State v. Stevens

[Cite as State v. Stevens, 2022-Ohio-3781.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NO. 2021-L-105
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
SAM R. STEVENS, JR.,
Trial Court No. 2021 CR 000302
Defendant-Appellant.
OPINION
Decided: October 24, 2022
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).
Vanessa R. Clapp, Lake County Public Defender, and Melissa A. Blake, Assistant Public
Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant- Appellant).
JOHN J. EKLUND, J.
{¶1} Appellant, Sam Stevens, Jr., appeals the trial court’s imposition of maximum
sentences, consecutive sentences, and indefinite sentences.
{¶2} Appellant is sixty years old, and has been diagnosed with bipolar disorder,
schizophrenia, and paranoia. Appellant also claims to be an alcoholic, who started
drinking again after his wife’s recent death.
{¶3} On October 2, 2020, the Eastlake Police Department was notified of
Appellant’s vehicle being driven erratically. The peace officers pursued Appellant, but he
did not stop until he crashed into another vehicle.
{¶4} The two peace officers approached the vehicle and ordered Appellant to
step out of the vehicle. When Appellant refused to step out, one of the peace officers
deployed his taser on Appellant. Appellant then armed himself with a firearm and fired
five rounds initiating a shoot-out. One of Appellant’s shots struck a peace officer in his
ballistic vest. Neither peace officer was seriously wounded. They then arrested
Appellant.
{¶5} As a result of his vehicle crashing, Appellant required immediate medical
aid and was transported to a hospital on the same day. Appellant required surgery due
to his injuries, resulting in him losing a portion of his leg, and sustaining severe intestinal
damage.
{¶6} On April 9, 2021, Appellant was indicted on fourteen counts. Appellant pled
not guilty to all counts.
{¶7} On July 28, 2021, the court held a change of plea hearing. As part of a plea
agreement, Appellant pled guilty to five counts, and the remaining counts were dismissed.
{¶8} At the change of plea hearing, Appellant plead guilty to: count three,
attempted murder, pursuant to R.C. 2923.02, with firearm specifications of three years
pursuant to R.C. 2941.145 (specification concerning use of firearm to facilitate offense),
five years pursuant to R.C. 2941.146 (specification concerning discharge of firearm from
motor vehicle), and seven years pursuant to R.C. 2941.1412 (discharging firearm at
peace officer or corrections officer); count four, attempted murder, pursuant to R.C.
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2923.02, with firearm specifications of three years pursuant to R.C. 2941.145
(specification concerning use of firearm to facilitate offense), five years pursuant to R.C.
2941.146 (specification concerning discharge of firearm from motor vehicle), and seven
years pursuant to R.C. 2941.1412 (discharging firearm at peace officer or corrections
officer); count eight, resisting arrest, pursuant to R.C. 2921.33(C)(1), with firearm
specifications of three years pursuant to R.C. 2941.145 (specification concerning use of
firearm to facilitate offense), and seven years pursuant to R.C. 2941.1412 (discharging
firearm at peace officer or corrections officer); count ten, improperly handling firearms in
a motor vehicle, pursuant to R.C. 2923.16(B), with a contraband/instrumentalities
forfeiture specification pursuant to R.C. 2941.1417 (specification concerning forfeiture of
property) and R.C. 2981.04 (specification concerning forfeiture); and count twelve, failure
to comply with order or signal of police officer, pursuant to R.C. 2921.331(B).
{¶9} On July 28, 2021, the court held a sentencing hearing. The court sentenced
Appellant to eleven to sixteen years imprisonment for count three with an additional seven
years for the firearm specification; eleven to sixteen years for count four with an additional
seven years for the firearm specification; eighteen months for count eight with an
additional seven years for the firearm specification; eighteen months for count ten; and
thirty-six months for count twelve.
{¶10} At the sentencing hearing, the court stated that “I’ve considered all aspects
of 2929.11, 2929.12, 2929.13, and 2929.14 and it’s just not, it’s just not activity that can
ever be tolerated.”
{¶11} On the same day, the court ordered Appellant to serve all prison terms
consecutively. To impose consecutive sentences, the court stated that:
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I have imposed a consecutive sentence in this case because
the consecutive sentence is necessary to protect the public
from future crime by you as demonstrated by the past and for
the appropriate punishment and it is not disproportionate to
the seriousness of your conduct and the danger that you pose
to the public. And the two offenses, at least two of the
offenses, the attempted murder counts in this case which
were committed as part of one or more courses of conduct
and the harm caused by at least two of these offenses 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 your conduct as well as
the fact that your history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public
from future crime by you.
