State v. SernaState v. Serna
OPINION
Rendered on the 4th day of October, 2019.
JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, Champaign County Prosecutor‘s Office, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee
STEPHEN P. HARDWICK, Atty. Reg. No. 0062932 and CHARLYN BOHLAND, Atty. Reg. No. 0088080, Ohio Public Defenders Office, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215 Attorneys for Defendant-Appellant
{¶ 1} Defendant-appellant, Ely Ray Serna, appeals from his convictions for one count of attempted murder, a first degree felony pursuant to
I. Facts and Procedural History
{¶ 2} Serna, at the time a student in his third year, arrived at West Liberty-Salem High School on the morning of January 20, 2017, carrying a disassembled shotgun in a backpack. He proceeded to a men‘s bathroom so that he could reassemble the shotgun without being observed, but he found the bathroom occupied by a fellow student. Once the other student left, Serna reassembled the weapon, donned a crude mask made from duct tape, and then waited with the apparent intention of shooting whomever entered next. Another student walked into the bathroom moments later, and Serna shot him twice.
{¶ 3} A teacher entered the bathroom to investigate the disturbance. He ran out yelling “shooter” after encountering Serna, who chased him into a nearby classroom. Serna fired two shots into the classroom door, as well as two shots into the door of the adjacent classroom, and retreated back into the bathroom. There, Serna discovered that the student he had shot was still alive, which seems to have caused him to experience a change of heart; making no further attempt to cause harm, he surrendered his shotgun when school personnel entered the room to assist the student.1 Within minutes, an officer with the West Liberty Police Department arrived and took Serna into custody.
{¶ 4} Initially charged as a juvenile, Serna was bound over to the General Division of the Champaign County Common Pleas Court on June 12, 2017, and the following day, a Champaign County grand jury issued an indictment charging him with two counts of attempted murder; three counts of felonious assault; six counts of improperly discharging a firearm in a school safety zone; one count of inducing panic; and one count of illegal conveyance or possession of a deadly weapon in a school safety zone. The charges included 50 specifications.
{¶ 5} On June 21, 2017, Serna entered pleas of not guilty and not guilty by reason of insanity. Throughout the ensuing 10 months, four mental health professionals interviewed Serna at various times to evaluate whether he understood the wrongfulness of his actions at the time of the offense, and they agreed that Serna suffered from major depression. Three of the four found that Serna suffered from major depression with psychotic features and concluded that he was not capable of understanding the wrongfulness of his actions; the fourth disputed that Serna experienced psychosis and concluded that he was capable of distinguishing right from wrong at the time of the offense.2
{¶ 7} The court indicated that it determined the maximum penalties to be appropriate because of the severity of the harm caused by the shooting, and further because it did not believe that Serna was suffering from psychosis at the time, meaning that in its view Serna understood the wrongfulness of his actions. See Transcript of Sentencing Hearing 107:25-119:5, May 2, 2018. Yet, the court indicated further that even if Serna had been suffering from psychosis, it would still have held him fully responsible because of his voluntary abuse of the prescription medication Vyvanse;3 according to the court‘s analysis of an advisory it found on the manufacturer‘s website, the medication could have caused Serna to experience symptoms of psychosis as a side effect. See id.
{¶ 8} On May 3, 2018, the court docketed its Journal Entry of Judgment, Conviction, and Sentence [hereinafter Judgment Entry]. Serna timely filed his notice of appeal on May 17, 2018.
II. Analysis
{¶ 9} For his first assignment of error, Serna contends that:
THE TRIAL COURT‘S SENTENCE WAS CONTRARY TO LAW BECAUSE THE TRIAL COURT IMPOSED MAXIMUM CONSECUTIVE SENTENCES BASED ON SPECULATING [sic] OUTSIDE THE RECORD IN VIOLATION OF THE MANDATE OF
R.C. 2929.19(B)(1) . T.P. 1-134 (SENTENCING); MAY 3, 2018 JOURNAL ENTRY OF JUDGMENT, CONVICTION, AND SENTENCE.
