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Date: 07-18-2019
Case Style:
STATE OF OHIO vs. KEVIN GUNNELS
Case Number: 107351
Judge: EILEEN A. GALLAGHER
Court: COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
Plaintiff's Attorney: Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Steven N. Szelagiewicz, Assistant Prosecuting Attorney
Defendant's Attorney: Joseph V. Pagano
Description:
High on PCP and driving in excess of 100 m.p.h. down a city street,
defendant-appellant Kevin Gunnels hit and killed two innocent people, Adrian
Stradford and Connie Anderson. Gunnels pleaded guilty to two counts of aggravated
vehicular homicide, both felonies of the first degree. Gunnels also pleaded guilty to
three misdemeanors — two counts of criminal damaging related to the vehicles
involved in the collision and one count of driving while under the influence of
alcohol or drugs. For each aggravated vehicular homicide count, the trial court
sentenced Gunnels to 8 years in prison and ordered consecutive service for a total
term of 16 years. The court imposed concurrent sentences for the misdemeanor
counts that subsumed into the larger sentence.
At the sentencing hearing, the court also imposed sentence on
Gunnels in a second case which was pending at the time of the fatal accident. In that
case, Gunnels had pleaded guilty to one count of felony domestic violence after
punching a woman in the face. The court sentenced Gunnels to one year in prison
and ordered that sentence to run consecutive to the 16-year term in the other case
for a total sentence of 17 years in prison.
On appeal, Gunnels raises three assignments of error, arguing the
trial court erred by imposing consecutive sentences,1 by denying his request for a
mitigation of penalty report and by failing to calculate his jail-time credit. For the
1 We note that Gunnels does not appeal from his conviction in Cuyahoga C.P. No. CR-17-622236-A, the domestic violence case nor did he include the sentencing journal entry from that case as part of the record in this appeal. Nevertheless, as mentioned, Gunnels was sentenced in both cases at the same hearing, the transcript of which is part of the record. Our review of the transcript reflects that the trial court made the required findings before imposing consecutive sentences. See R.C. 2929.14(C)(4). The appellant bears the burden on appeal of demonstrating any error by reference to the record of proceedings before the trial court. Thomas v. Laws, 8th Dist. Cuyahoga No. 104710, 2016-Ohio-8491, ¶ 11. Therefore, we presume that the sentence was appropriate in the domestic violence case. See id. (we presume regularity in the absence of a complete and adequate record on review).
reasons that follow, we affirm Gunnels’ sentence and find no error in the court’s
denial of his request for a mitigation report, however, we reverse and remand the
case for the court to determine and journalize his jail-time credit.
Law and Analysis Consecutive Sentences In the first assignment of error, Gunnels challenges the imposition of
consecutive sentences. He concedes that the trial court made the appropriate
findings to impose consecutive sentences, but argues that the record does not
support those findings. We disagree.
R.C. 2929.14(C)(4) requires a trial court to make specific findings
before imposing consecutive sentences and to incorporate those findings into its
sentencing journal entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16
N.E.3d 659, at syllabus. A trial court is not, however, required to articulate reasons
in support of its decision to impose consecutive sentences. Id. “[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.
Where the trial court made the requisite consecutive sentencing
findings, R.C. 2953.08(G)(2) requires this court to affirm an order of consecutive
service unless we “clearly and convincingly” find that the record does not support
the court’s findings in support of consecutive sentences. State v. Venes, 2013-Ohio
1891, 992 N.E.2d 453, ¶ 21 (8th Dist.) (“This is an extremely deferential standard of
review.”).
Review of the record reflects that the high-speed crash and resulting
deaths was not an isolated incident of criminal behavior. As previously stated,
Gunnels committed these crimes while he had a pending felony domestic violence
case. Moreover, we note that Gunnels did not have a valid driver’s license at the
time of the crash, nor at any other time in his life. The prosecutor indicated Gunnels
did have a valid temporary driver’s license at one point, but that it was suspended in
1993.
Beyond these offenses, Gunnels also has an extensive criminal
history. Before the court imposed consecutive sentences, it discussed Gunnels’
previous DUI and domestic violence convictions. It further outlined his criminal
history dating back to 1993 that included a multitude of felony convictions.
The court addressed Gunnels directly: “[y]ou keep on hurting people
and leaving a trail of victims, three of them today.” Speaking about the two cases
presently before the court, the court declared “[t]hese are completely fault-free
victims. This is completely tragic.”
Following our review of the record, we are unable to find that the
record does not support consecutive sentences. We overrule the first assignment of
error.
Mitigation Report In the second assignment of error, Gunnels argues that the trial court
erred by denying his request for a penalty mitigation report. We disagree.
R.C. 2947.06 grants a trial court discretion to order a psychological
report in support of sentence mitigation. State v. Pinkney, 8th Dist. Cuyahoga No.
91861, 2010-Ohio-237, ¶ 21. R.C. 2947.06(B) in relevant part provides:
The court may appoint not more than two psychologists or psychiatrists to make any reports concerning the defendant that the court requires for the purpose of determining the disposition of the case.
Thus, “[i]t is within the court’s sound discretion to determine whether
additional expert services ‘are reasonably necessary for the proper representation of
a defendant’ at the sentencing hearing.” Pinkney at ¶ 21, quoting State v. Esparza,
39 Ohio St.3d 8, 11, 529 N.E.2d 192 (1988).
Here, the trial court ordered a presentence investigation report
(“PSI”) pursuant to Gunnels’ pending domestic violence case. Prior to sentencing,
Gunnels requested a penalty mitigation report. The court responded “I[’ve] got a
PSI. It’s current. Mandatory time. * * * [Y]ou’ll have every opportunity to offer
anything that you’d like for me to consider for mitigatory purposes * * *.”
Gunnels argues that the trial court abused its discretion by denying
his request for a penalty mitigation report because he was “involved in special
education,” taking medication for “various conditions” and “wanted substance
abuse treatment.” Gunnels admits this was all “mentioned” in the PSI and thus
considered by the court at sentencing. Gunnels’ claim is simply that the court
committed error by not preventing these “offender characteristics” from being
“developed” beyond the PSI. However, beyond this statement Gunnels presents no
argument or basis by which we can conclude as much. We find no abuse of
discretion.
We overrule this assignment of error.
Jail-Time Credit
In the third assignment of error, Gunnels argues that the trial court
erred by failing to determine the correct amount jail-time credit he was due. The
state concedes the error. We agree.
R.C. 2929.19(B)(2)(h)(i) requires the trial court to “[d]etermine,
notify the offender of, and include in the sentencing entry the number of days that
the offender has been confined for any reason arising out of the offense for which
the offender is being sentenced * * *.”
At sentencing the trial court stated Gunnels would receive “[c]redit
for time served.” The court’s sentencing journal entry further reflects “[j]ail credit
days to date to be calculated by the sheriff.” Compare State v. Washington, 1st Dist.
Hamilton No. C-140315, 2015-Ohio-1815, ¶ 10 (“Ohio Adm.Code 5120-2-04
provides that the sentencing court must ‘make a factual determination of the
number of days credit to which the offender is entitled by law to have credited’ and
requires that such information ‘be included within the journal entry imposing the
sentence * * *.”).
We sustain this assignment of error.
Outcome: Judgment affirmed in part, reversed in part, and remanded to the
lower court for further proceedings consistent with this opinion.
Plaintiff's Experts:
Defendant's Experts:
Comments: