State v. Tidmore , 2019 Ohio 1529 ( 2019 )

[Cite as State v. Tidmore, 2019-Ohio-1529.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 107369
v. :
LACYNTHIA TIDMORE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART; VACATED IN PART;
REMANDED
RELEASED AND JOURNALIZED: April 25, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-623164-A
Appearances:
Mark A. Stanton, Cuyahoga County Public Defender,
Frank Cavallo, Assistant Public Defender, and Raymond
R. Froelich, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecutor, and
Anna M. Faraglia, Assistant Prosecuting Attorney, for
appellee.
EILEEN A. GALLAGHER, J.:
Defendant-appellant Lacynthia Tidmore appeals her maximum,
consecutive sentences after she pled guilty to one count of aggravated vehicular
homicide and one count of failure to stop after an accident in connection with a hit-
and-run accident that resulted in the death of a nine-year-old girl. Tidmore
contends that her sentences should be vacated because (1) the trial court failed to
make all of the requisite findings for the imposition of consecutive sentences under
R.C. 2929.14(C)(4), (2) the record does not support the imposition of consecutive
sentences and (3) the trial court improperly considered uncharged criminal conduct
in sentencing her to maximum, consecutive sentences. For the reasons that follow,
we vacate Tidmore’s consecutive sentences and remand for the trial court to again
consider whether consecutive sentences are appropriate under R.C. 2929.14(C)(4)
and, if so, to make all of the required findings on the record and incorporate those
findings into its sentencing journal entry. We otherwise affirm the trial court.
Factual and Procedural History
On November 9, 2017, D.M. was crossing the street on her way to her
bus stop on Babbitt Road in Euclid, Ohio, when she was struck by a vehicle driven
by Tidmore. Although there was substantial damage to her vehicle, such that
Tidmore must have known that she hit someone or something, Tidmore did not
stop, did not render aid to D.M. and did not call 911. Instead, she drove to a nearby
gas station, then went about her daily activities. Although she observed the
condition of her vehicle and would have seen brain or body matter on her vehicle at
the gas station, Tidmore did not return to the scene or seek aid for D.M. Instead,
she called her mother to take her to work because her vehicle was no longer
driveable. Witnesses called 911 to report the accident, and D.M. was taken to the
hospital where she was placed on life support. She died approximately two weeks
later. Police contacted Tidmore after her vehicle was spotted at the gas station,
matching the description of the vehicle witnesses described as having been involved
in the accident and having damage consistent with the accident. She was later
arrested.
On December 4, 2017, Tidmore was indicted on one count of
aggravated vehicular homicide in violation of R.C. 2903.06(A)(2)(a) (Count 1) and
one count of failure to stop after an accident in violation of R.C. 4549.02(A) (Count
2), both third-degree felonies. On April 26, 2018, Tidmore pled guilty to both
offenses.
The sentencing hearing was held on May 24, 2018. At the outset of
the sentencing hearing, the trial court indicated that it had reviewed the presentence
investigative report, the mitigation of penalty report, the mental health eligibility
report and status updates regarding the pretrial supervision of Tidmore. The trial
court then heard from Tidmore, her attorney, the state and several of D.M.’s family
members.
Tidmore apologized for “the life [she] took” and stated that she
“regret[ted] the day” and “wished” that she could “go back and redo it.” Tidmore’s
counsel asked for leniency in sentencing based on the fact that Tidmore was 23 years
old, that she had “taken responsibility” by pleading guilty, that she had “almost no
criminal record” and that she “did not wake up intending to commit any crimes” and
was on her way to work “like any other day” when the accident occurred.
D.M.’s great-aunt and mother described D.M., the accident and what
might have been had D.M. lived. They spoke of the pain they experienced from
losing D.M. and the lack of remorse exhibited by Tidmore following the accident.
D.M.’s mother also described a recent altercation that allegedly occurred between
D.M.’s family and Tidmore1 and her family at a local grocery store. D.M.’s mother
stated that Tidmore and her family had “torment[ed] [her],” “jumped [her]” and
“beat [her] up” and that Tidmore had “laughed in [her] face like it was a joke.”
The state also read letters from D.M.’s father, grandmother and
another family member, sharing memories of D.M. and describing the anger and
sorrow they felt as a result of Tidmore’s actions and the loss of D.M. D.M.’s family
requested a “very harsh” sentence or “max punishment” for Tidmore’s “heartless
crime.”
The state briefly discussed the facts and circumstances surrounding
the accident and requested that the trial court “impose the sentence that is
commensurate with this crime * * * keeping all things equal” and recognizing that
D.M. was “a nine-year-old little girl who had a lot to offer in this community.”
