State v. Mays

[Cite as State v. Mays, 2012-Ohio-838.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 24168
Plaintiff-Appellee :
: Trial Court Case No. 2009-CR-1322
v. :
:
CHAMARE H. MAYS : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 2nd day of March, 2012.
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MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. #0061560, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, Post
Office Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
STEPHEN P. HARDWICK, Atty. Reg. #0062932, Office of the Ohio Public Defender, 250
East Broad Street, Suite 1400,Columbus, Ohio 43215
Attorney for Defendant-Appellant
J. DAVID TURNER, Atty. Reg. #0017456, Post Office Box 291771, Kettering, Ohio
45429-1771
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} Chamare Mays appeals his conviction and sentence, assigning four errors to
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the trial court. First, Mays alleges that the trial court erred by convicting him of felony murder
based on felonious assault, contending that the independent-felony or merger limitation, which
he asserts exists under Ohio common law, precludes felonious assault from serving as the
underlying offense for felony murder. Second, Mays alleges that the trial court erred by
imposing court costs in the termination entry without mentioning them at the sentencing
hearing. Third, he alleges that the trial court erred by using the termination entry to disapprove
transitional control. Finally, Mays alleges that the trial court erred by imposing consecutive
prison terms. The second and third allegations have merit, so we affirm in part and reverse in
part.
A. Facts and Procedural History
{¶ 2} In April 2009, Mays and two others entered Dayton’s College Hill Park with
guns in hand and began shooting at a group of men playing basketball. One man was hit in the
face and died at the scene. Another took off running and Mays gave chase. Mays continued
shooting and succeeded in hitting the second man’s leg. While Mays denies being the one who
fired the fatal shot, he admits the rest.
{¶ 3} Mays was indicted on two counts of felonious assault with a deadly weapon,
one count of felonious assault causing serious physical harm, two counts of felony murder
(proximately resulting from felonious assault with a deadly weapon and proximately resulting
from felonious assault causing serious physical harm), one count of tampering with evidence,
one count of having weapons while under a disability, and one count of inducing panic. With
the exception of the last, attached to each count was a firearm specification. At Mays’ first
trial, he was found guilty of one count of felonious assault with a deadly weapon, tampering
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with evidence, inducing panic, and having weapons while under disability. On the remaining
counts, the jury failed to reach a verdict and a mistrial was declared. At the second trial, a jury
found Mays guilty of the remaining counts.
{¶ 4} The trial court sentenced Mays to an aggregate 40 years to life in prison. For
the non-fatal felonious assault with a deadly weapon, tampering with evidence, having a
weapon while under disability, and inducing panic, the court imposed consecutive prison
terms, totaling 19 years. The court merged the firearm specifications into two groups and
imposed consecutive 3-year terms, totaling 6 years. Finally, the court merged the fatal
felonious-assault-with-a-deadly-weapon count, the
felonious-assault-causing-serious-physical-harm count, and the count charging felony murder
proximately resulting from felonious-assault causing serious physical harm into the count
charging felony murder proximately resulting from felonious assault with a deadly weapon,1
and, for the murder, sentenced Mays to prison for 15 years to life.2
B. The Felony-Murder Conviction
{¶ 5} Mays alleges, in the first assignment of error, that the trial court erred by
convicting him of felony murder. He contends that felonious assault may not serve as the
underlying offense. Mays claims that because his felonious assault directly resulted in the
1
Allied offenses merge for sentencing. R.C. 2941.25(A). Allied offenses are those “committed by the same conduct.” State v.
Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 48-50. Here, the simultaneous commission of the two varieties of
felonious assault and the resulting felony murders were the result of the same conduct. Compare id. at ¶ 53-57 (holding that felony murder
under R.C. 2903.02(B) based on the simultaneous commission of the predicate offense of child endangering (serious harm) were allied
offenses for this reason).
2
“It is the state that chooses which of the allied offenses to pursue at sentencing.” (Citation omitted.) State v. Whitfield, 124 Ohio
St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 20.
