State v. Ernest

[Cite as State v. Ernest, 2015-Ohio-2983.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2014-L-108
- vs - :
CHAUNTON C. ERNEST, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 14 CR
000082.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Alana A. Rezaee, 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, Ohio 44077 (For
Defendant-Appellant).
COLLEEN MARY O’TOOLE, J.
{¶1} Appellant, Chaunton C. Ernest, appeals from the September 30, 2014
judgment of the Lake County Court of Common Pleas, sentencing him for attempted
murder and other related crimes. On appeal, appellant argues his Crim.R. 29(A) motion
for acquittal should have been granted; his convictions are against the manifest weight
of the evidence; and his 11-year term of imprisonment is excessive. For the reasons
that follow, we affirm.
{¶2} On March 26, 2014, appellant was indicted by the Lake County Grand
Jury on ten counts: count one, attempted murder, a felony of the first degree, in violation
of R.C. 2923.02, with a firearm specification; count two, felonious assault, a felony of
the second degree, in violation of R.C. 2903.11(A)(2); count three, obstructing justice, a
felony of the third degree, in violation of R.C. 2921.32(A)(2); count four, complicity to
felonious assault, a felony of the second degree, in violation of R.C. 2923.03(A)(2), with
a firearm specification; counts five and seven, improperly handling firearms in a motor
vehicle, felonies of the fourth degree, in violation of R.C. 2923.16(B); count six, carrying
concealed weapons, a felony of the fourth degree, in violation of R.C. 2923.12(A)(1);
count eight, improperly discharging a firearm at or into a habitation or school safety
zone, a felony of the second degree, in violation of R.C. 2923.161(A)(1), with a firearm
specification; count nine, felonious assault, a felony of the second degree, in violation of
R.C. 2903.11(A)(2), with a firearm specification; and count ten, engaging in a pattern of
corrupt activity, a felony of the first degree, in violation of R.C. 2923.32(A)(1).
{¶3} Appellant was appointed counsel. He filed a waiver of the right to be
present at his arraignment and a waiver of his right to a speedy trial. On March 28,
2014, the trial court entered a not guilty plea to all charges on his behalf.
{¶4} Prior to trial, appellee, the state of Ohio, moved to dismiss counts eight,
nine, and ten. The trial court granted the state’s motion and dismissed those three
counts.
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{¶5} A bench trial commenced on August 26, 2014. At trial, the state
presented 20 witnesses and over 65 exhibits. Appellant testified on his own behalf but
presented no additional witnesses.
{¶6} Collectively, the testimony presented reveals appellant’s involvement in
several criminal incidents that spanned a two-day time period in January 2014 in Lake
and Ashtabula counties.1 On January 11, 2014, appellant, his Uncle Ginelli Ernest
(“Ginelli”), and Mike Williams (“Williams”) were together at appellant’s grandmother’s
home at Edgewood Club Apartments in Painesville, Lake County, Ohio. The apartment
complex is monitored by video surveillance. The three men left the complex and got
into a red Toyota Camry. Appellant was in the driver’s seat, Ginelli in the front
passenger seat, and Williams in the back seat.
{¶7} At that point, they saw Aaron Thomas (“Thomas”) walking on Elevator
Street. Ginelli told appellant to pull alongside Thomas so that Ginelli could confront
Thomas regarding an incident which occurred the previous day where Thomas allegedly
struck Ginelli’s sister. Both appellant and Ginelli were upset with Thomas for getting
into a fight with their family member.
{¶8} Following a brief conversation, Thomas began walking away. Ginelli was
apparently not finished speaking with Thomas and he ordered appellant to back up
alongside Thomas again. At that time, Williams stuck a .40 caliber semi-automatic rifle
out of the backseat window which caused Thomas to flee. Ginelli and Williams jumped
out of the car and chased after Thomas on foot while appellant drove after Thomas at a
high rate of speed. After pulling in front of Thomas, appellant stopped the car and got
1. The main facts are presented here. Additional facts will be addressed under appellant’s first
assignment of error which involves a sufficiency of the evidence argument.
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out. At that point, Williams began firing gunshots at Thomas. Some of the bullets
ended up hitting a nearby Ford Explorer owned by Carol Ann Eder.
