State v. Lewis ( 2022 )

[Cite as State v. Lewis, 2022-Ohio-2357.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110815
v. :
SOLOMON LEWIS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, VACATED
IN PART, AND REMANDED
RELEASED AND JOURNALIZED: July 7, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-615253-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Anthony Miranda and Kristen Hatcher,
Assistant Prosecuting Attorneys, for appellee.
Robinson & Brandt, P.S.C. and Jeffrey M. Brandt, for
appellant.
EILEEN A. GALLAGHER, J.:
Defendant-appellant Solomon Lewis appeals his convictions after he
pled guilty to one count of attempted murder (with criminal gang activity, firearm
and forfeiture specifications), two counts of felonious assault (with criminal gang
activity, firearm and forfeiture specifications) and one count of improperly
discharging firearm into habitation (with firearm and forfeiture specifications). He
argues that probable cause was not shown to warrant the mandatory transfer of
jurisdiction from the juvenile court to the general division and that the general
division lacked jurisdiction to convict him on Count 7 — the improperly-
discharging-firearm-into-habitation count — because the juvenile court had
previously dismissed an identical charge after finding that there was no probable
cause to believe Lewis committed the offense. He also argues that (1) mandatory
bindovers and Ohio’s “more than a mere suspicion” standard for establishing
probable cause violate due process, (2) that his counsel was ineffective for failing to
make various arguments below and (3) the record does not support the trial court’s
findings in support of the imposition of consecutive sentences. For the reasons that
follow, we vacate Lewis’ conviction on Count 7 and remand for the issuance of a new
sentencing journal entry reflecting (1) that the conviction on Count 7 has been
vacated, (2) the correct sentence on Count 4 (as imposed by the trial court at the
sentencing hearing) and (3) all of the consecutive sentence findings made by the trial
court at the sentencing hearing. We otherwise affirm Lewis’ convictions.
Procedural History and Factual Background
Juvenile Court Proceedings
On March 24, 2016, the state filed an eight-count delinquency
complaint in the Cuyahoga County Court of Common Pleas, Juvenile Division
(Cuyahoga C.P. Juv. No. DL-16-104710) against Lewis (d.o.b. 3/2/1998), alleging
that he had committed acts that would constitute the following crimes if he were an
adult: one count of attempted murder in violation of R.C. 2903.02(A) and 2923.02
(Count 1), five counts of felonious assault in violation of R.C. 2903.11(A)(2) (Counts
2-6), one count of felonious assault in violation of R.C. 2903.11(A)(1) (Count 7) and
one count of improperly discharging firearm into habitation in violation of R.C.
2923.161(A)(1) (Count 8). All of the counts included criminal gang activity
specifications and one-, three- and five-year firearm specifications. The charges
related to Lewis’ alleged role in a drive-by shooting that occurred on January 15,
2016 on Union Avenue in Cleveland. As a result of the shooting, a teenage girl was
shot in the leg. The case was subject to mandatory transfer pursuant to R.C.
2152.12(A)(1)(a)(i).
Probable Cause Hearing
On April 29, 2016, the juvenile court held a probable cause hearing.
Eyewitness Tomekia Martin and Detective Michael McNeeley with the Cleveland
Police Department’s Gang Impact Unit testified on behalf of the state. Lewis
presented no witnesses at the probable cause hearing.
Martin testified that on the afternoon of January 15, 2016, she was
backing up her car at her home on Union Avenue in Cleveland when she saw a young
man she knew as “Car Wash” walking with a young woman. The couple was walking
eastbound on Union Avenue towards the bus stop at the intersection of Union
Avenue and East 93rd Street. Martin stated that, approximately three minutes later,
while she was letting her dogs out in her yard, she saw Car Wash running westbound
on Union Avenue, back towards his home on East 88th Street, with two men chasing
after him. She testified that one of the men was “kind of tall” and was wearing a
gray, “like a bubbly coat * * * like a quilted-type jacket.” Martin stated that the two
men who were chasing Car Wash turned around and walked back towards East 93rd
Street. Martin testified that after the two men turned around, she asked Car Wash
what was going on and whether he was okay. She stated that Car Wash responded
that the two men were “trying to jump me.”
Martin testified that she put her dogs inside the house, then got into
her car and went looking for the two men. She stated that the men were still walking
on Union Avenue when she saw them and that she began driving slowly, following
them. Martin testified that the two men walked to a store parking lot where they got
into a “tannish, brownish” Chevy Malibu. A young woman and another male were
already in the vehicle. The male was driving, and the woman was seated behind him
on the driver side. The two men who had been walking got into the vehicle on the
passenger side. One man sat in the front passenger seat and the other man sat in
the rear passenger seat.
Martin followed the vehicle as it cut across the parking lot, waited at
a busy intersection (filled with buses and cars as a nearby school was letting out) and
then pulled out into the street. Martin testified that there were two cars between her
vehicle and the Malibu as they travelled westbound on Union Avenue back towards
her house; Martin was traveling in the right lane and the Malibu was traveling in the
left lane. The Malibu suddenly “jammed on the brakes,” and Martin saw the front
passenger door of the Malibu swing open. Martin testified that the shooter’s “whole
body was like turned” and that she saw “part of the arm that was shooting.” She
heard three or four gunshots then saw a woman hit the ground as people started
running and screaming. According to Martin, the shots were fired into a “crowd”
consisting of Car Wash and “his brothers, cousins, whatever” that had gathered
together near her property. Martin testified that she did not see the shooter but saw
his gray coat hanging out of the door of the car as he was shooting. Martin testified
that she did not see any weapons in the hands of Car Wash or any of the persons
who were with him at the time of the shooting.
Martin testified that, after the shooting, she called 911 as she
“chase[d]” the Malibu on Union Avenue. She continued to pursue the vehicle,
“flying,” as it made a right turn on East 88th Street, a left turn onto Bessemer Avenue
and as it continued on Bessemer Avenue to East 55th Street while she remained on
the telephone with the 911 operator. Martin testified that the 911 operator asked
Martin if she could get a license plate number for the Malibu. Martin told her that
the license plate number included a C-O or C-zero and that the plate had a blue
ribbon around it, “like they got it from a car lot.” Martin testified that the 911
operator told her to stop chasing the Malibu but that she refused to do so and hung
up the phone.
The Malibu made a sharp right turn on Grand Avenue. Martin stated
that she had to wait for a truck to pass but then continued her pursuit of the Malibu.
When Martin saw the Malibu again, a young woman was “just out the car.” Martin
testified that she lost the Malibu on Kinsman Road when she stopped and “cussed a
girl out.” Martin stated that the police called her back and that she told them she
lost the Malibu on Kinsman Road. According to Martin, the police told her to go
back to the scene because they may need to talk to her. Martin complied and
returned to the scene of the shooting.
Martin testified that when she returned to the scene, she saw an
ambulance and was told that a girl had been shot. Martin stated that she later
learned that the exterior of her house had also been damaged in the incident, i.e.,
that the right side of her house “has like a ricochet” and a piece of the house was
missing. Martin stated that she knew the piece of the house had not been missing
prior to the incident because she had recently obtained an estimate for exterior
painting and shingle replacement and there had been no damage at the time. Martin
also indicated that she had not seen any damage when she was in the yard with her
dogs shortly before the shooting.
Martin testified that she spoke with police and told them what she
had observed. Approximately a week after the shooting, police visited her at her
home on Union Avenue and asked her to view a photo array. Detective McNeeley,
one of the officers assigned to investigate the shooting, testified that during the
course of the investigation, a suspect was “developed” and that officers put together
a “six-pack” photo array to show the witnesses. The photo array was shown to Car
Wash and Martin, separately.
Martin testified that she believed she would be able to identify the
individuals involved in the incident because she had had ample time to observe the
two males “from behind” while she was following them to the parking lot before the
shooting, including “the coat, the shoes, the pants, the little dreads, like all of that.”
She also stated that she had also “looked at everyone” and had made eye contact
with each of the individuals in the Malibu while they were waiting to turn out of the
parking lot prior to the shooting. Martin explained:
When we rode past by the individual in the car, I guess I was looking at
the driver crazy like, and the passenger might have said something, and
I looked him straight in his face.
Eye contact. I looked everybody in that car with eye contact.
Everybody in the car because they had to wait. So as they were waiting
to turn out of the parking lot to go back west, I’m standing like, I’m on
the side of them like this just looking inside the car, looking at
everybody in the car.
When viewing the photo array, Martin identified “[n]umber 2” in the
photo array (i.e., Lewis) as the shooter and indicated that she was “75 percent sure”
he was the shooter. With respect to the level of certainty of her identification, Martin
explained:
Q. When we’re talking about your observation of the faces of the four
people in the car, you sound very confident today.
A. Uh-huh.
Q. You’re only 75 percent sure a week after this occurred. What makes
you unsure? Why not be 100 percent sure?
A. Nothing in life is 100 percent sure.
Q. Why not be 95 percent sure?
A. Because I chose to choose 75.
Q. What makes you unsure about your selection?
A. I’m really not unsure, because I know what I seen, but I just — at
that time, that’s how I felt about it.
Martin indicated that she could also describe the clothing the shooter
had been wearing at the time of the shooting:
The coat was like a gray bubble-ish coat, like a quilted. It wasn’t like a
spring like bubble coat, but it was a nice spring like, soft like, bubble
jacket. It was gray with a hood. It had a hood. I seen the dreads, and
dark pants, and boot-like tennis shoes. They looked like boots to me.
And it’s like, I want to say it’s like a patch or something on the back of
that coat. I know that there is a patch on the back of that coat. I want
to say like the left part. I think it’s like black or something, but I know
there’s something on that jacket that I noticed.
When asked whether the person she had picked out in the photo array
and whom she had identified as the shooter was in the courtroom, Martin responded
affirmatively and pointed to Lewis. The photo array Martin signed was admitted
into evidence at the hearing.1
Detective McNeeley testified that as a result of his investigation, he
learned that there were five victims of the January 15, 2016 shooting: Tiffany Curry,
LeAndre Tucker (a.k.a. “Car Wash”), Betty McClarin (Car Wash’s aunt), Christian
Boldin and Martin. Curry sustained a gunshot wound to the leg. The other victims
sustained no physical injuries.
1 The three exhibits admitted into evidence at the probable cause hearing were not
included in the record forwarded to this court on appeal.
McNeeley testified that police identified Lewis’ Facebook and
Instagram accounts and, based on photographs that were posted on those accounts,
obtained search warrants for those accounts. McNeeley stated that, prior to
reviewing Lewis’ social media accounts, he was aware that a witness had described
the shooter as having worn a “silver, gray bubble jacket” at the time of the shooting.
He indicated that when he reviewed Lewis’ social media accounts, he discovered that
Lewis had posted multiple photographs on social media on the date of the incident,
including a photograph in which Lewis was wearing dark-colored pants and black
shoes and holding two firearms and a photograph in which Lewis was wearing dark-
colored pants, black shoes and a “gray bubble coat.”
McNeeley testified that in one of the photographs, Lewis and another
black male were both wearing silver jackets made of “puffy but not completely puffy
material.” McNeeley acknowledged that if Martin had observed only a sleeve of one
of those jackets, it would be “hard to tell those apart.” Although the photographs
were posted on January 15, 2016, McNeeley could not say when the photographs
had been taken. Copies of two of the photographs posted on social media were
admitted into evidence at the hearing.
McNeeley testified that he had not been familiar with Car Wash or
Lewis prior to January 15, 2016 shooting. McNeeley stated that, when interviewing
Car Wash’s mother, he learned that Car Wash was affiliated with the Unwin Gang, a
local street gang associated with Unwin Street in Cleveland. He did not uncover any
information to suggest that any of the other victims had any gang affiliation.
Upon further investigation, McNeeley also learned that Lewis had
been a member of the Clout Gang, a gang out of the Morris Black Projects, and that
since Lewis had been released from juvenile detention, he had been associating with
the Muddy Gang, a gang in the Buckeye neighborhood that uses red lettering and
has a “common symbol” “for graffiti[,] shirts, and stuff like that.” McNeeley
indicated that several posts Lewis had made on his social media accounts referenced
the Muddy Gang and that one of Lewis’ family members was a founding member of
the Muddy Gang. McNeeley stated that he also learned that the Clout Gang
reportedly had “a beef” with the Unwin Gang.
McNeeley testified that on January 22, 2017, a warrant was issued for
Lewis’ arrest. He stated Lewis’ mother or aunt allowed police to enter the residence
and that Lewis was in his bedroom when police arrived. When officers entered
Lewis’ bedroom, they saw two revolvers and ammunition “in plain sight.” McNeeley
testified that he then left the residence to seek a search warrant. After a search
warrant was obtained for Lewis’ residence, police seized the revolvers and
ammunition along with “a gray or silver bubble jacket” and marijuana. McNeeley
identified Lewis in the courtroom.
McNeeley testified that a spent round was recovered from Curry’s leg
and that, as part of his investigation, that round and the weapons seized from Lewis’
residence were submitted for comparison. However, the results of that comparison
were not introduced into evidence at the probable cause hearing.
After all the evidence was presented, the state moved to dismiss
Count 6 — the felonious assault of Martin — with prejudice on the ground that there
was no evidence that there was any attempt to cause physical harm to Martin, i.e.,
the evidence showed that Martin was behind the Malibu when the shooting took
place and the gun was never pointed in her direction.
After the state’s closing argument, Lewis’ counsel indicated that he
had “kind of a unique request.” He stated: “[W]e actually don’t contest the finding
of probable cause. We leave that to the discretion of the Court.” However, if the
juvenile court were to find probable cause existed, he requested that Lewis “be given
bail” and that that “be done today.”
After hearing the evidence and arguments of counsel, the juvenile
court found that Lewis was 17 years old at the time of the conduct charged and that
there was probable cause to believe that Lewis had committed the acts charged in
Counts 1-5 and 7.
