[Cite as State v. Lunn , 2021-Ohio-302.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs- Case No. CT2020-0031 NIKKI LUNN Defendant-Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2019-0696

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: Februar y

3, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellan t

D. MICHAEL HADDOX GERALD G. SIMMONS Prosecutin g Attorne y 536 S. Hi g h Stree t Muskin g um Count y , Ohio Columbus, Ohio 43215

TAYLOR P. BENNINGTON Assistant Prosecutin g Attorne y Muskin g um Count y , Ohio 27 North Fifth Stree t P.O. Box 189 Zanesville, Ohio 43702-0189Muskin g um Count y , Case No. CT2020-0031 2

Hoffman, J. {¶1} Defendant-appellant Nikki Lunn appeals the judgment entered by the Muskingum County Common Pleas Court convicting her of aggravate d vehicular homicide (R.C. 2903.06(A)(2)(a)) and attempted vehicular assaul t (R.C. 2923.02(A), R.C. 2903.08(B)(1)(c)) following her pleas of no contest, and senten cing her to an aggregate term of incarceration of ninety-six months. Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE {¶2} On August 2, 2019, Appellant was traveling home from work on ro ute 666 in Muskingum County. While driving, she received a text messag e from her mother-inlaw, who was babysitting Appellant’s two children. The text me ssage said Appellant’s one-year-old daughter was sick, and “The sooner you get here th e better.” Appellant attempted to pass cars in front of her in a marked no passing z one. During her attempt to pass, she crashed into a motorcycle. A second motorcycle to ok evasive action, crashing as well. As a result of the crash, Dustin Spence was killed, and Dustin Phillis was seriously injured. Appellant had used marijuana earlier o n the day of the crash. The accident report stated there was no sign of pre-crash braking b y Appellant’s vehicle. {¶3} Appellant was indicted by the Muskingum County Grand Jury with two counts of aggravated vehicular homicide, one count of aggravate d vehicular assault, and one count, of operating a motor vehicle under the influence of marijuana, one count of operating a motor vehicle with a prohibited amount of marijuana in her urine, and one count of operating a motor vehicle with a prohibited amount of marijuana metabolite in her urine. Appellant entered a plea of no contest to one cou nt of aggravated vehicular homicide and one count of attempted vehicular assault, as amend ed from aggravated vehicular assault. The State agreed to nolle the remaining cha rges.Muskin g um Count y , Case No. CT2020-0031 3

{¶4} The case proceeded to a sentencing hearing in the Muskingum Cou nty Common Pleas Court. The trial court sentenced Appellant to six ty months incarceration for aggravated vehicular homicide and thirty-six months incarce ration for attempted vehicular assault, to be served consecutively for an aggregate sentence of ninety-six months. It is from the May 7, 2020 judgment of the trial court Appellant prosecutes her appeal, assigning as error:

I. THE TRIAL COURT’S SENTENCE OF APPELLANT IS

CONTRARY TO LAW IN CONTRAVENTION OF OHIO SENTENCING

STATUTES.

II. THE TRIAL COURT ERRED BY IMPOSING AN EIGHT YEAR

CONSECUTIVE SENTENCE IN VIOLATION OF THE EIGHTH

AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE (1) SECTION NINE (9) OF THE OHIO CONSTITUTION

PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT.

I. {¶5} In her first assignment of error, Appellant argues the maximum consecutive sentence of eight years as imposed by the trial court is contra ry to law. She argues the trial court’s conclusion the accident was not a result of Appel lant’s child’s illness is not supported by the record, and she demonstrated genuine remorse d espite the trial court’s suggestion she refused to accept personal responsibility for th e crash. She further arguesMuskin g um Count y , Case No. CT2020-0031 4

the trial court should not have commented on her marijuana use, as her marijuana use was not a contributing factor to the accident. {¶6} We review felony sentences using the standard of review set for th in R.C.

2953.08. State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence and remand for resentencing where we clearly and convincingly f ind either the record does not support the sentencing court's findings under R.C. 292 9.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is o therwise contrary to law.

State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659. {¶7} In State v. Gwynne , 5th Dist. Delaware No. 16 CAA 12 0056, 2017-Ohio7570, this Court reviewed an aggregate sentence of 65 years inc arceration imposed on a 55-year-old former nurse’s aide for a variety of theft and bu rglary convictions arising out of her employment at a nursing home. While we found no error i n the trial court’s findings regarding the necessity of imposing consecutive sentences pursu ant to R.C. 2929.14(C)(4), we concluded the record did not support the tria l court’s aggregate sentence under R.C. 2929.11 and R.C. 2929.12, which govern the purposes of felony sentencing and the trial court’s weighing of the seriousness an d recidivism factors in fashioning an appropriate sentence. In so concluding, this Cou rt held as follows:

The sentence is an emotional response to very serious and reprehensible conduct. However, the understandably strong feeli ngs must be tempered by a sanction clearly and convincingly based upon t he record to effectuate the purposes of sentencing. The sentence imposed here doesMuskin g um Count y , Case No. CT2020-0031 5

not do so. It is disproportionate to the conduct and the impact on any and all of the victims either individually or collectively. It runs the risk of lessening public respect for the judicial system. The imposition of a 65 year sentence

for a series of non-violent theft offenses for a first-time fel on shocks the consciousness. We therefore find by clear and convincing eviden ce that the record does not support the sentence.

{¶8} Id . at ¶ 30. {¶9} However, this Court’s decision was reversed by the Ohio Supreme Court in State v. Gwynne , 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169 (2019). T he Supreme Court held because Gwynne did not challenge any of her sentences individually, this Court erred in reviewing the aggregate sentence pursuant t o R.C. 2929.11 and R.C.

2929.12. Id. at ¶18. The Supreme Court noted Gwynne conceded the trial cour t made the requisite findings before imposing consecutive sentences, a nd thus the sole issue for this Court’s review was whether the record supported the trial court’s findings. Id. at ¶19. {¶10} Appellant makes no argument either of her individual sentences was contrary to law; rather, she argues the aggregate sentence of e ight years is contrary to law. Therefore, pursuant to the Ohio Supreme Court’s decision in Gwynne, supra, we may only modify the sentence or remand for resentencing if we c learly and convincingly find the trial court’s consecutive sentencing findings, made pu rsuant to R.C. 2929.14(C)(4), are not supported by the record. R.C. 2953.08(G )(2)(a). {¶11} R.C. 2929.14(C)(4) provides:Muskin g um Count y , Case No. CT2020-0031 6

(4) If multiple prison terms are imposed on an offender for co nvictions of multiple offenses, the court may require the offender to ser ve the prison terms consecutively if the court finds that the consecutive ser vice 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 offense s 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 pa rt of one or more courses of conduct, and the harm caused by two or m ore 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 th at

consecutive sentences are necessa ry to protect the public from future crime by the offender.

{¶12} In the instant case, the trial court found the imposition of co nsecutive sentences was necessary to protect the public from future crime or to punish Appellant, and consecutive sentences are not disproportionate to the serio usness of Appellant’sMuskin g um Count y , Case No. CT2020-0031 7

conduct and to th e danger Appellant poses to t he public. The c ourt found at least two of the multiple offenses were committed as part of one or more cou rses of conduct, and the harm caused by two or more of the multiple offenses committed w as 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 Appellant’s cond uct. {¶13} While Appellant expressed great remorse at the sentencing heari ng for the death of Dustin Stevens and the injuries to Dustin Phillis, the trial court found she

continued to refuse to take res ponsibility for the crash:

THE COURT: Again, that – that’s exactly the point I’m making, the lack of responsibility and remorse. I know you’re sorry that s omeone got injured and you’re sorry that someone has died. Absolutely I b elieve that. But the personal responsibility, I don’t see happening, because it was because of your child. And it wasn’t because of your child tha t this happened.

{¶14} Sent. Tr. 30. {¶15} The trial court noted Appellant’s choices which led to the cras h: she chose to continue driving rather than pull to the side of the road to call to check on her child and find out whether the illness was an emergency, and she chose to pass on a curve and a hill, where the road was marked as a no passing zone with a dou ble yellow line. Sent. Tr. 27-28. The accident report found no evidence of pre-crash braking on the part of Appellant’s vehicle. Sent. Tr. 28.Muskin g um Count y , Case No. CT2020-0031 8

{¶16} Further, the trial court noted the number of letters he receive d from the surviving victim, as well as the family and friends of the dece ased victim. The trial court quoted one letter which in the trial court’s opinion summed up the crash:

She says, I don’t consider it an accident. The steering wheel coming off while driving is an accident. This happened because someon e made a choice. The choice to smoke weed before driving, not accidenta l. The choice to speed, not accidental. The choice to pass someone on a double yellow line, not accidental. These are all thoughts turned in to choices which then turned in to actions. Actions that robbed our family of o ur sweet Dustin. He was a son, brother, grandson, uncle, nephew, cousin and frie nd.

