State v. ViersState v. Viers
RELEASED AND JOURNALIZED: November 17, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-20-651437-A
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Jennifer Driscoll and Carl Felice, Assistant Prosecuting Attorneys, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and Jonathan Sidney, Assistant Public Defender, for appellant.
{¶ 1} Defendant-appellant, Nicholas Viers, appeals the trial court‘s order imposing consecutive sentences for two counts of endangering children. He argues consecutive sentences are not warranted because of his limited criminal history and the trial court failed to assign weight to the mitigating factors presented by the defense. After a careful review of the record and applicable law, we affirm the trial court‘s judgment.
{¶ 2} On June 27, 2020, Viers, age 19, was the primary caretaker for the victim, his three-month-old biological daughter. On that day, the police received a call from a hospital reporting a baby had sustained head injuries consistent with shaken baby syndrome. The presentence-investigation report (“PSI“) indicates that, when Viers brought the baby to the hospital, she was in critical condition; a social worker told the police that the baby had a “subdural hematoma with shift,” which, as the social worker described, “means the baby had blood in the brain.” The doctor treating the baby stated, “it looks like a shake injury.” The doctors had to remove a piece of the baby‘s skull to relieve the pressure in her head, and she was required to wear a helmet for a period of time after the hospital stay.
{¶ 3} Following the police investigation of the incident, the grand jury indicted Viers for four counts of endangering children (Counts 1 through 4) in violation of
{¶ 4} At sentencing, the state reported that it learned from the prosecutor for the Cuyahoga Division of Children and Family Services that the victim still had difficulties with the left side of her body, possibly due to a stroke that she suffered in the incident. While able to walk, her gait was uneven and she had difficulties holding objects in her left hand. The state also reported that, as indicated by the medical records, there was a significant lifetime risk of “dysfunctional pituitary signals for growth,” kidney disfunction, and problems with the circulation of blood. The state reported that the victim had also sustained rib fractures, which she was healing from at the time of the incident, and she also suffered from malnourishment and dehydration.
{¶ 5} The state additionally reported that when Viers was questioned by the detectives regarding his daughter‘s injuries at the hospital, he acted aggressively in a physical manner towards the detectives and was arrested by the hospital police.
{¶ 7} The trial court sentenced Viers to consecutive terms of 30 months in prison for the two counts of endangering children. The court made the findings required by
{¶ 8} Viers now appeals, raising the following assignments of error for our review:
The trial court erred in imposing consecutive sentences on the basis of insufficiently reliable information from outside the record in violation of Mr. Viers’ right to due process. - The trial court erred in failing to assign weight to the substantial mitigating grounds set forth by the defense.
- The trial court erred in imposing consecutive sentences because the record clearly and convincingly does not support its
R.C. 2929.14(C) findings in regards to Mr. Viers’ criminal history.
{¶ 9} We address the first two assignments jointly, because they both concern the consecutive sentences imposed by the trial court for his offenses.
Consecutive Sentences
{¶ 10} The consecutive sentence statute,
- 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. - 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.
- The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 12} Accordingly, a consecutive sentence may be challenged in two ways. The defendant can argue that consecutive sentences are contrary to law because the court failed to make the necessary findings required by
{¶ 13} In making the consecutive findings, a trial court is not required to give reasons supporting its decision to impose consecutive sentences. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 27. Rather, “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.” Id. at ¶ 29.
{¶ 15} We address the trial court‘s finding regarding his history of criminal conduct first. The trial court noted two instances of domestic violence included in the PSI: he had an adjudication for domestic violence as a juvenile in 2017 and a charge brought in the municipal court for domestic violence in May 2020. Viers alleged that the latter charge stemmed from an argument he had with his sister after she blew smoke in his infant daughter‘s face and he merely “slapped the cigarette out of her hand,” but she called the police. We note that, while the trial court is required to consider the PSI, it is not required to accept all of its content as true. State v. Caraballo, 8th Dist. Cuyahoga No. 97915, 2012-Ohio-5725, ¶ 36, citing State v. Mayor, 7th Dist. Mahoning No. 07 MA 177, 2008-Ohio-7011. While Viers appeared to minimize his conduct in the case, the trial court specifically found it significant that both prior cases involved domestic violence conduct.
