State v. Wagner

[Cite as State v. Wagner, 

.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                Plaintiff-Appellee,                :
                                                            No. 109678
                v.                                 :

DAVID WAGNER,                                      :

                Defendant-Appellant.               :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: September 9, 2021


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-19-636068-B


                                             Appearances:

                Michael C. O’Malley, Cuyahoga County Prosecuting
                Attorney, and Kevin R. Filiatraut, Assistant Prosecuting
                Attorney, for appellee.

                Robert A. Dixon, for appellant.


EMANUELLA D. GROVES, J.:

                Defendant-appellant David Wagner (“Wagner”) appeals the imposition

of consecutive sentences totaling fifteen years. For the reasons that follow, we

affirm.
                             Procedural and Factual History

             Wagner was indicted in January 2019, along with two codefendants,

Devaughnte Rice (“Rice”) and Richard Pinson, Jr. (“Pinson”) for an incident that

occurred on September 5, 2018, that led to the death of the defendants’ accomplice,

Deandre Wilson (“Wilson”). Wagner was charged with aggravated murder (Count

1); attempted murder (Count 2); felonious assault (Count 3); felonious assault

(Count 4); murder (Count 5); aggravated robbery (Count 6); robbery (Count 7);

kidnapping (Count 8); grand theft (Count 9); and having weapons while under a

disability (Count 11). Counts 1 through 9 each carried a repeat violent offender

(“RVO”) specification and one- and three-year firearms specifications. Count 11

carried a three-year firearm specification.

             The operative facts leading to the above indictment and relative to this

appeal were sufficiently laid out in codefendant Rice’s separate appeal. State v. Rice,

8th Dist. Cuyahoga No. 109712, 

.             To provide context and

consistency, we recount the relevant portion as follows:

      On September 5, 2018, Ronnal White (“White”) shot and killed
      Deandre Wilson (“Wilson”) in self-defense. Detective Kevin Fischbach
      (“Det. Fischbach”) of the Cleveland Police Department was assigned to
      investigate the shooting death of Wilson. Relevant to this appeal, the
      incident was captured by surveillance cameras located in the apartment
      complex. The video was played for the jury while Det. Fischbach
      identified persons of interest and described events as they occurred.

      The video shows that at approximately 10:00 p.m., two vehicles pulled
      into the apartment complex’s parking lot and parked next to one
      another. Wagner, Wilson, and Rice exited the first vehicle, a 2015 Ford
      Fusion. Pinson and an unidentified male exited the second vehicle. The
men stood near the parked vehicles and conversed with each other and
unidentified individuals who passed through the parking lot.

White arrived at the apartment complex at approximately 10:19 p.m.
and parked his company van near an area where Wagner and Wilson
were standing. White testified that when he exited his van, Wagner and
Wilson began conversing with him about a variety of topics, including
his employment with a television and internet company. During this
conversation, Wilson made a hand gesture towards Rice at
approximately 10:24 p.m. Rice, who was standing several feet away
near the Ford Fusion, walked over to Wilson and retrieved something
from Wilson’s hand, presumably car keys. Rice then walked back to the
Ford Fusion and got into the driver’s seat of the vehicle. Several seconds
after entering the vehicle, Rice began to flash the vehicle’s headlights,
repeatedly, while Wagner and Wilson surrounded White. At
approximately 10:25 p.m., Wagner grabbed White from behind and
began pushing him towards the center of the parking lot. As this was
occurring, Pinson reached into the driver’s side window of the Ford
Fusion, where Rice was sitting, and turned on the vehicle’s headlights.
The headlights illuminated the assault as it occurred in the middle of
the parking lot.

Ultimately, the struggle between White, Wagner, and Wilson caused
the three men to fall into a grassy area that was located just in front of
where White’s van was parked. Consistent with White’s testimony at
trial, the video shows White being held down as Wagner and an
unidentified male removed items from his person. The video also
depicts Pinson and the unidentified male enter White’s van. While the
physical assault of White was occurring, Rice pulled the Ford Fusion
forward and stopped the vehicle in a position facing the parking lot’s
exit.