Prior to sentencing Tidmore, the trial court indicated that it had
“considered all this information, all the principles and purposes of felony
sentencing, [and] all the appropriate recidivism and seriousness factors.”
1 Tidmore was on house arrest while she was awaiting sentencing.
The trial court sentenced Tidmore to 5 years in prison on Count 1 and
36 months in prison on Count 2, to be served consecutively, for an aggregate prison
term of 8 years. The trial court also imposed three years’ mandatory postrelease
control and suspended Tidmore’s driver’s license for life.
With respect to its decision to impose consecutive sentences, the trial
court stated:
This case and your actions and the way you’ve comported
yourself during this case tends to show me that the family is correct,
that you don’t have real remorse. * * * And that consecutive sentences
are necessary to punish you, to punish you. And it is not
disproportionate to what you did in this case.
And I’m further finding that the harm in this matter is so great
or unusual that a single term just is not adequate to reflect the
seriousness of what you did based on all the facts of this case,
incorporating the information from the presentence investigation
report and your conduct on that day. Therefore, I will impose
consecutive sentences.
The trial court incorporated these findings into its sentencing journal
entry as follows:
The court imposes prison terms consecutively finding that consecutive
service is necessary to protect the public from future crime or to punish
defendant; that the consecutive sentences are not disproportionate to
the seriousness of defendant’s conduct and to the danger defendant
poses to the public; and that, at least two of the multiple offenses were
committed in this case as part of one or more courses of conduct, and
the harm caused by said multiple offenses 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
defendant’s conduct.
Tidmore appealed her sentences, raising the following two
assignments of error for review:
ASSIGNMENT OF ERROR I:
The trial court erred when it ordered consecutive sentences without
support in the record for the requisite statutory findings under R.C.
2929.11, 2929.12 and 2929.14.
ASSIGNMENT OF ERROR II:
The trial court, by considering uncharged, unproven, and vague
allegations of criminal conduct in sentencing her to maximum,
consecutive sentences, deprived appellant of her liberty without due
process and of her constitutional rights to a grand jury indictment, to
trial by an impartial jury, to proof of the charges against her beyond a
reasonable doubt, to confront the witnesses against her, and to
otherwise present a defense.
Law and Analysis
In her first assignment of error, Tidmore argues that the imposition
of consecutive sentences was contrary to law because (1) the trial court failed to
make the finding that consecutive sentences were not disproportionate to the danger
she posed to the public, as required for the imposition of consecutive sentences
under R.C. 2929.14(C)(4), and (2) the trial court’s finding that “the harm in this
matter is so great and unusual” to warrant consecutive sentences is not supported
by the record.
As this court explained in State v. Johnson, 8th Dist. Cuyahoga No.
102449, 2016-Ohio-1536, there are two ways a defendant can challenge consecutive
sentences on appeal:
First, the defendant can argue that consecutive sentences are contrary
to law because the court failed to make the necessary findings required
by R.C. 2929.14(C)(4). See R.C. 2953.08(G)(2)(b); State v. Nia, 2014-
Ohio-2527, 15 N.E.3d 892, ¶ 16 (8th Dist.). Second, the defendant can
argue that the record does not support the findings made under R.C.
2929.14(C)(4). See R.C. 2953.08(G)(2)(a); Nia.
Id. at ¶ 7.
Pursuant to R.C. 2953.08(G)(2)(a), an appellate court may “increase,
reduce, or otherwise modify a sentence * * * or may vacate the sentence and remand
the matter to the sentencing court for resentencing” if it “clearly and convincingly”
finds that “the record does not support the sentencing court’s findings” under R.C.
2929.14(C)(4).
In order to impose consecutive sentences, the trial court must find
that (1) consecutive sentences are necessary to protect the public from future crime
or to punish the offender, (2) consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the
public and (3) at least one of the following applies:
(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).
The trial court must make the required statutory findings at the
sentencing hearing and incorporate those findings into its sentencing journal entry.
State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. To
make the requisite “findings” under the statute, “‘the [trial] court must note that it
engaged in the analysis’ and that it ‘has considered the statutory criteria and
specifie[d] which of the given bases warrants its decision.’” Id. at ¶ 26, quoting State
v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). When imposing
consecutive sentences, the trial court is not required to give a “talismanic
incantation of the words of the statute.” Bonnell at ¶ 37. “[A]s long as the reviewing
court can discern that the trial court engaged in the correct analysis and can
determine that the record contains evidence to support the findings, consecutive
sentences should be upheld.” Id. at ¶ 29. When considering whether the trial court
has made the requisite findings, we must view the trial court’s statements on the
record “in their entirety.” See, e.g., State v. Blevins, 2017-Ohio-4444, 93 N.E.3d
246, ¶ 21, 23 (8th Dist.).
On the record before us, considering the trial court’s statements in
their entirety, we agree with Tidmore that the trial court did not make the complete
proportionality finding required by R.C. 2929.14(C)(4).
In this case, the trial court set forth all the requisite findings for
imposing consecutive sentences in its sentencing journal entry. At the sentencing
hearing, the trial court found that consecutive sentences are not “disproportionate
to what [Tidmore] did in this case.” This is sufficient to constitute a finding that
consecutive sentences are not disproportionate to “the seriousness of the offender’s
conduct” under R.C. 2929.14(C)(4). However, as stated above, R.C. 2929.14(C)(4)
requires that the trial court make a finding at the sentencing hearing that
consecutive sentences are not disproportionate to both (1) the seriousness of the
offender’s conduct and (2) the danger the offender poses to the public, prior to
imposing consecutive sentences.
We cannot discern from the entirety of the trial court’s statements at
the sentencing hearing that the trial court made the finding that consecutive
sentences are not disproportionate to the danger Tidmore poses to the public.
Because the trial court did not make the full proportionality finding required by R.C.
2929.14(C)(4) at the sentencing hearing, Tidmore’s consecutive sentences are
contrary to law. See, e.g., Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d
659, at ¶ 36-37; State v. Lariche, 8th Dist. Cuyahoga No. 106106, 2018-Ohio-3581,
¶ 25; see also State v. Hairston, 10th Dist. Franklin Nos. 17AP-416 and 17AP-417,
2017-Ohio-8719, ¶ 13-14.
We cannot say, however, that the record clearly and convincingly does
not support the trial court’s finding that “the harm in this matter is so great and
unusual” to warrant consecutive sentences. As this court explained in State v.
Venes, 2013-Ohio-1891, 992 N.E.2d 453 (8th Dist.), “[t]his is an extremely
deferential standard of review”:
It is also important to understand that the clear and convincing
standard used by R.C. 2953.08(G)(2) is written in the negative. It does
not say that the trial judge must have clear and convincing evidence to
support its findings. Instead, it is the court of appeals that must clearly
and convincingly find that the record does not support the court’s
findings. In other words, the restriction is on the appellate court, not
the trial judge.
Id. at ¶ 21.
As detailed above, Tidmore hit and killed a nine-year-old girl while
she was crossing the street on her way to her bus stop. The impact with Tidmore’s
vehicle broke every bone in D.M.’s face, broke both of her legs, knocked out all of
her teeth, split her chin open and broke her neck. Tidmore did not stop after she hit
D.M. and did not return to the scene or report the accident even after she saw the
substantial damage to her vehicle at the gas station. This is not a case in which the
record clearly and convincing does not support the trial court’s finding that “the
harm was so great or unusual that no single prison term * * * would adequately
reflect the seriousness of the offender’s conduct.” R.C. 2929.14(C)(4).
Accordingly, we sustain Tidmore’s first assignment of error in part
and overrule it in part.
In her second assignment of error, Tidmore contends that the record
shows that the trial court improperly considered uncharged criminal conduct in
sentencing her to maximum, consecutive sentences. Specifically, she contends that
that the trial court’s statement at the sentencing hearing that “[t]his case and your
actions and the way you’ve comported yourself during this case tends to show me
that the family is correct, that you don’t have real remorse” refers to the allegations
by D.M.’s mother at the sentencing hearing that she had recently had an altercation
with Tidmore and Tidmore’s family at a grocery store. Tidmore further contends
that the trial court’s “enhance[ment]” of her sentences based on this “uncharged and
unproven criminal conduct” violated her constitutional rights.
First, we do not believe, based on our review of the record, that the
trial court’s decision to impose maximum sentences was based on Tidmore’s alleged
altercation with D.M.’s mother at the grocery store. Second, even if the trial court
considered the alleged grocery store incident when sentencing D.M., it would not be
grounds for overturning Tidmore’s sentences. As this court has previously held,
uncharged criminal conduct can be considered by the court during sentencing so
long as it is not the “sole basis” for the sentence. See, e.g., State v. Steele, 8th Dist.