{¶ 17} Regarding his juvenile adjudication for domestic violence, Viers argues the adjudication should not be considered by the trial court to support consecutive sentences, citing State v. Batiste, 2020-Ohio-3673, 154 N.E.3d 1220 (8th Dist.).
{¶ 18} “It is well settled that a defendant‘s juvenile record may be considered as part of an offender‘s ‘criminal history’ for
{¶ 19} Regarding Batiste, the majority of the panel recognized that juvenile adjudications can be considered in adult court because they are “conduct” not
{¶ 20} Viers also argues the trial court‘s imposition of consecutive sentences was based on unreliable information provided by the prosecutor at the sentencing hearing.
{¶ 21} Viers received consecutive sentences after he pleaded guilty to two separate counts of endangering children in violation of
There were rib fractures that were healing. We have the head injury. She was completely malnourished. She was underweight. She would have died of dehydration and malnourishment had she not been so badly injured and taken to the hospital with this skull fracture and the hematoma in her head. She had a number of different injuries[.]
{¶ 22} Viers argues the trial court relied on representations by the prosecutor regarding the child‘s severe malnutrition in imposing consecutive sentences. We note, however, ”
{¶ 24} Finally, Viers, pointing to page 51 of the sentencing transcript, claims the trial court violated his due process right when it “repeatedly interrupted defense counsel‘s attempts to respond to the court‘s reliance on the prosecutor‘s unsupported allegations and did not allow counsel to develop a complete record” in support of concurrent sentences.
{¶ 25} The cited portion of the transcript reflects that, after the trial court clarified that the two prison terms for Counts 1 and 2 were to be served consecutively, the defense counsel, while not disputing the victim‘s injuries, attempted to argue that the victim‘s condition, including malnutrition, was not
{¶ 26} Our review of the transcript indicates the trial court made the statutory findings and engaged in the correct analysis for its imposition of consecutive sentences. While not required to, the trial court explained its reasons for the findings and the record contains evidence to support the findings. Because we will reverse or modify the consecutive sentences only if we clearly and convincingly find the record does not support the sentencing court‘s findings, we affirm Viers‘s consecutive sentences. The first and second assignments of error are without merit.
{¶ 27} Under the third assignment of error, Viers argues the trial court erred in failing to assign weight to the mitigating grounds presented by the defense, citing
{¶ 28} In imposing a sentence for a felony, the trial court is to consider the sentencing purposes set forth in
{¶ 29} Viers argues the trial court failed to give meaningful consideration and assign weight to mitigation factors as required by
(C) The sentencing court shall consider all of the following that apply regarding the offender, the offense, or the victim, and any other relevant factors, as indicating that the offender‘s conduct is less serious than conduct normally constituting the offense:
* * *
(4) There are substantial grounds to mitigate the offender‘s conduct, although the grounds are not enough to constitute a defense.
{¶ 30} Viers argues the trial court failed to assign weight to his biological father‘s physical and sexual abuse of him during his childhood as described in the mitigation of penalty report. The report also indicates Viers had an unstable childhood; he was placed in foster care between age three and nine before he was adopted. The psychiatrist who prepared the report opined that Viers‘s mental illness of post-traumatic stress disorder was a significant factor in his commission of the instant offenses.
{¶ 31} Regarding
Nothing in
R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in the record and substitute its judgment for that of the trial court concerning the sentence that best reflects compliance withR.C. 2929.11 and2929.12 . In particular,R.C. 2953.08(G)(2) does not permit an appellate court to conduct a freestanding inquiry like the independent sentence evaluation this court must conduct underR.C. 2929.05(A) when reviewing a death penalty-sentence.
State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 42.
{¶ 32} The record here reflects the trial court heard and considered the mitigation argument advanced by the defense. While Viers complains that the trial court failed to assign weight to the substantial mitigation factors, we are not free to independently weight the sentencing factors in
{¶ 33} Judgment affirmed.
It is ordered that appellee recover of appellant 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. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MICHELLE J. SHEEHAN, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR