State v. Brownlee , 2018 Ohio 3841 ( 2018 )

[Cite as State v. Brownlee, 2018-Ohio-3841.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2017-L-166
- vs - :
LAMAR BROWNLEE, JR., :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2017 CR
000692.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).
Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp,
Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For
Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Lamar Brownlee, Jr., appeals from the sentencing order of the
Lake County Court of Common Pleas, sentencing him to an aggregate term of 16 years
imprisonment. We affirm.
{¶2} On June 6, 2017, appellant, and two accomplices, were driving in
Willoughby, Ohio. Appellant pulled up to a Papa John’s restaurant; his accomplices
entered the establishment and robbed the same at gunpoint. They left with the cash
drawer, re-entered the vehicle, and appellant drove away. The men subsequently
committed a similar armed robbery at a Papa Joe’s restaurant in Willoughby. Police
were notified and were provided with a description of the vehicle, as well as a license
plate number.
{¶3} Officers ultimately located a vehicle matching the description and an
active pursuit ensued. Officers deployed a spike strip which successfully deflated the
vehicle’s front and rear passenger-side tires. The vehicle eventually crashed at the
intersection of State Route 2 westbound I-271 split.
{¶4} Appellant fled on foot and was eventually apprehended. In the vehicle,
officers found two semi-automatic revolvers with extended magazines. The firearms
matched the description of the weapons used in the robberies; officers also found a
black neoprene mask, cell phones, two electronic scales, a black skull cap, and the
cash drawers from the pizza shops.
{¶5} Appellant was indicted on the following charges: Count One, aggravated
robbery, a felony of the first degree, in violation of R.C. 2911.01(A)(1), with an
accompanying firearm specification, pursuant to R.C. 2941.145, and a forfeiture
specification, pursuant to R.C. 2941.1417 and R.C. 2981.04; Count Two, aggravated
robbery, a felony of the first degree, in violation of R.C. 2911.01(A)(1), with an
accompanying firearm specification, pursuant to R.C. 2941.145, and a forfeiture
specification, pursuant to R.C. 2941.1417 and R.C. 2981.04; Count Three, kidnapping,
a felony of the first degree, in violation of R.C. 2905.01(A)(2), with an accompanying
firearm specification, pursuant to R.C. 2941.145 and a forfeiture specification, pursuant
2
to R.C. 2941.1417 and R.C. 2981.04; Count Four, kidnapping, a felony of the first
degree, in violation of R.C. 2905.01(A)(2), with an accompanying firearm specification,
pursuant to R.C. 2941.145 and a forfeiture specification, pursuant to R.C. 2941.1417
and R.C. 2981.04; Count Five, improperly handling firearms in a motor vehicle, a felony
of the fourth degree, in violation of R.C. 2923.16(B), with an accompanying forfeiture
specification, pursuant to R.C. 2941.1417 and R.C. 2981.04; Count Six, failure to
comply with order or signal of police officer, a felony of the third degree, in violation of
R.C. 2921.331(B), with an accompanying firearm specification, pursuant to R.C.
2941.145 and a forfeiture specification, pursuant to R.C. 2941.1417 and R.C. 2981.04;
Count Seven, receiving stolen property, a felony of the fourth degree, in violation of R.C.
2913.51(A), with an accompanying firearm specification, pursuant to R.C. 2941.145 and
a forfeiture specification, pursuant to R.C. 2941.1417 and R.C. 2981.04; Count Eight,
having weapons while under disability, a felony of the third degree, in violation of R.C.
2923.13(A)(3), with an accompanying forfeiture specification, pursuant to R.C.
2941.1417 and R.C. 2981.04; and Count Nine, possessing criminal tools, a felony of the
fifth degree, in violation of R.C. 2923.24, with an accompanying forfeiture specification,
pursuant to R.C. 2941.1417 and R.C. 2981.04. A plea of “not guilty” was entered on
appellant’s behalf.
