State v. Graham

1

2023-Ohio-2728

STATE OF OHIO, Plaintiff-Appellee, v. DAMANTAE D. GRAHAM, Defendant-Appellant.

No. 2022-P-0086

Court of Appeals of Ohio, Eleventh District, Portage

August 7, 2023

Criminal Appeal from the Court of Common Pleas Trial Court No. 2016 CR 00107 E

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J Holder, Assistant Prosecutor, (For Plaintiff-Appellee).

Kort Gatterdam, Carpenter Lipps LLP, (For Defendant-Appellant).

OPINION

MARY JANE TRAPP, J.

{¶1} Appellant, Damantae D. Graham ("Mr. Graham") appeals from the judgment of the Portage County Court of Common Pleas sentencing him to life imprisonment without the possibility of parole for aggravated murder following the Supreme Court of Ohio's vacation of his death sentence and this court's remand for resentencing.

{¶2} Mr. Graham asserts two assignments of error, contending (1) the trial court erred in failing to address his requests to represent himself, contrary to the United States and Ohio Constitutions; and (2) his sentence is unconstitutional because the Eighth and Fourteenth Amendments to the United States Constitution prohibit a sentence of life imprisonment without the possibility of parole for offenders who were 21 years old and younger at the time of the offense.

{¶3} After a careful review of the record and pertinent law, we find as follows:

{¶4} (1) The trial court did not err in the manner in which it addressed Mr. Graham's two purported requests to represent himself. With respect to the first, the record indicates Mr. Graham did not clearly and unequivocally assert his right to self-representation. With respect to the second, the record indicates the trial court's inquiries were legally sufficient under the circumstances. To the extent Mr. Graham is challenging the trial court's denial of his request, we find no abuse of discretion. It appears the trial court reasonably believed Mr. Graham's true motive in representing himself was to advance frivolous and irrelevant "sovereign citizen" arguments. A request for self-representation may be denied when circumstances indicate the request is made for purposes of delay or manipulation of the trial process.

{¶5} (2) The Eighth Amendment, as construed by the Supreme Court of the United States, does not prohibit a discretionary prison sentence of life without the possibility of parole for offenders who were 21 years old or younger at the time of the offense.

{¶6} Thus, we affirm the judgment of the Portage County Court of Common Pleas.

Substantive and Procedural History

{¶7} In 2016, Mr. Graham shot and killed 18-year-old college student Nicholas Massa during the robbery of an apartment in Kent, Ohio. Mr. Graham had turned 19 the month before he committed the offenses.

{¶8} Following a jury trial in the Portage County Court of Common Pleas, Mr. Graham was found guilty of aggravated murder (count 1); three death-penalty specifications accompanying count 1; aggravated burglary (count 2); aggravated robbery (count 3); three counts of kidnapping (counts 4, 5, and 6); and six firearm specifications accompanying each count. The jury recommended Mr. Graham be sentenced to death on count 1. The trial court accepted the jury's recommendation and sentenced Mr. Graham accordingly. The court also imposed an aggregate prison term of 61 years on the remaining counts and specifications.

{¶9} Mr. Graham filed a direct appeal as of right in the Supreme Court of Ohio. The court affirmed Mr. Graham's convictions but vacated his death sentence and remanded the matter for resentencing consistent with R.C. 2929.06. See State v. Graham, 164 Ohio St.3d 187, 2020-Ohio-6700, 172 N.E.3d 841, ¶ 217 ("Graham I ").^[1]

March 2021 Resentencing

{¶10} Upon remand, the trial court scheduled a resentencing hearing for March 8, 2021. Mr. Graham moved to continue the hearing because, among other reasons, Dr. Aracelis Rivera ("Dr. Rivera"), one of his expert witnesses, was unavailable to testify on that date. The trial court denied Mr. Graham's motion. Mr. Graham filed a resentencing memorandum, attaching reports from Dr. Rivera and Dr. Laurence Steinberg ("Dr. Steinberg").

{¶11} At the sentencing hearing, the defense presented testimony from Dr. Steinberg, who stated a person's brain continues to mature into his or her early 20s and the characteristics the Supreme Court of the United States has identified as mitigating against a sentence of death for juveniles also applies to life sentences without parole for 18- to 20-year-olds. The defense also presented statements from Mr. Graham's family members in a video and asserted several mitigating factors for the trial court's consideration. The defense requested the trial court resentence Mr. Graham to an aggregate prison term of 28 years to life.

{¶12} The state presented testimony from the victim's father, mother, and sister. The state requested the trial court resentence Mr. Graham to a prison term of life without the possibility of parole to run consecutively to the 61-year aggregate prison term previously imposed.

