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State v. Kouns

Court of Appeals of Ohio, Fifth District, Ashland

September 7, 2017

STATE OF OHIO Plaintiff - Appellee
v.
MICHAEL P. KOUNS Defendant-Appellant

         Appeal from the Ashland County Court of Common Pleas, Case No. 15-CRI-183

          For Plaintiff-Appellee CHRISTOPHER R. TUNNELL

          For Defendant-Appellant JOSEPH F. SALZGEBER

          VICTOR R. PEREZ Assistant Prosecuting Attorney

          Hon. Patricia A. Delaney, P.J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.

          OPINION

          Baldwin, J.

         {¶1} Appellant Michael P. Kouns appeals a judgment of the Ashland County Common Pleas Court convicting him of engaging in a pattern of corrupt activity (R.C. 2923.32(A)(1)), complicity to trafficking in heroin (R.C. 2925.03(A)(1)(2)(C)(6), R.C. 2923.03(A)(1), (2) or (3)), complicity to trafficking in cocaine (R.C. 2925.03(A)(1)(2)(C)(4)), R.C. 2923.03(A)(1), (2), or (3)), illegal assembly or possession of chemicals for the manufacture of drugs (R.C. 2925.041(A)), and illegal cultivation of marijuana (R.C. 2925.04(A)(C)(5)(c)) upon a plea of guilty, and sentencing him to an aggregate term of incarceration of twelve years. Appellee is the State of Ohio.

         STATEMENT OF THE FACTS AND CASE

         {¶2} On October 30, 2015, a twenty-one count indictment was filed in the Ashland County Common Pleas Court charging appellant with numerous drug-related offenses. Pursuant to a negotiated plea, he entered guilty pleas to engaging in a pattern of corrupt activity, complicity to trafficking in heroin, complicity to trafficking in cocaine, illegal assembly or possession of chemicals for the manufacture of drugs, and illegal cultivation of marijuana. He was found guilty of these five offenses, as well as four forfeiture specifications. In exchange for the plea, the State moved to dismiss the remaining sixteen counts of the indictment, as well as accompanying forfeiture specifications and major drug offender specifications. The State further agreed to recommend a sentence of no more than fourteen years.

         {¶3}The trial court ordered a pre-sentence investigation. Prior to the sentencing hearing, appellant filed a sentencing memorandum asking the trial court to impose a sentence of five years or less, similar to the sentences imposed on his co-defendants. He argued he took an inferior role in the criminal enterprise as a "pill puppet" to co-defendant Richard Lawless. He further argued he had become addicted to pain pills due to an industrial injury and two car accidents, but for most of his life had supported his family through legitimate employment.

         {¶4} The trial court held a sentencing hearing on August 19, 2016. At the hearing, appellant asked that he be sentenced similarly to his co-defendants, as they were all pawns of Richard Lawless, who ran the drug operation. The State argued that despite appellant's cooperation against Lawless and his addiction problems, it stood by the recommendation of fourteen years.

         {¶5} Following the hearing, the court sentenced appellant to a term of imprisonment of ten years for engaging in a pattern of corrupt activity, a term of three years for complicity to trafficking in heroin, a term of three years for complicity to trafficking in cocaine, a term of twenty-four months for illegal assembly or possession of chemicals for the manufacture of drugs, and a term of twelve months for illegal cultivation of marijuana. The sentences for complicity to trafficking in heroin, complicity to trafficking in cocaine, and illegal cultivation of marijuana were ordered to run concurrently with each other and with the sentence for engaging in a pattern of corrupt activity. The sentence for illegal assembly or possession of chemicals for the manufacture of drugs was ordered to run consecutively to the sentence for engaging in a pattern of corrupt activity but concurrently with the other sentences, for an aggregate term of twelve years incarceration. It is from this entry appellant prosecutes this appeal, assigning a single error:

         {¶6} THE TRIAL COURT ERRED BY IMPOSING, CONTRARY TO LAW AND THE CONSTITUTIONAL PROHIBITIONS AGAINST CRUEL AND UNUSUALPUNISHMENT, CONSECUTIVE PRISON SENTENCES TOTALING TWELVE (12) YEARS, INSTEAD OF TOTAL PRISON SENTENCE OF FIVE (5) YEARS OR LESS, WHICH 12-YEAR SENTENCE WAS DISPROPORTIONATE WITH THE SENTENCES IMPOSED ON HIS CO-DEFENDANTS.

         {¶7} Appellant argues his sentence is disproportionate in comparison to those of his co-defendants, and violates the Eighth Amendment's ...


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