{¶ 10} Under
{¶ 11} Serna claims that the trial court violated
{¶ 12} Although at Serna‘s sentencing hearing the trial court indulged in an ill-advised exposition of its own “belief[s]” regarding “the side effects of [Serna‘s] us[e] of Vyvanse” and the possibility that his consumption of the drug “contributed” to his mental health issues, Serna overstates the extent to which the court thus “veered * * * off course.” Transcript of Sentencing Hearing 115:18-116:2, May 2, 2018; Appellant‘s Brief 8; see also Judgment Entry 23. Four mental health professionals who interviewed Serna had mentioned his use of Vyvanse in their reports, as did the author of the presentence investigation report, and Serna attached copies of three of the mental health professionals’ reports to his sentencing memorandum, though he made no mention of Vyvanse in the memorandum itself. Defendant‘s Sentencing Memorandum 1-11 and Exs. A, F and H-I, Apr. 27, 2017. For its part, the State referred expressly to Serna‘s use of Vyvanse in its sentencing memorandum as support for its contention that he had “demonstrated a pattern of drug abuse.” State‘s Sentencing Memorandum 8, Apr. 27, 2018.
{¶ 13} Serna‘s use of Vyvanse was, therefore, a matter of record. The trial court, however, “was unfamiliar with [Vyvanse],” so to prepare for Serna‘s sentencing hearing, it “consulted [the manufacturer‘s website] to have a better understanding of the drug and [to provide] context” for assessing the significance of Serna‘s reported use, as well as evaluating the opinions offered by the mental health professionals. Judgment Entry 23, fn.1; Transcript of Sentencing Hearing 29:14-30:5.
{¶ 14} With respect to basic facts about Vyvanse, such as the drug‘s active ingredient and clinical applications, the court did not violate
{¶ 15} Here, even had Serna‘s sentencing hearing been governed by the rules of evidence, the court would have had the discretion to take judicial notice of the chemical composition and recommended use of Vyvanse. That information was “not subject to reasonable dispute” because it was susceptible to “ready [confirmation] by resort to sources whose accuracy [could not] reasonably [have been] questioned.” See
{¶ 16} At the sentencing hearing, the court further used the information it obtained to question a mental health professional called by Serna to offer mitigation testimony, and to question Serna himself. Transcript of Sentencing Hearing 28:11-33:20 and 100:3-100:14. For these purposes, the court also considered the manufacturer‘s warnings about the possible side effects of taking Vyvanse. Id. at 29:14-30:14; Appellant‘s Brief 8. According to the court‘s synopsis, the side effects included “trouble sleeping, * * * anxiety, and * * * increased heart rate,” and for patients with “mental problems” or “a family history of suicide, bipolar illness, or depression,” the side effects further included “new or worsening behavior and thought problems [sic]“; “bipolar illness“; symptoms “such as seeing or hearing things that are not real, believing things that are not true” and “being suspicious“; and “having new maniac [sic] symptoms.”6 Transcript of Sentencing Hearing 29:22-30:5. Serna maintains that the court should not have “assum[ed] that the information on the [web]site [was] reliable,” but the logic of this argument is dubious as it relates to the side-effects advisory. As the purveyor of Vyvanse, the manufacturer would have had little reason to exaggerate the risks of taking the medication.
{¶ 17} After it finished questioning Serna, and following a short recess, the trial court discussed its review of the sentencing factors set forth in
{¶ 18} Next, the court discussed the factors listed in Paragraph (C), finding Serna‘s mental health issues to be “substantial grounds to mitigate [his] conduct,” though “not [substantial] enough to constitute a defense.” Id. at 113:15-113:23. The court noted that four “mental health evaluators [had] found that [Serna] suffered from major depression,” but because it viewed the prospect that Serna had been “suffering from psychotic features” at the time of the shooting to be “questionable,” it did “not * * * render an opinion” on that point. See id. at 113:23-114:8. Nevertheless, the court proceeded to explain that it determined the “factors establishing that [Serna]‘s conduct [was] more serious” outweighed “the factors establishing [that his] conduct [was] less serious,” irrespective of whether Serna was suffering from psychosis at the time of the shooting. See id. at 115:18-119:5.
