State v. Lemmings ( 2021 )

[Cite as State v. Lemmings, 2021-Ohio-3285.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLINTON COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2021-01-001
: OPINION
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:
JUSTIN R. LEMMINGS, :
Appellant. :
CRIMINAL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS
Case No. CRI 19500101
Andrew T. McCoy, Clinton County Prosecuting Attorney, and Katie Wilkin, for appellee.
The Law Office of John D. Hill, LLC, and John D. Hill, Jr., for appellant.
HENDRICKSON, J.
{¶1} Appellant, Justin R. Lemmings, appeals from the sentence imposed by the
Clinton County Court of Common Pleas following his guilty plea to four counts of felonious
assault. For the reasons set forth below, we affirm appellant's sentence.
{¶2} On May 28, 2019, appellant, then 18 years old, was released from electronic
monitoring imposed pursuant to a juvenile court dispositional order. Appellant then spent
the afternoon drinking alcohol. Despite being under the influence, appellant drove a 2002
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Chevrolet Impala through Wilmington, Clinton County, Ohio. Four of appellant's friends
rode along in the vehicle with appellant.
{¶3} Appellant briefly parked at a Kroger grocery store, where an altercation
occurred between appellant, one of his passengers, and another individual. Appellant flew
into a fit of rage and drove off with his passengers still in the vehicle. Appellant sped and
drove recklessly, running stop signs and traffic lights in downtown Wilmington. Appellant
refused pleas from his passengers to slow down, pull over, or stop his vehicle. When one
of his passengers, the mother to appellant's children, reminded appellant of his children,
appellant stated "Fuck you and fuck them." When another passenger asked appellant to
stop the vehicle, appellant stated, "No, you bitches are dying with me."
{¶4} As appellant approached a busy intersection, a vehicle driven by Ashley Davis
turned on a green light. Davis' vehicle was occupied by her three daughters, eight-year-old
twins L.D. and A.D. and six-year-old K.D. Appellant ran a red light and struck Davis' vehicle
so hard that the imprint of his front license plate could be seen in the frame of Davis' vehicle.
An investigation into the accident revealed that appellant's vehicle had been traveling at a
speed of 97 m.p.h. five seconds before it struck Davis' vehicle. Although appellant had hit
his brakes, his vehicle was still traveling 62 m.p.h. at the time of the collision. Subsequent
testing of appellant revealed he had a blood-alcohol level of 0.114 and THC in his system.
{¶5} Davis and her three daughters suffered serious physical injuries as a result of
the accident. Davis had to be transported by air to a hospital in Dayton. She suffered a
severed aorta, which required immediate heart surgery, as well as fractured vertebrae,
multiple rib fractures, injury to her spleen, abdominal bleeding, a lacerated kidney, and
fractures to her hands. K.D. suffered a craniotomy emergency, which required her to be
transported from the local hospital to Cincinnati Children's Hospital by air care. K.D. had
an epidural hematoma, which is bleeding in the brain between the membrane and the skull,
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a depressed skull fracture, a fractured right orbital, an attenuated left orbital, and multiple
bruises and lacerations throughout her body. K.D. had emergency surgery to have a metal
plate, or a craniotomy plate, installed in her skull and had to relearn how to walk and talk.
A.D. and L.D. suffered multiple bruises and lacerations about their bodies and faces. A.D.
also suffered a fracture of the pelvis wing bone and adjacent muscular hematoma.
{¶6} In addition to their physical injuries, Davis and her three daughters have also
experienced psychological trauma as a result of the accident. Davis, L.D., and A.D.
participate in therapy. L.D. and A.D. have been seen by licensed psychologists and have
been diagnosed with PTSD and separation anxiety. They also suffer with difficulty sleeping
and have nightmares about the accident. L.D., in particular, struggles with memories of the
accident, as she remained conscious throughout the crash and recalls the blood, injuries,
and painful sounds her mother and K.D. made while awaiting help. Since the accident, K.D.
has suffered from impulse control issues and an inability to manage her emotions.
Appellant was charged on a 20-count indictment consisting of 11 counts of felonious
assault, six counts of aggravated vehicular assault, two counts of abduction, and one count
of endangering children. On December 8, 2020, following plea negotiations, appellant pled
guilty to four counts of felonious assault with a deadly weapon in violation of R.C.
