State v. Hunter , 2018 Ohio 3007 ( 2018 )

[Cite as State v. Hunter, 2018-Ohio-3007.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, : CASE NO. CA2017-11-163
Plaintiff-Appellee, : OPINION
7/30/2018
:
- vs -
:
MARQUIS D. HUNTER, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2017-04-0633
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, OH 45011, for plaintiff-appellee
Repper-Pagan Law, Ltd., Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio
45044, for defendant-appellant
M. POWELL, J.
{¶ 1} Defendant-appellant, Marquis Hunter, appeals his 15-year prison sentence
imposed by the Butler County Court of Common Pleas following his guilty plea to involuntary
manslaughter with a firearm specification.
{¶ 2} Appellant was indicted in April 2017 on one count of murder with two firearm
specifications (using a firearm and discharging a firearm from a motor vehicle) and a repeat
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violent offender specification, and one count of having weapons while under disability. The
charges stemmed from allegations that on March 23, 2017, while sitting in a motor vehicle,
appellant killed Jaylen Kinney (the "victim") by shooting him multiple times with a firearm.
On September 7, 2017, appellant pled guilty to one count of involuntary manslaughter, a
felony of the first degree, with a discharging a firearm from a motor vehicle specification.
{¶ 3} On October 26, 2017, the trial court held a sentencing hearing. A presentence
investigation report ("PSI") ordered by the trial court indicated that appellant witnessed the
murder of his father when he was eight years old, was subsequently in counseling from the
ages of eight to ten, and was primarily reared by his maternal grandmother who was
physically abusive to him. The PSI further indicated that appellant was diagnosed with
PTSD while serving a prison term for a 2010 felonious assault conviction but that he did not
attend counseling.
{¶ 4} At the sentencing hearing, defense counsel submitted the report of Dr. Bobbie
Hopes, a clinical forensic psychologist, who had psychologically evaluated appellant at the
request of defense counsel. Dr. Hopes' report was appellant's primary mitigation evidence
and was admitted into evidence as Exhibit A.
{¶ 5} Based upon the report, defense counsel argued that as a result of witnessing
the murder of his father when he was only eight years old, appellant suffers from PTSD.
Appellant's PTSD was exacerbated and he became hypervigilant after he was shot in a bar
by a friend of the victim in February 2017, several weeks before the homicide. The victim
was present when appellant was shot in the bar. Fearing for his safety and that of his family,
appellant subsequently armed himself. On the night of the homicide, appellant was in the
backseat of a car, about to smoke marijuana before going into a bar, when "out of nowhere"
the victim and the person who had shot appellant approached appellant's car "in a menacing
way." Suffering from PTSD and greatly fearing for his life and that of his friends, appellant
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shot multiple times, ultimately killing the victim. Defense counsel admitted that appellant
was not sure whether the victim or the other man had a firearm, nonetheless appellant "was
scared to death" and reacted accordingly. Defense counsel further argued that appellant
had a very unstable life growing up. Based upon the foregoing, defense counsel argued
that (1) the victim induced the offense; (2) appellant acted under strong provocation; (3)
appellant acted under an imperfect but sincere belief his actions were necessary for self-
defense and the defense of his friends; and (4) appellant's killing of the victim was the
product of PTSD.
{¶ 6} In her report, Dr. Hopes expressed the opinion that appellant had been afraid
for his own safety and that of his family ever since he had been shot in February 2017, and
that the shooting had greatly exacerbated his PTSD symptoms which began after the
murder of his father. Dr. Hopes further opined that appellant was fearful, hypervigilant, and
guarded at the time of the homicide, and that whether his fears were real or somewhat
distorted by PTSD, appellant's fear "was genuine and he believed he had to protect himself
from others whom he believed meant to harm him."
{¶ 7} The state admitted that the victim approached appellant's car on the night of
the homicide but stated "there might be some dispute" as to why the victim did so. The
state indicated there was no evidence that the victim or his friends were armed that night.
The state observed that the victim was not the individual who shot appellant in February
2017 but conceded that the victim was with that individual when appellant was shot in the
bar.
{¶ 8} Upon considering this evidence and reviewing the PSI and Dr. Hopes' report,
the trial court sentenced appellant to a mandatory ten-year prison term for the involuntary
manslaughter, with a mandatory and consecutive 5-year prison term for the accompanying
firearm specification, for an aggregate 15-year prison term.
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{¶ 9} Appellant now appeals, raising one assignment of error:
{¶ 10} BY CLEAR-AND-CONVINCING EVIDENCE, THE SENTENCING RECORD
FAILS TO SUPPORT THE AGGREGATE 15-YEAR SENTENCE.
{¶ 11} Appellant argues the trial court erred in sentencing him to 15 years in prison
for his offenses because the trial court failed to consider the applicable "reduced-
seriousness factors" and "reduced-recidivism factors" under R.C. 2929.12(C) and
2929.12(E), respectively. Specifically, appellant asserts the trial court "wholly ignored" the
fact he shot the victim under strong provocation and the belief his actions were necessary
to protect himself and others, the victim facilitated the offense, appellant suffers from PTSD
which worsened after the February 2017 shooting, the homicide occurred in circumstances
unlikely to recur, appellant had begun to overcome his unstable and violent childhood, and
appellant expressed genuine remorse.