{¶13} The trial court sentenced Mr. Graham to prison terms of life without parole and three years on the accompanying firearm specification to run consecutively to each other and to the 61 -year aggregate prison term previously imposed.

{¶14} Mr. Graham appealed to this court, raising, among other arguments, that the trial court abused its discretion by denying his motion to continue the resentencing hearing. In State v. Graham, 11th Dist. Portage No. 2021-P-0035, 2022-Ohio-1140 ("Graham II"), we reversed the trial court's judgment denying Mr. Graham's motion for a continuance. Id. at ¶ 75. We determined the trial court should have granted a continuance to permit Dr. Rivera's testimony. Id. at ¶ 70-71. Accordingly, we vacated Mr. Graham's sentence and remanded for resentencing. Id. at ¶ 75.

June 2022 Status Hearing

{¶15} Upon remand, the trial court scheduled a status hearing and a resentencing hearing. Defense counsel moved to continue the resentencing hearing and requested the parties schedule a new date at the status hearing.

{¶16} Two days before the status hearing, Mr. Graham filed a pro se "Notice of Special Appearance and Removal of Counsel." He attached a letter he sent to his trial counsel stating he is "competent" to "handle [his] own affairs" and that they are "hereby declared incompetent" and "fired."

{¶17} The prosecutor and defense counsel appeared in person at the status hearing, and Mr. Graham appeared via Zoom. Defense counsel requested a continuance of six months for the purpose of hiring expert witnesses.

{¶18} The trial court referenced Mr. Graham's pro se "notice of special appearance" and asked him to elaborate. It appears there were periodic technological glitches when Mr. Graham spoke. However, the transcript indicates Mr. Graham stated he is present "upon special appearance"; he does not "consent to a video hearing"; and he would "move forward upon proof that an actual controversy gives this Court jurisdiction to proceed." The prosecutor responded there is no question regarding the trial court's jurisdiction. The trial court stated it would deny Mr. Graham's "motion."

{¶19} The trial court next asked Mr. Graham to elaborate on his "notice of removal" of defense counsel, and the following exchange occurred:

{¶20} "[MR. GRAHAM]: I present myself as a live man - as a live man (inaudible) representation.

{¶21} "[THE COURT]: Again, I'm going to deny your motion. [Defense counsel] will remain on this case * * *

{¶22} "[MR. GRAHAM]: Your Honor, are you (inaudible) your post and violating your oath?

{¶23} "[THE COURT]: Mr. Graham, I'm not playing games here. We're trying to make sure that you get a fair sentencing hearing."

{¶24} The trial court confirmed defense counsel could continue representing Mr. Graham and stated it would continue the matter for at least six months so they could hire expert witnesses. Following the status hearing, the trial court filed a judgment entry denying Mr. Graham's pro se filing. The trial court subsequently granted defense counsel's motion to continue and rescheduled the resentencing hearing for December 6, 2022.

December 2022 Resentencing

{¶25} The day before the resentencing hearing, defense counsel filed a resentencing memorandum, attaching reports from Mark D. Cunningham, Ph.D., ABPP ("Dr. Cunningham"), and Dr. Rivera, as well as affidavits from family members.

{¶26} The day of the hearing, Mr. Graham filed a pro se "Affidavit of Truth." Mr. Graham averred he sent a letter to the prosecutor entitled "Conditional Acceptance for Value-request for proof of claim" and provided 30 days for a response. When the prosecutor did not respond, Mr. Graham sent a "Final Notice of Default and Res Judicata." Mr. Graham contended "[a]s an operation of law," the judgment against him is void, and he must be immediately released and paid restitution. Mr. Graham attached copies of the letters he sent to the prosecutor.

{¶27} At the beginning of the hearing, defense counsel informed the trial court that Mr. Graham requested to represent himself. The trial court addressed Mr. Graham, and the following exchange occurred:

{¶28} "THE COURT: How old are you now, Mr. Graham?

{¶29} "MR. GRAHAM: I'm 25 years old.

{¶30} "THE COURT: 25 already. Okay. Mr. Graham, it has been brought to my attention that you would like to proceed on your own behalf without counsel; is that correct?

{¶31} "MR. GRAHAM: That's correct.

{¶32} "THE COURT: Do you understand that - the famous saying of somebody who represents themselves has a fool for a client?

{¶33} "MR. GRAHAM: I do.

{¶34} "THE COURT: Do you understand that you have very learned counsel that are working in your best interest?

{¶35}...