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victim’s death the felony-murder rule’s independent-felony or merger limitation precludes it
from serving this role. We conclude that this limitation does not exist under Ohio law.
{¶ 6} “The classic felony-murder rule held that a death caused during the
commission of any felony constitutes murder.” Tomkovicz, The Endurance of the
Felony-Murder Rule: A Study of the Forces that Shape Our Criminal Law, 51 Wash. & Lee L.
Rev. 1429, 1465 (1994); see Dressler, Cases and Materials on Criminal Law, Chapter 7,
Section (D)(1)(a), at 309-310 (4th Ed.2007) (“In its classic form, the operation of the rule
follows a compellingly simply, almost mathematical, logic: a felony + a killing = a murder.”).
“At common law, murder was the unlawful killing of a human being with malice
aforethought: an intentional killing with expressed malice.” State v. Dixon, 2d Dist.
Montgomery No. 18582, 2002-Ohio-541, 2002 WL 191582, *4, citing Katz and Gianelli,
Criminal Law, Section 95.2 (1996). New York’s highest court has explained the rule this way:
The very purpose of the felony murder doctrine is to utilize the underlying
felony as a substitute for the defendant’s murderous intent and thereby raise an
unintentional killing to the level of murder. As we said in People v Hernandez
(82 NY2d 309, 317 [1993]), “The basic tenet of felony murder liability is that
the mens rea of the underlying felony is imputed to the participant responsible
for the killing. By operation of that legal fiction, the transferred intent allows
the law to characterize a homicide, though unintended and not in the common
design of the felons, as an intentional killing.”
The felony murder concept was derived from the common law, at
which no intent to kill was necessary. It was enough that the victim was killed
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while the accused was engaged in the commission of a felony. Under the
common law, the felonious intent was imputed to the committed act, and, if it
were homicide, made it murder. (Citations omitted.) People v. Cahill, 2 N.Y.3d
14, 67, 809 N.E.2d 561 (2003).
Thus “the intent to kill is conclusively presumed as long as the state proves the required intent
to commit the underlying felony.” (Citation omitted.) State v. Walters, 10th Dist. Franklin No.
06AP-693, 2007-Ohio-5554, ¶ 61.
{¶ 7} Because it requires no proof of intent to kill, the felony-murder rule has
generated criticism. One commentator has said that “few legal doctrines have been as
maligned and yet have shown as great a resiliency as the felony-murder rule. * * * Despite the
widespread criticism, the felony-murder rule persists in the vast majority of states.” Roth &
Sundby, The Felony-Murder Rule: A Doctrine at Constitutional Crossroads, 70 Cornell L.
Rev. 446, 446 (1985). But the rule does not persist in its classic form. “In most places, the rule
is cabined in a number of ways.” Tomkovicz, 51 Wash. & Lee L. Rev. at 1467.
{¶ 8} One way that developed to cabin the rule is the independent-felony or merger
limitation. This limitation “precludes certain particularly dangerous felonies–the archetype is
assault with a deadly weapon–from qualifying [as the underlying felony].” Id. It requires that
“the underlying felony be independent of the killing.” Dixon, 2002 WL 191582, at *4, citing
Katz and Gianelli, at Section 95.2. As the California Supreme Court has explained, the
limitation “is premised upon the concern that it ‘would subvert the legislative intent for a court
to apply the felony-murder rule automatically to elevate all felonious assaults resulting in
death to second degree murder even where the felon does not act with malice.’” People v.
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Robertson, 34 Cal.4th 156, 170, 95 P.3d 872 (2004), quoting People v. Hansen, 9 Cal.4th 300,
314, 885 P.2d 1022 (1994). “‘In other words, if the felony-murder rule were applied to
felonious assaults, all such assaults ending in death would constitute murder, effectively
eliminating the requirement of malice.’” Id., quoting Hansen at 314. In those jurisdictions
which have applied the independent-felony or merger rule, a felonious assault that is an
integral element of the homicide cannot be the predicate felony to support the felony murder.3
{¶ 9} In 1998, the Ohio General Assembly added the felony-murder provision, R.C.