2903.11(A)(2), felonies of the second degree, in exchange for the remaining counts being
dismissed.
{¶7} After engaging appellant in a Crim.R. 11(C) plea colloquy, the trial court
accepted appellant's guilty pleas and found that the pleas were knowingly, intelligently, and
voluntarily entered. The court then heard arguments from the state and defense as to
sentencing, although the court indicated it would not impose a sentence until the following
week. After hearing from the state, the victims, family members of the victims, defense
counsel, and appellant, the court ordered that a presentence-investigative report ("PSI") be
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prepared and continued the sentencing hearing.
{¶8} On December 15, 2020, the court sentenced appellant to five-year prison
terms on each of the felonious assault counts. The court ordered the prison terms be served
consecutively to one another. In accordance with the Reagan Tokes Law, R.C. 2929.144,
the aggregate sentence imposed was an indefinite prison term of 20 to 22.5 years.
{¶9} Appellant appealed his sentence, raising two assignments of error.
{¶10} Assignment of Error No. 1:
{¶11} THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES
AGAINST [APPELLANT], AS THE STATUTORY FINDINGS UNDERPINNING THE
IMPOSITION OF SUCH SENTENCES WAS UNSUPPORTED BY THE RECORD.
{¶12} In his first assignment of error, appellant argues the trial court erred by
sentencing him to consecutive prison terms because the record does not support the
imposition of consecutive sentences.
{¶13} This court reviews felony sentences pursuant to the standard of review set
forth in R.C. 2953.08(G)(2) to determine whether the imposition of those sentences is
clearly and convincingly contrary to law. State v. Julious, 12th Dist. Butler No. CA2015-12-
224, 2016-Ohio-4822, ¶ 8. Pursuant to that statute, an appellate court may modify or vacate
a sentence only if it determines by clear and convincing evidence, that "'the record does not
support the trial court's findings under relevant statutes or that the sentence is otherwise
contrary to law.'" State v. Harp, 12th Dist. Clermont No. CA2015-12-096, 2016-Ohio-4921,
¶ 7, quoting State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. A sentence is not
clearly and convincingly contrary to law where the trial court considers the purposes and
principles of sentencing as set forth in R.C. 2929.11, as well as the seriousness and
recidivism factors listed in R.C. 2929.12, and sentences a defendant within the permissible
statutory range. State v. Brandenburg, 12th Dist. Butler Nos. CA2014-10-201 and CA2014-
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10-202, 2016-Ohio-4918, ¶ 9.
{¶14} Pursuant to R.C. 2929.14(C)(4), a trial court must engage in a three-step
analysis and make certain findings before imposing consecutive sentences. State v. Dillon,
12th Dist. Madison No. CA2012-06-012, 2013-Ohio-335, ¶ 9. First, the trial court must find
that the consecutive sentence is necessary to protect the public from future crime or to
punish the offender. Id., citing R.C. 2929.14(C)(4). Second, the trial court must find that
consecutive sentences are not disproportionate to the seriousness of the offender's conduct
and to the danger the offender poses to the public. Id. Third, the trial court must find that
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)(a)-(c).
{¶15} "A trial court satisfies the statutory requirement of making the required findings
when the record reflects that the court engaged in the required analysis and selected the
appropriate statutory criteria." State v. Setty, 12th Dist. Clermont Nos. CA2013-06-049 and
CA2013-06-050, 2014-Ohio-2340, ¶ 113. In imposing consecutive sentences, the trial court
is not required to provide a word-for-word recitation of the language of the statute or
articulate reasons supporting its findings. Id. Nevertheless, the record must reflect that the
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trial court engaged in the required sentencing analysis and made the requisite findings. Id.The court's findings must thereafter be incorporated into its sentencing entry. State v.
Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 10.
{¶16} Appellant concedes that the necessary findings under R.C. 2929.14(C)(4)
were made at his sentencing hearing and that the findings were included in his sentencing
entry. However, he argues that the record does not support the imposition of consecutive
sentences as "the length of his sentence was ultimately grossly disproportionate to the
nature of his conduct, the need to punish him, and the danger he posed to the community
at-large."
