told the investigators that Plymale gave him $1000 in cash and two guns to keep quiet about everything.
{¶11} Bowman told investigators that he believed Plymale had stolen the guns but he did not know to whom the guns or the white pickup truck belonged. He said that only after he learned of Sheets‘s murder on the news the previous day, did he surmise that Plymale had robbed and murdered Sheets. Bowman stated that he knew that Plymale‘s estranged wife, Sarita, was John Sheets‘s daughter. Bowman stated he did not know John Sheets personally, and did not know what he looked like or where he lived.
{¶12} Bowman told investigators that they could find the two guns that Plymale gave Bowman under the bed in his guest bedroom. He also told them that only $200 was left of the $1000 and they could find that in his wallet in his home. He also
{¶13} On Friday, February 7, 2014 after interviewing Bowman, investigators set up surveillance at Plymale‘s apartment and storage unit. They caught Plymale selling a rifle to a co-worker.
{¶14} The investigators advised Plymale of his Miranda rights, but he signed a waiver of those rights and answered questions. Investigator Michael Trout testified that he questioned Plymale about the murder of John Sheets and the guns that were found in Plymale‘s storage unit. Plymale told Trout that he did not know much about the murder and that a person named Clinton Shelton gave him the guns. Plymale stated that he was helping Shelton sell the guns. After investigators finished questioning Plymale, they placed him under arrest.
{¶15} A search of Plymale‘s apartment and storage unit uncovered additional firearms belonging to John Sheets, a blanket and pillow case belonging to Sheets, Plymale‘s work boots with treads that matched the bloody boot imprint on Sheets‘s carpet, a note Plymale wrote that stated that he “went out walking to the farm to get the rent $” and “then going to have Chris get me and drive me to Jamie‘s + Cody‘s then be home * * *,” and a receipt showing Plymale‘s rent was paid on February 3, 2014.
{¶16} Forensic evidence showed that DNA on the pillow case matched Sheets and Plymale, but excluded Bowman. Plymale‘s DNA was also located on the passenger side of Bowman‘s Jeep.
{¶18} Plymale‘s counsel asked Bowman about his past heroin use and played the videotaped interview between the investigators and Bowman, pointing out several inconsistencies in some of the details between Bowman‘s testimony at trial and the statement he gave a year earlier to the investigators. Bowman explained the discrepancies by acknowledging that a year had passed since Sheets‘s murder and his statements to the investigators were made closer to the time when the offenses occurred. Plymale‘s counsel also asked Bowman whether as part of his plea agreement, Bowman had agreed to testify at Plymale‘s trial and Bowman acknowledged that he had. Bowman testified that in exchange for a guilty plea to two felonies - complicity to theft and receiving stolen property - he was sentenced to four years of community control, required to participate in a drug treatment program, and required to testify truthfully against Plymale. Bowman‘s agreement stipulated that for purposes of determining whether his testimony was truthful, his videotaped statements to the investigators were true, accurate and complete.
{¶19} Other evidence presented at trial included the testimony of the apartment manager where Plymale lived. The apartment manager testified that Plymale approached him in the beginning of February, either on February 2 or 3, 2014 and
{¶20} Plymale testified in his own defense at trial. However, his testimony at trial was entirely inconsistent with the statements he gave to the investigators a year earlier. Instead of claiming that the guns were from a person named Shelton, he testified that he received the guns from Bowman. He stated that Bowman came to his house at about 1:30 or 2:00 pm, borrowed his cell phone and drove off without giving any explanation. After Bowman left, Plymale claims his sister, Burgandy Plymale, stopped by at about 2:30 or 3:00 pm, dropped off cigarettes, and visited “for a little bit.” He testified that his sister lived in the same apartment complex and typically stopped by his house daily to check in and see if he needed anything. After she left he stayed in his apartment watching movies. Plymale claims Bowman showed back up at his house at about 5:00 pm with seven or eight guns, again without any explanation, and asked Plymale if he would help Bowman unload, store, and sell the guns and Plymale agreed. Plymale said that after he and Bowman unloaded the guns into the storage unit, they used heroin together in Plymale‘s apartment.
{¶21} Plymale also testified that he is married to Sarita Sheets, the victim‘s daughter but that he and Sarita were no longer living together. Plymale testified that he had visited his father-in-law‘s home about eight times and was aware that Sheets had a large number of guns. Plymale also presented letters of encouragement John Sheets wrote to Plymale when Plymale was in prison; Sheets invited Plymale to visit him when he was released from prison.