The juvenile court found that the state had failed to establish probable
cause as to the act charged in Count 8 — improperly discharging firearm into the
habitation of Martin. The juvenile court explained:
Now, Count 8. Ms. Martin testified to the fact that she was
walking her dogs and didn’t see any defects to her home. However,
when the gun was fired in proximity to her property, she claims that
when she returned she saw the defect in her home.
The problem that the Court has is that there was never any
testimony about any bullet fragments or a bullet being found near the
home, or any casings being found near the home. And while the
gunshots were towards Car Wash and the group, there’s no testimony
that any gun was directly fired at the home.
I know the transfer of intent can be applied, but the issue the
Court has is finding probable cause where there can be other reasons
for the defect. Without any further evidence the Court finds that
probable cause has not been established for Count 8.
The juvenile court dismissed Counts 6 and 8 with prejudice. On
April 26, 2016, the case was transferred to the general division.
Proceedings in the General Division
On April 3, 2017, a Cuyahoga County Grand Jury indicted Lewis in an
8-count indictment2 as follows:
● One count of attempted murder in violation of R.C. 2903.02(A)
and 2923.02, a first-degree felony, with one-, three- and five-
year firearm specifications, a criminal gang activity specification
and weapon forfeiture specifications (Count 1);
● One count of felonious assault in violation of R.C. 2903.11(A)(1),
a second-degree felony, with one-, three- and five-year firearm
2 On May 11, 2016, Lewis was indicted in Cuyahoga C.P. No. CR-16-606037.
Following the Ohio Supreme Court’s decision in State v. Aalim (“Aalim I”), 150 Ohio St.3d
463, 2016-Ohio-8278, 83 N.E.3d 862, paragraph one of the syllabus — in which the court
held that the mandatory transfer of juveniles to the general division violates juveniles’
right to due process under Article I, Section 16 of the Ohio Constitution — the case was
transferred back to the juvenile court, so that the juvenile court could conduct an
amenability hearing pursuant to R.C. 2152.12(B), and the indictment in Cuyahoga C.P.
No. CR-16-606037 was dismissed without prejudice.
Once the case was back in juvenile court, Lewis was referred to the court’s
diagnostic clinic for a psychological evaluation, and a “bindover hearing” was scheduled
for March 8, 2017. On February 22, 2017, the Ohio Supreme Court granted a stay of
execution of Aalim I. The “bindover hearing” was cancelled, and Lewis was reindicted in
Cuyahoga C.P. No. CR-17-615253. On May 25, 2017, the Ohio Supreme Court granted
the state’s motion for reconsideration, vacated its decision in Aalim I and issued a new
decision in which it held that “the mandatory bindover of certain juvenile offenders under
R.C. 2152.10(A)(2)(b) and 2152.12(A)(1)(b) complies with due process and equal
protection as guaranteed by the Ohio and United States Constitutions.” State v. Aalim
(“Aalim II”), 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 38.
specifications, a criminal gang activity specification and weapon
forfeiture specifications (Count 2);
● Three counts of felonious assault in violation of R.C.
2903.11(A)(2), a second-degree felony, with one-, three- and
five-year firearm specifications, a criminal gang activity
specification and weapon forfeiture specifications (Count 3-5);
● One count of discharge of firearm on or near prohibited premises
in violation of R.C. 2923.162(A)(3), a first-degree felony, with
one-, three- and five-year firearm specifications and weapon
forfeiture specifications (Count 6);
● One count of improperly discharging firearm into habitation in
violation of R.C. 2923.161(A)(1), a second-degree felony, with
one-, three- and five-year firearm specifications and weapon
forfeiture specifications (Count 7) and
● One count of improperly handling firearms in a motor vehicle in
violation of R.C. 2923.16(A), a fourth-degree felony, with one-,
three- and five-year firearm specifications and weapon forfeiture
specifications (Count 8).
On September 18, 2017, the parties reached a plea agreement.
Pursuant to the plea agreement, Lewis pled guilty to: Count 1 (amended to delete
the five-year firearm specification); Counts 4 and 5 (amended to delete the three-
and five-year firearm specifications) and Count 7 (amended to delete the three- and
five-year firearm specifications). Following a plea colloquy in which the trial court
confirmed Lewis’ understanding of the counts to which he was pleading guilty, the
trial court accepted Lewis’ guilty pleas and the remaining counts were nolled. The
trial court referred Lewis for a presentence investigation and report (“PSI”) and
scheduled a sentencing hearing for the following month.
The sentencing hearing was postponed after Lewis filed a motion to
withdraw his guilty pleas and the trial court granted defense counsel’s motion to
withdraw. The trial court appointed new counsel for Lewis, denied Lewis’ motion to
withdraw his guilty pleas and the sentencing hearing was held on March 8, 2018.
Defense counsel, Lewis’ father, the state, Cleveland Police Detective
Bauhof and Lewis addressed the trial court during the sentencing hearing. Defense
counsel stated that Lewis did not believe his guilty pleas were entered knowingly,
intelligently and voluntarily and that Lewis was “still seeking to maintain his
innocence and withdraw his plea[s].” He indicated that, therefore, he did not have
“a statement of remorse or an explanation of circumstances” to offer “other than to
ask the court to look at the facts and circumstances and background of this young
man.”
Lewis’ father stated that he was granted custody of Lewis after he was
“positive tox” at birth and that he had been told Lewis would have developmental
issues, including attention deficient issues and mental and emotional disabilities,
due to his mother’s drug and alcohol use during pregnancy. Lewis’ father indicated
that, “in his mind,” Lewis “want[s] to be a gangster” but “he’s not.” He stated that
Lewis is “not a normal child,” “[h]e doesn’t process things normal” and “[h]e’s an
easier [sic] follower.” Lewis’ father indicated that Lewis had earned good grades in
school and had graduated from high school. He further stated that although Lewis
had been previously involved with the juvenile justice system, the juvenile court
judge had “worked with him every step of the way” and that Lewis had never been
sent to a juvenile facility. Lewis’ father said that he “would just like to see [Lewis]
have the life that he deserve[s] * * * and turn this thing around.”
The state pointed out that, although he pled guilty, Lewis had never
“accept[ed] responsibility” for his actions despite “overwhelming evidence,”
including both forensic evidence and “some of [Lewis’] own words and his own
actions,” that he was the “trigger man” in the January 15, 2016 shooting. The state
related that, according to the PSI, Lewis “denie[d] his involvement” in the shooting,
but that Lewis had been identified in a photo array as the shooter and, “mere
moments” after the shooting, Lewis was “bragging about it on Facebook” (stating
that he and another individual had “chased down the victim”) and was posing with
firearms that were later found during the execution of the search warrant at Lewis’
residence — one of which matched the bullet that was taken from the victim’s leg.