{¶ 12} We review the imposed sentence under the standard of review set forth in
R.C. 2953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio St.3d
516, 2016-Ohio-1002, ¶ 1. Pursuant to that statute, an appellate court may modify or vacate
a sentence only if the appellate court finds by clear and convincing evidence that the record
does not support the trial court's findings under relevant statutes or that the sentence is
otherwise contrary to law. A sentence is not clearly and convincingly contrary to law where
the trial court "considers the principles and purposes of R.C. 2929.11, as well as the factors
listed in R.C. 2929.12, properly imposes postrelease control, and sentences the defendant
within the permissible statutory range." State v. Aburas, 12th Dist. Clermont No. CA2017-
10-054, 2018-Ohio-1984, ¶ 9.
{¶ 13} In sentencing an offender for a felony, the trial court "shall be guided by the
overriding purposes of felony sentencing," which are to protect the public from future crime
by the offender and to punish the offender. R.C. 2929.11(A). A felony sentence must be
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reasonably calculated to achieve the purposes set forth in R.C. 2929.11(A) "commensurate
with and not demeaning to the seriousness of the offender's conduct and its impact on the
victim, and consistent with sentences imposed for similar crimes committed by similar
offenders." R.C. 2929.11(B).
{¶ 14} When sentencing a defendant, a trial court is required to consider the
seriousness and recidivism factors set forth in R.C. 2929.12. State v. Arnett, 88 Ohio St.3d
208, 215 (2000). However, the trial court is not required to consider each sentencing factor,
but rather to exercise its discretion in determining whether the sentence satisfies the
overriding purpose of Ohio's sentencing structure. State v. Steger, 12th Dist. Butler No.
CA2016-03-059, 2016-Ohio-7908, ¶ 12. Furthermore, the trial court is not required to use
any specific language or make specific findings to demonstrate that it considered the
applicable sentencing factors. Arnett at 215; State v. K.W., 6th Dist. Erie No. E-16-051,
2017-Ohio-4338, ¶ 17. Merely stating that the trial court considered the sentencing factors
is enough. State v. Brimacombe, 195 Ohio App.3d 524, 2011-Ohio-5032, ¶ 11 (6th Dist.),
citing Arnett.
{¶ 15} We find no error in the trial court's decision to sentence appellant to 15 years
in prison for involuntary manslaughter with a specification of discharging a firearm from a
motor vehicle. During the sentencing hearing, the trial court expressly stated in open court
that it considered R.C. 2929.11 and 2929.12, the PSI, and Dr. Hopes' report:
The Court has considered purposes and principles of
sentencing, weighed the recidivism and the seriousness factors.
This defendant entered a plea and was convicted pursuant to
that plea to an amended Count I, involuntary manslaughter, a
felony in the first degree; also entered a plea of guilty to a five-
year gun specification.
The Court has considered the information presented this
afternoon, the pre-sentence investigation report, the report from
Dr. Hokes (phonetic) entered into evidence as Exhibit A, the
statement of the victim's mother this afternoon here on the
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record, his previous prison sentence, including that for felonious
assault in 2010.
Prison is mandatory in this case. The Court will impose a
mandatory sentence on Count I of 10 years [,] will not impose a
fine. Furthermore, we will impose a five-year gun specification,
that's a mandatory consecutive sentence[.]
{¶ 16} Furthermore, in its sentencing entry, the trial court specifically stated that it
"considered the record, the charges, the defendant's Guilty Plea, and findings as set forth
on the record and herein, oral statements, any victim impact statement and pre-sentence
report, as well as the principles and purposes of sentencing under [R.C.] 2929.11, and has
balanced the seriousness and recidivism factors of [R.C.] 2929.12[.]" Thus, based on the
record, it is clear the trial court properly considered the seriousness and recidivism factors
as required by R.C. 2929.12 and complied with its obligations under R.C. 2929.11 and
2929.12. Arnett, 88 Ohio St.3d at 215; K.W., 2017-Ohio-4338 at ¶ 20; and State v.
Petersen, 12th Dist. Clermont No. CA2016-11-074, 2017-Ohio-6940, ¶ 11.
{¶ 17} Appellant disagrees with the trial court's balancing of the seriousness and
recidivism factors in R.C. 2929.12 and the mitigation evidence. However, it is "[t]he trial
court [that], in imposing a sentence, determines the weight afforded to any particular
statutory factors, mitigating grounds, or other relevant circumstances." Steger, 2016-Ohio-
7908 at ¶ 18. It is apparent that the trial court did not consider the mitigating evidence to
be substantial enough to outweigh appellant's conduct of fatally shooting the victim. The
fact that the trial court chose to weigh various sentencing factors and the mitigation
evidence differently than how appellant would have weighed them does not mean that the
trial court erred in imposing appellant's prison sentence. State v. Evans, 12th Dist. Warren
No. CA2017-04-049, 2018-Ohio-916, ¶ 85. Upon reviewing the record, we find there is no
clear and convincing evidence the trial court erred in balancing the applicable factors in
R.C. 2929.12 and the mitigation evidence.
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{¶ 18} Appellant's assignment of error is overruled.
{¶ 19} Judgment affirmed.
S. POWELL, P.J., and PIPER, J., concur.
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