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State v. Hunter

Court of Appeals of Ohio, Twelfth District, Butler

July 30, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
MARQUIS D. HUNTER, Defendant-Appellant.

          CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2017-04-0633

          Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government Services Center, for plaintiff-appellee

          Repper-Pagan Law, Ltd., Christopher J. Pagan, for defendant-appellant

          OPINION

          M. POWELL, J.

         {¶ 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 specification.

         {¶ 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 error:

         {¶ 10} BY CLEAR-AND-CONVINCING EVIDENCE, THE SENTENCING RECORD FAILS TO ...


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