2903.02(B), to Ohio’s murder statute. The provision pertinently states: “No person shall cause
the death of another as a proximate result of the offender’s committing or attempting to
commit an offense of violence that is a felony of the first or second degree.” Before this
provision was added, murder in Ohio concerned only purposeful killings. State v. Franklin,
7th Dist. Mahoning No. 06-MA-79, 2008-Ohio-2264, ¶ 103; see R.C. 2903.02(A) (defining
murder as “purposely” causing death). Killings that occurred as a proximate result of a felony
fell under the involuntary-manslaughter statute, R.C. 2903.04.
{¶ 10} While it may be that “most jurisdictions apparently follow some form of the
‘merger’ doctrine,” Tomkovicz, 51 Wash. & Lee L. Rev. at 1467, Ohio does not. Unlike in
some states, in Ohio all crimes are statutory. R.C. 2901.03. We agree with the Ninth District
Court of Appeals that “in adopting R.C. 2903.02(B) the General Assembly rejected the
independent felony/merger doctrine,” State v. Cherry, 9th Dist. Summ No. 20771,
2002-Ohio-3738, ¶ 27. We further agree that “R.C. 2903.02(B) evidences a clear legislative
3
See discussion at State v. Freeze, 2d Dist. Clark No. 2421, 1990 WL 212671, *3 (Dec. 21, 1990). However,in Freeze, before
codification of felony murder in R.C. 2903.02(B), this court rejected a defendant’s argument that the merger rule barred the use of felonious
assault as the predicate offense for involuntary manslaughter.
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intent to subject those who commit the most serious felonies to liability for murder, where
commission of those felonies results in death.” Id. at ¶ 43. As the First District has observed,
“the General Assembly has * * * narrowly defined the scope of felony murder under R.C.
2903.02(B), and related it to the legitimate purpose of punishing the taking of human life
while committing a separate offense of violence.” State v. Pickett, 1st Dist. Hamilton No.
C-000424, 2001-Ohio-4022, 2001 WL 1591318, *3. The court pointed out that “only eleven
first- and second-degree offenses may serve as predicate offenses under this statute.” Id. The
court also said that “the statute does not arbitrarily relieve the state of proving criminal intent,
nor does it eliminate the role of the jury as the trier of fact.” Id. As the Eleventh District has
said, “the state [must still] prove[] the required intent to commit the underlying felony.” State
v. Hayden, 11th Dist. Lake No. 99-L-037, 2000 WL 973413, *4 (July 14, 2000). We add that
the General Assembly kept the felony-murder provision’s scope narrow also by using the
phrase “as a proximate result of.” We and other courts have concluded that this language
indicates that liability for felony murder is based on a theory of proximate cause. Dixon, 2002
WL 191582, at *5-6; Franklin. Under this theory,
generally, for a criminal defendant’s conduct to be the proximate cause of a
certain result, it must first be determined that the conduct was the cause in fact
of the result, meaning that the result would not have occurred “but for” the
conduct. Second, when the result varied from the harm intended or hazarded, it
must be determined that the result achieved was not so extraordinary or
surprising that it would be simply unfair to hold the defendant criminally
responsible for something so unforeseeable. Id. at *6, quoting State v.
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Lovelace, 137 Ohio App.3d 206, 216, 738 N.E.2d 418 (1st Dist.1999), citing
LaFave and Scott, Criminal Law, Section 35, at 246 (1972).
Thus, although the felony-murder provision contains no separate proof of a culpable mental
state, it limits criminal liability to only those deaths that occur “within the scope of a culpably
imposed risk,” Binder, Making the Best of Felony Murder, 91 B.U. L. Rev. 403, 484 (2011),
citing Wayne R. LaFave, Criminal Law 376-378 (5th Ed.2010).
{¶ 11} Felonious assault and felony murder require proof of different facts, as the
Ohio Supreme Court has pointed out. In State v. Miller, 96 Ohio St.3d 384, 2002-Ohio-4931,
775 N.E.2d 498, the defendant was found guilty of felony murder predicated on felonious
assault. There, the evidence showed that the defendant fired a handgun at his wife at close
range and hit her in the head. She died from her injuries. The pertinent issue was “whether
felony murder as defined in R.C. 2903.02(B) is supported by evidence that establishes that the
defendant shot the victim knowingly when the underlying offense of violence charged is
felonious assault.” Id. at ¶ 20. The Court held that it was. Id. at ¶ 48. Succinctly explaining the
different proof requirements in that case, the Court said, “If defendant knowingly caused
physical harm to his wife by firing the gun at her through a holster at close range, he is guilty
of felonious assault. The fact that she died from her injuries makes him guilty of felony
murder, regardless of his purpose.” Id. at ¶ 33. We note too the Court’s dismissal of the
defendant’s concern that, “since felony murder has a lesser mens rea standard (knowingly)
than murder (purposely), and since the two crimes carry the same punishment, prosecutors
will now seek murder convictions under the felony murder statute based on felonious assault.”
Id. at ¶ 34. In addition to pointing out that “prosecutors can still charge in the alternative and
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generally seek an indictment most aligned with the facts of the case,” id., the Court said that
this is a legislative concern: “the General Assembly has chosen to define felony murder in this
manner, and the General Assembly is presumed to know the consequences of its legislation.”
Id.
{¶ 12} Finally, the absence of the independent-felony or merger limitation is not
unconstitutional, as Ohio courts have consistently held. See Cherry, 2002-Ohio-3738, at ¶ 31
(finding “that neither R.C. 2903.02(B) nor Appellant’s conviction for felony murder where the
predicate offense was not independent of the conduct that killed [the victim] are in violation of
equal protection or due process guarantees”); State v. Smathers, 9th Dist. Summit No. 19945,
2000 WL 1859836, *2-3 (Dec. 20, 2000) (holding that R.C. 2903.02(B) does not violate the
Fifth, Sixth, or Fourteenth amendments to the U.S. Constitution because the culpability
element of felony-murder is established by proving the intent of the underlying felony);
Pickett, 2001 WL 1591318, at *3 (holding that “[the defendant]’s conviction under the
felony-murder rule of R.C. 2309.02(B), where the predicate offense was the felonious assault
of the murder victim, did not deprive him of due process”); Hayden, 2000 WL 973413, at *4
(rejecting defendant’s argument that R.C. 2903.02(B) is unconstitutional because it violates
the independent-felony or merger limitation, and holding that the statute does not violate due
process).
{¶ 13} Mays cites no authority showing that Ohio currently recognizes, or has ever
recognized, the independent-felony or merger limitation. Our independent research discloses
none either. And, we determine that the absence of such a limitation in the felony murder
statute raises no constitutional concerns.
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{¶ 14} The first assignment of error is overruled.
C. Court Costs
{¶ 15} Mays alleges, in the second assignment of error, that the trial court erred by
imposing court costs in the termination entry without mentioning them at the sentencing
hearing. We agree.
{¶ 16} The Ohio Supreme Court has held “that a court errs in imposing court costs
without so informing a defendant in court.” State v. Joseph, 125 Ohio St.3d 76,
2010-Ohio-954, 926 N.E.2d 278, ¶ 1. It is true, as the state says, that if a defendant does not
move for waiver of payment at the time of sentencing, “the issue is waived and costs are res
judicata.” State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, paragraph
two of the syllabus. But that assumes the defendant was given an opportunity to seek a waiver.
See Joseph at ¶ 12-13, citing Threatt at paragraph two of the syllabus. A defendant does not
have such an opportunity if the trial court fails to mention costs at the sentencing hearing. Id.
at ¶ 13. We have previously held that when court costs are not mentioned at the sentencing
hearing the defendant is denied the opportunity to seek a timely waiver of those costs. State v.
Lunsford 193 Ohio App.3d 195, 2011-Ohio-964, 951 N.E. 2d 464, ¶ 16 (2d Dist.).
{¶ 17} Here the trial court failed to tell Mays at the sentencing hearing that it was
imposing court costs on him. The remedy for this error, which we grant, is remand for the
limited purpose of the defendant to seek a waiver of court costs. See id.{¶ 18} The second assignment of error is sustained.
D. Termination-Entry Disapproval of Transitional Control
{¶ 19} Mays alleges, in the third assignment of error, that the trial court erred by
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using the termination entry to disapprove transitional control under R.C. 2967.26. This court
has held that this is error, as the state concedes, because “a trial court’s ability to approve or
disapprove of transitional control occurs only after a person has been incarcerated and the
adult parole authority sends a notice to the trial court indicating that it intends to grant
transitional control under R.C. 2967.26(A).” State v. Howard,190 Ohio App.3d 734,
2010-Ohio-5283, 944 N.E.2d 258, ¶ 2 (2d Dist.).4 The remedy, which the state urges and
which we grant, is remand to amend the termination entry by deleting the statement of
disapproval. State v. Porcher, 2d Dist. Montgomery No. 24058, 2011-Ohio-5976, ¶ 25.
{¶ 20} The third assignment of error is sustained.
E. Consecutive Sentences
{¶ 21} Finally, Mays alleges, in the fourth assignment of error, that the trial court
erred by imposing consecutive prison terms. He contends that the trial court based its
consecutive-terms decision on findings prohibited by the Ohio Supreme Court in State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. Mays also contends that the trial
court’s rationale for consecutive terms shows that the court abused its discretion.
{¶ 22} When Foster was decided, R.C. 2929.14(E)(4) provided that consecutive
sentences could not be imposed unless the trial judge found additional facts. The judge had to
find 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
4
We note that the termination-entry disapproves of transitional control rather than stating that the defendant is not eligible for
transitional control. If the latter statement is accurately made, there is no error. See State v. Jones, 2d Dist. Montgomery No. 24075,
2011-Ohio-4013, ¶ 46 (distinguishing Howard on this basis). Under the current rules, Mays is not eligible for transitional control while
serving his mandatory time (R.C. 2967.26(A)(1)(b)) and because he is serving a life sentence (Ohio Admin. Code 5120-12-01(F)(4))
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of the offender’s conduct and to the danger the offender poses to the public.’” Id. at ¶ 65,
quoting Former R.C. 2929.14(E)(4). “In addition, at least one of three more findings of fact
must be found: that the offender was already under control of the court due to an earlier
conviction, that at least two of the offenses were committed as part of a course of conduct and
the harm was so great or unusual that no single prison term adequately reflects the seriousness
of the conduct, or that ‘[t]he offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public.’” Id., quoting Former R.C.
2929.14(E)(4)(c). But in Foster the Court severed R.C. 2929.14(E)(4), saying that, after
severance, trial courts “have full discretion to impose a prison sentence within the statutory
range and are no longer required to make findings or give their reasons for imposing * * *
consecutive * * * sentences.” Id. at ¶ 100.
{¶ 23} Contrary to Mays’s assertion, Foster does not prohibit courts from considering
these factors. This is apparent from the Court’s later discussion of Foster’s effect on appellate
review of sentencing in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124.
There the Court said that “Foster does not require a trial court to provide any reasons in
imposing its sentence.” (Emphasis added.) Kalish at ¶ 12. “For example,” said the Court,
“when imposing consecutive sentences prior to Foster, the trial court had to find that the
sentence was necessary to protect the public and was not disproportionate to the seriousness of
the offense and the danger the defendant posed to the public. R.C. 2929.14(E)(4). After
Foster, a trial court can simply impose consecutive sentences, and no reason need be stated.”
Id. But, the Court continued, “although Foster eliminated mandatory judicial fact-finding * *
*, it left intact R.C. 2929.11 and 2929.12. The trial court must still consider these statutes.” Id.13
at ¶ 13. “R.C. 2929.11 and 2929.12,” noted the Court, “are not fact-finding statutes like R.C.