{¶6} Appellant subsequently withdrew his plea of “not guilty,” and entered a
plea of “guilty” to Count One and Count Two with their accompanying specifications.
The trial court entered a nolle prosequi on the remaining counts at the state’s request.
The matter proceeded to sentencing at which the trial court ordered appellant to serve
prison terms of five years on both Count One and Count Two, to be served
3
consecutively to one another; appellant was also ordered to serve two three-year terms
for the firearm specifications, for an aggregate term of 16 years imprisonment.
Appellant now appeals and assigns the following as error:
{¶7} “The trial court erred by sentencing the defendant-appellant to consecutive
prison sentences totaling 16 years.”
{¶8} Appellant claims the trial court’s statutory findings, pursuant to R.C.
2929.14(C)(4) and R.C. 2929.12, were not supported by the record and thus his
sentence is contrary to law.
{¶9} An appellate court generally reviews felony sentences under the standard
of review set forth in R.C. 2953.08(G)(2), which states:
{¶10} The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the
sentence or modification given by the sentencing court.
{¶11} The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the
sentence and remand the matter to the sentencing court for
resentencing. The appellate court’s standard for review is not
whether the sentencing court abused its discretion. The appellate
court may take any action authorized by this division if it clearly and
convincingly finds either of the following:
{¶12} (a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or
(C)(4) of section 2929.14, or division (I) of section 2929.20 of the
Revised Code, whichever, if any, is relevant;
{¶13} (b) That the sentence is otherwise contrary to law.
{¶14} Appellate courts “‘may vacate or modify any sentence that is not clearly
and convincingly contrary to law’” only when the appellate court clearly and convincingly
finds that the record does not support the sentence. State v. Wilson, 11th Dist. Lake
4
No. 2017-L-028, 2017-Ohio-7127, ¶18, quoting State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, ¶23.
{¶15} The Ohio Supreme Court has held, R.C. 2929.11 and R.C. 2929.12 do not
require judicial fact-finding. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, ¶42;
State v. Macko, 11th Dist. Lake No. 2016-L-022, 2017-Ohio-253, ¶75. “Rather, in
sentencing a defendant for a felony, a court is merely required to consider the purposes
and principles of sentencing in R.C. 2929.11 and the statutory * * * factors in R.C.
2929.12.” Macko, supra, citing Foster, supra.
{¶16} Further, R.C. 2929.14(C)(4) provides, in relevant part, as follows regarding
consecutive felony sentences:
{¶17} If multiple prison terms are imposed on an offender for convictions
of multiple offenses, the court may require the offender to serve the
prison terms consecutively if the court finds that the consecutive
service is necessary to protect the public from future crime or to
punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to
the danger the offender poses to the public, and if the court also
finds any of the following:
{¶18} (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.
{¶19} (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.
{¶20} (c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
5
{¶21} “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing
hearing and incorporate its findings into its sentencing entry[.]” State v. Bonnell, 140
Ohio St.3d 209, 2014-Ohio-3177, ¶37. Otherwise, the sentence is contrary to law. Id.The trial court has no obligation, however, to engage in a “word-for-word recitation” of
the language in the statute or to set forth its reasons to support its findings, as long as
they are discernible in the record. Id. at ¶28-29. “[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.
{¶22} Appellant does not claim the trial court failed to make the proper findings
under R.C. 2929.14(C)(4); rather, he maintains the findings were not supported by the
record. With respect to the consecutive sentence, the trial court found, at the sentencing
hearing:
{¶23} I find that those consecutive sentences are necessary to protect the
public from future crime and to appropriately punish you and that
these sentences are not disproportionate to the seriousness of your
conduct and the danger that you pose to the public.
{¶24} And I find that at least two of these offenses were committed as
part of a course of criminal conduct and that the harm caused by
the two of these offenses was so great or unusual that no single
prison term for any of these offenses adequately reflects the
seriousness of your conduct.