{¶17} We disagree with appellant's arguments and find that the trial court's R.C.
2929.14(C)(4) consecutive sentencing findings are supported by the record. The record
reflects that appellant has a significant criminal history dating back to when he was a
juvenile. The PSI revealed that appellant was first adjudicated delinquent for criminal
damaging when he was 12 years old. Between the ages of 12 and 17, appellant was
subsequently adjudicated delinquent for being an unruly child, disorderly conduct, underage
consumption of alcohol, multiple counts of possession of marijuana, multiple assaults,
vandalism, and criminal damaging. While on probation for those offenses, appellant had
more than 20 probation violations, which included continuing to test positive for marijuana
and benzodiazepines, cutting off his electronic monitoring bracelet, and consuming alcohol.
While a juvenile, appellant participated in the Stepping Stones program, was placed at
Basset House and a rehabilitation center, and also served several periods of detention at
various juvenile detention centers. None of these sanctions impacted appellant's conduct.
Shortly after turning 18, appellant was involved in a domestic violence incident and
subsequently pled guilty to a reduced charge of disorderly conduct. He continued to abuse
drugs and alcohol, including on the day of the accident that led to the felonious assault
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charges.
{¶18} On the morning of May 28, 2019, appellant was released from electronic
monitoring imposed as part of a juvenile court dispositional order. Mere hours later, he
drank alcohol and then drove while under the influence of alcohol and marijuana. In doing
so, appellant put himself, his passengers, and other members of the community at serious
risk of physical harm. Appellant ignored pleas from the passengers in his vehicle to stop
driving recklessly, to slow down, or stop the vehicle, telling his passengers "you bitches are
dying with me" as he drove at excessive speed and ignored traffic laws. Appellant struck
Davis' vehicle at 62 m.p.h. and caused significant harm to Davis and her daughters. All
four victims had to be rushed from the scene by helicopter or ambulance. Both Davis and
K.D. required emergency, life-saving surgeries. In addition to serious physical injuries,
consisting of broken bones, internal injuries, bruises, and lacerations, the victims also
suffered psychological harm as a result of appellant's actions – a harm that was
exacerbated due to the young age of K.D., A.D., and L.D. The victims are in therapy, with
A.D. and L.D. having been diagnosed with PTSD and separation anxiety. K.D., in turn,
suffers from impulse control issues and an inability to manage her emotions.
{¶19} Despite the significant harm he caused to his victims, appellant did not appear
genuinely remorseful for his actions. While in jail awaiting trial, appellant had multiple phone
conversations with family and friends wherein the accident or his victims were discussed.
One conversation occurred after appellant's bond hearing, wherein a relative of the victims
gave the court an update on the physical health of the victims. After hearing about the
conditions of the victims, appellant's response in a recorded jail call was that the victims'
relative "came to court talking shit." In other recorded phone calls, appellant is heard stating
that the legal trouble he faced had been "blown out of proportion" and that he can fake tears
and write a remorseful letter to the judge in an effort to get a lesser sentence. Rather than
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expressing genuine remorse for his actions and the harm he caused, appellant appeared
proud of his actions. At one point he asks the mother of his children, "You know I'm a
fucking gangster, right? I did all that shit and didn't even get a concussion." He also
appeared proud of the media coverage he was receiving, asking how many articles had
been written about him and the accident and laughing and joking that his mother has bought
out all the newspapers.
{¶20} Additionally, while in jail awaiting trial, appellant committed more than 20 jail
infractions. Appellant disrespected officers, disobeyed direct orders, fought with other
inmates, abused prescription medications, threatened to extort inmates possessing
contraband, attempted to bribe officers, and damaged security windows and the video
visitation kiosk.
{¶21} Through his statements and actions, appellant has demonstrated a continued
lack of respect for the law or for the affect his actions have on others in the community. The
nature of appellant's crimes, his significant criminal history, his lack of genuine remorse,
and the continued danger he poses to the public support the imposition of consecutive
sentences. Accordingly, we find that the imposition of consecutive sentences is not
disproportionate to the seriousness of appellant's conduct or the danger he poses to the
public. Contrary to appellant's assertions, the imposition of consecutive sentences was
necessary to punish appellant and to protect the public from future crime by appellant. The
trial court's findings under R.C. 2929.14(C)(4) are not clearly and convincingly unsupported
by the record.