{¶9} Thereafter, Ginelli and Williams returned to the Camry and appellant drove
back to Edgewood Club Apartments. Appellant allowed Williams back into his
grandmother’s apartment. Appellant stayed at the entrance of the apartment complex
until police arrived in response to 9-1-1 calls made regarding the shooting. Appellant
eventually admitted to a police officer that he had driven the vehicle. Appellant agreed
to go to the station for questioning.
{¶10} During an interview, appellant provided authorities with details of the
shooting. Appellant claimed he did not know Williams had a gun in the car. Appellant
also claimed he did not know the location of Williams or the gun at the time of the
interview.
{¶11} The next day, January 12, 2014, appellant was driving an SUV in
Ashtabula County. Ginelli was the front seat passenger and Williams was the back seat
passenger. A police officer pulled the SUV over due to a malfunctioning rear license
plate light. After approaching the vehicle with the three men and in light of the previous
day’s shooting in Lake County, the officer radioed for back up assistance. Williams
immediately fled the SUV. Appellant and Ginelli were placed in separate patrol cars
while the SUV was searched. A .40 caliber semi-automatic rifle, later identified as the
same rifle used in the January 11, 2014 shooting, was discovered on the rear floor of
the SUV. The rifle measured nearly three-feet long. Forensic testing later confirmed
that the seven spent cartridges recovered from the crime scene were fired from the rifle
in question.
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{¶12} Defense counsel moved for acquittal, pursuant to Crim.R. 29(A), at the
close of the state’s case and after all the evidence, which was denied by the trial court.
{¶13} Following trial, the court returned its verdict and found appellant guilty as
charged on counts one and three through seven. The court found appellant not guilty
on count two. The court referred the matter to the Adult Probation Department for a
pre-sentence investigation and report, a victim impact statement, and DNA testing.
Sentencing was deferred.
{¶14} Appellant filed a motion for new trial pursuant to Crim.R. 33(A)(4). The
state opposed the motion. The trial court denied appellant’s motion on September 23,
2014.
{¶15} On September 30, 2014, the trial court merged count four into count one
and count seven into count six. The court sentenced appellant to seven years in prison
on count one; nine months on count three; 12 months on count five; and 12 months on
count six. The sentences imposed in counts one, three, and five were ordered to be
served concurrent with each other and consecutive to the sentence imposed in count
six. Appellant was ordered to serve an additional mandatory prison term of three years
for the firearm specification, prior to and consecutive to the foregoing prison term, for a
total of 11 years. Appellant received 246 days of credit for time already served. The
court further notified appellant that post-release is mandatory for five years. Appellant
filed a timely appeal and raises the following three assignments of error for our review:
{¶16} “[1.] The trial court erred to the prejudice of the defendant-appellant in
denying his motion for acquittal made pursuant to Crim.R. 29(A).
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{¶17} “[2.] The trial court erred to the prejudice of the defendant-appellant when
it returned a verdict of guilty against the manifest weight of the evidence.
{¶18} “[3.] The trial court erred by sentencing the defendant-appellant to an
excessive, consecutive, eleven-year term of imprisonment.”
{¶19} In his first assignment of error, appellant argues the trial court erred in
denying his Crim.R. 29(A) motion for acquittal on all charges.
{¶20} With regard to sufficiency, in State v. Bridgeman, 55 Ohio St. 2d 261
(1978), the Supreme Court of Ohio established the test for determining whether a
Crim.R. 29 motion for acquittal is properly denied. The Court stated that “[p]ursuant to
Crim.R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is
such that reasonable minds can reach different conclusions as to whether each material
element of a crime has been proved beyond a reasonable doubt.” Id. at syllabus.
“Thus, when an appellant makes a Crim.R. 29 motion, he or she is challenging the
sufficiency of the evidence introduced by the state.” State v. Patrick, 11th Dist. Trumbull
Nos. 2003-T-0166 and 2003-T-0167, 2004-Ohio-6688, ¶18.
{¶21} As this court stated in State v. Schlee, 11th Dist. Lake No. 93-L-082, 1994
Ohio App. LEXIS 5862, *13-14 (Dec. 23, 1994):
{¶22} “‘Sufficiency’ challenges whether the prosecution has presented evidence
on each element of the offense to allow the matter to go to the [trier of fact], while
‘manifest weight’ contests the believability of the evidence presented.
{¶23} “‘“ * * * The test (for sufficiency of the evidence) is whether after viewing
the probative evidence and the inference[s] drawn therefrom in the light most favorable
to the prosecution, any rational trier of fact could have found all of the elements of the
6
offense beyond a reasonable doubt. The claim of insufficient evidence invokes an
inquiry about due process. It raises a question of law, the resolution of which does not
allow the court to weigh the evidence.”’
{¶24} “In other words, the standard to be applied on a question concerning
sufficiency is: when viewing the evidence ‘in a light most favorable to the prosecution,’
‘(a) reviewing court (should) not reverse a [guilty] verdict where there is substantial
evidence upon which the [trier of fact] could reasonably conclude that all of the
elements of an offense have been proven beyond a reasonable doubt.’” (Emphasis
sic.) (Citations omitted.)
{¶25} “[A] reviewing court must look to the evidence presented * * * to assess
whether the state offered evidence on each statutory element of the offense, so that a
rational trier of fact may infer that the offense was committed beyond a reasonable
doubt.” State v. March, 11th Dist. Lake No. 98-L-065, 1999 Ohio App. LEXIS 3333, *8
(July 16, 1999). The evidence is to be viewed in a light most favorable to the
prosecution when conducting this inquiry. State v. Jenks, 61 Ohio St. 3d 259 (1991),
paragraph two of the syllabus. Further, the verdict will not be disturbed on appeal
unless the reviewing court finds that reasonable minds could not have arrived at the
conclusion reached by the trier of fact. State v. Dennis, 79 Ohio St. 3d 421, 430 (1997).
{¶26} “[C]ircumstantial evidence and direct evidence inherently possess
the same probative value.” State v. Fasline, 11th Dist. Trumbull No. 2014-T-0004,
2015-Ohio-715, ¶39, citing State v. Biros, 78 Ohio St. 3d 426, 447 (1997), citing Jenks,
supra, paragraph one of the syllabus.
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{¶27} In this case, appellant challenges his convictions on all counts: count one
(attempted murder); count three (obstructing justice); count four (complicity to felonious
assault); counts five and seven (improperly handling firearms in a motor vehicle); and
count six (carrying concealed weapons). Upon review, we find sufficient evidence to
support convictions on all counts. We note again that the trial court merged count four,
with a firearm specification, into count one. The trial court also merged count seven into
count six. Thus, this court will specifically address the evidence presented supporting
appellant’s convictions on counts one, three, five, and six.
{¶28} Appellant’s convictions and the evidence presented are viewed under a
complicity theory. Before finding appellant guilty, the trial court was to consider whether
appellant “aided or abetted” another in the commission of the offenses. “‘Aided or
abetted’ means supported, assisted, encouraged, cooperated with, advised, or incited.”
OJI 523.03; see also State v. Sims, 11th Dist. Lake No. 2001-L-081, 2003-Ohio-324,
¶44.
{¶29} Appellant correctly notes that the mere presence of an individual at the
scene of a crime does not prove that someone is an accomplice. “Rather, the state
must establish that the offender ‘took some affirmative action to assist, encourage, or
participate in the crime by some act, deed, word, or gesture.’” Sims, supra, at ¶44,
quoting State v. Mootispaw, 110 Ohio App. 3d 566, 570 (4th Dist.1996). “‘[T]he state
may demonstrate a person’s aiding and abetting of another in the commission of a
crime through both direct and circumstantial evidence.’” Sims at ¶45, quoting
Mootispaw at 570. “‘“Criminal intent may be inferred from presence, companionship
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and conduct before and after the offense is committed.”’” Id., quoting State v. Pruett, 28
Ohio App. 2d 29, 34 (4th Dist.1971).
{¶30} Appellant does not dispute that he was present at the scene of the crime.
However, appellant claims he was unaware of Williams’ intent and had no knowledge
there was a rifle in the car.
{¶31} “A person acts knowingly, regardless of purpose, when the person is
aware that the person’s conduct will probably cause a certain result or will probably be
of a certain nature. A person has knowledge of circumstances when the person is
aware that such circumstances probably exist.” R.C. 2901.22(B). “[K]nowledge can be
ascertained from the surrounding facts and circumstances.” State v. Lopshire, 11th
Dist. Portage No. 2005-P-0037, 2006-Ohio-3215, ¶31. “Even when a defendant
testifies as to his lack of knowledge, a trier of fact may disbelieve his testimony and
examine the surrounding facts and circumstances to determine whether the defendant
possessed ‘knowledge.’” State v. Chambers, 4th Dist. Adams No. 10CA902, 2011-
Ohio-4352, ¶36.
{¶32} Under count one, in order to have found appellant guilty of attempted
murder, the state was required to prove that appellant aided and abetted his
codefendants (Ginelli and/or Williams) by knowingly engaging in conduct that, if
successful, would result in the death of another (Thomas) as a proximate result of
committing felonious assault. See R.C. 2923.02(A) (attempt); R.C. 2923.03(A)
(complicity); R.C. 2903.02(B) (murder); R.C. 2903.11(A)(2) (felonious assault).
{¶33} The surrounding facts and circumstances in this case support the state’s
position and the trial court’s conclusion that appellant aided and abetted Ginelli and
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Williams in attempting to cause Thomas’ death by attempting to inflict physical harm by
means of a deadly weapon.
{¶34} Appellant admitted he and Ginelli were upset with Thomas for getting into
a fight with their family member. The weapon at issue was a .40 caliber semi-automatic
rifle that measured nearly three-feet long. Appellant was present when the rifle was
purchased. Appellant observed Williams posing with the rifle for photos immediately
prior to the shooting. Appellant also observed Williams “walking funny” when they went
to the car.
{¶35} When appellant, Ginelli, and Williams saw Thomas around the apartment
complex, appellant pulled the car alongside him. Words were exchanged and Williams
stuck the rifle out of the backseat window which caused Thomas to flee. The exchange
was captured on video surveillance.
{¶36} Ginelli and Williams jumped out of the car and chased after Thomas on
foot while appellant drove after Thomas at a high rate of speed. An eyewitness, Joseph
Forristal (“Forristal”), testified for the state that “[a]s soon as he [Thomas] started
running backwards, the red car came racing towards him looking like it was going to try
and run him down.” Forristal stated that he “was really afraid it [the vehicle driven by
appellant] was trying to kill him [Thomas] because it was – I mean it just aimed right
towards him.”
{¶37} After pulling in front of Thomas, appellant stopped his car and got out. At
that point, Williams began firing gunshots at Thomas. Thereafter, appellant, Ginelli, and
Williams drove back to Edgewood Club Apartments. Appellant allowed Williams back
into his grandmother’s apartment. Appellant stayed at the entrance of the apartment
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complex until police arrived. A resident at the apartment, Cheryl Ann Thompson,
testified for the state that she saw Thomas running and heard him say “‘[t]hey’re trying
to kill me.’” Another witness in the vicinity, Larry Luckey, testified for the state that he
saw Thomas running and heard him say “‘[t]hey’re trying to shoot me.’”
{¶38} In addition, forensic testing confirmed that the seven spent cartridges
recovered from the crime scene were fired from the .40 caliber semi-automatic rifle in
question. Officer Roberto Soto testified for the state that a gun residue sample was
conducted from the rifle and from appellant’s hands. Donna Schwesinger, a forensic
scientist with BCI, testified for the state that “‘[p]articles highly indicative of gunshot
primer residue were identified on the samples from Chaunton C. Ernest [appellant].’”
{¶39} The direct and circumstantial evidence reveals appellant aided and
abetted Ginelli and Williams in an attempt to murder Thomas with a deadly weapon.
Appellant’s presence, companionship, and conduct before and after the offense was
committed renders him an aider and abettor. Accordingly, the surrounding facts and
circumstances establish a finding that appellant possessed the requisite knowledge to
support a conviction for attempted murder under a theory of complicity under count one.
{¶40} Under count three, in order to have found appellant guilty of obstructing
justice, the state was required to prove that appellant “with purpose to hinder the
discovery, apprehension, prosecution, conviction, or punishment of another for crime or
to assist another to benefit from the commission of a crime, * * * [p]rovide[ed] the other
person with * * * other means of avoiding discovery or apprehension.” R.C.
2921.32(A)(2). “A person acts purposely when it is the person’s specific intention to
cause a certain result, or, when the gist of the offense is a prohibition against conduct of
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a certain nature, regardless of what the offender intends to accomplish thereby, it is the
offender’s specific intention to engage in conduct of that nature.” R.C. 2901.22(A).
{¶41} After the shooting, video surveillance from the apartment complex
revealed the following: appellant parked the vehicle; appellant and Williams went to the
door of the building; appellant punched a code into the key pad to let himself and
Williams inside; appellant escorted Williams into his grandmother’s apartment and let
him inside; appellant then acted as a “look out” by talking on his phone, walking the
parking lot of the apartment complex, and standing in the vestibule area of the building;
after police arrived, appellant initially denied having any knowledge of the shooting; and
appellant never told police that he let the shooter (Williams) inside his grandmother’s
apartment.
{¶42} During his interview at the station, appellant initially denied knowing the
name of the shooter. Appellant indicated to the police that he had told “the dude” to
leave the apartment and that he complied. However, video surveillance did not show
Williams leaving the apartment building until hours after the shooting. The surrounding
facts and circumstances establish a finding that appellant possessed the requisite
purpose to support a conviction for obstructing justice under count three.
{¶43} Under count five, in order to have found appellant guilty of improperly
handling firearms in a motor vehicle, the state was required to prove that appellant
“knowingly transport[ed] or [had] a loaded firearm in a motor vehicle in such a manner
that the firearm [was] accessible to the operator or any passenger without leaving the
vehicle.” R.C. 2923.16(B).
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{¶44} Appellant admitted to being aware that the .40 caliber semi-automatic rifle
had been purchased and placed in the trunk of the car on the night prior to the incident
at issue. In fact, an eyewitness, Johnny Rivers, saw appellant when the rifle was
purchased and placed in the trunk. The following day, appellant, Ginelli, and Williams
drove in the vehicle from Ashtabula to Painesville. Video surveillance of the apartment
complex showed the three men entering and exiting, with Williams walking with a stiff
leg and holding his hand at his side.
{¶45} Just prior to the shooting, appellant admitted to being present inside his
grandmother’s apartment with Ginelli and Williams when they took photos with the rifle.
A neighbor, Eliza Villanueva, testified for the state, confirming that appellant was
present when Williams pulled out the rifle and took a picture with it. Alecia Clinard knew
all three men and testified for the state that she saw the photo of Williams with the rifle
posted on “a friend’s” (appellant’s) Instagram account.
{¶46} During his interview with police, appellant admitted to wondering why
Williams was “walking funny.” Appellant also admitted to knowing Williams as “a
shooter” and that Williams “don’t play no games.” The surrounding facts and
circumstances establish a finding that appellant possessed the requisite knowledge to
support a conviction for improperly handling firearms in a motor vehicle under count
five.
{¶47} Under count six, in order to have found appellant guilty of carrying
concealed weapons, the state was required to prove that appellant “knowingly carr[ied]
or [had], concealed on the person’s person or concealed ready at hand * * * [a] deadly
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weapon other than a handgun,” to wit: a .40 caliber semi-automatic rifle. R.C.
2923.12(A)(1).
{¶48} As addressed, it is implausible to believe appellant’s claims that he was
unaware that a nearly three-foot long rifle, which he had been in the presence of the day
before the shooting with the same individuals, was inside of the vehicle he was driving.
Officer Wayne Howell testified for the state that appellant told him that Williams had the
loaded rifle in the back seat. The rifle was found on the floor of the back seat where
Williams’ feet would have been. Also, Lieutenant Chad Brown, who collected the rifle
from the vehicle, testified for the state that the rifle was “ready at hand for anybody in
the car.” Again, appellant was the driver of the vehicle. The surrounding facts and
circumstances establish a finding that appellant possessed the requisite knowledge to
support a conviction for carrying concealed weapons under count six.
{¶49} Pursuant to Schlee, supra, the state presented sufficient evidence upon
which the trier of fact could reasonably conclude beyond a reasonable doubt that all the
elements were proven. Thus, the trial court did not err in overruling appellant’s Crim.R.
29 motion.
{¶50} Appellant’s first assignment of error is without merit.
{¶51} In his second assignment of error, appellant contends the guilty verdict is
against the manifest weight of the evidence.
{¶52} This court stated in Schlee, supra, at *14-15:
{¶53} “‘[M]anifest weight’ requires a review of the weight of the evidence
presented, not whether the state has offered sufficient evidence on each element of the
offense.
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{¶54} “‘In determining whether the verdict was against the manifest weight of the
evidence, “(* * *) the court reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines whether in
resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such
a manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered. (* * *)”’ (Citations omitted.) * * *” (Emphasis sic.)
{¶55} A judgment of a trial court should be reversed as being against the
manifest weight of the evidence “‘only in the exceptional case in which the evidence
weighs heavily against the conviction.’” State v. Thompkins, 78 Ohio St. 3d 380, 387
(1997).
{¶56} With respect to the manifest weight of the evidence, the trier of fact is in
the best position to assess the credibility of witnesses. State v. DeHass, 10 Ohio St. 2d
230 (1967), paragraph one of the syllabus.
{¶57} In reviewing and weighing all the evidence presented, we determine that
a trier of fact could reasonably conclude appellant was guilty of the charged offenses.
The trier of fact heard all of the evidence presented by the state and its 20 witnesses, as
addressed above, establishing appellant’s guilt for all the crimes committed. The trier of
fact also heard the defense’s theory, and from appellant himself, who alleged having no
knowledge of anything that was going on and merely being in the wrong place at the
wrong time. The trier of fact apparently placed great weight on and chose to believe the
state’s witnesses as opposed to appellant. DeHass, supra, at paragraph one of the
syllabus. We cannot say the trier of fact clearly lost its way in finding appellant guilty of
the crimes at issue. Schlee, supra, at *14-15; Thompkins, supra, at 387.
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{¶58} Appellant’s second assignment of error is without merit.
{¶59} In his third assignment of error, appellant alleges the trial court erred in
sentencing him to an excessive, consecutive, 11-year term of imprisonment. Appellant
asserts the trial court failed to give adequate consideration to the R.C. 2929.12 factors.
{¶60} R.C. 2953.08(G) and the clear and convincing standard should be applied
to determine whether a felony sentence is contrary to law. See, e.g., State v. Venes,
8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶10; State v. Drobny, 8th Dist.
Cuyahoga No. 98404, 2013-Ohio-937, ¶5, fn.2; State v. Kinstle, 3rd Dist. Allen No. 1-
11-45, 2012-Ohio-5952, ¶47; State v. Cochran, 10th Dist. Franklin No. 11AP-408, 2012-
Ohio-5899, ¶52.
{¶61} In reviewing a felony sentence, R.C. 2953.08(G) provides:
{¶62} “(2) 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.
{¶63} “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:
{¶64} “(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;
16
{¶65} “(b) That the sentence is otherwise contrary to law.”
{¶66} Although trial courts have full discretion to impose any term of
imprisonment within the statutory range, they must consider the sentencing purposes in
R.C. 2929.11 and the guidelines contained in R.C. 2929.12.
{¶67} Under H.B. 86, pursuant to the principles and purposes of sentencing,
R.C. 2929.11 provides: “[t]he overriding purposes of felony sentencing are to protect the
public from future crime by the offender and others and to punish the offender using the
minimum sanctions that the court determines accomplish those purposes without
imposing an unnecessary burden on state or local government resources.” R.C.
2929.11(A). (Emphasis added.) Thus, the legislature has given us the tools as well as
a mandate to address the issues of keeping dangerous criminals off the street, while
balancing Ohio’s financial deficits and an already overcrowded prison system.
{¶68} The guidelines contained in R.C. 2929.12, specifically at (E), state:
{¶69} “(E) The sentencing court shall consider all of the following that apply
regarding the offender, and any other relevant factors, as factors indicating that the
offender is not likely to commit future crimes:
{¶70} “(1) Prior to committing the offense, the offender had not been adjudicated
a delinquent child.
{¶71} “(2) Prior to committing the offense, the offender had not been convicted
of or pleaded guilty to a criminal offense.
{¶72} “(3) Prior to committing the offense, the offender had led a law-abiding life
for a significant number of years.
{¶73} “(4) The offense was committed under circumstances not likely to recur.
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{¶74} “(5) The offender shows genuine remorse for the offense.”2
{¶75} This is not a case where the trial court failed to merge allied offenses of
similar import. Rather, as stated, appellant was found guilty of the following: count one,
attempted murder, a felony of the first degree, in violation of R.C. 2923.02, with a
firearm specification; count three, obstructing justice, a felony of the third degree, in
violation of R.C. 2921.32(A)(2); count four, complicity to felonious assault, a felony of
the second degree, in violation of R.C. 2923.03(A)(2), with a firearm specification;
counts five and seven, improperly handling firearms in a motor vehicle, felonies of the
fourth degree, in violation of R.C. 2923.16(B); and count six, carrying concealed
weapons, a felony of the fourth degree, in violation of R.C. 2923.12(A)(1). The trial
court found the offenses were committed with the same animus and were allied
offenses of similar import, pursuant to R.C. 2941.25. Thus, the court merged count
four, with a firearm specification, into count one. The court also merged count seven
into count six.
{¶76} This is also not a case where the defendant received the maximum
sentence. Specifically, appellant’s sentence of seven years in prison on count one is
within the statutory range. See R.C. 2929.14(A)(1) (“[f]or a felony of the first degree, the
prison term shall be three, four, five, six, seven, eight, nine, ten, or eleven years.”)
Appellant’s sentence of nine months in prison on count three is within the statutory
range. See R.C. 2929.14(A)(3)(b) (“[f]or a felony of the third degree * * * the prison term
shall be nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.”) In addition,
appellant’s sentences of 12 months in prison on counts five and six are within the
statutory ranges. See R.C. 2929.14(A)(4) (“[f]or a felony of the fourth degree, the prison
2. See R.C. 2929.12(A)-(E) (for a complete list of all factors).
18
term shall be six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen,
sixteen, seventeen, or eighteen months.”)
{¶77} At the sentencing hearing, the trial court gave careful and substantial
deliberation to the relevant statutory considerations. Specifically, the trial judge stated
the following:
{¶78} “Well, this Court did review the presentence report and investigation that
was completed. I’ve considered the particular facts and circumstances of the offenses
involved here, the nature of the offenses and of the Defendant’s participation; his role in
committing these offenses. Obviously it was a bench trial. I sat through and listened to
all of the evidence. I am very familiar with what occurred.
{¶79} “I’ve taken into consideration what has been said here in open court by
Mr. Hentemann on behalf of his client. The Defendant himself was afforded an
opportunity to address the Court, chose not to make a statement, but he was given that
chance. Taken into consideration the prosecutor’s comments, recommendation being
made by the State of Ohio. As well as several family members that were present today
and spoke. I also did receive, in addition to the folks that are here today that made
statements, but several letters sent to me through email from family members,
acquaintances that couldn’t be here today from out of state. I’ve read those. I’ve taken
those into consideration in support of Mr. Ernest.
{¶80} “This is all being considered in light of the purposes and principles in
felony sentencing which are set forth in 2929.11 of the Ohio Revised Code.
{¶81} “As for the factors in 2929.12 that I have to consider in all felony cases,
the Court finds that the Defendant did act as a part of organized criminal activity in
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committing these offenses and that there was a firearm involved in the commission of
these offenses, which it’s not necessary to have a firearm involved to commit attempted
murder, but it was used in this case. That makes the conduct more serious.
{¶82} “As for factors indicating the conduct was less serious, the Court does
note that the Defendant was not the principal offender in the commission of at least the
attempted murder. In any of the offenses - - well, the attempted murder. The State
proceeded on an aiding and abetting theory and that’s the basis for the Court’s finding
of the Defendant’s guilt.
