Opinion
No. 107299
03-12-2020
STATE OF OHIO, Plaintiff-Appellee, v. DEMETRIAS T. VINSON, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecutor, and Christopher D. Schroeder, Assistant County Prosecutor, for appellee. Mark A. Stanton, Cuyahoga County Public Defender, and Erika B. Cunliffe, Assistant Public Defender, for appellant.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-15-593122-A
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecutor, and Christopher D. Schroeder, Assistant County Prosecutor, for appellee. Mark A. Stanton, Cuyahoga County Public Defender, and Erika B. Cunliffe, Assistant Public Defender, for appellant. PATRICIA ANN BLACKMON, J.:
{¶ 1} Defendant-appellant, Demetrias T. Vinson, appeals from his sentence for aggravated robbery. He assigns the following error for our review:
Mr. Vinson's sentence, a series of consecutive terms aggregating to 99 years, is contrary to law, was imposed in violation of his right to due process, and is excessive in violation of the U.S. and Ohio Constitutions.
{¶ 2} Having reviewed the record and the pertinent law, we affirm the decision of the trial court. We are mindful that 99 years for the conduct in this case is extreme; nevertheless, it is legal.
On May 2, 2019, this case was stayed pending the Ohio Supreme Court's opinion in State v. Gwynne, 2017-1506. That opinion was released on November 21, 2019. State v. Gwynne, Slip Opinion No. 2019-Ohio-4761. We also permitted the parties to file supplemental briefs. --------
{¶ 3} In 2015, Vinson and juvenile codefendant Kain Vaughn ("Vaughn") were indicted in a 53-count indictment stemming from six separate offenses over a two-week period. The indictment included 49 counts against Vinson relating to five armed robberies and an attempted murder. Vaughn was indicted for his involvement in two of those robberies. As explained in State v. Vinson, 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 30 (8th Dist.) ("Vinson I"),
On October 10, 2014, Vinson was part of an armed home invasion, robbing a woman at home with her two young children.
On October 17, 2014, Vinson robbed City Cell, a mobile phone store. Vinson pointed a gun at the store owner and forced him to the ground, stealing his wallet and cell phone. Vinson also took $3,200 from the store's cash register, broke the store's telephone and ripped the phone cord from the wall. Vinson struck the store owner in the head with the gun and tied him up with his own belt.
On the morning of October 19, 2014, Vinson and Vaughn, armed with handguns, robbed Tom's Food Mart. Later that afternoon, they robbed Franklin Food Mart. Each of these two robberies involved multiple victims. Vinson and Vaughn tried to conceal their identities by destroying the security cameras at the stores. In the Tom's Food Mart robbery, Vinson pulled a gun on the cashier while Vaughn forced a customer to the floor at gunpoint. During the Franklin Food Mart
robbery, one of the victims had two cell phones and his wallet stolen and his head "stomped on" by the defendants. The defendants told another victim they knew where he lived and threatened to kill him if he identified them.Id. at ¶ 3-16.
On October 20, 2014, Vinson shot Isaiah Nunn five times in the driveway of a house on West 94th Street in Cleveland. As a result of the shooting, Nunn had to have one of his eyeballs surgically removed.
On October 21, 2014, Vinson robbed a convenience store on Puritas Avenue at gunpoint. He and Vaughn were arrested following a foot chase by police on the following day. At the time of his arrest, Vinson was carrying a concealed Smith & Wesson [9 mm] handgun.
* * *
The state offered a package plea deal to Vinson and Vaughn, which required they both plead guilty to multiple offenses. The defendants agreed to accept the plea offer. As a result, Vinson pled guilty to 21 felony counts: three counts of aggravated robbery with three-year firearm specifications (Counts 2, 6 and 29); four counts of aggravated robbery with one-year firearm specifications (Counts 11, 12, 43 and 44); one count of aggravated robbery with no firearm specifications (Count 42); one count of kidnapping with a three-year firearm specification (Count 25); one count of kidnapping with a three-year firearm specification (Count 39); two counts of kidnapping with no firearm specifications (Counts 9 and 45); one count of aggravated burglary with a three-year firearm specification (Count 23); one count of attempted murder with a three-year firearm specification (Count 33); two counts of intimidation of a crime victim or witness with one-year firearm specifications (Counts 17 and 18); one count of vandalism (Count 19) and four counts of having a weapon while under disability (Counts 21, 32, 48 and 53), one of which included a forfeiture of weapon specification (Count 53). The remaining counts were nolled.
* * *
[T]he state indicated that it had calculated Vinson's aggregate prison term to be 94 years and defense counsel stated that, by his calculation, Vinson had been sentenced to an aggregate prison term of 84 years. * * * During [a] sidebar discussion, the trial judge clarified that the sentence imposed [resulted] in an aggregate prison term of 99 years. * * * The trial court then announced its findings in support of its imposition of consecutive sentences.
{¶ 4} Vinson filed a motion to vacate his guilty pleas, arguing that they were not made knowingly and that the sentence was excessive and unconstitutional. The trial court denied the motion. Id. at ¶ 18. On appeal, this court concluded, inter alia, that the pleas were entered in accordance with Crim.R. 11(C), and there was no basis for vacating them. As to the sentence, this court held that Vinson's sentences were not clearly and convincingly contrary to R.C. 2929.11 and 2929.12, and the aggregate sentence did not violate the Eighth Amendment's proportionality requirement and prohibition against cruel and unusual punishment. Id. at ¶ 19-57.
{¶ 5} This court determined, however, that the trial court erred in imposing consecutive sentences because there was no finding that "consecutive sentences are not disproportionate to the seriousness of Vinson's conduct" as required under R.C. 2929.14(C)(4). Id. at ¶ 69. The case was remanded in order for the trial court to determine whether "consecutive sentences are appropriate pursuant to R.C. 2929.14(C)(4) and, if so, to make the proper findings on the record at the sentencing hearing and incorporate those findings into its sentencing entry." Id. at ¶ 72.
{¶ 6} On remand, Vinson filed a sentencing memorandum in which he asserted that the "aggregate sentence of 99 years" did not comply with the purpose of felony sentencing as set forth in R.C. 2929.11, did not reflect consideration of mitigating factors, and was inconsistent with sentences received by "similarly situated offenders."
{¶ 7} At the hearing on remand, the trial court again imposed a 99-year sentence and outlined its findings in support of the imposition of consecutive sentences as follows:
THE COURT: [T]he Court does make the following findings: [t]hat consecutive sentences are necessary to protect the public from future crime. The Court finds that consecutive sentences are necessary to punish the defendant. The Court further finds that consecutive sentences are not disproportionate to the seriousness of the offender's conduct. And the Court, lastly, finds that the offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. The Court makes those findings based upon the defendant's prior criminal history. The Court believes that these were brutal offenses[: an] individual lost his eye as a result of the injuries caused in one case, and that another individual was shot in his back five times. And that the defendant has failed to show necessary remorse that an individual should have as a result of the injuries that have been suffered in this case. Anything further?
MS. MCGRATH: Your Honor, there's one more finding, that consecutive sentences are not disproportionate to the danger the offender poses to the public.
THE COURT: It's my understanding that you find number one or number two and number three, and/or, the way I read the language. But let me make the finding * * * the Court further finds that consecutive sentences are not disproportionate to the danger the offender poses to the public.
* * *
THE COURT: Okay. And let me just say this. I'm concerned about his young age. You know, he's a young kid. And I'm not sure that the purposes can be preserved if he has no hope of ever getting out of prison. But his conduct during the time that we waited for this has demonstrated that rehabilitation has not been something that he's been working on. And I was hesitant about the sentencing because I thought that he deserved a lesser sentence, but his conduct during this, where he's refusing to come upstairs, he's called me all kinds of terrible names, he's talked about, I mean, it's been awful, you know, his conduct while he's waiting for this to occur.
"Series of Consecutive Terms Aggregating to 99 Years"
{¶ 8} In the first portion of the assigned error, Vinson argues that the trial court erred in failing to comply with this court's remand and failing to find "that the many consecutive sentences that it imposed were appropriate or warranted."
{¶ 9} In appeals involving the imposition of consecutive sentences, R.C. 2953.08(G)(2)(a) directs the appellate court to review the record, including the findings underlying the sentence and to modify or vacate the sentence if it clearly and convincingly finds that the record does not support the sentencing court's findings under R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 28. "The record must contain a basis upon which a reviewing court can determine that the trial court made the findings required by R.C. 2929.14(C)(4) before it imposed consecutive sentences." Id.
{¶ 10} R.C. 2929.14(C)(4) authorizes the court to require an offender to serve multiple prison terms consecutively for convictions on multiple offenses. Consecutive sentences can be imposed if the court finds that (1) a consecutive sentence is necessary to protect the public from future crime or to punish the offender and (2) that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public. In addition to these two factors, the court must find 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.Id.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 11} "When imposing consecutive sentences, a trial court must state the required findings as part of the sentencing hearing." Bonnell at ¶ 29. "However, a word-for-word recitation of the language of the statute is not required, and as 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. A trial court is also required to make the findings mandated above at the sentencing hearing and incorporate its findings into its sentencing entry. Id. at ¶ 37.
{¶ 12} Applying the foregoing, we note that the trial court made every finding required by law to support the imposition of consecutive terms. The court found that: consecutive sentences are necessary to protect the public from future crime as well as punish the offender; consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public: and Vinson's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime. These findings were also included in the court's journal entry. The court fully complied with R.C. 2929.14(C), and fully complied with the remand in Vinson I. See id., 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 69-72.
{¶ 13} As to Vinson's claim that the court failed to demonstrate "that the many consecutive sentences that it imposed were appropriate or warranted," we note that one set of findings is sufficient. See State v. Jarmon, 8th Dist. Cuyahoga No. 106727, 2018-Ohio-4710.
{¶ 14} This portion of the assigned error is without merit.
R.C. 2929.11 Goals of Sentencing and Mitigation Factors
{¶ 15} Vinson next argues that his sentence is contrary to law and excessive because it exceeds his life expectancy and does not reflect consideration of his youth, background, mood disorder, and attention deficit hyperactivity disorder, or his response to the suicide of his mother. These same claims were raised and rejected in Vinson I, 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 51, 57.
{¶ 16} In any event, as the Ohio Supreme Court recently explained in Gwynne, R.C. 2929.11 and 2929.12 apply only to individual sentences; R.C. 2953.08(G)(2)(a) and 2929.14(C) set forth the exclusive means of appellate review of consecutive sentences. Gwynne, Slip Opinion No. 2019-Ohio-4761, ¶ 16-17.
{¶ 17} This portion of the assigned error is therefore without merit.
"Excessive and Disproportionate Sentence"
{¶ 18} Vinson next argues that his sentence is excessive and disproportionate to the seriousness of his conduct because it is "an outlier" as compared to the sentences imposed upon 54 other offenders with multiple aggravated robbery convictions. However, this argument erroneously conflates the proportionality requirement of R.C. 2929.14(C)(4) (consecutive sentences can be imposed if they are not are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public) with sentencing consistency under R.C. 2929.11(B) (a sentence should be "consistent with sentences imposed for similar crimes committed by similar offenders."). See State v. Haji Mohamed, 2017-Ohio-9012, 101 N.E.3d 1041, ¶ 8 (8th Dist.); State v. Carson, 8th Dist. Cuyahoga No. 102424, 2015-Ohio-4183, ¶ 7. Moreover, "R.C. 2929.14(C)(4) does not direct the trial court to compare sentences between similarly situated offenders in making the required proportionality analysis." Haji Mohammad, quoting State v. Dennison, 10th Dist. Franklin No. 14AP-486, 2015-Ohio-1135, ¶ 20. Again, this court may not review the aggregate consecutive sentence for compliance with R.C. 2929.11. Gwynne at ¶ 18. Further, this court's remand in Vinson I was solely to determine whether "consecutive sentences [are] disproportionate to the seriousness of Vinson's conduct." Id., 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 69.
{¶ 19} Likewise, insofar as Vinson is raising an Eighth Amendment challenge that he received an extreme sentence that is grossly disproportionate to the crime, this claim was also rejected in Vinson I. See id., 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 56. Vinson I also determined that the aggregate prison term was not cruel and unusual punishment. Id.
{¶ 20} Therefore, this portion of the assigned error lacks merit.
"Record Does Not Support the Sentence"
{¶ 21} Vinson next argues that the record does not support the court's imposition of consecutive sentences. He complains that the trial court mistakenly stated that he shot one person five times and caused another to lose an eye, whereas the record shows that he shot one individual who subsequently lost his eye. He also complains that the court improperly punished him for his conduct while in the holding cell, and also remarked that it "couldn't help him because the prosecutor's office is unwilling to give at all."
{¶ 22} As the court made clear in Gwynne, a reviewing court "may increase, reduce, or otherwise modify a sentence if it clearly and convincingly finds '[t]hat the record does not support the sentencing court's findings under * * * (C)(4) of section 2929.14[.]" Id., 2019-Ohio-4761, ¶ 16. In this matter, we cannot say that the court's findings are unsupported by the record. Although the trial court misspoke by saying, "an individual lost his eye as a result of the injuries caused in one case, and that another individual was shot in his back five times," when in fact one individual was both repeatedly shot and lost an eye, this misstatement does not undermine the R.C. 2929.14(C) findings. The court correctly recognized that "[t]his is a 53-count indictment and [Vinson] was charged with aggravated robbery, kidnapping, aggravated burglary, attempted murder, three gun specifications. These stem from a series of incidents that occurred over a two-week period, October of 2014[.]" The court's R.C. 2929.14(C) findings are well-supported. Moreover, the record fully supports the trial court's imposition of consecutive sentences as it is undisputed that Vinson: (1) robbed a woman in a home invasion while she was with her two young children; (2) struck and bound the victim of the cell phone store robbery; (3) robbed multiple victims in the food mart robbery and forced a customer to the floor at gunpoint and "stomped on" another victim's head; and (4) shot another individual five times, causing him to lose an eye.
{¶ 23} Vinson next complains that the trial court adversely considered his behavior while awaiting the start of the resentencing hearing. However, the larger context of the court's remarks clearly pertain to Vinson's lack of efforts at rehabilitation and do not indicate that the court was punishing him for the holding cell conduct.