{¶22} As appellant's sentence is supported by the record and is not contrary to law,
we find that the trial court did not err in imposing consecutive sentences on appellant.
Appellant's first assignment of error is, therefore, overruled.
{¶23} Assignment of Error No. 2:
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{¶24} THE TRIAL COURT'S IMPOSITION OF TWENTY-TO-TWENTY-TWO YEAR
AGGREGATE SENTENCE AGAINST JUSTIN WAS NOT SUPPORTED BY THE RECORD
BEFORE IT, AND SUCH SENTENCE VIOLATED THE EIGHTH AMENDMENT'S
PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT.
{¶25} In his second assignment of error, appellant again challenges his sentence,
arguing that the imposed aggregate 20-to-22.5-year sentence was "effectively * * * a life
sentence," was "unconscionable under the circumstances," and amounted to a violation of
the Eighth Amendment to the United States Constitution. We find appellant's arguments to
be without merit.
{¶26} The Eighth Amendment to the United States Constitution provides that
"[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted." The amendment applies to the states pursuant to the Fourteenth
Amendment. See State v. Accorinti, 12th Dist. Butler Nos. CA2012-10-205 and CA2012-
11-221, 2013-Ohio-4429, ¶ 20, citing Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417(1962).
{¶27} "[P]roportionality review in the context of cruel and unusual punishment does
not apply to aggregate sentences." State v. Rowland, 12th Dist. Warren No. CA2019-08-
084, 2020-Ohio-2984, ¶ 61. "[I]t is not the aggregate term of incarceration but, rather, the
individual sentences that are relevant." State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-
2338, ¶ 22. Therefore, "for purposes of the Eighth Amendment and Section 9, Article I of
the Ohio Constitution, proportionality review should focus on individual sentences rather
than on cumulative impact of multiple sentences imposed consecutively. Where none of
the individual sentences imposed on an offender are grossly disproportionate to their
respective offenses, an aggregate prison term resulting from consecutive imposition of
those sentences does not constitute cruel and unusual punishment." Id. at ¶ 20.
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{¶28} Furthermore, "[i]t is generally accepted that punishments which are prohibited
by the Eighth Amendment are limited to torture or other barbarous punishments, degrading
punishments unknown at common law, and punishments which are so disproportionate to
the offense as to shock the moral sense of the community." McDougle v. Maxwell, 1 Ohio
St.2d 68, 69 (1964). A sentence that falls within statutory limitations is not excessive and
does not violate the constitutional prohibition against cruel and unusual punishment.
Rowland at ¶ 63; McDougle at 69.
{¶29} Here, each of appellant's individual prison terms fell within the range
authorized by R.C. 2929.14(A)(2)(a). As appellant was convicted of multiple second-degree
felonies, the court was permitted to impose a prison term of two, three, four, five, six, seven,
or eight years for each offense. The court elected to impose a term of five years for each
of the four counts of felonious assault with a deadly weapon – a term that is authorized by
law. Nothing about appellant's individual five-year sentences are "grossly disproportionate"
to his crime. Moreover, the individual sentences are not contrary to law as the trial court
considered the principles and purposes of felony sentencing and the seriousness and
recidivism factors set forth in R.C. 2929.11 and 2929.12, respectively, in imposing the
sentences.
{¶30} Accordingly, as the individual sentences imposed by the trial court are within
the range of penalties authorized by statute, they are not grossly disproportionate or
shocking to a reasonable person or to the community's sense of justice, and do not
constitute cruel and unusual punishment. Appellant's aggregate indefinite prison term of
20 to 22.5 years, which resulted from the consecutive imposition of the individual sentences,
does not violate the Eighth Amendment to the United States Constitution. See Hairston at
¶ 23. As discussed in our resolution of appellant's first assignment of error, the imposition
of consecutive sentences were supported by the record and were not disproportionate to
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his conduct or the danger he poses to the public.
{¶31} Appellant's second assignment of error is, therefore, overruled.
{¶32} Judgment affirmed.
M. POWELL, P.J., and S. POWELL, J., concur.
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