{¶17} Sent. Tr. 31. {¶18} The trial court is in a better position than this court to asse ss whether Appellant’s remorse included an acknowledgement of her personal responsibility for the crash, and whether her actions were in fact motivated by an eme rgency involving her

child. See, e.g., State v. Eckliffe , 11th Dist. Lake No. 2001-L-105, 2002-Ohio-7136, ¶ 32. {¶19} The trial court noted Appellant’s use of marijuana at several p oints in the sentencing hearing. Appellant conceded she smoked marijuana th e morning of the accident, and the presentence investigation report set forth sh e smoked marijuana daily from the age of sixteen until she was arrested for the instant crimes in November of 2019. Sent. Tr. 19-20. Appellant argues the charges relating to drivi ng under the influence ofMuskin g um Count y , Case No. CT2020-0031 9

marijuana were dismissed as part of the plea agreement, and she had a pharmacologist who would have testified at trial marijuana was not a factor in this case. {¶20} A sentencing court may consider charges that have been dismisse d or reduced pursuant to a plea agreement. State v. Parsons , 2013-Ohio-1281, 2013 WL 1289523, ¶ 18, citing State v. Starkey , 7th Dist. No. 06MA110, 2007-Ohio-6702, 2007 WL 4374457, ¶ 2; State v. Cooey , 46 Ohio St.3d 20, 35, 544 N.E.2d 895 (1989). In imposing sentence, the trial court can also take into consideration the fact the charges were

reduced. Id . Furthermore, the trial court may consider uncharged crimes, a s well as charges that are dismissed in a plea agreement, as factors at s entencing. State v. Starkey , 7th Dist. Mahoning No. 06 MA 110, 2007-Ohio-6702, ¶ 2. {¶21} While Appellant argues she would have presented evidence at tri al her marijuana use played no role in the crash, such evidence is not part of the record before this Court on appeal. Appellant was charged not only with driv ing under the influence of marijuana, but also with one count of driving with a prohibited level of marijuana in her urine, as well as one count of driving with a prohibited level of a marijuana metabolite in her urine. She admitted to using marijuana at 8:00 a.m. on the day of the crash, with the crash occurring around 3:30 in the afternoon. The presentence investigation report further set forth she smoked marijuana daily from the age of si xteen until she was arrested on the charges arising out of the crash in November, 2019. We find the trial court could consider the evidence of her marijuana use in determining wheth er consecutive sentences were appropriate in the instant case.Muskin g um Count y , Case No. CT2020-0031 10

{¶22} Based on the record before this court, we do not clearly and co nvincingly find the trial court’s findings in support of its imposition of consecutive sentences are not supported by the record. {¶23} The first assignment of error is overruled.

II. {¶24} In her second assignment of error, Appellant argues the imposit ion of an eight year aggregate sentence violates the constitutional prohi bitions against cruel and unusual punishment set forth in the United States and Ohio Cons titutions. {¶25} The Eighth Amendment to the United States Constitution prohibit s “[e]xcessive” sanctions. It provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Se ction 9, Article I of the

Ohio Constitution sets forth the same restriction: “Excessive b ail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted.” {¶26} The Eighth Amendment does not require strict proportionality be tween crime and sentence, but only forbids extreme sentences which ar e grossly disproportionate to the crime. State v. Weitbrecht , 86 Ohio St.3d 368, 373, 715 N.E.2d 167 (1999), quoting Harmelin v. Michigan , 501 U.S. 957, 1001, 111 S.Ct. 2680 (1991), (Kennedy, J., concurring in part and in judgment). A sentence d oes not violate the constitutional prohibition against cruel and unusual punishment unless the sentence is so grossly disproportionate to the offense as to shock the sense o f justice in the community.

State v. Chaffin , 30 Ohio St.2d 13, 59 O.O.2d 51, 282 N.E.2d 46 (1972). {¶27} Further, for purposes of the Eighth Amendment and Section 9, Ar ticle I of the Ohio Constitution, proportionality review should focus on i ndividual sentences ratherMuskin g um Count y , Case No. CT2020-0031 11

than on the cumulative impact of multiple sentences imposed con secutively. State v.

Hairston , 118 Ohio St.3d 289, 888 N.E.2d 1073, 2008–Ohio–2338, ¶ 20. Wh ere none of the individual sentences imposed on an offender are grossly dis proportionate to their respective offenses, an aggregate prison term resulting from co nsecutive imposition of those sentences does not constitute cruel and unusual punishmen t. Id . As a general rule, a sentence that falls within the terms of a valid sentencing st atute cannot constitute cruel and unusual punishment. Id . at ¶ 21. {¶28} Appellant does not challenge the sentencing statutes pursuant t o which she was sentenced, nor does she argue she was not sentenced within a range permitted by statute. Further, Appellant’s challenge is to the cumulative im pact of her consecutive sentences, which is not a proper consideration pursuant to Hairston, supra. We find Appellant has not demonstrated her sentence constitutes cruel a nd unusual punishment

under the United States and Ohio Constitutions.Muskin g um Count y , Case No. CT2020-0031 12

{¶29} The second assignment of error is overruled. {¶30} The judgment of the Muskingum Co unty Common Pleas Court is affi rmed.

By: Hoffman, J. Gwin, P.J. and Wise, John, J. concur