[Cite as State v. Lightner,
2024-Ohio-736.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112850
v. :
MAURICE LIGHTNER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 29, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-22-673090-A and CR-22-675509-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Mary Grace Tokmenko, Assistant
Prosecuting Attorney, for appellee.
Culleen Sweeney, Cuyahoga County Public Defender, and
John T. Martin, Assistant Public Defender, for appellant.
KATHLEEN ANN KEOUGH, A.J.:
Defendant-appellant, Maurice D. Lightner (“Lightner”), appeals from
the trial court’s judgment, rendered after his guilty pleas, sentencing him to
consecutive sentences totaling five years in prison. Finding no merit to the appeal,
we affirm.
I. Background
The record reflects that on April 19, 2022, the police executed a search
warrant at Lightner’s home and recovered 90 grams of fentanyl, 20 grams of crack
cocaine, four grams of Ecstasy, and four handguns. As a result of the search,
Lightner was indicted on August, 4, 2022, in Cuyahoga C.P. No. CR-673090 in an
eight-count indictment that charged him with two counts of drug trafficking, two
counts of drug possession, and one count each of possession of criminal tools,
endangering children, having weapons while under disability, and receiving stolen
property, with various accompanying firearm and forfeiture specifications.
On October 24, 2022, while CR-673090 was pending, the police
stopped a car in which Lightner was a passenger for a traffic violation and discovered
fentanyl, cocaine, and a scale and razor with cocaine residue on it under Lightner’s
seat. As a result of the stop, Lightner was indicted in Cuyahoga C.P. No. CR-675509
with three counts of drug trafficking, three counts of drug possession, and one count
of possessing criminal tools, all with various forfeiture specifications.
At a plea hearing on April 11, 2023, Lightner pleaded guilty in CR-
673090 to one count of drug trafficking, a felony of the third degree; one count of
child endangering, a first-degree misdemeanor; and one count of having a weapon
while under disability. In CR-675509, he pleaded guilty to one count of drug
trafficking, a third-degree felony; and possession of criminal tools, a felony of the
fifth degree. Lightner appeared at the plea hearing in a wheelchair; he told the court
that he had a stroke in December 2022.
At the subsequent sentencing hearing, the trial court reviewed
Lightner’s criminal history before sentencing him. The court found that he had a
criminal history that began as a juvenile in 1999. (Tr. 26.) The court noted that in
2002, Lightner was adjudicated delinquent on a third-degree felony drug trafficking
case in juvenile court, and in 2004, he was adjudicated delinquent in two drug-
related cases. (Tr. 26-27.)
The trial court found that in 2010, Lightner was charged in common
pleas court with carrying concealed weapons and drug trafficking. (Tr. 27.) He was
sentenced to community-control sanctions but violated the sanctions on several
occasions. Id. In 2014, while he was on probation, Lightner pleaded guilty to
attempted drug trafficking and drug possession in another case.
Id. He was
sentenced to probation, which he violated, and was eventually sentenced to nine
months in prison.
Id. In 2017, Lightner was charged in another drug trafficking
case and sentenced to 20 months in prison. (Tr. 28.) After Lightner’s release from
prison in 2018, he was charged in a case in Shaker Heights Municipal Court and
another in Cleveland Municipal Court.
Id.
The trial court found that in April 2022, Lightner was “caught with
fentanyl in an amount significant enough to kill an entire high school full of children.
50 grams.” (Tr. 28.) The court found that even after the April 2022 arrest, Lightner
did not “change [his] ways” or “stay clean,” and in October 2022, while out on bond
on the first case, was caught with more drugs, including fentanyl. Id.
The trial court noted that as a drug-court judge, he has seen the
devastation caused by people who “sling fentanyl like it’s Halloween candy.” (Tr.
29.) The court stated that it did not feel sorry for Lightner, even though he was in a
wheelchair because of his stroke, “because I know there are mothers and fathers out
there who are without their children completely.” (Tr. 29.) The judge told Lightner,
“Your mom is in the back of the courtroom. You’re still alive. I am sure that there
are others out there because of your dealings that are without children, that are
without partners, that are without parents and mothers and fathers.” Id.
The judge then told Lightner that he would be receiving consecutive
sentences “because of your criminal history and because you have been arrested on
one case and picked up another case.” Id. The judge sentenced Lightner in CR-
675509 to concurrent prison sentences totaling 36 months and in CR-673090 to
concurrent prison sentences totaling 24 months, and ordered that CR-673090
would be served consecutively to CR-675509, for a total term of 60 months in prison.
(Tr. 29-30.)
The trial judge stated, “This is a five-year sentence. I find that five
years is not disproportionate to the actions that you took in these cases and I find it
necessary to protect the public.” (Tr. 30.) The court further found that CR-675509
was committed while Lightner was awaiting trial on CR-673090, and that his
criminal history demonstrated that consecutive terms were “necessary to protect the
public.” (Tr. 30-31.) Lightner now appeals from this sentence.