{¶83} “As for factors indicating recidivism is more likely, the Court finds the
Defendant does have a history of juvenile delinquency adjudications. He’s only twenty-
one years old now. Just turned twenty-one. Was twenty at the time this was
committed. So not much of an adult life. But as a juvenile, he does have juvenile
delinquency adjudications, several. For a period of, from 2006 if my memory serves me
correctly. Starting in 2006 when he was in and out of juvenile court until 2011. While
the offenses aren’t – he has a couple felony offenses that he – assault offenses and he
was adjudicated as a delinquent child in juvenile court. But what’s even more alarming
or disturbing is the fact that, by my count, there is at least fourteen probation violations
that he had over the years that he was a minor. He started in juvenile court when he
was thirteen. There were fourteen probation violations over a period of time that he was
a minor for not being able to follow the rules and what was requested or what was
ordered of him.
{¶84} “The Court further finds there is no genuine remorse on behalf of the
Defendant for his involvement in these incidents. Completely denies having any
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knowledge of anything that was going on. Simply claims that he was in the wrong place
at the wrong time. That’s just not what the facts bore out. He may not have been the
principal offender, and I recognize that and indicated that, but he was not an innocent
bystander being at the wrong place at the wrong time.
{¶85} “* * *
{¶86} “You know, Mr. Ernest, all long you’ve indicated that you didn’t know what
was going on and you weren’t the main person here. Being in the wrong place at the
wrong time. That you didn’t aid and [a]bet. Well, that’s not true. When you guys
backed up the car towards him, the two other guys jumped out, you could have stayed
right there. You didn’t have to do anything more. But what you did then was take off
after Mr. Thomas as he was running down the street, pull in front of him and cut him off
as he was being shot at to cut his path, to slow him down. You may not have been the
principal offender, but you were involved. You participated. You helped facilitate the
attempt to gun Aaron Thomas down. You knew Williams had a gun, a forty-caliber rifle,
a semiautomatic rifle. Your claim that you didn’t know he had it is – it’s not believable.
He’s posing with pictures of the gun in the apartment right before you guys leave out
there, that you’re posting on Instagram. And your (sic) claiming you didn’t know he had
a gun is just ridiculous.
{¶87} “And while you may not have set out that day to cause any problems, you
know Michael is coming in that car with you with that forty-caliber semiautomatic rifle.
And while he may not have participated in this trial and he may not be here, you and
your cohorts, turned this into the wild, wild west on the side streets of Painesville that
afternoon and put many individuals in harm’s way. And that can’t be allowed.”
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{¶88} Furthermore, the trial court stated the following in its sentencing entry:
{¶89} “The Court has also considered the record, oral statements, written
statements in support of the Defendant, the pre-sentence report submitted by the Lake
County Adult Probation Department of the Court of Common Pleas, as well as the
principles and purposes of sentencing under R.C. 2929.11, and has balanced the
seriousness and recidivism factors under R.C. 2929.12.
{¶90} “In considering the foregoing, and for the reasons stated in the record, this
Court finds that a prison sentence is consistent with the purposes and principles of
sentencing set forth in R.C. 2929.11 and that Defendant is not amenable to an available
community control sanction.
{¶91} “The Court finds that Defendant was afforded all rights pursuant to Crim.R.
32 and was given the opportunity to speak before judgment and sentence was
pronounced against him.
{¶92} “* * *
{¶93} “The Court has further notified the Defendant, that post release control is
mandatory in this case for 5 years, as well as the consequences for violating conditions
of post release control imposed by the Parole Board under Revised Code section
2967.28.”
{¶94} Thus, the record reflects the trial court gave due deliberation to the
relevant statutory considerations. The court considered the purposes and principles of
felony sentencing under R.C. 2929.11, and balanced the seriousness and recidivism
factors under R.C. 2929.12. The court merged allied offenses of similar import. The
court sentenced appellant within the statutory ranges under R.C. 2929.14(A). Further,
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the record reveals the court properly advised appellant regarding post-release control.
Therefore, the trial court complied with all applicable rules and statutes and, as a result,
appellant’s sentence is not clearly and convincingly contrary to law.
{¶95} Appellant’s third assignment of error is without merit.
{¶96} For the foregoing reasons, appellant’s assignments of error are not well-
taken. The judgment of the Lake County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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