White testified that at some point during the incident, a Kahr Arms .40
Smith and Wesson caliber pistol fell out of his front pants pocket. White
stated that Wagner immediately picked up the gun and began striking
him with the weapon. White, however, was in possession of a second
firearm, a Metro Arms .45 ACP Bobcut Model 1911 caliber pistol, which
he used to shoot and kill Wilson in self-defense at approximately
10:28:06 p.m.

After Wilson was shot, he ran towards the apartment complex for
safety. At the same time, Wagner, Pinson, and the unidentified male
fled to the vehicle Pinson had arrived in earlier that evening. The video
footage showed Wagner return gunfire towards White as he ran
      towards Pinson’s vehicle. During the exchange of gunfire, Rice began
      to flee the parking lot in the Ford Fusion. However, before he exited the
      parking lot, Rice suddenly put the Ford Fusion in reverse and drove
      backwards, towards Pinson’s vehicle. Once Rice ensured that Wagner,
      Pinson, and the unidentified male were safely inside Pinson’s vehicle,
      he fled the scene, alone, in the Ford Fusion at approximately 10:28 p.m.
      Pinson’s vehicle immediately followed the Ford Fusion out of the
      parking lot.

      White, who had a concealed carry permit, called the police and
      remained at the scene. During the subsequent police investigation into
      the shooting, White identified Wagner and Pinson in a photo array as
      the two other individuals involved in his robbery ….

      In the course of his investigation, Det. Fischbach also processed
      evidence from the crime scene. Det. Fischbach testified that there was
      a total of 16 spent shell casings and three bullet fragments recovered
      from three separate areas connected to the shooting, including (1) the
      area near White's van, (2) the area where Wilson retreated to and was
      treated by emergency medical personnel, and (3) a nearby cul-de-sac
      where additional shots were fired at White. In addition, the police
      recovered the .45 caliber handgun used by White during the
      altercation.

      Detective Mark Peoples (“Det. Peoples”) of the Cleveland Police
      Department testified that he responded to the scene of the shooting. In
      the course of his investigation, Det. Peoples collected and
      photographed relevant evidence … Det. Peoples testified that he
      recovered two spent bullet fragments and four spent .380 cases near
      the van. Approximately ten feet or less away from the van, Det. Peoples
      recovered six spent .45 cases in a grassy area. Near the cul-de-sac area
      referred to by Det. Fischbach, Det. Peoples recovered three spent .40
      cases and three spent .380 cases.

Rice at ¶ 5-13.

              Wagner was in custody during the pendency of his case. In April 2019,

the trial court conducted a pretrial, at which time, of primary concern to the trial

court were reports that Wagner was on “suicide watch” after attempting suicide four

times while in the county jail. The trial court had not been notified of these events
and was concerned about Wagner’s condition and treatment in the county jail. After

hearing from Wagner and his counsel, the trial court vowed to look into the situation

and determine next steps. Counsel for Wagner requested a competency evaluation

and an evaluation of Wagner’s present sanity, which the trial court granted. A later

journal entry reflects that the parties stipulated to the competency evaluation.1

              After several additional pretrials, Wagner entered a negotiated plea of

guilty to the following: Count 1, amended to involuntary manslaughter, with a three-

year firearm specification and a RVO specification; Count 2, attempted murder with

an RVO specification; Count 6, aggravated robbery with an RVO specification;

Count 8, kidnapping with an RVO specification; Count 9, grand theft; and Count 11,

having a weapon while under a disability. Wagner’s sentencing was continued until

May 2020.

              On March 16, 2020, the trial court advanced the case for sentencing

noting that the jail reported that Wagner’s behavior had “deteriorated

significantly,”2 and the trial court felt it was necessary to sentence him immediately

due to his behavior. Wagner raised no objection to being sentenced at that time.