{¶ 24} As to the claim that the court remarked that the prosecutor's office did not assent to any shortening of the sentence, we find no prejudicial error. The court outlined the circumstances of the offenses in imposing the original 99-year sentence and was familiar with the matter since the indictment. The court also clearly understood that it had authority to impose sentence, and that this court issued a limited remand for consideration of consecutive sentencing.
{¶ 25} In accordance with all of the foregoing, Vinson's assigned error is without merit.
{¶ 26} Judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
PATRICIA ANN BLACKMON, JUDGE SEAN C. GALLAGHER, J., CONCURS;
MARY EILEEN KILBANE, P.J., DISSENTS
WITH SEPARATE OPINION MARY EILEEN KILBANE, P.J., DISSENTING:
{¶ 27} I respectfully dissent. I find that the record clearly and convincingly does not support the trial court's consecutive findings pursuant to R.C. 2929.14(C)(4). This court is empowered by R.C. 2953.08(G)(2)(a) to determine whether clearly and convincingly the record supports the court's findings necessary for imposition of consecutive sentences. State v. Gwynne, Slip Opinion No. 2019-Ohio-4761.
{¶ 28} This court initially reviewed several of Vinson's sentencing challenges in State v. Vinson, 2016-Ohio-7604, 73 N.E.3d 1025 (8th Dist.) ("Vinson I"). In Vinson I, a panel of this court vacated the imposition of consecutive sentences and remanded the matter to the trial court "to consider whether consecutive sentences are appropriate pursuant to R.C. 2929.14(C)(4) and, if so, to make the proper findings on the record at the sentencing hearing and incorporate those findings into its sentencing entry." Id. at ¶ 72. That panel reasoned that "[t]he requisite findings must be made and the record must support the findings required for the imposition of consecutive sentences." (Emphasis added.) Id. at ¶ 71.
{¶ 29} Vinson I cited to State v. Johnson, 8th Dist. Cuyahoga No. 102449, 2016-Ohio-1536, ¶ 23-26, where this court had modified "consecutive sentences of 25 years to life in prison to concurrent sentences where although defendant's conduct was 'heinous and terrible,' defendant's conduct as set forth in the record did not 'reflect such a seriousness and danger to the public that 50 years to life in prison is necessary to protect the public from him.'" That citation was in support of the panel's further observation that while Vinson's conduct was "'reprehensible,' that fact alone does not establish a basis for imposing consecutive sentences." Vinson, 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 71.
{¶ 30} Upon remand, the trial court conducted a hearing where the statutory findings were recited. However, the record must still support them. I find that the record does not support the imposition of consecutive terms for every individual sentence that was imposed on Vinson, which resulted in a 99-year prison term for an individual that was just 18 years old when the incidents occurred.
{¶ 31} I fully agree that Vinson's conduct is serious, reprehensible, and brutal. I do recognize that he pled guilty to numerous felony offenses that resulted in harm to many people. He deserves a long sentence but I simply cannot agree that his conduct merits a life sentence. Indeed, the codefendant engaged in many of the same crimes and was sentenced to a 29-year prison term. While some of the factors differ between Vinson and his codefendant, the differences are not so significant as to explain why a 99-year sentence should be deemed appropriate for Vinson where a much lesser, 29-year prison term is adequate for his codefendant.
{¶ 32} The trial court stated it best when it said, "99 years means he dies in prison." The judge went on to correctly note, "there are situations where people commit murder and they don't serve 99 years. * * * But it is something to think about. * * * Because it's a more serious sentence than a murder sentence. But the impact at the same time is an impact that you live with forever." Based on these observations of the trial court, the mitigation evidence in the record, the evidence of sentences imposed on other offenders who have committed multiple aggravated robberies, and the 29-year prison sentence imposed on the codefendant in this case, consecutive sentences on every single conviction for an aggregate prison term of 99 years does not survive the appellate scrutiny required to affirm them.
{¶ 33} The record clearly and convincingly does not demonstrate why a 99-year prison sentence is necessary to protect the public from future crime or to punish Vinson. More significantly, the trial court's own statement that a 99-year sentence is "more serious than a murder sentence" contradicts any finding that the same sentence is not disproportionate to the seriousness of Vinson's conduct. During the hearing it was established that most murder sentences provide for the possibility of parole at some point. Vinson's sentence does not. Vinson will serve 99 years if he can even live that long. Vinson did not kill anyone. Therefore, a sentence that is beyond a murder sentence is disproportionate to his conduct in committing less serious offenses.
{¶ 34} This is not to say that I would find the imposition of some portion of consecutive sentences unwarranted; I just find that there is nothing in this record that justifies imposing consecutive sentences on every count to arrive at a sentence where this young man will most certainly die in prison.