II. ASSIGNMENTS OF ERROR
{¶23} Plymale raises three assignments of error:
- THE AGGRAVATED-MURDER, AGGRAVATED-ROBBERY, AND RELATED VERDICTS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
OHIO CONSTITUTION, ARTICLE IV, SECTION 3(B)(3) ; TR. 471-472, 474, 533, 535-536, 539-540, 624-626, 627, 643, 892, 994, 1000, 1009. - TRIAL COUNSEL WAS INEFFECTIVE. FIFTH AND SIXTH AMENDMENTS TO THE U.S. CONSTITUTION;
OHIO CONSTITUTION, ARTICLE I, SECTION 10 ; STRICKLAND V. WASHINGTON, 466 U.S. 668 (1984); DOYLE V. OHIO, 426 U.S. 610 (1976);CRIM.R. 12.1 ;CRIM.R. 52 ; TRIAL TR. 187-188, 771-773, 774, 875-877, 900-901, 915, 924-925, 933-934, 941, 980, 1008, 1017. - THE TRIAL COURT ERRED WHEN IT SENTENCED MR. PLYMALE TO CONSECUTIVE SENTENCES. STATE V. BONNELL, 140 OHIO ST.3D 209, 2014-OHIO-3177;
R.C. 2929.14 ; TR. 1073.
III. LAW AND ANALYSIS
A. Manifest Weight of the Evidence
1. Standard of Review and Law
{¶26} The distinction between a review of the sufficiency of the evidence and the weight of the evidence was explained in Thompkins, supra, and again in Hunter:
A claim of insufficient evidence invokes a due process concern and raises the question whether the evidence is legally sufficient to support the verdict as a matter of law. In reviewing such a challenge, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” “[T]he weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts.”
A claim that a verdict is against the manifest weight of the evidence involves a different test. ” ‘The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.’ ”
(Citations omitted.) State v. Hunter, 131 Ohio St.3d 67, 84, 2011-Ohio-6524, 960 N.E.2d 955, 974, ¶¶ 118-120; see also State v. Colbert, 2005-Ohio-4427 at ¶¶ 8-9 (discussing both standards of review). Thus, as the “thirteenth juror” we do not view the evidence in a light favorable to the prosecution, but independently weigh it, giving deference to the
2. Analysis
{¶27} Plymale argues that the jury clearly lost it way when it decided to believe the testimony of the state‘s witness, Christopher Bowman, and disbelieve Plymale‘s own version of events. Plymale claims the case came down to the credibility of these two witnesses and that no reasonable factfinder could have believed Bowman over him. He argues that Bowman‘s testimony was self-serving, unreliable, and conflicting and that Bowman received a plea deal in exchange for his testimony.
{¶28} In reviewing the entire record, including the videotaped questioning of Bowman four days after the murder, we find that the jury did not “lose its way” in resolving the conflict between Bowman‘s and Plymale‘s version of events. First, Bowman‘s testimony was not self-serving. Bowman voluntarily agreed to waive his Miranda rights and answer questions without the benefit of an attorney present. The only people present were Bowman and two investigators - his statements were not the result of a negotiated deal between his attorney and the prosecutor. Bowman received no promises from the investigators that he would have a “deal” with the prosecutor in exchange for truthful statements to them. At most the investigators told Bowman that it would be better for him to tell the truth and that they would tell the prosecutor how cooperative Bowman had been. This point is reinforced towards the end of the questioning when the investigator says, “I‘ll be honest, you know you helped in the
{¶29} Second, Bowman‘s statements were reliable. Bowman told the investigator that while he was out in the area that afternoon he had stopped to help a county worker who he thought was stuck in the snow. In the video viewed by the jurors, the investigator acknowledged that he had spoken to the county worker, who confirmed that event as Bowman described it. The investigators found the two handguns, money and heroin where Bowman said they would be. Bowman‘s description of Plymale‘s use of a pillow case to transport some of the guns and the fact that they were unloaded in Plymale‘s storage unit proved to be accurate. Bowman‘s version of the events was supported by extrinsic, objective evidence, including photographs from the surveillance video; forensic evidence of Plymale‘s DNA on the pillow case used to transport the guns from Sheets‘s house to the storage unit. Plymale‘s relationship to Sheets as his son-in-law, Plymale‘s knowledge of Sheets‘s gun collection, and Sheets‘s welcoming and supportive relationship with Plymale, as evidenced by the letters of encouragement Sheets sent to Plymale when Plymale was in prison, explained why there was no evidence of forced entry into Sheets‘s home.