The state acknowledged that Lewis had “some mental health issues”
but that he also had “negative peer association” and was “gang-affiliated.” The state
outlined Lewis’ lengthy history of escalating criminal conduct, beginning with a
concealed carry weapon charge in 2012. The state asserted that firearms were part
of Lewis’ “way of life” and stated that Lewis had been previously charged with acts
of burglary, theft, multiple assaults, disorderly conduct, other firearm charges and
aggravated riot. The state also noted that the victim who suffered the gunshot
wound was not the person whom Lewis had targeted but was an innocent bystander.
The state requested the imposition of consecutive sentences and
argued that a sentence “starting at 20 years” would be justified in the case given “the
multiple victims, the history of the defendant, the harm caused to the one individual,
[and] the targeting and the bragging about it.” The state asserted that Lewis is
“someone that just hasn’t gotten it, and the public needs to be protected from an
individual like this.”
Detective Bauhof stated that, at some point, Lewis “started popping
up real big in the gang investigations” and that when Lewis started to be known to
law enforcement officers in the juvenile justice system, he requested the assistance
of the gang impact unit “to help with Solomon Lewis” because Lewis was “a terror at
that time,” reportedly involved in multiple different shootings.
He stated that Lewis was “a very smart individual” and was both “a
leader and a follower,” i.e., he looked up to and followed the “older gang bangers
from Buckeye” but, at the same time, was “a leader in the Morris Black area, where
all his peers in Morris Black looked up to him,” and he was a founding member of
the Clout Gang.
Bauhof stated that when he first heard about the January 15, 2016
shooting, he thought it “sound[ed] like” Lewis and, “[k]nowing how dangerous
Solomon Lewis was,” immediately recommended that the case be transferred to the
gang impact unit for further investigation. Bauhof claimed that Lewis is “addicted
to his reputation, drugs, and guns” and that he would “taunt law enforcement with
the social media” — i.e., keeping his social media accounts public, knowing that law
enforcement was watching his account — showing “photographs of all his guns,”
stating “what he got away with” and “talk[ing] in code about all his criminal activity.”
He stated that Lewis “has a large fan base” and is “a very dangerous individual.”
Lewis was the final person to address the trial court. He maintained
his innocence and contended that the “alleged evidence” detectives obtained from
social media was “all one-sided” and lacked context. He stated that he did not
understand how the shooter “allegedly fit [his] description” given that the shooting
occurred when school was letting out in an area where there are “thousands of kids
right there with gray bubble coats and dreads.” Although Lewis did not deny that
he had posted multiple photographs of himself on social media posing with firearms,
he claimed that there was no evidence the photographs had been taken shortly
before or after the shooting and stated that certain of the photographs were “three
or four years old.”
With respect to his history with the juvenile justice system, Lewis
claimed that although he had been “accused of a lot of things” and “charged with all
type of crimes” in juvenile court, “there was really no significant convictions” and
for that reason, he was never sent to the Ohio Department of Youth Services. In
response to Lewis’ claim, the trial judge reviewed Lewis’ history of involvement with
juvenile justice system with Lewis.
Lewis also read a letter he had written in which he claimed that he
had entered “an unknowing and unwilling plea” and that “the only reason [he] took
the plea was because [defense counsel] forced [him] to.” Lewis claimed that, on the
date of trial, his prior counsel told him that there was “no way” Lewis could “win the
case” because counsel had failed to advise the trial court that he wanted to file
multiple suppression motions and “forgot” to send out subpoenas witnesses to
testify on Lewis’ behalf. According to Lewis, his prior counsel told him that “the only
way out was to cop out” and that Lewis was “currently going through the motions
with the Supreme Court of Ohio disciplinary counsel because of that.”
Lewis stated that he told his prior counsel that he would not “plead to
something I didn’t do” and that prior counsel assured him that he was “not pleading
to the attempted murders and felonious assaults.” Lewis indicated that he
ultimately agreed to a plea deal — which he believed carried a four-year sentence —
“only for some things that were allegedly found in my grandmother[’s] house”
because prior counsel told him that if he “didn’t take the plea,” his grandmother
would be charged. Although Lewis acknowledged that the trial judge had asked him,
during the plea colloquy, whether he understood the offenses to which he was
pleading guilty and that Lewis had responded affirmatively, in his letter Lewis
asserted:
when you started to add the numbers and ended up with at least a
mandatory eight years, it was like at that point I was physically in the
courtroom, but mentally I was somewhere else. I really don’t know
where I was at mentally that day, but I’m a hundred percent sure I made
an unconscious decision that I regret.
Lewis stated that he had also wanted to withdraw his guilty pleas
because the trial court had appointed him a new attorney who was “willing to fight
for me” and because “my attorney and I have evidence that, if presented at trial, will
prove my direct innocence.”3
After reviewing the PSI, additional documentation submitted by
defense counsel regarding Lewis’ receipt of social security benefits and treatment for
mental health issues4 and considering the “overriding purposes and principles of
sentencing” and the statements made at the sentencing hearing, the trial court
sentenced Lewis at the sentencing hearing to an aggregate 18-year prison term as
follows:
● As to Count 1, 11 years — three years on the firearm specification
to be served prior to and consecutive to three years on the
criminal gang specification to be served prior to and consecutive
to five years on the underlying offense (attempted murder);
● As to Count 4, seven years — one year on the firearm
specification to be served prior to and consecutive to six years on
the underlying offense (felonious assault);
● As to Count 5, five years — one year on the firearm specification
to be served prior to and consecutive to four years on the
underlying offense (felonious assault); and
● As to Count 7, seven years — one year on the firearm
specification to be served prior to and consecutive to six years on
the underlying offense (improperly discharging firearm into
habitation).
3 Lewis does not assign as error the denial of his motion to withdraw his guilty
pleas. Accordingly, we do not address the merits of that motion in this appeal.
4 This documentation was not included in the record forwarded to this court on
appeal.
At the sentencing hearing, the trial court ordered that the sentences
on Counts 1 and 5 be served concurrently to one another, that the sentences on
Counts 4 and 7 be served concurrently to one another and that the sentences on
Counts 1 and 5 (an aggregate of 11 years) be served consecutively to the sentences on
Counts 4 and 7 (an aggregate of seven years).5 The trial court also imposed five years
of mandatory postrelease control.
With respect to its decision to impose consecutive sentences, at the
sentencing hearing, the trial court stated:
Now, as has been noted and talked about and gone through, I do
note that you have a — I’ve certainly seen worse juvenile records — but
at least I would characterize as an extensive record, which also includes
violence, even though they’re misdemeanors, there’s assaults, there are
breaking and enterings, there’s pursuits, there’s weapons offenses,
that, in addition to the course of conduct that this case involves,
shooting at people who were trying to track down when you committed
the first offense.
And so I do find that consecutive sentences are necessary to
protect the public from future crimes and to punish you and that they
are not disproportionate to the seriousness of your conduct and to the
danger that you pose to the public. Specifically, these crimes here were
part of a course of conduct by you and that your harm caused to these
individuals, multiple individuals, was so great or unusual that no single
prison term for any of these offenses committed as part of the course of
conduct would adequately reflect the seriousness of your conduct.