{¶12} Following the sentence order, Appellant objected to the maximum
sentences imposed, the consecutive sentences imposed, and the indefinite sentencing.
{¶13} “FIRST ASSIGNMENT OF ERROR: THE TRIAL COURT’S ORDER OF
MAXIMUM SENTENCES PURSUANT TO R.C. 2929.12 WAS NOT SUPPORTED BY
THE RECORD.”
{¶14} Appellant first contends that his sentence is contrary to law because the trial
court failed to consider mitigating factors under R.C. 2929.12(C)(4), such as his mental
illnesses, in sentencing.
{¶15} R.C. 2929.12 grants discretion to a court that imposes a sentence to
determine the most effective way to comply with the purposes and principles of
sentencing set forth in section 2929.11.
{¶16} In relevant part, R.C. 2929.12(C)(4), states:
(C) The sentencing court shall consider all of the
following that apply regarding the offender, the offense, or the
victim, and any other relevant factors, as indicating that the
offender's conduct is less serious than conduct normally
constituting the offense:
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(4) There are substantial grounds to mitigate the
offender's conduct, although the grounds are not enough to
constitute a defense.
Under R.C. 2953.08(G)(2), the appellate court may
modify a sentence if it clearly and convincingly finds 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 or that the sentence is otherwise contrary
to law.
{¶17} Thus, when a party makes a challenge that a sentence under R.C.
2929.12(C)(4) is contrary to law because it is not supported by the record, we have no
authority to review or modify the sentence because it is not one of the enumerated
sentencing statutes that are susceptible to review under the “record does not support”
standard. State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649.
{¶18} Rather, a sentencing court fulfills its duty when it states that it has
considered the factors under R.C. 2929.11 and R.C. 2929.12. State v. DeLuca, 11th Dist.
Lake No. 2020-L-089, 2021-Ohio-1007, ¶ 18. The trial court did so here.
{¶19} Appellant asserts that the factors pursuant to R.C. 2929.12 should have
been weighed differently. Specifically, Appellant claims that the trial court “ignored or
discounted” his mental illnesses as mitigating factors making his offenses less serious
under R.C. 2929.12(C)(4). Yet, “nothing in R.C. 2953.08(G)(2) permits an appellate court
to independently weigh the evidence in the record and substitute its judgment for that of
the trial court concerning the sentence that best reflects compliance with R.C. 2929.11
and 2929.12.” Deluca at ¶ 42.
{¶20} Here, the court stated that it considered the factors under R.C. 2929.12.
Thus, the court fulfilled its duty. Id. at ¶ 18.
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{¶21} Appellant’s first assignment of error is without merit.
{¶22} “SECOND ASSIGNMENT OF ERROR: THE TRIAL COURT’S ORDER OF
CONSECUTIVE SENTENCES FOR AN AGGREGATE MINIMUM OF FORTY-NINE
YEARS AND A MAXIMUM TERM OF FIFTY-FOUR AND ONE-HALF YEARS
PURSUANT TO 2929.14(C) WAS NOT SUPPORTED BY THE RECORD.”
{¶23} When ordering consecutive sentences for multiple offenses, a trial court is
required to make three statutory findings. R.C. 2929.14(C)(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.
R.C. 2929.14(C)(4)(a-c).
{¶24} “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry, but it has no obligation to state
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reasons to support its findings.” State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-
3177,16 N.E.3d 659, ¶ 37.
{¶25} While the trial court is not required to state exact reasons supporting its
findings, the record must contain a clear basis upon which a reviewing court can
determine that the sentencing court’s findings for imposing consecutive sentences are
supported by the record. Id. at ¶ 27-28.
{¶26} Appellant contends that the record does not support the consecutive
sentences imposed.
{¶27} Unlike R.C. 2929.12, R.C. 2929.14 is enumerated in R.C. 2953.08(G)(2)(a),
which allows us to review whether the consecutive sentences are supported by the
record.
{¶28} Here, the trial court made the statutory findings pursuant to R.C.
2929.14(C)(4) that the consecutive sentences are: 1) necessary to protect the public from
future crime or to punish the offender and are not disproportionate to the seriousness of
the offender's conduct and to the danger the offender poses to the public; 2) 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; and 3)
the offender's history of criminal conduct demonstrates that consecutive sentences are
necessary to protect the public from future crime by the offender.
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{¶29} We review each statutory finding accordingly to determine whether the trial
court’s record at the sentencing hearing clearly and convincingly does not support the
findings pursuant to R.C. 2929.14(C)(4).
