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State v. Baker

Court of Appeals of Ohio, Second District, Montgomery

February 23, 2018

STATE OF OHIO Plaintiff-Appellee
DENNIS L. BAKER Defendant-Appellant

         Criminal Appeal from Common Pleas Court T.C. NO. 16-CR-1961

          MATHIAS H. HECK, JR., by ALICE PETERS, Atty. Reg. No. 93945, Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee

          CHARLES SLICER III, Atty. Reg. No. 59927, Attorney for Defendant-Appellant


          DONOVAN, J.

         {¶ 1} This matter is before the Court on the May 22, 2017 Notice of Appeal of Dennis L. Baker. Baker appeals from his judgment entry of conviction, following pleas of no contest, to two counts of having weapons while under disability (prior drug conviction), in violation of R.C. 2923.13(A)(3), felonies of the third degree, and one count of tampering with evidence (alter/destroy), in violation of R.C. 2921.12(A)(1), also a felony of the third degree. The events giving rise to this matter occurred when Baker's fiancé, Elonda Lewis, died by suicide after shooting herself in the chest, and Baker concealed a second loaded weapon in their home from responding police officers. The court merged the offenses of having weapons while under disability and imposed a sentence of 24 months, as well as a sentence of 24 months for tampering with evidence, to be served concurrently, for a total sentence of 24 months. We hereby affirm the judgment of the trial court.

         {¶ 2} Baker was indicted on August 31, 2016, and he pled not guilty on September 27, 2016. On March 23, 2017, Baker withdrew his pleas of not guilty and pled no contest to each offense. At the plea hearing, defense counsel indicated to the court that "we've had some plea discussion. Mr. Baker, what he's going to do is to tender pleas of no contest as charged in the indictment. No agreement with regard to sentencing or presentence investigation." The court then ascertained that Baker was 41 years old, that he is able to read and write, that he was not under the influence of alcohol, drugs or medication, and that he was not currently on community control sanctions or post-release control. The court advised Baker of the nature of the charges against him and the penalties that could be imposed on each offense, namely "a prison term of 9, 12, 18, 24, 30 or 36 months on each of those three offenses." The court ascertained Baker's understanding thereof. The court advised Baker regarding post-release control. The court further advised Baker that he was eligible for community control, and the court ascertained that no promises were made to Baker to induce his plea. The court advised Baker that a plea of no contest is "not an admission to your guilt but it's an admission of the truth of the facts contained in the indictment itself." The court engaged Baker in a thorough Crim.R. 11 colloquy, and the prosecutor read a statement of the charges. The court inquired whether Baker had the opportunity to discuss all aspects of his case with counsel, and Baker responded affirmatively. The court concluded as follows:

The Court finds the defendant did appear in open court, and after being advised orally by the Court of the contents of the entry, waiver and plea of indictment, did sign his name; that he understood the waiver of giving up his constitutional rights and did so knowingly, intelligently, voluntarily waived those rights.
The Court further finds the defendant understood the nature of the offense, the maximum penalties that could be imposed, that he is eligible for community control sanctions, may be required to pay a fine, restitution, court costs and other financial sanctions. Court further finds the defendant understood the effect of his plea, that the plea was made voluntarily, and that there is a factual basis for that plea.
Sir, I am going to accept your plea of no contest, and at this time the Court finds that the prosecution has proven each and every element beyond a reasonable doubt, and the Court makes a finding of guilty based upon the facts of the indictment and the plea itself.

         The court ordered a pre-sentence investigation report.

         {¶ 3} On April 18, 2017, Defendant's Sentencing Memorandum was filed. The memorandum provides that "there were two handguns recovered at the scene and Baker made statements indicating that while he had never before seen the gun used by Lewis, he was aware that there were guns * * * in the house." It further provides that Baker "panicked and made a poor decision in moving the [weapon]. He realizes that and knows he must suffer the consequences of his decisions." Baker requested community control sanctions.

         {¶ 4} On April 19, 2017, Baker was sentenced. Baker spoke to the court at length about the circumstances that led to his charges and his belief that he should not be sentenced to prison. Baker indicated in part as follows:

Now, from the beginning, this whole scenario basically my longtime fiancé, she died. Now, that was a very tragic situation. You know, and I ain't going to lie. In a moment I reacted wrong, but I wasn't trying to break the law. I was trying to prevent breaking the law. Now, I know that seems backwards, but this is a narrative, you understand what I'm saying? Just like when it happened they made it seem like I shot her. You understand what I'm saying? This is a narrative.
I was just in a bad scenario. And I didn't know what to do. At the time, the woman I been living with for 15 years was dying, and I didn't know how to react or what was going on. What I didn't want to do was be right where I am here in trouble behind some guns I had no knowledge of. I had not been home for three days. I was out of town. I hadn't been home a[n] hour. I hadn't been in the room in which all this tooken (sic) place at all. You understand what I'm saying?
I was in a very bad scenario. One of the most tragic days of my life. In that day, I lost my wife, my job, my home and all my worldly possessions because - - she committed suicide. I didn't want to be a part of this. You know, and it's not like I was trying to do this anymore. That's why I got a job. * * *
I have been caught with a gun before. It was in 1997. What I'm trying to tell you is that for this to be a thing about me going to prison or anything like that, there's nothing to be gained from this. ...

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