{¶31} In contrast the version of events Plymale told to the investigators - that he got the guns from a guy named Shelton - was vastly different from his trial testimony. A jury could have reasonably determined that Plymale was not credible and that his story at trial was not plausible. Plymale did not have an explanation for why Bowman and some unknown third party would execute a murderous plan to steal guns without Plymale‘s involvement, and then suddenly and unexpectedly show up at Plymale‘s storage unit, which coincidentally Plymale had just rented within the past two days.
{¶32} In determining the rational persuasiveness of two competing versions of the events, the jury could have reasonably concluded that Bowman was credible and his testimony truthful. Based on the evidence the jury properly found the essential elements of the crimes proven beyond a reasonable doubt. We cannot say that the jury clearly lost its way. We reject Plymale‘s first assignment of error.
B. Ineffective Assistance of Counsel
{¶33} Plymale argues that his trial counsel provided constitutionally ineffective assistance when he: (1) failed to file a notice of alibi and (2) failed to object to the state‘s comments on his post-arrest silence.
1. Standard of Review and Law
{¶34} To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish (1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a
{¶35} The defendant has the burden of proof because in Ohio, a properly licensed attorney is presumed competent. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62. Failure to satisfy either part of the test is fatal to the claim. Strickland at 697; State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989). In reviewing the claim of ineffective assistance of counsel we must indulge in “a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland at 689.
2. Failure to File Notice of Alibi
{¶36} Plymale claims that his attorney provided ineffective counsel because he did not file a notice of alibi as required by
{¶37} The state points out that
{¶38} In State v. Few, 2nd Dist. Montgomery No. 25161, 2012-Ohio-5407, trial counsel had filed a notice of alibi the day after trial started and had given a copy to the state the day before it started. In rejecting defendant‘s ineffective assistance of counsel claim for failure to file a timely notice of alibi, the appellate court found that while the notice was deficient, “there is nothing in the record to reflect that trial counsel was made aware of Few‘s claimed alibi seven days prior to the date of the trial.” Id. at ¶ 15. Therefore the court concluded that the record did not demonstrate that trial counsel was deficient for failing to comply with
{¶39} Here there is no evidence in the record that Plymale‘s counsel knew of a potential alibi in time to file a timely notice. Plymale‘s counsel told the trial court why he did not file a notice of alibi: he did not believe that the witness‘s testimony would
3. Failure to Object to State‘s Questioning on Post-Arrest Silence
{¶40} Plymale argues that his counsel was ineffective for failing to object to the state‘s repeated comments on his post-arrest silence. He claims that the state‘s comments on his silence for impeachment purposes violated his constitutional rights and his counsel‘s silence exacerbated this error. The state argues that Plymale waived his Miranda rights and gave inconsistent testimony. Thus, the state‘s questioning was for impeachment, contrasting Plymale‘s two drastically different stories.
{¶42} The record shows that after the police caught Plymale selling firearms on Friday, February 7, 2014, investigator Michael Trout questioned him. Plymale signed a written waiver of his Miranda rights and answered Trout‘s questions. The record does not contain any other references to police questioning of Plymale and we can find no instances in which Plymale asserted his Miranda rights. During the interview when Trout questioned him, Plymale said that he obtained the firearms from an individual named Clinton Shelton. However, Plymale waived his Fifth Amendment right again and testified in his defense at trial, telling a completely different story, claiming he received the firearms from Bowman.
{¶43} The state‘s questioning focused on whether Plymale had previously told Trout any part of the drastically different trial testimony. Plymale answered that he had not told Trout any of those facts during the interview, except for the fact that he was trying to sell guns to Cody Hockman:
Q. When you were arrested you did lie to Mike Trout according to your testimony today, about Clint Shelton giving you the guns?
A. Yes sir.
*
*
*
Q. But you lied to both Justin Rice and Mike Trout according to your testimony today?
A. Yes sir.
Q. The police who were investigating this incident?
A. Yes sir.
Q. Did you ever tell Mike Trout about Chris Bowman?
A. No.
Q. Did you ever tell Mike Trout that Chris Bowman asked to borrow one of your cell phones?
A. No sir.
Q. Did you ever tell Mike Trout that you rented this storage unit from Noah Stevens?
A. No sir.
Q. Did you ever tell Mike Trout that the keys that were in your pocket when you were arrested went to the storage unit lock?