{¶25} The foregoing was incorporated into the trial court’s judgment entry.
{¶26} The record demonstrates that the robberies were committed at gunpoint
and the victim-impact statements reveal at least two of the employees who were
working at the restaurants suffered short-term emotional trauma. Although the
6
statements do not provide any great detail into the nature of the anxiety and fear these
employees experienced, they do convey the sense of alarm and fright they had when
the firearms were brandished. Given the nature of the crimes, the trial court could
conclude the harm was sufficiently great and unusual to support consecutive prison
terms.
{¶27} Next, appellant contends the trial court failed to give adequate
consideration to various mitigating factors that militated in favor of a less severe
sentence. Appellant first asserts the trial court failed to consider he was under strong
provocation from his accomplices to aid in committing the robberies. He asserted they
threatened him and his family’s safety if he did not cooperate.
{¶28} During the sentencing hearing, the trial court engaged appellant in a
lengthy discussion regarding his claims that he was forced to be the driver and
participated only out of fear for his and his family’s safety. The record demonstrates
that, even though appellant claimed he was under duress to aid in the commission of
two armed robberies, there was evidence to the contrary as well. Before he was
apprehended, he ran from authorities. And, once he was caught, he did not advise
police he was compelled at gunpoint to be the getaway driver. Rather, he told police he
was approached by his accomplices with offers for “a ride” in their vehicle and when he
entered, he was an innocent bystander to the subsequent robberies. In light of these
points, as well as appellant’s eventual revised story that he only participated out of fear,
the court rejected appellant’s purported justification. The court stated, on record, “I think
you three guys planned this. You were going to be the driver, they were going to go in
and you did it[.]” In light of appellant’s plea, as well as the surrounding circumstances,
7
the court was entitled to reject appellant’s assertion that he was provoked or forced into
participating in the robberies.
{¶29} Appellant next notes that, even though he is criminally culpable as an
accomplice, the trial court failed to adequately consider that he had no contact with the
firearms or the actions that took place in the businesses. Even though appellant
characterizes himself as simply an accomplice, it is well-settled that, as an accomplice,
he is criminally responsible to the same degree as the principal offender and, in fact,
may be prosecuted for the principal offense. See e.g. State v. Graven, 52 Ohio St.2d
112, 115-116 (1977). Thus, regardless of whether appellant came into contact with the
weapons used in the robberies and did not participate as a principal, the trial court was
not required to treat these points as mitigating factors.
{¶30} Appellant additionally underscores that the trial court gave little weight to
any of the recidivism-less-likely factors under R.C. 2929.12(E). He points out that even
though he had been involved in certain criminal activities during the five months leading
up to the crime, he had led an otherwise law-abiding life for many years. While
appellant’s factual points regarding his criminal record are accurate, they do not
necessitate the conclusion that he would be unlikely to reoffend. The pre-sentence
investigation report indicates that since February 2016, five criminal cases have been
filed against him, including the instant case. Only one of these cases is a
misdemeanor, and two of the remaining felony cases are pending, including a federal
firearms-theft case. In light of appellant’s recent criminal activities, the court did not err
in giving little weight to the recidivism-less-likely factors.
8
{¶31} Finally, appellant maintains the trial court erred when it found he did not
show genuine remorse. He claims he felt and demonstrated such remorse during the
sentencing hearing and the trial court erred in discounting his expressions. While
appellant did apologize during sentencing, he also did not appear to accept full
responsibility for the crimes to which he pleaded. By claiming he was forced or
provoked into assisting his co-defendants, he eschewed accountability. And, in light of
the surrounding circumstances of the crimes, the court found appellant’s claims not
credible. In drawing this conclusion, the court could also reasonably conclude
appellant’s apologies were similarly disingenuous.
{¶32} Appellant’s assignment of error lacks merit.
{¶33} For the reasons discussed in this opinion, the judgment of the Lake
County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
9