{¶ 20} The trial court should not have indulged in an analysis of the impact that Serna‘s use of Vyvanse might have had on his mental health, particularly because, as the court itself noted, the “side-effects of that voluntary consumption were not considered by [the] mental health professionals [who evaluated Serna] before [they reached their] forensic mental health conclusions and diagnoses.” Id. at 116:11-116:15. Regardless, the court was free to determine the relative weight to be accorded the various sentencing factors listed in
{¶ 21} Moreover, Serna accepted legal responsibility for his actions by pleading guilty. The trial court explained that it did not find Serna‘s mental health to be a persuasive mitigating factor because it believed, as a matter of fact, that Serna was able at the time of the shooting to distinguish right from wrong, and reality from delusion, adding that even had Serna been suffering from psychosis, he would have been nonetheless responsible because he was voluntarily using a medication, without the advice of a physician, that could have caused him to become psychotic. See Transcript of Sentencing Hearing 115:18-119:5. Irrespective of whether the court was correct, the issue of Serna‘s responsibility for the shooting had been resolved as a matter of law by Serna‘s plea. Serna‘s first assignment of error is overruled.
{¶ 22} For his second assignment of error, Serna contends that:
THE TRIAL COURT ERRED WHEN IT SENTENCED ELY SERNA TO A MAXIMUM PRISON SENTENCE OF 23½ YEARS, BECAUSE THAT SENTENCE IS NOT SUPPORTED BY THE RECORD IN THIS CASE, IN VIOLATION OF
R.C. 2953.08(G) AND2929.11(A) . A-1; T.P.126; MAY 3, 2018 JOURNAL ENTRY OF JUDGMENT, CONVICTION, AND SENTENCE, P. 29.
{¶ 23} Serna argues that the trial court failed to consider his age as a mitigating factor, thereby invalidating his sentences. At the time of the shooting, Serna was 17.
{¶ 24} A “trial court has full discretion to impose any sentence within the authorized statutory range, and [it] is not required to make any findings or give its reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.), citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the syllabus. Even so, the “court must comply with all applicable rules and statutes, including
{¶ 25} Although the trial court did not refer to Serna‘s age as a mitigating factor, the court did refer to his age immediately before pronouncing sentence, thanking him for maintaining a composed demeanor throughout the hearing because “other juvenile offenders [might] not [have] conducted themselves in a respectful manner.” See Transcript of Sentencing Hearing 104:15-104:19. Additionally, in the Judgment Entry, the court noted, in reliance on research reported by one of the mental health professionals who interviewed Serna, that because the human brain is not completely developed until approximately the age of 25, Serna “was not * * * neurologically developed” at the time of the offense. See Judgment Entry 27. The court, then, was certainly aware of Serna‘s age, and the court stated that it had considered the purposes and principles of felony sentencing, along with the seriousness, recidivism and other sentencing factors set forth in
{¶ 26} Yet, the court did not have an obligation to consider Serna‘s age as a mitigating factor. Serna “did not receive a life sentence without parole,” but instead, “he received a sentence of [23 and one-half years] in prison,” after which he will be released. State v. Hawkins, 2015-Ohio-5383, 55 N.E.3d 505, ¶ 16 (2d Dist.). The trial court, however, would have had to consider Serna‘s age as a mitigating factor only before imposing a sentence of life without parole. See, e.g., State v. Starling, 2d Dist. Clark No. 2018-CA-34, 2019-Ohio-1478, ¶ 66-67; Hawkins at ¶ 11-16. As a result, even if the court did not consider age as a mitigating factor in this case, it did not err by declining to do so. Serna‘s second assignment of error is overruled.
III. Conclusion
{¶ 27} For sentencing purposes, the trial court permissibly relied on basic information about the prescription medication Vyvanse posted by the manufacturer on its website, such as the drug‘s chemical composition and intended clinical applications. Although the trial court engaged in an ill-advised analysis of the possible effects that Vyvanse might have had on Serna‘s mental health in light of the manufacturer‘s side-effects advisory, its analysis was superfluous because it sentenced Serna primarily on the basis of the harm caused to the victims of the shooting. The court, furthermore, was not required to consider Serna‘s age as a mitigating factor. Therefore, Serna‘s convictions are affirmed.
WELBAUM, P.J. and HALL, J., concur.
Copies sent to:
Jane A. Napier
Stephen P. Hardwick
Charlyn Bohland
Hon. Nick A. Selvaggio