A. No sir.
Q. Did you ever tell Mike Trout that there were guns in that storage unit?
A. No sir.
Q. Did you ever tell Mike Trout about trying to sell a gun to Cody Hockman?
A. No sir. Sorry Eric, I did.
Q. Okay.
A. Yeah.
Q. On that one you did?
A. Yeah, yes sir, I did.
Q. And from February the 7th of 2014 when you were arrested until today have you ever told this story about Chris Bowman to any law enforcement officer investigation the murder of John Sheets.
A. No sir.
Q. Joey, Mr. Mulford just asked you a whole string of questions about whether you told MikeTrout a whole list of things and you answered no to all of them except one. Did MikeTrout ask you any of those questions?
A. No sir.
Q. He asked if you‘ve told this story to law enforcement officers since February 7, 2014, have you been questioned by any law enforcement officers over that time?
A. No sir.
{¶45} The state‘s questioning, Plymale‘s answers, and defense counsel‘s redirect focused on Plymale‘s two inconsistent versions of events, both made after waiving his Miranda and Fifth Amendment rights. The questioning shows that, although Plymale had the opportunity during Trout‘s questioning to tell his “Bowman” version of events, he never told it to Trout or the other investigators.
{¶46} If Plymale had asserted his Miranda rights in response to a second attempt by police to question him, the state‘s last question could possibly be construed as improperly referencing this. However, there is no evidence in the record that Plymale ever asserted his Miranda rights. In the context, the last question emphasized Plymale‘s inconsistency: Over a year later, for the first time at trial and never during Trout‘s questioning, Plymale is telling a vastly different story. Thus we find that the state did not violate Plymale‘s Fifth Amendment rights because the state‘s questioning did not improperly use Plymale‘s silence as substantive evidence of guilt. Instead the state used his lack of silence - his two inconsistent stories - to impeach his credibility and discredit his trial testimony. As a result, trial counsel‘s objection on Fifth
{¶47} For the same reasons we reject Plymale‘s argument that during closing argument the state improperly referenced his silence to infer his guilt. Like the cross-examination questioning, the state‘s comments during closing argument emphasized Plymale‘s inconsistent testimony and the fact that the version Plymale told at trial was not told to investigators a year earlier when Trout questioned him.
{¶48} Because Plymale has not established a viable claim of ineffective assistance of his trial counsel, we overrule his second assignment of error.
C. Imposition of Consecutive Sentences
{¶49} Plymale argues that the trial court erred when it sentenced him to consecutive sentences because it did not make the necessary finding of proportionality under
1. Standard of Review and Law
{¶50} When reviewing felony sentences, we apply the standard of review set forth in
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶51} Under the tripartite procedure set forth in
{¶52} Plymale failed to object to the imposition of consecutive sentences at the sentencing hearing and forfeited this issue, absent plain error. Hunter, 131 Ohio St.3d 67, 89, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 152 (2011). Plain error exists when the error is plain or obvious and when the error affects substantial rights. To rise to the level of plain error, it must appear on the face of the record that an error occurred. State v. Slagle, 65 Ohio St.3d 597, 605, 605 N.E.2d 916 (1992) (“The appellate court must examine the error asserted by the defendant-appellant in light of all of the evidence“).
2. Analysis
{¶54} The trial court made the required findings at the sentencing hearing and incorporated those findings in its sentencing entry. At the sentencing hearing the trial court expressly stated that it has considered the principles and purposes of sentencing and all the evidence and arguments presented during the five-day trial. The court stated that the longest prison terms were appropriate because Plymale committed the worst form of aggravated murder and aggravated robbery given the circumstances of the crimes. He was welcomed into the victim‘s home, shot the victim in the back, robbed him, and fled in the victim‘s own truck. The court specifically found “that consecutive sentences are necessary to protect the public and punish the offender,” “are not disproportionate,” and “the harm was so great or unusual that a single term does not adequately reflect the seriousness of the conduct.”
The Court finds that consecutive sentences are necessary to protect the public and punish the Defendant, are not disproportionate and the harm caused was so great or unusual that a single term does not adequately reflect the seriousness of the Defendant‘s conduct.
{¶56} The trial court almost recited word-for-word the statutory findings in
{¶57} For example, in Bonnell, the trial court did not refer to or recite any portion of the language in
{¶58} Here we do not have to conduct a Bonnell-style comparison of words and phrases with subsection (C)(4) to determine if the trial court made the appropriate findings because the trial court gave an almost verbatim recitation of the section. We find State v. Greene, 8th Dist. Cuyahoga No. 100542, 2014-Ohio-3713 instructive. There, the trial court imposed consecutive sentences and the defendant appealed arguing that the trial court had not made the required findings under
I‘ll note, for the record, pursuant to 2929.14(B)[sic](4), that this Court believes that the maximum term should be imposed, but the consecutive terms imposed are necessary to protect the public, to punish the offender. And it is not a disproportionate sentence.