5 However, in its March 12, 2018 sentencing journal entry, the trial court imposed a
six-year sentence on Count 4, i.e., a one-year sentence on the firearm specification to be
served prior to and consecutive to a five-year sentence on the underlying offense.
(Emphasis added.) The trial court further stated:
Counts 1 and 5 are ordered to run concurrent to each other.
Counts 4 and 7 are ordered to run concurrent to each other.
Counts 1 and 4 are ordered to run consecutive, for a prison term of
18 years [sic].
Again, I also find that your criminal history does demonstrate
that consecutive sentences are necessary to protect the public from
future crimes by you.
The trial court set forth its consecutive sentence findings in its
sentencing journal entry as follows:
The court imposes prison terms consecutively finding that consecutive
service is necessary to protect the public from future crime or to punish
defendant; that the consecutive sentences are not disproportionate to
the seriousness of defendant’s conduct and to the danger defendant
poses to the public; and that, defendant’s history of criminal conduct
demonstrate that consecutive sentences are necessary to protect the
public from future crime by defendant.
Lewis appealed, raising the following five assignments of error for
review:
Assignment of Error I: The juvenile court erred by finding probable
cause existed to transfer this matter to the common pleas court in
violation of [the] Fifth and Fourteenth Amendments to the U.S.
Constitution and Article I, Section 16 of the Ohio Constitution.
Assignment of Error II: The common pleas court lacked jurisdiction
over the charge in Count Seven because the same improper-discharge-
into-a-habitation charge was dismissed in the juvenile court on a
finding that the State had not shown probable cause, violating [the]
Fifth and Fourteenth Amendments to the U.S. Constitution and Article
I, Section 16 of the Ohio Constitution.
Assignment of Error III: The trial court erred by imposing consecutive
sentences, as the overall record did not support the trial court’s findings
that consecutive sentences, resulting in an 18-year term of
imprisonment, were needed or appropriate under the factors set forth
in R.C. 2929.14(C)(4).
Assignment of Error IV: Lewis was deprived of the effective assistance
of counsel in violation of his rights under the Sixth and Fourteenth
Amendments to the U.S. Constitution and Article I, Sections 10 and 16
of the Ohio Constitution.
Assignment of Error V: Mandatory bindovers under R.C.
2152.12(A)(1)(a)(i) and Ohio’s “more than a mere suspicion standard”
violate due process rights under the Fifth and Fourteenth Amendments
to the U.S. Constitution and Article I, Section 16 of the Ohio
Constitution.
For ease of discussion, we address Lewis’ assignments of error out of
order.
Law and Analysis
Probable Cause
In his first assignment of error, Lewis contends that the trial court
erred by finding “sufficient probable cause to believe that Lewis was the individual
that fired the firearm out of the car” and that, therefore, jurisdiction of the case was
not properly transferred to the general division.6
To establish probable cause in a bindover proceeding, the state must
present credible evidence supporting each element of the offense. State v. Iacona,
93 Ohio St.3d 83, 93, 752 N.E.2d 937 (2001). Probable cause in this context requires
“credible evidence that ‘raises more than a mere suspicion of guilt’” but does not
require evidence of guilt beyond a reasonable doubt. In re D.M., 140 Ohio St.3d
6Citing State v. Powell, 4th Dist. Gallia No. 20CA3, 2021-Ohio-200, and State v.
Zarlengo, 7th Dist. Mahoning No. 20 MA 0036, 2021-Ohio-4631, the state urges us to
find that Lewis waived his right to challenge the sufficiency of the evidence supporting
the juvenile court’s probable cause finding by entering his guilty pleas. Lewis responds
that other courts, including this court, have found that a guilty plea “does not waive the
right to appeal the [juvenile court’s] probable cause determination,” citing State v.
Riggins, 68 Ohio App.2d 1, 5, 426 N.E.2d 504 (8th Dist.1980); State v. Amos, 1st Dist.
Hamilton No. C-150265, 2016-Ohio-1319, ¶ 28, and State v. E.T., 2019-Ohio-1204, 134
N.E.3d 741, ¶ 38, 43-45 (10th Dist.). We need not resolve that issue here because, in any
event, as detailed below, the state presented sufficient credible evidence to support the
juvenile court’s finding of probable cause.
309, 2014-Ohio-3628, 18 N.E.3d 404, ¶ 10, quoting Iacona at 93. In other words,
probable cause in this context is “‘“a fair probability, not a prima facie showing, of
criminal activity.”’” State v. Martin, 8th Dist. Cuyahoga No. 108996, 2021-Ohio-
1096, ¶ 32, quoting State v. Starling, 2d Dist. Clark No. 2018-CA-34, 2019-Ohio-
1478, ¶ 37, quoting State v. Grimes, 2d Dist. Greene No. 2009-CA-30, 2010-Ohio-
5385, ¶ 16; see also In re B.W., 2017-Ohio-9220, 103 N.E.3d 266, ¶ 20 (7th Dist.)
(“Probable cause is a flexible concept grounded in fair probabilities which can be
gleaned from considering the totality of the circumstances.”), citing Iacona at 93.
Probable cause requires “‘a reasonable ground for belief of guilt.’” In re B.W. at ¶ 20,
quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879(1949). It does not require a showing that a belief is correct or that it is more likely
true than false. In re B.W. at ¶ 20, citing Texas v. Brown, 460 U.S. 730, 742, 103
S.Ct. 1535, 75 L.Ed.2d 502 (1983); see also In re J.R., 8th Dist. Cuyahoga No. 110241,
2021-Ohio-2272, ¶ 32.
Lewis contends that Martin’s testimony was insufficient to establish
probable cause that he was the shooter because all she saw was “an arm point out of
the car” wearing a gray coat similar to a coat worn by one of the males she had
followed through the parking lot prior to the shooting and because one of the
photographs introduced by the state showed another male wearing a similar coat.
Lewis also contends that Martin’s testimony was insufficient because (1) she did not
identify Lewis in court “as the shooter,” but instead identified him as the person she
had identified in the photo array and (2) when Martin identified him in the photo
array, “just days after the incident,” she “had only been 75 percent sure” that the
photo she picked out was that of the shooter. Lewis further argues that although
Detective McNeeley testified regarding the two revolvers seized from Lewis’
bedroom and the photograph of Lewis holding two firearms posted on the date of
the shooting, this evidence was insufficient to establish probable cause that Lewis
was the shooter because “nothing presented at the bindover hearing tied the
revolvers to the shooting” and there was no evidence as to when the photograph was
taken.
In considering whether probable cause exists, the juvenile court must
“evaluate the quality of the evidence presented by the state in support of probable
cause as well as any evidence presented by the respondent that attacks probable
cause.” Iacona at 93. However, “while the juvenile court has a duty to assess the
credibility of the evidence and to determine whether the state has presented credible
evidence going to each element of the charged offense, it is not permitted to exceed
the limited scope of the bindover hearing or to assume the role of the ultimate fact-
finder.” In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 44;
see also In re D.M. at ¶ 10.
