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Date: 06-17-2021
Case Style:
STATE OF OHIO v. MICHAEL A. STOKER
Case Number: 110029
Judge: MARY J. BOYLE
Court: COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
Plaintiff's Attorney: Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Justin Washburne, Assistant Prosecuting
Attorney
Defendant's Attorney:
Description:
Cleveland, Ohio - Criminal defense attorney represented Michael A. Stoker with a domestic violence charge.
In August 2019, 70-year-old Stoker was arrested for committing
offenses against his wife, D.S., and the trial court issued a domestic violence
temporary protection order. In September 2019, Stoker was indicted in Cuyahoga
C.P. No. CR-19-643227 for four offenses occurring in January and August 2019.
Later in September 2019, Stoker was also indicted in Cuyahoga C.P. No. CR-19-
643809 for another three offenses against D.S. occurring in September 2019.
In January 2020, Stoker agreed to plead guilty to an amended
indictment in both cases. In CR-19-643227, Stoker agreed to plead guilty to three
counts: domestic violence in violation of R.C. 2919.25(A), with a furthermore clause
for a prior domestic violence conviction, a fourth-degree felony; attempted domestic
violence in violation of R.C. 2919.25(A), with a furthermore clause for a prior
domestic violence conviction, a fifth-degree felony; and domestic violence in
violation of R.C. 2919.25(A), a first-degree misdemeanor. Stoker agreed to have no
contact with D.S. as part of this plea.
In CR-19-643809, Stoker agreed to plead guilty to three counts:
burglary in violation of R.C. 2911.12(A)(3), a third-degree felony; domestic violence
in violation of R.C. 2919.25(A), with a furthermore clause for a prior domestic
violence conviction, a fourth-degree felony; and violating a protection order in violation of R.C. 2919.27(A)(1), with a furthermore clause for violating the order
while committing a felony, a third-degree felony. The trial court referred Stoker for
a presentence-investigation report.
The trial court held a sentencing hearing in February 2020 for both
CR-19-643227 and CR-19-643809. D.S. spoke and asked the trial court to impose
community control sanctions instead of prison time. She assured the trial court that
she felt safe with Stoker and requested that the protection order be lifted. Stoker
also addressed the trial court, acknowledged that he had problems with alcohol, and
explained that he suffered from posttraumatic stress disorder (“PTSD”) from his
army service in the Vietnam War. He emphasized that he would seek help from
Veterans Affairs.
The trial court sentenced Stoker to two years of community control
sanctions on each count for both cases, to all be served concurrently to each other.
For both cases, the trial court ordered Stoker to be supervised by the domestic
violence unit. As conditions of community control for both cases, Stoker would need
to test negative for drugs and alcohol at each report date, successfully complete an
outpatient treatment program, attend three “AA/NA/CA meetings” per week, obtain
a sponsor, complete an anger management program, maintain weekly psychological
counseling sessions with Veterans Affairs, and comply with all medications. The
trial court referred Stoker to TASC for a substance abuse assessment. The trial court
also lifted the protection order at D.S.’s request. In CR-19-643809, the trial court
imposed a $500 supervision fee, a $250 fine, and court costs. It imposed no financial obligations in CR-19-643227. The trial court warned Stoker, “If you test
positive for drugs, alcohol, pick up a new case, fail to report, or violate any conditions
I’ve read to you today, then you would be subject to nine and a half years in prison.”
The following month, in March 2020, Stoker was indicted in
Cuyahoga C.P. No. CR-20-648811 for additional offenses against D.S. dating from
five days after the February 5 sentencing hearing in CR-19-643227 and CR-19-
643809. In September 2020, Stoker agreed to plead guilty to an amended
indictment: two counts of domestic violence in violation of R.C. 2919.25(A), each
with a furthermore clause for prior domestic violence convictions, third-degree
felonies. The date range for one count was February 10 through 15, 2020, and the
date for the second count was February 16, 2020. Stoker agreed to have no contact
with D.S. as part of the plea. The trial court also advised Stoker that a guilty plea in
CR-20-648811 constitutes a guilty plea probation violation in CR-19-643227 and
CR-19-643809.