{¶30} First, we review the finding that consecutive sentences are necessary to
protect the public from future crime or to punish Appellant and are not disproportionate to
the seriousness of his conduct and to the danger he poses to the public.
{¶31} The court’s record reflects it considered that the underlying offense was
Appellant’s third crime involving a firearm in the past ten years. Appellant was previously
convicted for using weapons while intoxicated and aggravated menacing. The
aggravated menacing conviction involved a dispute between Appellant and an apartment
worker, in which Appellant pointed a gun at an apartment employee and caused an
altercation with the police. Considering the past crimes, the record supports the findings
that consecutive sentences are necessary to protect the public from future crime.
{¶32} The record also supports the findings that consecutive sentences are
necessary to punish Appellant and are not disproportionate to the seriousness of his
conduct and to the danger he poses to the public. To support these findings, the court
stated that Appellant continuously created dangerous situations on the day of the incident
and escalated the situation. For example, the court noted that Appellant put an innocent
civilian in danger when he hit the civilian’s vehicle, causing it to roll and totaling the
vehicle. The court also noted that Appellant’s conduct was serious because he initiated
a shoot-out with two peace officers. Lastly, the court found that Appellant poses a danger
to the public because the shooting occurred in “a small neighborhood full of houses with
small lots where shots are going all over the place * * * so you created a dangerous
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situation not only to all the police officers who showed up there but the entire street.”
Thus, we cannot clearly and convincingly find that the record does not support the findings
that consecutive sentences are necessary to punish Appellant and are not
disproportionate to the seriousness of his conduct and to the danger he poses to the
public.
{¶33} The court next found that “at least two of the offenses, the attempted murder
counts in this case which were committed as part of one or more courses of conduct and
the harm caused by at least two of these offenses 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 your conduct.”
{¶34} To support these findings, the court considered that firing at peace officers
was committed as a course of conduct and the harm caused was so great or unusual. To
support this, the court considered that the two peace officers involved in the shooting
were seriously impacted by the incident, and that the victim impact statements reflect that
the officers are traumatized from the event. Therefore, we cannot clearly and
convincingly find that the record does not support these findings.
{¶35} Lastly, the court found that Appellant’s “history of criminal conduct
demonstrates that consecutive sentences are necessary to protect the public from future
crime by you.” As stated above, the court relied on Appellant’s pre-sentence investigation
and considered that the underlying crime was his third in the past ten years involving a
firearm.
{¶36} In addition to our review under R.C. 2953.08(G)(2)(a), we may also
increase, reduce, otherwise modify, or vacate the sentence and remand the matter to the
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sentencing court for resentencing if it clearly and convincingly finds that the sentence is
otherwise contrary to law. R.C. 2953.08(G)(2)(b). A sentence is otherwise contrary to
law when the court fails to make the required findings for consecutive sentences. State
v. Barajas-Anguiano, 11th Dist. Geauga No. 2017-G-0112, 2018-Ohio-3440, ¶ 19.
{¶37} Appellant offers nothing to suggest his sentence is otherwise contrary to law
and limited his evidence to whether the record supports it. Therefore, we cannot clearly
and convincingly find the sentences otherwise contrary to law.
{¶38} But, we also cannot clearly and convincingly find that the record does not
support the findings pursuant to R.C. 2929.14(C)(4).
{¶39} Appellant’s second assignment of error is without merit.
{¶40} Appellant’s third through seventh assignments of error challenge the
constitutionality of R.C. 2967.271, the Reagan Tokes Law. Specifically, Appellant argues
that the Reagan Tokes Law is ripe for review, is void for vagueness, violates the
separation of powers, violates his right to a trial by jury, and violates due process rights.
{¶41} The Ohio Supreme Court recently held that the Reagan Tokes Law is ripe
for review in State v. Maddox, Slip Opinion No. 2022-Ohio 764.
{¶42} In assignments of error four through seven, Appellant makes several
challenges to the constitutionality of the Reagan Tokes Law. Based on this District’s
recent holdings in State v. Reffitt, 11th Dist. Lake Case No. 2021-L-129, 2022-Ohio-3371,
and State v. Joyce, 11th Dist. Lake Case No. 2021-L-006, 2022-Ohio-3370, the
challenges that Appellant advances against the constitutionality of the Reagan Tokes Law
have previously been overruled. Appellant does not advance any novel argument left
unaddressed by our prior decisions.
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{¶43} Pursuant to the above authorities, Appellant’s challenges to the
constitutionality of the Reagan Tokes Law are overruled. Appellant’s third through
seventh assignments of error are without merit.
{¶44} The judgment of the Lake County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, J.,
MATT LYNCH, J.,
concur.
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