Cuyahoga No. 105085 2017-Ohio-7605, ¶ 10 (“Conduct by a defendant that does not
result in a conviction, much less a criminal charge, can be considered by the court
during sentencing.”); State v. Cooper, 8th Dist. Cuyahoga No. 93308, 2010-Ohio-
1983, ¶ 15 (“a defendant’s uncharged yet undisputed conduct may be considered in
sentencing without resulting in error when it is not the sole basis for the sentence”);
State v. Gray, 8th Dist. Cuyahoga No. 91806, 2009-Ohio-4200, ¶ 13 (“[u]nindicted
acts or not guilty verdicts can be considered in sentencing without resulting in error
when they are not the sole basis for the sentence”); see also State v. Ellis, 2d Dist.
Montgomery No. 25422, 2013-Ohio-2342, ¶ 15 (“[A] trial court may consider ‘a
broad range of information when sentencing a defendant,’ including ‘allegations of
uncharged criminal conduct.’”), quoting State v. Bowser, 186 Ohio App.3d 162,
2010-Ohio-951, 926 N.E.2d 714, ¶ 13, 15 (2d Dist.).
Even if the trial court considered the alleged grocery store incident
when sentencing Tidmore, the record is clear that the trial court’s sentences were
based, not solely on that alleged conduct, but also on the egregiousness of Tidmore’s
actions that led to the criminal charges in this case — her “actions that day,” — i.e.,
hitting a young girl with her car, failing to stop, failing to report the incident to
police, failing to obtain medical care for the child and, instead, proceeding with her
normal daily activities as if nothing had happened. As the trial court stated before
sentencing Tidmore:
[T]hese cases are always tragic. When a life is lost, there’s never
a good reason. There’s never sense that can be found in what
happened. It’s always senseless.
When the death is a child, it’s even more — more hurtful, more
tragic, because of all the things that could have been. * * *
And I completely understand how the hearts of the family
members of [D.M.] are hardened with vengefulness and retribution,
hatefulness, because of your actions, because of what you did, because
you didn’t stop.
And you can see how it’s so easy to read in all kinds of things in
your mind because you didn’t stop, because of your actions that day,
because you walked away from your car after you saw the type of
damage that was on your vehicle. * * *
The legislature has determined what kind of consequences
should follow when this type of act is committed, and I’m going to
follow that legislative guidance. It’s all I can do. It’s all I can do.
Although Tidmore contends “the alleged interaction she had with the
child’s family” was that “[o]nly * * * thing * * that could be considered a negative”
with respect to “the way [Tidmore] comported [her]self during this case,” there was
other information in the record from which the trial court could have reasonably
concluded that Tidmore did not fully appreciate what she had done and was not truly
remorseful for her actions. Indeed, the regret Tidmore expressed during her brief
apology at the sentencing hearing seemed at least equally directed towards the
impact her actions had on her own life as on D.M. and D.M.’s family:
THE COURT: Ms. Tidmore what would you like to tell the
Court?
THE DEFENDANT: Well, I’m — I’m sorry that everything
happened how it happened. Like, I regret the day. I wish I can go back
and redo it, if I could.
I mean, I’m — I’m sorry about the life that I took. And it haven’t
just changed the family life [sic], but it changed my life, like,
completely.
It’s like I’m — I’m very — I’m really, really, really sorry about
everything, like, everything. It’s — it’s something that I wish I could
have — could go back and redo different. And I’m truly sorry.
Tidmore’s sentences were within the statutory range. The record
reflects that the trial court considered both the purposes and principles of felony
sentencing set forth in R.C. 2929.11 and the relevant sentencing factors set forth in
R.C. 2929.12 when sentencing Tidmore. Tidmore’s maximum sentences are not
clearly and convincingly contrary to law, and we find no violation of due process or
any other constitutional right in the trial court’s imposition of maximum sentences
on the record before us. We overrule Tidmore’s second assignment of error.
Conclusion
Where a trial court has imposed consecutive sentences, but failed to
make all of the requisite statutory findings, the proper remedy is to vacate the
consecutive sentences and remand for resentencing. Accordingly, we vacate
Tidmore’s consecutive sentences and remand to the trial court for the limited
purpose of again considering whether consecutive sentences are appropriate under
R.C. 2929.14(C)(4) and, if so, to make all of the required findings on the record and
incorporate those findings into its sentencing journal entry. See, e.g., State v. Wells,
8th Dist. Cuyahoga No. 105723, 2017-Ohio-8738, ¶ 5-7; State v. Ferrell, 8th Dist.
Cuyahoga No. 104047, 2016-Ohio-7715, ¶ 7-9.
Affirmed in part; vacated in part; remanded.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
MARY EILEEN KILBANE, A.J., and
MICHELLE J. SHEEHAN, J., CONCUR