2929.14.” Id. at ¶ 17. “Instead, they serve as an overarching guide for trial judges to consider
in fashioning an appropriate sentence.” Id. Section 2929.11 states that the twin purposes of
felony sentencing “are to protect the public from future crime by the offender and others and
to punish the offender.” R.C. 2929.11(A). It also states that a sentence must try to achieve
these purposes, “commensurate with and not demeaning to the seriousness of the offender’s
conduct and its impact upon the victim.” R.C. 2929.11(B). Section 2929.12 instructs courts to
consider all factors relating to the seriousness of the offender’s conduct and relating to the
likelihood of recidivism, including the factors enumerated in the section. One of the
enumerated factors, indicating an increased likelihood of recidivism, is that “the offender has a
history of criminal convictions.” R.C. 2929.12(D)(2).
{¶ 24} Here, while the trial court did not need to explain its consecutive-sentence
decision, it did nevertheless. And its explanation reflects the two sentencing statutes:
Moving now to the consecutive, whether or not these will be
consecutive to the sentences handed down * * *, the Court finds that in light of
the facts of this case, consecutive sentences are necessary to protect the public
from future crimes for the following reasons.
The evidence supported the fact that there was random rampant gunfire
in the middle of the day in a park which by the evidence indicated was peopled
by children and others enjoying the park on a–what it was apparently a nice day
and random gunfire. It was fortunate that only one person was killed in this.
And for that reason, the Court believes that consecutive sentences are
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necessary to punish the offender for the following–for that reason and also
because of the prior record of the Defendant.
The wanton and reckless actions using firearms, that our citizenry needs
to be safe in its use of its parks.
Consecutive sentences are not, the Court finds, disproportionate to the
seriousness of the offender’s conduct and to the [d]anger that the Defendant
poses to the public.
***
The Defendant has a history of criminal conduct which demonstrates
that consecutive sentences are necessary to protect the public from future crime
by the offender. He has had gun charges in the past and other criminal conduct
in his record, prior record, which require this. (Tr. 1256-1257).
{¶ 25} Appellate review of sentences involves two steps. First, the reviewing court
must determine “whether the sentence is clearly and convincingly contrary to law.” Kalish at ¶
4. Here we conclude that the imposition of consecutive sentences is not unlawful. Second, the
reviewing court must determine whether the trial court abused its discretion. Id. at ¶ 19.
“Generally, abuse of discretion occurs when a decision is grossly unsound, unreasonable,
illegal, or unsupported by the evidence. * * * In felony sentencing, the sentencing court abuses
its discretion if it unreasonably or arbitrarily weighs the factors in R.C. 2929.11 and 2929.12.”
(Citation omitted.) State v. Nichols, 195 Ohio App.3d 323, 2011-Ohio-4671, 959 N.E.2d
1082, ¶ 16 (2d Dist.); see generally State v. Beechler, Clark No. 09CA54, 2010-Ohio-1900,¶
60-70 (addressing “the familiar maxim that ‘the term “abuse of discretion” connotes more
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than an error of law or judgment,’” and saying that “no court–not a trial court, not an appellate
court, nor even a supreme court–has the authority, within its discretion, to commit an error of
law”). Here we find that the trial court properly considered the relevant statutory provisions.
And after reviewing the record, we cannot say that the court’s decision to impose consecutive
prison terms was unreasonable, arbitrary, or unconscionable.
{¶ 26} The fourth assignment of error is overruled.
F. Disposition
{¶ 27} Because the first and fourth assignments of error are overruled and the second
and third assignments of error are sustained, the trial court’s judgment is affirmed in part and
reversed in part. Reversed are the imposition of court costs and the disapproval of transitional
control; the rest of the judgment is affirmed. This case is remanded for the limited purposes of
giving Mays the opportunity to move the trial court for a waiver of the payment of court costs
and for deleting from the termination entry the statement disapproving transitional control.
.............
FAIN and DONOVAN, JJ., concur.
Copies mailed to:
Mathias H. Heck
R. Lynn Nothstine
Stephen P. Hardwick
J. David Turner
Hon. Gregory F. Singer