II. Law and Analysis
In his single assignment of error, Lightner challenges the imposition
of consecutive sentences.
We review felony sentences under the standard set forth in R.C.
2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002,
59 N.E.3d
1231, ¶ 16. Under R.C. 2953.08(G)(2), an appellate court may increase, reduce,
modify, or vacate and remand a challenged felony sentence if the court clearly and
convincingly finds either that the record does not support the sentencing court’s
findings under various sentencing statutes, including R.C. 2929.14(C)(4), or the
sentence is contrary to law.
Under Ohio law, sentences are presumed to run concurrently unless
the trial court makes the required findings under R.C. 2929.14(C)(4). State v.
Gohagan, 8th Dist. Cuyahoga No. 107984, 2019-Ohio-4070, ¶ 28; State v. Bonnell,
140 Ohio St.3d 209,
2014-Ohio-3177,
16 N.E.3d 659, ¶ 20-22. 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:
(1) The offender committed one or more of the multiple offenses while
awaiting trial or sentencing, while under a sanction, or while under
postrelease control for a prior offense;
(2) At least two of the multiple offenses were committed as part of one
or more courses of the conduct, and the harm caused by two or more
of the 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 the offender’s
conduct; or
(3) 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 is not “required to give a talismanic incantation of the
words of the statute, provided that the necessary findings can be found in the record
and are incorporated into the sentencing entry.” Id. “[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. 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. Wells, 8th Dist. Cuyahoga No. 109787,
2021-Ohio-2585,
¶ 74; State v. Aguilar, 8th Dist. Cuyahoga No. 109283,
2021-Ohio-841, ¶ 22; State v.
Blevins,
2017-Ohio-4444,
93 N.E.3d 246, ¶ 21, 23 (8th Dist.).
Lightner contends that his consecutive sentence is contrary to law
because the trial court failed to make the second R.C. 2929.14(C)(4) finding, known
as the proportionality finding. This finding requires the court to find 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 making the
proportionality finding, the trial court stated that “five years is not disproportionate
to the actions that you took in these cases and I find it necessary to protect the
public.” (Tr. 30.) Lightner concedes that the trial court made the first part of the
proportionality finding but asserts that the trial court did not find that consecutive
sentences are not disproportionate to the danger he poses to the public. His
argument is without merit.
With respect to the proportionality finding, the “essential question” is
whether the record of the sentencing hearing “makes it clear” that the
court considered both (1) the seriousness of the offender’s conduct and
(2) the danger the offender poses to the public and “compared those
factors to the sentence imposed on the defendant and determined that
comparison supported the imposition of the consecutive sentence.”
State v. Hervey, 8th Dist. Cuyahoga No. 110775, 2022-Ohio-1498, ¶ 20, quoting
State v. Tolbert, 8th Dist. Cuyahoga No. 110249,
2022-Ohio-197, ¶ 48. The record
reflects that the trial court did exactly that.
Specifically, after reviewing Lightner’s extensive criminal history
involving drug trafficking, the court found that in CR-673090, Lightner was caught
with 50 grams of fentanyl, “an amount significant enough to kill an entire high
school full of children.” (Tr. 28.) The court found that only six months later,
Lightner was found with more drugs, including fentanyl, as well as a scale and a
razor with cocaine residue on it. The judge stated that as a drug-court judge, he was
well aware of the devastation caused by defendants such as Lightner who sell
fentanyl, and that undoubtedly there are individuals in the community who lost
their partner or parent because of Lightner’s drug dealing. (Tr. 29.) Significantly,
the trial judge also told Lightner that he was fortunate that the state dropped the
first-degree felony drug trafficking charge in CR-673090 to a third-degree felony
drug trafficking charge, thereby reducing the prison time the court could impose
from 11 years to three years. (Tr. 29.) The judge told Lightner that was “a pretty
nice discount” because the judge would have sentenced him to 11 years. (Tr. 28-29.)
On this record, after considering the trial court’s statements at the
sentencing hearing in their entirety, it is apparent that the court considered the
seriousness of Lightner’s drug dealing and the danger his drug dealing posed to the
public, and then, after comparing those factors to the 36 month sentence in CR-
675509 and the 24 month sentence in CR-673090, determined that the comparison
supported the imposition of consecutive sentences. See Hervey, 8th Dist. Cuyahoga
No. 110775, 2022-Ohio-1498, at ¶ 21, citing Tolbert, 8th Dist. Cuyahoga No. 110249,
2022-Ohio-197, at ¶ 48. Accordingly, although the judge did not use the express
statutory language of the second part of the proportionality finding, it is clear that
the court found that consecutive sentences are not disproportionate to the danger
Lightner poses to the public. Lightner’s consecutive sentences are not contrary to
law and, therefore, the assignment of error is overruled.
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
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal 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.
KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE
EILEEN T. GALLAGHER, J., and
MARY J. BOYLE, J., CONCUR