Because it involves questions of both fact and law, our review of a
juvenile court’s probable cause determination is usually mixed. In re A.J.S. at ¶ 1,
51. We defer to the juvenile court’s determinations regarding witness credibility,
reviewing those determinations for abuse of discretion. However, whether the state
has presented sufficient evidence to support a finding of probable cause to believe
that the juvenile committed the charged act, is a question of law we review de novo,
without any deference to the juvenile court. In re C.G., 8th Dist. Cuyahoga No.
97950, 2012-Ohio-5286, ¶ 31; In re A.J.S. at ¶ 1, 51. In this case, however, as stated
above, Lewis’ counsel expressly stated, after all the evidence was presented at the
probable cause hearing, that Lewis did not contest the finding of probable cause and
left the determination to the discretion of the juvenile court.7
At this stage of the proceedings, the state was not required to prove
the truth of the allegations against Lewis. The state had to present credible evidence
showing probable cause supporting each element of the offense charged. Based on
the evidence presented at the probable cause hearing, we agree that there was more
than a mere suspicion that Lewis had committed the acts of attempted murder with
which he had been charged.
As it relates to this assignment of error, Lewis was charged in juvenile
court with acts that would constitute attempted murder in violation of R.C.
2903.02(A) and 2923.02, felonious assault in violation of R.C. 2903.11(A)(1) and
felonious assault in violation of R.C. 2903.11(A)(2), if he were an adult. R.C.
2903.02(A) provides, in relevant part: “No person shall purposely cause the death
of another.” R.C. 2923.02(A) provides: “No person, purposely or knowingly, and
7 Although Lewis arguably forfeited all but plain error review by failing to contest
the probable cause finding below, we would reach the same result if Lewis had contested
probable cause below — i.e., review for plain error is not the difference between the court
granting relief and denying relief as to this assignment of error. As explained below, we
find that the state presented sufficient credible evidence to support the juvenile court’s
finding that there was probable cause to believe that Lewis committed the acts charged in
Counts 1-5 and 7 of the juvenile court complaint.
when purpose or knowledge is sufficient culpability for the commission of an
offense, shall engage in conduct that, if successful, would constitute or result in the
offense.” R.C. 2903.11(A)(1) provides, in relevant part: “No person shall knowingly
* * * [c]ause serious physical harm to another.” R.C. 2903.11(A)(2) provides, in
relevant part: “No person shall knowingly * * * [c]ause or attempt to cause physical
harm to another * * * by means of a deadly weapon or dangerous ordnance.”
As detailed above, Martin testified that (1) she saw Lewis and another
male chase Car Wash and (2) a few minutes later, she saw Lewis fire multiple shots
from a vehicle (that had stopped suddenly) into a group of people that included Car
Wash. Martin testified that she observed not only what the shooter was wearing but
also that she observed and “made eye contact” with each of the individuals in the
Malibu minutes before the shooting, including the male seated in the front
passenger seat, who shot into a group of people that included Car Wash. Martin
identified Lewis as the shooter with 75 percent certainty during a photo array
conducted a week after the incident and again in court during the probable cause
hearing.
The juvenile court found Martin’s testimony to be credible. As the
juvenile court stated when explaining its probable cause finding on the attempted
murder charge at the conclusion of the probable cause hearing:
This is a preliminary hearing, so the State doesn’t have the burden of
demonstrating proof beyond a reasonable doubt in each and every
element. They just need to provide some credible evidence to establish
that probable cause exists.
And it says that, in fact, based on the totality of the circumstances
here that you were the one who committed this offense * * * based on
the information that’s been provided to this Court from Ms. Martin who
was one, an independent witness to this particular action having no
stake in the outcome of this, and while she had some familiarity with
the alleged victim, she didn’t even know his name.
So in terms of any bias here, there wouldn’t be much that she
were to come in here and be dishonest or untruthful about her
testimony.
In fact, it appears as though she was putting herself at risk and
engaging in some of these activities surrounding this incident, so the
Court finds her testimony to be credible.
And she testified to seeing an individual who just happens to
have on the same type of clothing that you do in these pictures that
shows your face, chasing Car Wash or LeAndre Tucker.
She then gets in the car and follows you and another individual
to another vehicle, sees you get into the passenger side of that vehicle,
front seat passenger’s side, and then sees you as you’re traveling
towards her, and does catch a glimpse of your face, as well as the other
individuals that were in the vehicle.
***
She testifies being not too far away to avoid this vehicle when it
just stops unexpectedly, and she notices the crowd of people that are to
her right and to the right of this vehicle when it stops and the door
swings open and shots are fired towards a group of people.
More than one. She testified to at least three shots being fired,
and that the individuals dispersed trying to get away from being struck
by the bullets that are flying. She even testified to one individual falling
to the ground. Clearly, that shows an overt act with a deadly weapon,
and being fired at mass or the mass areas of individuals, that meets the
definition or requirement for attempted murder.
Detective McNeeley testified as to the identity of each of the victims,
i.e., Car Wash, Curry, McClarin and Boldin, which he learned during the course of
his investigation. McNeeley further testified regarding Curry’s gunshot wound to
the leg, Lewis’ affiliation with the Clout Gang and the Muddy Gang and Car Wash’s
affiliation with the Unwin Gang with which the Muddy Gang had a “beef.”
The evidence presented at a probable cause hearing ‘“does not have
to be unassailable’ to qualify as credible.” In re B.W., 2017-Ohio-9220, 103 N.E.3d
266, at ¶ 21, quoting In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d
629, at ¶ 46; see also In re J.R., 2021-Ohio-2272, at ¶ 41.
Following a thorough review of the record, we find that the state
presented sufficient credible evidence to support the juvenile court’s finding that
there was probable cause to believe that Lewis committed acts which, if committed
by an adult, would constitute attempted murder and felonious assault, along with
the associated specifications, as charged in Counts 1-5 and 7 of the juvenile court
complaint. Lewis’ first assignment of error is overruled.
Constitutionality of Mandatory Bindover and “Mere
Suspicion” Conviction on Count 7 – Improperly Discharging
Firearm into Habitation
In his second assignment of error, Lewis argues that the general
division lacked jurisdiction over the charge in Count 7 (improperly discharging a
firearm into habitation) because the juvenile court dismissed that same charge
(Count 8 in the juvenile court) for lack of probable cause. The Ohio Supreme Court’s
recent decision in State v. Smith, Slip Opinion No. 2022-Ohio-274, controls the
resolution of this assignment of error. In Smith, the court held that the general
division lacked jurisdiction over several counts because the juvenile court had found
that the acts related to those counts were not supported by probable cause and that,
therefore, there was “a jurisdictional defect in the bindover process.” Id. at ¶ 43.
The court explained that “[a] finding of probable cause is a jurisdictional
prerequisite under R.C. 2152.12 to transferring a child to adult court for prosecution
of an act charged.” Id. at ¶ 44. “In the absence of a juvenile court’s finding probable
cause or making a finding that the child is unamenable to care or rehabilitation
within the juvenile system, no adult court has jurisdiction over acts that were
charged in but not bound over by the juvenile court.” Id.