Greene at ¶ 6 (alteration in original).
{¶59} The appellate court found that the trial court had satisfied all the requirements of
The court satisfied the first prong of the analysis when it found that the public needed to be protected from Greene and that consecutive terms were being imposed to punish her. Regarding the second part of the analysis, although barely addressed, the court noted that a consecutive sentence is not disproportionate to Greene‘s conduct.1 Lastly, the court noted that Greene was under community control sanctions for her attempted felonious assault conviction at the time she was convicted of obstruction of justice and involuntary manslaughter. (Emphasis added.)
Although the court did not specifically state that the sentence is not disproportionate to the seriousness of Greene‘s conduct and the danger she poses to the public, to reverse and remand in this case would be tantamount to merely requiring the “magic” words. (Emphasis sic).
Greene at fn. 1; see also State v. Gray, 8th Dist. Cuyahoga No. 98970, 2014-Ohio-4668 (no “proportionality” language was used by trial court, but appellate court found proportionality findings were made by the language referencing the “number of caskets” defendant was filling and his endangerment of the “innocent little toddler and the 86-year old gentleman walking with a walker“).
{¶60} Plymale argues that although the trial court found the sentence to be “not disproportionate,” this was insufficient because the court did not identify what the sentence was not disproportionate to. He argues the trial court should have stated that the sentence imposed was not disproportionate “to the seriousness of the offense or danger posed to the public.” Without this additional language clarifying the trial court‘s proportionality analysis, Plymale insists that we must presume the court erred and balanced the wrong factors. However, neither Plymale nor the record indicates what incorrect factors the court might have used. The plain error analysis requires that Plymale show an actual obvious error - not one that possibly may have occurred.
{¶61} Plymale cites two cases in support of his argument that the phrase “not disproportionate” is insufficient to satisfy the requirements of the statute. However, both cases are factually distinguishable. In State v. Dennison, 10th Dist. Franklin No. 14AP-
{¶62} Likewise, in State v. Collins, 4th Dist. Pickaway No. 13CA27, 2014-Ohio-4224, we found nothing in the record that would show that the trial court considered the proportionality factor when it imposed consecutive sentences. Here, the trial court expressly stated that it had considered the proportionality factor.
{¶63} The trial court expressly stated that it considered the need to protect the public and the seriousness of the offenses when it imposed its sentence and specifically identified all three of the factors listed in the statute. In finding that consecutive sentences “are not disproportionate,” the court showed that it was considering the proportionality factor. There is no need to quote the statute when the record shows that the court considered both the statutory factors in imposing its sentence. “[A] word-for-word recitation of the language of the statute is not required, and as long as the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record contains evidence to support the findings, consecutive sentences should be upheld.” Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29; Campbell, 4th Dist. Adams No. 13CA969, 2014-
{¶64} Finally, we reject Plymale‘s argument that consecutive sentences were unwarranted. He claims that a mandatory prison term of life imprisonment without parole is sufficient to accomplish the purposes of felony sentencing without imposing consecutive sentences. Courts have upheld the imposition of consecutive sentences that include a life sentence as long as the court makes the required findings. See, e.g., State v. Roark, 3d Dist. Mercer No. 10-14-11, 2015-Ohio-3811, ¶ 24 (affirming the imposition of two consecutive life sentences without the possibility of parole for a home invasion and murder).
{¶65} The record contains evidence to support the trial court‘s findings. The victim was Plymale‘s father-in-law, who had supported him with encouraging letters during Plymale‘s previous prison term. The victim welcomed Plymale in his home. Nevertheless, Plymale shot and killed the victim while his back was turned, stole a number of firearms, and fled in the victim‘s truck. Plymale‘s motive: To steal his father-in-law‘s valuable gun collection and turn it into cash for himself. Given the senseless nature of the crime and Plymale‘s relationship with the victim, the record supports the trial court‘s findings and conclusion that consecutive sentences were appropriate.
{¶66} We overrule the third assignment of error.
III. CONCLUSION
{¶67} Having overruled Plymale‘s assignments of error, we affirm his convictions and sentence.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Gallia County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily cotinued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY: William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.