STATE OF OHIO v. MICHAEL A. STOKER
No. 110029
Court of Appeals of Ohio, Eighth Appellate District, County of Cuyahoga
June 3, 2021
[Cite as State v. Stoker, 2021-Ohio-1887.]
MARY J. BOYLE, A.J.
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 3, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-19-643227-A, CR-19-643809-A, and CR-20-648811-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Justin Washburne, Assistant Prosecuting Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and Francis A. Cavallo, Assistant Public Defender, for appellant.
MARY J. BOYLE, A.J.:
{¶ 1} Defendant-appellant, Michael A. Stoker, appeals his sentences in three cases. He raises one assignment of error for our review:
The trial court erred when it ordered consecutive sentences without support in the record for the requisite statutory findings under
R.C. 2953.08(G)(2) andR.C. 2929.14(C)(4) .
I. Procedural History and Factual Background
{¶ 3} In August 2019, 70-year-old Stoker was arrested for committing offenses against his wife, D.S., and the trial court issued a domestic violence temporary protection order. In September 2019, Stoker was indicted in Cuyahoga C.P. No. CR-19-643227 for four offenses occurring in January and August 2019. Later in September 2019, Stoker was also indicted in Cuyahoga C.P. No. CR-19-643809 for another three offenses against D.S. occurring in September 2019.
{¶ 4} In January 2020, Stoker agreed to plead guilty to an amended indictment in both cases. In CR-19-643227, Stoker agreed to plead guilty to three counts: domestic violence in violation of
{¶ 5} In CR-19-643809, Stoker agreed to plead guilty to three counts: burglary in violation of
{¶ 6} The trial court held a sentencing hearing in February 2020 for both CR-19-643227 and CR-19-643809. D.S. spoke and asked the trial court to impose community control sanctions instead of prison time. She assured the trial court that she felt safe with Stoker and requested that the protection order be lifted. Stoker also addressed the trial court, acknowledged that he had problems with alcohol, and explained that he suffered from posttraumatic stress disorder (PTSD) from his army service in the Vietnam War. He emphasized that he would seek help from Veterans Affairs.
{¶ 7} The trial court sentenced Stoker to two years of community control sanctions on each count for both cases, to all be served concurrently to each other. For both cases, the trial court ordered Stoker to be supervised by the domestic violence unit. As conditions of community control for both cases, Stoker would need to test negative for drugs and alcohol at each report date, successfully complete an outpatient treatment program, attend three AA/NA/CA meetings per week, obtain a sponsor, complete an anger management program, maintain weekly psychological counseling sessions with Veterans Affairs, and comply with all medications. The trial court referred Stoker to TASC for a substance abuse assessment. The trial court also lifted the protection order at D.S.’s request. In CR-19-643809, the trial court imposed a $500 supervision fee, a $250 fine, and court costs. It imposed no
{¶ 8} The following month, in March 2020, Stoker was indicted in Cuyahoga C.P. No. CR-20-648811 for additional offenses against D.S. dating from five days after the February 5 sentencing hearing in CR-19-643227 and CR-19-643809. In September 2020, Stoker agreed to plead guilty to an amended indictment: two counts of domestic violence in violation of
{¶ 9} Also in September 2020, the trial court held a hearing to impose a sentence in CR-20-648811 and to address the probation violations in CR-19-643227 and CR-19-643809. For CR-20-648811, the state requested a sentence of three years for each count, to be served concurrently. D.S. begged the trial court to not sentence Stoker to prison. She explained that she and Stoker had been married for 24 years, and she knew when she married him that he suffered from PTSD. She said she loved Stoker and that she wanted him to get counseling for his PTSD and treatment for his alcohol problem.
{¶ 11} Defense counsel reminded the trial court that Stoker was now 71 years old and had already been incarcerated for roughly seven months as the case was pending. He explained that during the Vietnam War, Stoker served as a door gunner in a helicopter and that it was his responsibility to fire upon the enemy and also in some instances receive return fire. He said that Stoker was shot and injured, and he suffered from PTSD as a result. Defense counsel pointed out that Stoker also had a severe alcohol use disorder that had festered for far too long without treatment. Defense counsel requested that the trial court order Stoker to be transported to an inpatient residential drug treatment facility so that D.S. would be protected from Stoker and so that Stoker would receive the treatment he needs.
{¶ 13} The trial court first addressed Stoker’s probation violations. For CR-19-643227, the trial court terminated Stoker’s community control sanctions and sentenced him to an aggregate term of 18 months in prison: 18 months for the fourth-degree felony of domestic violence, 12 months for the fifth-degree felony of attempted domestic violence, and 180 days for the first-degree misdemeanor of domestic violence, to all run concurrently to each other. The trial court also imposed three years of mandatory postrelease control and waived court costs.
{¶ 14} For CR-19-643809, the trial court terminated Stoker’s community control sanctions and sentenced him to an aggregate term of 18 months in prison:
{¶ 15} The trial court then sentenced Stoker in CR-20-648811 to an aggregate of 36 months in prison: 36 months each for the two counts of domestic violence, to run concurrently to each other. The trial court also imposed three years of mandatory postrelease control and waived costs and fines.
{¶ 16} The trial court ordered the 18-month sentences for CR-19-643227 and CR-19-643809 to run concurrently to each other but consecutively to the 36-month sentence for CR-20-648811, for an aggregate prison term for all three cases of four and one-half years.
{¶ 17} Stoker appeals the September 2020 sentencing judgments in all three cases.
II. Consecutive Sentences
{¶ 18} In his sole assignment of error, Stoker argues that the record does not support the trial court’s imposition of consecutive sentences. Specifically, he contends that D.S.’s statements at the sentencing hearing show that consecutive sentences are disproportionate to the seriousness of his conduct and the danger he poses to the public. He maintains that D.S.’s injuries were not extensive, D.S. did not seek medical treatment or call the police, Stoker was not violent toward his son or anyone else, and Stoker poses no significant risk to the public as a whole.
{¶ 20} As the Ohio Supreme Court has explained, when reviewing consecutive sentences,
{¶ 21} A defendant can challenge consecutive sentences on appeal in two ways. First, the defendant can argue that consecutive sentences are contrary to law because the court failed to make the necessary findings required by
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under post-release control for a prior offense.(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 23} The failure to make the above findings renders the imposition of consecutive sentences contrary to law. Gohagan at ¶ 29.
{¶ 24} In this case, the trial court made the following findings at Stoker’s sentencing hearing:
The court finds that this sentence is necessary to protect the public from future crime and to punish the offender and are [sic] not disproportionate to the seriousness of your conduct and the danger you pose to the public.
Additionally, the court finds the offender committed one or more of the offenses while awaiting trial or sentencing or was under a sanction. Also that the offender’s history of criminal conduct demonstrates consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 25} We find that the record supports the trial court’s finding that consecutive sentences were not disproportionate to the seriousness of Stoker’s conduct and the danger he poses to the public. His presentence-investigation report shows that in addition to the three cases that are the subject of this appeal, Stoker pleaded guilty to a charge of domestic violence in 2010. The record reflects that between January and September 2019, Stoker committed domestic violence and other offenses against D.S. on three separate occasions, resulting in convictions of five felonies and a misdemeanor. Just five days after Stoker was sentenced to community control for these crimes, he hit D.S. with a cane, causing her to suffer a
{¶ 26} We are not persuaded by Stoker’s arguments that the record does not support consecutive sentences because he was violent only toward D.S. and that she did not want him to go to prison. In State v. Hicks, 8th Dist. Cuyahoga No. 107055, 2019-Ohio-870, ¶ 17, we found that the record supported the trial court’s findings under
{¶ 28} Accordingly, Stoker’s assignment of error is overruled.
{¶ 29} Judgments affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas 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 J. BOYLE, ADMINISTRATIVE JUDGE
ANITA LASTER MAYS, J., and
MICHELLE J. SHEEHAN, J., CONCUR