Court of Appeals of Ohio, Twelfth District, Butler
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case
Michael T. Gmoser, Butler County Prosecuting Attorney,
Michael Greer, Government Services Center, for
Repper-Pagan Law, Ltd., Christopher J. Pagan, for
1} Defendant-appellant, Marquis Hunter, appeals his
15-year prison sentence imposed by the Butler County Court of
Common Pleas following his guilty plea to involuntary
manslaughter with a firearm specification.
2} Appellant was indicted in April 2017 on one count
of murder with two firearm specifications (using a firearm
and discharging a firearm from a motor vehicle) and a repeat
violent offender specification, and one count of having
weapons while under disability. The charges stemmed from
allegations that on March 23, 2017, while sitting in a motor
vehicle, appellant killed Jaylen Kinney (the
"victim") by shooting him multiple times with a
firearm. On September 7, 2017, appellant pled guilty to one
count of involuntary manslaughter, a felony of the first
degree, with a discharging a firearm from a motor vehicle
3} On October 26, 2017, the trial court held a
sentencing hearing. A presentence investigation report
("PSI") ordered by the trial court indicated that
appellant witnessed the murder of his father when he was
eight years old, was subsequently in counseling from the ages
of eight to ten, and was primarily reared by his maternal
grandmother who was physically abusive to him. The PSI
further indicated that appellant was diagnosed with PTSD
while serving a prison term for a 2010 felonious assault
conviction but that he did not attend counseling.
4} At the sentencing hearing, defense counsel
submitted the report of Dr. Bobbie Hopes, a clinical forensic
psychologist, who had psychologically evaluated appellant at
the request of defense counsel. Dr. Hopes' report was
appellant's primary mitigation evidence and was admitted
into evidence as Exhibit A.
5} Based upon the report, defense counsel argued
that as a result of witnessing the murder of his father when
he was only eight years old, appellant suffers from PTSD.
Appellant's PTSD was exacerbated and he became
hypervigilant after he was shot in a bar by a friend of the
victim in February 2017, several weeks before the homicide.
The victim was present when appellant was shot in the bar.
Fearing for his safety and that of his family, appellant
subsequently armed himself. On the night of the homicide,
appellant was in the backseat of a car, about to smoke
marijuana before going into a bar, when "out of
nowhere" the victim and the person who had shot
appellant approached appellant's car "in a menacing
way." Suffering from PTSD and greatly fearing for his
life and that of his friends, appellant shot multiple times,
ultimately killing the victim. Defense counsel admitted that
appellant was not sure whether the victim or the other man
had a firearm, nonetheless appellant "was scared to
death" and reacted accordingly. Defense counsel further
argued that appellant had a very unstable life growing up.
Based upon the foregoing, defense counsel argued that (1) the
victim induced the offense; (2) appellant acted under strong
provocation; (3) appellant acted under an imperfect but
sincere belief his actions were necessary for self-defense
and the defense of his friends; and (4) appellant's
killing of the victim was the product of PTSD.
6} In her report, Dr. Hopes expressed the opinion
that appellant had been afraid for his own safety and that of
his family ever since he had been shot in February 2017, and
that the shooting had greatly exacerbated his PTSD symptoms
which began after the murder of his father. Dr. Hopes further
opined that appellant was fearful, hypervigilant, and guarded
at the time of the homicide, and that whether his fears were
real or somewhat distorted by PTSD, appellant's fear
"was genuine and he believed he had to protect himself
from others whom he believed meant to harm him."
7} The state admitted that the victim approached
appellant's car on the night of the homicide but stated
"there might be some dispute" as to why the victim
did so. The state indicated there was no evidence that the
victim or his friends were armed that night. The state
observed that the victim was not the individual who shot
appellant in February 2017 but conceded that the victim was
with that individual when appellant was shot in the bar.
8} Upon considering this evidence and reviewing the
PSI and Dr. Hopes' report, the trial court sentenced
appellant to a mandatory ten-year prison term for the
involuntary manslaughter, with a mandatory and consecutive
5-year prison term for the accompanying firearm
specification, for an aggregate 15-year prison term.
9} Appellant now appeals, raising one assignment of
10} BY CLEAR-AND-CONVINCING EVIDENCE, THE SENTENCING
RECORD FAILS TO ...