              After hearing statements from counsel for Wagner, the state, and

Wagner himself, the trial court detailed its findings of fact and proceeded to

sentence Wagner to three years on Count 1, involuntary manslaughter, consecutive



    1 The record before us does not include the competency evaluation. As Wagner has not
raised competency as an issue, we simply note the stipulation with no further speculation.
    2 Neither the court or counsel elaborated on the nature of the behavior, and we again

decline to speculate.
to three years on the firearm specification; nine years on Count 2, attempted

murder; nine years on Count 6, aggravated robbery; nine years on Count 8,

kidnapping; 12 months on Count 9, grand theft, and 24 months on Count 11, having

weapons while under a disability. The court ordered that Counts 1 and 6 be served

consecutive to one another and that the remaining counts, Counts 2, 8, 9, and 11,

run concurrent to each other and concurrent to the sentences in Counts 1 and 6 for

a total sentence of 15 years.

             Wagner now appeals and assigns the following error for our review:

                             Assignment of Error
      The record below does not support imposition of consecutive sentences
      and is therefore contrary to law and subject to relief based upon State
      v. Jones, 

 (En Banc).

              In his sole assignment of error, Wagner argues that the trial court did

not fully comply with the statutory requirements to support consecutive sentences

and that the record did not support the imposition of consecutive sentences.

      [T]here are two ways a defendant can challenge consecutive sentences.
      State v. Hicks, 8th Dist. Cuyahoga No. 107055, 

, ¶ 10:

      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). 

 citing State v. Johnson, 8th Dist. Cuyahoga
      No. 102449, 

; R.C. 2953.08(G)(2)(b); State v. Nia,
      

, 

, ¶ 16 (8th Dist.). Second, the defendant
      can argue that the record does not support the findings made under
      R.C. 2929.14(C)(4). Id.; R.C. 2953.08(G)(2)(a). Nia at ¶ 16.

               Here, Wagner argues that the trial court failed on both grounds.

               R.C. 2953.08(G)(2) governs our review. Under R.C. 2953.08(G)(2)

our role is not to determine whether the trial court abused its discretion. R.C.
2953.08(G)(2); State v. Stoker, 8th Dist. Cuyahoga No. 110029, 

,

¶ 19. Rather, we must look to the record and if we “clearly and convincingly” find

that (1) “the record does not support the sentencing court’s findings under [R.C.

2929.14(C)(4)]” or that (2) “the sentence is otherwise contrary to law,” we “may

increase, reduce, or otherwise modify a sentence … ” or in the alternative we may

“vacate the sentence and remand the matter to the sentencing court for

resentencing.” 

              In order to impose consecutive sentences,

      “a 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) that 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.

State v. Scott, 8th Dist. Cuyahoga No. 100085, 

, ¶ 17.

              The findings in support of consecutive sentences must be made at the

sentencing hearing and must be incorporated into the trial court’s sentencing entry.


 citing State v. Bonnell, 

, 

, 

,

syllabus. “‘[T]he [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.’” 

 at id. at ¶ 26, quoting State v. Edmonson, 

, 

 (1999). Additionally, the court also made clear that a

“word-for-word recitation” of the statutory language is not required. 

. “[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.” 

              In the instant case, Wagner argues that the trial court failed to find

that consecutive sentences were not disproportionate to the seriousness of his

conduct and the danger he posed to the public. Wagner reached this conclusion

because during his sentencing the trial court stated, “[w]hile concurrent sentences

are presumed, the court can impose a consecutive term at its discretion if it is

necessary to protect and/or punish and it is not disproportionate.” We disagree with

Wagner’s assertions.

              In State v. Morris, 8th Dist. Cuyahoga No. 104013, 

, this court has “repeatedly rejected” similar arguments.        In Morris, the

defendant argued that the trial court did not comply with R.C. 2929.14(C)(4) where

it stated the word “disproportionate” but did not specifically state that consecutive

sentences would not be disproportionate to the seriousness of his conduct nor that

consecutive sentences would not be disproportionate to the danger Morris posed to
the public. Id. at ¶ 29. After examining the entire record, this court found that the

trial court had done the proper analysis despite not having used the exact phrasing

of the statute. Id. at ¶ 34. In coming to this conclusion, the Morris Court pointed to

a number of our prior decisions with similar holdings. Id. at ¶ 30-32. See State v.

Crawley, 8th Dist. Cuyahoga No. 102781, 

; State v. Amey, 8th Dist.