Also in September 2020, the trial court held a hearing to impose a
sentence in CR-20-64881 and to address the probation violations in CR-19-643227
and CR-19-643809. For CR-20-648811, the state requested a sentence of three
years for each count, to be served concurrently. D.S. begged the trial court to not
sentence Stoker to prison. She explained that she and Stoker had been married for
24 years, and she knew when she married him that he suffered from PTSD. She said
she loved Stoker and that she wanted him to get counseling for his PTSD and
treatment for his alcohol problem. The trial court questioned D.S. regarding the events underlying the
offense, and D.S. explained that she and Stoker were drinking whiskey together
“trying to relax” when he began to drink very quickly. She said that he then started
talking about Vietnam and she realized he “was not in his right mind” and did not
know who she was. She explained that Stoker became angry and hit her with a
walking cane. She said he “blacked out” and did not remember hitting her when he
woke up the next morning. D.S. did not call the police, but she texted a friend about
what happened, and the friend called the police the next day. D.S. also told the court
that Stoker’s son had “tried to stop his dad” and that Stoker had never hit his son.
The prosecutor added that when police officers arrived, D.S. had “a big black eye and
bruises on the upper half of her body.”
Defense counsel reminded the trial court that Stoker was now 71 years
old and had already been incarcerated for roughly seven months as the case was
pending. He explained that during the Vietnam War, Stoker served as a door gunner
in a helicopter and that “it was his responsibility to fire upon the enemy and also in
some instances receive return fire.” He said that Stoker was shot and injured, and
he suffered from PTSD as a result. Defense counsel pointed out that Stoker also had
a severe alcohol use disorder that had “festered for far too long without treatment.”
Defense counsel requested that the trial court order Stoker to be transported to an
inpatient residential drug treatment facility so that D.S. would be protected from
Stoker and so that Stoker would receive the treatment he needs. Stoker also addressed the trial court and said that he suffered from
PTSD from when he was wounded in Vietnam. The trial court asked Stoker why he
was violent toward D.S. but not his son, and Stoker explained that he “flash[es]
back” to Vietnam, and he guessed he was violent toward D.S. because he did not
“treat the Vietnamese with baby gloves.” The trial court told Stoker that there are
thousands of Vietnam War veterans suffering from PTSD that are not repeatedly
“beating” their wives, and Stoker responded that “some men went to Vietnam and
didn’t do anything,” but he “was in a helicopter every day behind a machine gun.”
The trial court told Stoker that he was insulting the military, that he was using PTSD
as an excuse to “beat” his wife, and that he showed no remorse for his actions. The
trial court said, “Mr. Stoker, you are a violent man. Whatever reason you want to
give for it, you are violent. And you are a risk to the community, and you’re clearly
a risk to your wife.”
The trial court first addressed Stoker’s probation violations. For CR19-643227, the trial court terminated Stoker’s community control sanctions and
sentenced him to an aggregate term of 18 months in prison: 18 months for the
fourth-degree felony of domestic violence, 12 months for the fifth-degree felony of
attempted domestic violence, and 180 days for the first-degree misdemeanor of
domestic violence, to all run concurrently to each other. The trial court also imposed
three years of mandatory postrelease control and waived court costs.
For CR-19-643809, the trial court terminated Stoker’s community
control sanctions and sentenced him to an aggregate term of 18 months in prison: 18 months for the third-degree felony of burglary, 18 months for the fourth-degree
felony of domestic violence, and 18 months for the third-degree felony of violating a
protection order, to all run concurrently to each other. The trial court also imposed
three years of mandatory postrelease control and waived court costs.
The trial court then sentenced Stoker in CR-20-648811 to an
aggregate of 36 months in prison: 36 months each for the two counts of domestic
violence, to run concurrently to each other. The trial court also imposed three years
of mandatory postrelease control and waived costs and fines.
The trial court ordered the 18-month sentences for CR-19-643227
and CR-19-643809 to run concurrently to each other but consecutively to the 36-
month sentence for CR-20-648811, for an aggregate prison term for all three cases
of four and one-half years.
Stoker appeals the September 2020 sentencing judgments in all three
cases.
II. Consecutive Sentences
In his sole assignment of error, Stoker argues that the record does not
support the trial court’s imposition of consecutive sentences. Specifically, he
contends that D.S.’s statements at the sentencing hearing show that consecutive
sentences are disproportionate to the seriousness of his conduct and the danger he
poses to the public. He maintains that D.S.’s injuries “were not extensive,” D.S. did
not seek medical treatment or call the police, Stoker was not violent toward his son
or anyone else, and Stoker “poses no significant risk to the public as a whole.” R.C. 2953.08(G)(2) states that when reviewing felony sentences, an
“appellate court’s standard for review is not whether the sentencing court abused its
discretion.” Rather, the statute states that 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,” then
we “may increase, reduce, or otherwise modify a sentence * * * or [we] may vacate
the sentence and remand the matter to the sentencing court for resentencing.”
As the Ohio Supreme Court has explained, when reviewing
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 * * * [t]hat 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, quoting
R.C. 2953.08(G)(2)(a).
A defendant can challenge consecutive sentences on appeal in two
ways. 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). See R.C. 2953.08(G)(2)(b); State v. Nia, 2014-Ohio-2527, 15
N.E.3d 892, ¶ 16 (8th Dist.). Second, the defendant can argue that the record does
not support the court’s findings made pursuant to R.C. 2929.14(C)(4). See
R.C. 2953.08(G)(2)(a); Nia at ¶ 16. Stoker raises the second argument on appeal. “In Ohio, sentences are presumed to run concurrent to one another
unless the trial court makes the required findings under R.C. 2929.14(C)(4).” State
v. Gohagan, 8th Dist. Cuyahoga No. 107948, 2019-Ohio-4070, ¶ 28. Trial courts
must therefore engage in the three-tier analysis of R.C. 2929.14(C)(4) before
imposing consecutive sentences. Id. First, the trial court must find that
“consecutive service is necessary to protect the public from future crime or to punish
the offender.” Second, the trial court must 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.” Id. Third, the trial court must find 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.
Id.
The failure to make the above findings renders the imposition of
consecutive sentences contrary to law. Gohagan at ¶ 29. R.C. 2929.14(C)(4) directs
that for each step of this analysis, the trial court must “find” the relevant sentencing factors before imposing consecutive sentences. R.C. 2929.14(C)(4). Trial courts,
however, do not need to recite the statutory language word for word. Bonnell, 140
Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 29. “[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.
In this case, the trial court made the following findings at Stoker’s
sentencing hearing:
The court finds that this sentence is necessary to protect the public
from future crime and to punish the offender and are [sic] not
disproportionate to the seriousness of your conduct and the danger you
pose to the public.
Additionally, the court finds the offender committed one or more of the
offenses while awaiting trial or sentencing or was under a sanction.
Also that the offender’s history of criminal conduct demonstrates
consecutive sentences are necessary to protect the public from future
crime by the offender.
We find that the record supports the trial court’s finding that
consecutive sentences were not disproportionate to the seriousness of Stoker’s
conduct and the danger he poses to the public. His presentence-investigation report
shows that in addition to the three cases that are the subject of this appeal, Stoker
pleaded guilty to a charge of domestic violence in 2010. The record reflects that
between January and September 2019, Stoker committed domestic violence and
other offenses against D.S. on three separate occasions, resulting in convictions of
five felonies and a misdemeanor. Just five days after Stoker was sentenced to
community control for these crimes, he hit D.S. with a cane, causing her to suffer a black eye and bruising. The record shows that the lesser sentences Stoker received
in CR-19-643227 and CR-19-643809 had not been effective in modifying his
conduct.
We are not persuaded by Stoker’s arguments that the record does not
support consecutive sentences because he was violent only toward D.S. and that she
did not want him to go to prison. In State v. Hicks, 8th Dist. Cuyahoga No. 107055,
2019-Ohio-870, ¶ 17, we found that the record supported the trial court’s findings
under R.C. 2929.14(C)(4) where the defendant committed an offense of attempted
domestic violence while serving community control sanctions for another conviction
of attempted domestic violence against the same victim. The trial court found that
consecutive sentences were necessary to protect the public “irrespective of how the
victim in this matter feels.” Id. at ¶ 6. This court affirmed based on the defendant’s
lengthy criminal history, multiple convictions for domestic violence, and the fact
that he committed one of the offenses while serving community control sanctions
for a similar crime against the same victim. Id. at ¶ 17. Likewise, here, regardless of
D.S.’s statements that she did not want Stoker to serve time in prison and that she
was his only victim, Stoker’s multiple domestic violence convictions, especially those
committed days after being sentenced to community control sanctions for similar
crimes against D.S., show that consecutive sentences are not disproportionate to the
seriousness of his conduct and the danger he poses to the public. Based upon our meaningful review of the record and the trial court’s
sentencing judgments, we clearly and convincingly find that the record supports the
trial court’s findings under R.C. 2929.14(C)(4).
Accordingly, Stoker’s assignment of error is overruled.
Outcome: Judgments affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: