State v. Lunn

[Cite as State v. Lunn, 2021-Ohio-302.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. CT2020-0031
NIKKI LUNN
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2019-0696
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 3, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX GERALD G. SIMMONS
Prosecuting Attorney 536 S. High Street
Muskingum County, Ohio Columbus, Ohio 43215
TAYLOR P. BENNINGTON
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth Street
P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2020-0031 2
Hoffman, J.
{¶1} Defendant-appellant Nikki Lunn appeals the judgment entered by the
Muskingum County Common Pleas Court convicting her of aggravated vehicular
homicide (R.C. 2903.06(A)(2)(a)) and attempted vehicular assault (R.C. 2923.02(A), R.C.
2903.08(B)(1)(c)) following her pleas of no contest, and sentencing her to an aggregate
term of incarceration of ninety-six months. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On August 2, 2019, Appellant was traveling home from work on route 666
in Muskingum County. While driving, she received a text message from her mother-in-
law, who was babysitting Appellant’s two children. The text message said Appellant’s
one-year-old daughter was sick, and “The sooner you get here the better.” Appellant
attempted to pass cars in front of her in a marked no passing zone. During her attempt
to pass, she crashed into a motorcycle. A second motorcycle took evasive action,
crashing as well. As a result of the crash, Dustin Spence was killed, and Dustin Phillis
was seriously injured. Appellant had used marijuana earlier on the day of the crash. The
accident report stated there was no sign of pre-crash braking by Appellant’s vehicle.
{¶3} Appellant was indicted by the Muskingum County Grand Jury with two
counts of aggravated vehicular homicide, one count of aggravated vehicular assault, and
one count, of operating a motor vehicle under the influence of marijuana, one count of
operating a motor vehicle with a prohibited amount of marijuana in her urine, and one
count of operating a motor vehicle with a prohibited amount of marijuana metabolite in
her urine. Appellant entered a plea of no contest to one count of aggravated vehicular
homicide and one count of attempted vehicular assault, as amended from aggravated
vehicular assault. The State agreed to nolle the remaining charges.
Muskingum County, Case No. CT2020-0031 3
{¶4} The case proceeded to a sentencing hearing in the Muskingum County
Common Pleas Court. The trial court sentenced Appellant to sixty months incarceration
for aggravated vehicular homicide and thirty-six months incarceration for attempted
vehicular assault, to be served consecutively for an aggregate sentence of ninety-six
months. It is from the May 7, 2020 judgment of the trial court Appellant prosecutes her
appeal, assigning as error:
I. THE TRIAL COURT’S SENTENCE OF APPELLANT IS
CONTRARY TO LAW IN CONTRAVENTION OF OHIO SENTENCING
STATUTES.
II. THE TRIAL COURT ERRED BY IMPOSING AN EIGHT YEAR
CONSECUTIVE SENTENCE IN VIOLATION OF THE EIGHTH
AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE
ONE (1) SECTION NINE (9) OF THE OHIO CONSTITUTION
PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT.
I.
{¶5} In her first assignment of error, Appellant argues the maximum consecutive
sentence of eight years as imposed by the trial court is contrary to law. She argues the
trial court’s conclusion the accident was not a result of Appellant’s child’s illness is not
supported by the record, and she demonstrated genuine remorse despite the trial court’s
suggestion she refused to accept personal responsibility for the crash. She further argues
Muskingum County, Case No. CT2020-0031 4
the trial court should not have commented on her marijuana use, as her marijuana use
was not a contributing factor to the accident.
{¶6} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. R.C.
2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence
and remand for resentencing where we clearly and convincingly find either 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 the sentence is otherwise contrary to law.
State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659.
{¶7} In State v. Gwynne, 5th Dist. Delaware No. 16 CAA 12 0056, 2017-Ohio-
7570, this Court reviewed an aggregate sentence of 65 years incarceration imposed on
a 55-year-old former nurse’s aide for a variety of theft and burglary convictions arising out
of her employment at a nursing home. While we found no error in the trial court’s findings
regarding the necessity of imposing consecutive sentences pursuant to R.C.
2929.14(C)(4), we concluded the record did not support the trial court’s aggregate
sentence under R.C. 2929.11 and R.C. 2929.12, which govern the purposes of felony
sentencing and the trial court’s weighing of the seriousness and recidivism factors in
fashioning an appropriate sentence. In so concluding, this Court held as follows:
The sentence is an emotional response to very serious and
reprehensible conduct. However, the understandably strong feelings must
be tempered by a sanction clearly and convincingly based upon the record
to effectuate the purposes of sentencing. The sentence imposed here does
Muskingum County, Case No. CT2020-0031 5
not do so. It is disproportionate to the conduct and the impact on any and
all of the victims either individually or collectively. It runs the risk of lessening
public respect for the judicial system. The imposition of a 65 year sentence
for a series of non-violent theft offenses for a first-time felon shocks the
consciousness. We therefore find by clear and convincing evidence that the
record does not support the sentence.
{¶8} Id. at ¶ 30.
{¶9} However, this Court’s decision was reversed by the Ohio Supreme Court in
State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169 (2019). The
Supreme Court held because Gwynne did not challenge any of her sentences individually,
this Court erred in reviewing the aggregate sentence pursuant to R.C. 2929.11 and R.C.
2929.12. Id. at ¶18. The Supreme Court noted Gwynne conceded the trial court made
the requisite findings before imposing consecutive sentences, and thus the sole issue for
this Court’s review was whether the record supported the trial court’s findings. Id. at ¶19.
{¶10} Appellant makes no argument either of her individual sentences was
contrary to law; rather, she argues the aggregate sentence of eight years is contrary to
law. Therefore, pursuant to the Ohio Supreme Court’s decision in Gwynne, supra, we
may only modify the sentence or remand for resentencing if we clearly and convincingly
find the trial court’s consecutive sentencing findings, made pursuant to R.C.
2929.14(C)(4), are not supported by the record. R.C. 2953.08(G)(2)(a).
{¶11} R.C. 2929.14(C)(4) provides:
Muskingum County, Case No. CT2020-0031 6
(4) 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:
(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.
{¶12} In the instant case, the trial court found the imposition of consecutive
sentences was necessary to protect the public from future crime or to punish Appellant,
and consecutive sentences are not disproportionate to the seriousness of Appellant’s
Muskingum County, Case No. CT2020-0031 7
conduct and to the danger Appellant poses to the public. The court found 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 committed was so great or unusual
that no single prison term for any of the offenses committed as part of the course of
conduct adequately reflects the seriousness of Appellant’s conduct.
{¶13} While Appellant expressed great remorse at the sentencing hearing for the
death of Dustin Stevens and the injuries to Dustin Phillis, the trial court found she
continued to refuse to take responsibility for the crash:
THE COURT: Again, that – that’s exactly the point I’m making, the
lack of responsibility and remorse. I know you’re sorry that someone got
injured and you’re sorry that someone has died. Absolutely I believe that.
But the personal responsibility, I don’t see happening, because it was
because of your child. And it wasn’t because of your child that this
happened.
{¶14} Sent. Tr. 30.
{¶15} The trial court noted Appellant’s choices which led to the crash: she chose
to continue driving rather than pull to the side of the road to call to check on her child and
find out whether the illness was an emergency, and she chose to pass on a curve and a
hill, where the road was marked as a no passing zone with a double yellow line. Sent.
Tr. 27-28. The accident report found no evidence of pre-crash braking on the part of
Appellant’s vehicle. Sent. Tr. 28.
Muskingum County, Case No. CT2020-0031 8
{¶16} Further, the trial court noted the number of letters he received from the
surviving victim, as well as the family and friends of the deceased victim. The trial court
quoted one letter which in the trial court’s opinion summed up the crash:
She says, I don’t consider it an accident. The steering wheel coming
off while driving is an accident. This happened because someone made a
choice. The choice to smoke weed before driving, not accidental. The
choice to speed, not accidental. The choice to pass someone on a double
yellow line, not accidental. These are all thoughts turned in to choices which
then turned in to actions. Actions that robbed our family of our sweet Dustin.
He was a son, brother, grandson, uncle, nephew, cousin and friend.
{¶17} Sent. Tr. 31.
{¶18} The trial court is in a better position than this court to assess whether
Appellant’s remorse included an acknowledgement of her personal responsibility for the
crash, and whether her actions were in fact motivated by an emergency involving her
child. See, e.g., State v. Eckliffe, 11th Dist. Lake No. 2001-L-105, 2002-Ohio-7136, ¶ 32.
{¶19} The trial court noted Appellant’s use of marijuana at several points in the
sentencing hearing. Appellant conceded she smoked marijuana the morning of the
accident, and the presentence investigation report set forth she smoked marijuana daily
from the age of sixteen until she was arrested for the instant crimes in November of 2019.
Sent. Tr. 19-20. Appellant argues the charges relating to driving under the influence of
Muskingum County, Case No. CT2020-0031 9
marijuana were dismissed as part of the plea agreement, and she had a pharmacologist
who would have testified at trial marijuana was not a factor in this case.
{¶20} A sentencing court may consider charges that have been dismissed or
reduced pursuant to a plea agreement. State v. Parsons, 2013-Ohio-1281, 2013 WL
1289523, ¶ 18, citing State v. Starkey, 7th Dist. No. 06MA110, 2007-Ohio-6702, 2007 WL
4374457, ¶ 2; State v. Cooey, 46 Ohio St.3d 20, 35, 544 N.E.2d 895 (1989). In imposing
sentence, the trial court can also take into consideration the fact the charges were
reduced. Id. Furthermore, the trial court may consider uncharged crimes, as well as
charges that are dismissed in a plea agreement, as factors at sentencing. State v.
Starkey, 7th Dist. Mahoning No. 06 MA 110, 2007-Ohio-6702, ¶ 2.
{¶21} While Appellant argues she would have presented evidence at trial her
marijuana use played no role in the crash, such evidence is not part of the record before
this Court on appeal. Appellant was charged not only with driving under the influence of
marijuana, but also with one count of driving with a prohibited level of marijuana in her
urine, as well as one count of driving with a prohibited level of a marijuana metabolite in
her urine. She admitted to using marijuana at 8:00 a.m. on the day of the crash, with the
crash occurring around 3:30 in the afternoon. The presentence investigation report
further set forth she smoked marijuana daily from the age of sixteen until she was arrested
on the charges arising out of the crash in November, 2019. We find the trial court could
consider the evidence of her marijuana use in determining whether consecutive
sentences were appropriate in the instant case.
Muskingum County, Case No. CT2020-0031 10
{¶22} Based on the record before this court, we do not clearly and convincingly
find the trial court’s findings in support of its imposition of consecutive sentences are not
supported by the record.
{¶23} The first assignment of error is overruled.
II.
{¶24} In her second assignment of error, Appellant argues the imposition of an
eight year aggregate sentence violates the constitutional prohibitions against cruel and
unusual punishment set forth in the United States and Ohio Constitutions.
{¶25} The Eighth Amendment to the United States Constitution prohibits
“[e]xcessive” sanctions. It provides: “Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.” Section 9, Article I of the
Ohio Constitution sets forth the same restriction: “Excessive bail shall not be required;
nor excessive fines imposed; nor cruel and unusual punishments inflicted.”
{¶26} The Eighth Amendment does not require strict proportionality between
crime and sentence, but only forbids extreme sentences which are grossly
disproportionate to the crime. State v. Weitbrecht, 86 Ohio St.3d 368, 373, 715 N.E.2d
167 (1999), quoting Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680 (1991),
(Kennedy, J., concurring in part and in judgment). A sentence does not violate the
constitutional prohibition against cruel and unusual punishment unless the sentence is so
grossly disproportionate to the offense as to shock the sense of justice in the community.
State v. Chaffin, 30 Ohio St.2d 13, 59 O.O.2d 51, 282 N.E.2d 46 (1972).
{¶27} Further, for purposes of the Eighth Amendment and Section 9, Article I of
the Ohio Constitution, proportionality review should focus on individual sentences rather
Muskingum County, Case No. CT2020-0031 11
than on the cumulative impact of multiple sentences imposed consecutively. State v.
Hairston, 118 Ohio St.3d 289, 888 N.E.2d 1073, 2008–Ohio–2338, ¶ 20. 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. As a general rule,
a sentence that falls within the terms of a valid sentencing statute cannot constitute cruel
and unusual punishment. Id. at ¶ 21.
{¶28} Appellant does not challenge the sentencing statutes pursuant to which she
was sentenced, nor does she argue she was not sentenced within a range permitted by
statute. Further, Appellant’s challenge is to the cumulative impact of her consecutive
sentences, which is not a proper consideration pursuant to Hairston, supra. We find
Appellant has not demonstrated her sentence constitutes cruel and unusual punishment
under the United States and Ohio Constitutions.
Muskingum County, Case No. CT2020-0031 12
{¶29} The second assignment of error is overruled.
{¶30} The judgment of the Muskingum County Common Pleas Court is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Wise, John, J. concur