The state concedes this error. Accordingly, Lewis’ second assignment
of error is sustained. Lewis’ conviction on Count 7 is hereby vacated.
Ineffective Assistance of Counsel
In his fourth assignment of error, Lewis argues that if this court were
to find, in reviewing Lewis’ first and second assignments of error, that (1) defense
counsel’s failure to object to the juvenile court’s probable cause finding and/or
failure to argue below that the general division lacked jurisdiction over Count 7 leads
this court to review the trial court’s decision for plain error and (2) “review for plain
error is the difference between the [c]ourt granting relief and denying relief,” then
he was denied the effective assistance of counsel in violation of his rights under the
Sixth and Fourteen Amendments to the United States Constitution and Article I,
Sections 10 and 16 of the Ohio Constitution because counsel was “prejudicially
ineffective in failing to object and make those arguments.”
Based on our resolution of Lewis’ first and second assignments of
error, Lewis’ fourth assignment of error is moot.
Constitutionality of Mandatory Bindover and Standard for
Probable Cause Determination
In his fifth assignment of error, Lewis argues that mandatory
bindover under R.C. 2151.12(A)(1)(a)(i) and Ohio’s “more than a mere suspicion”
standard for determining probable cause violate his rights to procedural and
substantive due process under the Fifth and Fourteenth Amendments to the United
States Constitution and Article I, Section 16 of the Ohio Constitution. Once again,
Lewis did not raise these arguments below. See State v. Buttery, 162 Ohio St.3d 10,
2020-Ohio-2998, 164 N.E.3d 294, ¶ 7 (‘“[T]he question of the constitutionality of a
statute must generally be raised at the first opportunity and, in a criminal
prosecution, this means in the trial court.’”), quoting State v. Awan, 22 Ohio St.3d
120, 122, 489 N.E.2d 277 (1986). As such, they are subject to plain error review.8
State v. Debose, 8th Dist. Cuyahoga No. 109531, 2022-Ohio-837, ¶ 14; State v.
Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16 (appellate
court has discretion to review a forfeited constitutional challenge to a statute for
8 The state maintains that this assignment of error should also be overruled
because this is not a true mandatory bindover case, i.e., after the Ohio Supreme Court
issued its decision in Aalim I, 150 Ohio St.3d 463, 2016-Ohio-8278, 83 N.E.3d 862, Lewis’
“initial indictment in CR-16-606-37 was dismissed in order to allow [Lewis] to return to
the juvenile court for an amenability determination prior to the indictment in CR-17-
615253.” However, as noted above, there is nothing in the record to indicate that an
amenability determination was ever made.
plain error), citing State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31,
¶ 377-378.
Plain error is an obvious error or defect in the trial court proceedings
that affects a substantial right. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-
2459, 38 N.E.3d 860, ¶ 22. Plain error requires a showing that there was an error,
that the error was plain or obvious, that but for the error the outcome of the
proceeding would have been otherwise and that reversal is necessary to correct a
manifest miscarriage of justice. Buttery at ¶ 7, citing Quarterman at ¶ 16. The party
asserting plain error “bears the burden of proof to demonstrate plain error on the
record.” Rogers at ¶ 22, citing Quarterman at ¶ 16. Lewis has not made any plain
error argument here.
The Ohio Supreme Court has previously rejected similar arguments
challenging the constitutionality of Ohio’s mandatory-bindover procedure. See
Aalim II, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 38 (holding that
“the mandatory bindover of certain juvenile offenders under R.C. 2152.10(A)(2)(b)
and 2152.12(A)(1)(b) complies with due process and equal protection as guaranteed
by the Ohio and United States Constitutions”); see also Martin, 2021-Ohio-1096, at
¶ 43 (stating that in Aalim II, “the Supreme Court of Ohio ruled that the ‘more than
mere suspicion’ standard does not violate a child’s due process rights”). Indeed,
Lewis acknowledges that “these arguments have been rejected by the Supreme Court
of Ohio,” but states that he “raises them in order to preserve them for further
review.”
Further, with respect to his contention that Ohio’s “more than a mere
suspicion” standard for determining probable cause is unconstitutional, Lewis
provides no argument explaining why he believes the “more than a mere suspicion”
standard for determining probable cause is unconstitutional. He simply “submits”
that “the ‘more than a mere suspicion’ standard do[es] not satisfy either procedural
or substantive due process.” Accordingly, we need not consider this issue. See State
v. Bond, 8th Dist. Cuyahoga No. 110520, 2022-Ohio-1246, ¶ 17; App.R. 12(A)(2);
App.R. 16(A)(7).
Lewis’ fifth assignment of error is overruled.
Imposition of Consecutive Sentences
In his third assignment of error, Lewis argues that the trial court erred
in imposing consecutive sentences because the “overall record” did not support the
trial court’s findings that consecutive sentences were “needed” or “appropriate.”
We review felony sentences under the standard of review set forth in
R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59
N.E.3d 1231, ¶ 21. Under R.C. 2953.08(G)(2), an appellate court may increase,
reduce or otherwise modify a sentence, or it may vacate a sentence and remand for
resentencing, if it “clearly and convincingly finds” that (1) the record does not
support the sentencing court’s findings under R.C. 2929.13(B) or (D),
2929.14(B)(2)(e) or (C)(4) or 2929.20(I) or (2) the sentence is “otherwise contrary
to law.” “‘Clear and convincing evidence is that measure or degree of proof * * *
which will produce in the mind of the trier of facts a firm belief or conviction as to
the facts sought to be established.’” State v. Franklin, 8th Dist. Cuyahoga No.
107482, 2019-Ohio-3760, ¶ 29, quoting Cross v. Ledford, 161 Ohio St. 469, 120
N.E.2d 118 (1954), paragraph three of the syllabus. It is “an extremely deferential
standard of review.” State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 21 (8th
Dist.).
Under Ohio law, sentences are presumed to run concurrently unless
the trial court makes the required findings under R.C. 2929.14(C)(4). State v.
Reindl, 8th Dist. Cuyahoga Nos. 109806, 109807, and 109808, 2021-Ohio-2586,
¶ 14; State v. Gohagan, 8th Dist. Cuyahoga No. 107948, 2019-Ohio-4070, ¶ 28. To
impose consecutive sentences, the trial court must find that (1) consecutive
sentences are necessary to protect the public from future crime or to punish the
offender, (2) consecutive sentences are not disproportionate to the seriousness of
the offender’s conduct and to the danger the offender poses to the public and (3) at
least one of the following applies:
(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, or 2929.18 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.
R.C. 2929.14(C)(4). To make the requisite statutory findings, ‘“the [trial] court must
note that it engaged in the analysis’ and that it ‘has considered the statutory criteria
and specifie[d] which of the given bases warrants its decision.’” State v. Bonnell,
140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26, quoting State v.
Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). The trial court must
make the requisite findings in support of the imposition of consecutive sentences at
the sentencing hearing and incorporate those findings into its sentencing journal
entry. Bonnell at syllabus.
Thus, 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 R.C.
2929.14(C)(4). See R.C. 2953.08(G)(2)(b); Reindl at ¶ 13; State v. Nia, 2014-Ohio-
2527, 15 N.E.3d 892, ¶ 16 (8th Dist.). Second, the defendant can argue that the
record “clearly and convincingly” does not support the court’s findings made
pursuant to R.C. 2929.14(C)(4). See R.C. 2953.08(G)(2)(a); Reindl at ¶ 13.
In this case, the trial court set forth its findings, both at the sentencing
hearing and in its sentencing journal entry, that (1) consecutive sentences were
necessary to protect the public from future crimes and to punish Lewis, (2)
consecutive sentences were not disproportionate to the seriousness of Lewis’
conduct and to the danger that he poses to the public and (3) Lewis’ history of
criminal conduct demonstrated that consecutive sentences were necessary to
protect the public from future crimes by Lewis.9
Lewis does not dispute that the trial court made all of the requisite
statutory findings before imposing consecutive sentences. Rather, he contends that
the record does not support the trial court’s consecutive sentence findings. Lewis
does not, however, identify which of the trial court’s consecutive sentence findings
he contends are not supported by the record. He simply asserts that (1) “the record
will not show by clear and convincing evidence that the findings the lower court
made to match the statutory requirement were supported by the facts,” (2) the trial
court failed to “factor into its reasoning,” when deciding whether to impose
consecutive sentences,” that Lewis was “dealing with a physical condition from birth
and serious mental issues,” (3) the trial court imposed a sentence “not just to punish
Lewis but also in part to send ‘a message’ to ‘anyone who cares to understand that if
there is going to be conduct like this, it’s not acceptable’” and (4) the trial court’s
9 As noted above, although it was not required to do so, given that only one finding
under R.C. 2929.14(C)(4)(a)-(c) is required for the imposition of consecutive sentences,
the trial court also found at the sentencing hearing that Lewis’ crimes “were part of a
course of conduct * * * and that [the] harm caused to these individuals, multiple
individuals, was so great or unusual that no single prison term for any of these offenses
committed as part of the course of conduct would adequately reflect the seriousness of
[Lewis’] conduct.” See R.C. 2929.14(C)(4)(b). This finding, unlike the trial court’s other
consecutive sentence findings, was not set forth in the trial court’s sentencing journal
entry.
However, even where a trial court omits a required consecutive sentencing finding
from its sentencing journal entry, it is well established that the trial court’s “inadvertent
failure to incorporate the statutory findings in the sentencing entry after properly making
those findings at the sentencing hearing does not render the sentence contrary to law;
rather, such a clerical mistake may be corrected by the court through a nunc pro tunc
entry to reflect what actually occurred in open court.” Bonnell at ¶ 30.
decision to impose consecutive sentences was based on “unproved” and
“inappropriate” facts, including “the unproved and inappropriate findings that
Lewis shot at Martin and her house” and that Lewis was “shooting at people who
were trying to track [him] down.” Lewis’ arguments are meritless.
As an initial matter, we note that, in framing his argument in this way,
Lewis misapprehends our standard of review. As this court has previously
explained:
[T]he clear and convincing standard used by R.C. 2953.08(G)(2) is
written in the negative. It does not say that the trial judge must have
clear and convincing evidence to support its findings. Instead, it is the
court of appeals that must clearly and convincingly find that the record
does not support the court’s findings. In other words, the restriction
is on the appellate court, not the trial judge.
Venes, 2013-Ohio-1891, 992 N.E.2d 453, at ¶ 21.
In support of his contention that imposition of consecutive sentences
resulted from “unproved and inappropriate facts” and considerations, Lewis points
to the following statements by the trial court at the sentencing hearing:
[T]he law does require that the sentence that I impose not only — the
law sets forth that the overriding purposes and principles of sentencing
is to protect the — I’m sorry, to punish the offender but also to protect
the public from future crimes by you and others, and at least the way
that I take that or the read I take from that is I think that there has to
be a message that is sent, not only to you, but anyone else who cares to
understand that if there is going to be conduct like this, it’s not
acceptable.
If I was a more cynical person, I might say, fine, if you all want to
shoot at each other and this is the way you want to treat each other, go
somewhere out in the hills in the middle of nowhere and shoot at each
other, and whatever happens, if that’s what you choose to do, that’s
fine. But when it starts impacting innocent people who are minding
their own business, when their homes get shot up, when their legs get
shot, there has to be a message sent that that’s not acceptable and it’s
got to stop.
These statements were made by the trial court when discussing its
consideration of the principles and purposes of felony sentencing under R.C.
2929.11. Among the “overriding purposes of felony sentencing” a trial court must
consider when sentencing a defendant on a felony offense is “punish[ing] the
offender” and “protect[ing] the public from future crime by the offender and others.”
See R.C. 2929.11(A)-(B). As the trial court’s statements indicate, the trial court did
that here.
Although the trial court is required to make findings under R.C.
2929.14(C)(4) in order to impose consecutive sentences, the trial court is not
required to state its reasons supporting its findings. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, 16 N.E.3d 659, at ¶ 24, 37. “[A]s 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.
Following a thorough review of the record, we cannot say that the
record clearly and convincingly does not support the trial court’s findings in support
of the imposition of consecutive sentences. To the contrary, we find ample support
in the record for the trial court’s consecutive sentence findings.
Lewis pled guilty to multiple, serious felony offenses in this case. As
set forth in the PSI and as detailed by the state and trial court at the sentencing
history, Lewis had a lengthy prior history of escalating criminal conduct, including
multiple offenses involving the use of firearms. With respect to the offenses to which
Lewis pled guilty in this case, the record reflects that after unsuccessfully attempting
to chase after Car Wash, Lewis “track[ed] [Car Wash] down” and fired multiple shots
from a vehicle in a residential area into a group of people at a time and place when
children were being let out of school. The record further reflects that the shooting
was gang-related and that one of the bullets Lewis fired stuck an innocent bystander
in the leg. At the time of the incident, most of the victims, including the victim who
was shot in the leg, were juveniles.
Accordingly, we overrule Lewis’ third assignment of error.
Judgment affirmed in part, vacated in part, and remanded.
Conviction on Count 7 having been vacated, the case is remanded for the issuance
of a new sentencing journal entry reflecting (1) that the conviction on Count 7 has
been vacated, (2) the correct sentence on Count 4 (as imposed by the trial court at
the sentencing hearing) and (3) all of the consecutive sentence findings made by the
trial court at the sentencing hearing, including its finding under R.C.
2929.14(C)(4)(b).
It is ordered that appellant and appellee share 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
Cuyahoga County Court of Common Pleas to carry this judgment into execution.
The defendant’s convictions having been affirmed, any bail pending appeal is
terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
MARY J. BOYLE, J., CONCUR