Cuyahoga Nos. 103000 and 103001, 

; State v. Kirkman, 8th Dist.

Cuyahoga No. 103683, 

.

              The record before us reflects that the trial court engaged in the

necessary analysis and made the required findings for the imposition of consecutive

sentences. The trial court noted the sentence “should be commensurate with and

not demeaning to the seriousness of the offender’s conduct and its impact on the

victim and consistent with sentences for similar crimes with similar offenders.” In

explaining why consecutive sentences were warranted in this case, the trial court

found that the crime was committed while Wagner was on federal parole. During

the sentencing hearing, Wagner’s counsel disclosed that he was on federal parole

and that Wagner faced a potential three-year term due to his involvement in this

case. While not a specific factor listed in R.C. 2929.14(C)(4), Wagner’s engagement

in criminal activity while under supervision of a parole authority goes to the

seriousness of his conduct and the danger he poses to the public. The trial court

further found that Wagner’s crimes were “so great or so unusual that a single term

does not adequately reflect the seriousness of his conduct.” R.C. 2929.14(C)(4)(b).
Finally, the trial court found that Wagner’s previous criminal history warranted

consecutive sentences to protect the public. R.C. 2929.14(C)(4)(c).

              We find that the trial court made the requisite findings to impose

consecutive sentences under R.C. 2929.14(C)(4). Looking at the record in its

entirety and examining the trial court’s statements as a whole, we can discern that

the trial court engaged in the proper analysis and weighed the appropriate factors in

imposing the sentence. As such, we find this assertion without merit.

              Wagner also challenges his sentence, arguing that the trial court’s

findings were not supported by evidence in the record. Again, we disagree.

              After listening to arguments of counsel and hearing Wagner’s

statement, the trial court outlined its responsibilities under the law and then

outlined facts and findings on the record. The court noted the serious physical,

psychological, and economic harm the victim suffered as a result of Wagner’s crime.

The court detailed White’s injuries, his nightmares after realizing he took another

person’s life and his inability to continue working for the cable company due to his

inability to trust people, to be out and about or be in dark places. The court found

that Wagner’s actions displayed a complete disregard for any human life, specifically

the victim, but also that of himself and his deceased friend and accomplice, Wilson.

The court described the video evidence, specifically, Wagner taking the victim to the

ground, kicking him in the head and pinning him there while threatening to shoot

him. Further, although Wagner asserts here that the trial court did not have a

presentence report and did not know Wagner’s record, the record reflects that the
trial court had his criminal history before it and further, the trial court read it into

the record, and sought confirmation from Wagner’s counsel as to its accuracy.

               The trial court found that there were no factors that mitigated

Wagner’s conduct, and no factors that made Wagner’s crimes less serious than

similar crimes. The court also found factors indicating the likelihood of recidivism

were high, noting that this incident occurred while he was on federal parole.

               Finally, Wagner argues that the trial court was required to link

specific facts to its findings in order to justify the imposition of consecutive

sentencing. We disagree.

               “This court has repeatedly held that although the trial court must

make the findings required by R.C. 2929.14(C)(4), the court has no obligation to

state the reasons to support its findings.” Crawley, 8th Dist. Cuyahoga No. 102781,

, at ¶ 13.

               In the instant case, the trial court mentioned a number of factors to

support its decision, and while the court did not delineate which factor supported

which finding, we are capable of discerning that the trial court made the appropriate

findings and that the record supported those findings. Wagner’s reliance on our

decision in State v. Jones, 

, 

 (8th Dist.), is misplaced.

The Supreme Court overruled that decision in State v. Jones, 

,

, 

, finding we were in error. Therefore, in order to

overturn Wagner’s sentence under R.C. 2953.08(G)(2), we must determine by clear
and convincing evidence whether the trial court’s findings are unsupported by the

record.

                 Following a thorough review of the record, we find the trial court’s

imposition of a consecutive sentence was not contrary to law pursuant to R.C.

2929.14(C)(4).

                 Accordingly, we overrule the sole assignment of error.

                 Judgment 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

Cuyahoga County 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.



EMANUELLA D. GROVES, JUDGE

LARRY A. JONES, SR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR