Person Page - 3586

     Isaac Handley was born on November 4, 1788.¹ He married Kate Wylie in 1809.¹ Isaac Handley died on April 11, 1877 at Kanawha Co., West Virginia, at age 88.¹

     Her married name was Handley.¹ Mary Adams married Samuel Carroll Handley, son of William Handley and Margaret Unknown.¹ Mary Adams died circa 1779.¹

     His Social Security Number was 269-50-9407.³ Jesse Edward Mooney was born on October 7, 1951 at West Virginia.^3,2 He married Cheryl Lynn Gilbert on September 11, 1971 at Ohio.¹ Jesse Edward Mooney and Cheryl Lynn Gilbert were divorced on June 9, 1981 at Cuyahoga Co., Ohio.⁴ Jesse Edward Mooney died on August 25, 1985 at Garfield Heights, Cuyahoga Co., Ohio, at age 33.² He STATE v. LAWRENCE
NO. 58661.
74 Ohio App.3d 592 (1991)
The STATE of Ohio, Appellee, v. LAWRENCE, Appellant.
Court of Appeals of Ohio, Cuyahoga County.
Decided June 17, 1991.
Stephanie Tubbs Jones, Prosecuting Attorney, for appellee.
Friedman, Gilbert & Berezin and Gordon S. Friedman, for appellant.
[74 Ohio App.3d 593]
NAHRA, Judge.
Jeffrey Lawrence, defendant-appellant, appeals the trial court's resentencing of him to a term of life imprisonment with parole eligibility after thirty years and another term of life imprisonment with parole eligibility after twenty years, each sentence to run consecutively to the other.
As determined in State v. Lawrence (1989), 44 Ohio St.3d 24, 541 N.E.2d 451, Lawrence and his wife, Janet, and their children were next-door neighbors with Jesse and Cheryl Mooney and their children. Although the neighbors were friendly at first, the relationship deteriorated over the years to the point of outright hostility.
On the night of August 24, 1985, the Mooneys had a party in their garage. Disturbed by the noise of the party, Lawrence called the police at approximately 11:00 p.m. Lawrence's wife called the police again at 3:15 a.m. due to continued noise. An investigating officer returned to the scene and heard low music. He advised Jesse Mooney that the police had received another complaint and asked him to move the party into the house. After the officer left, an angry verbal exchange occurred between the Mooneys and the Lawrences. Cheryl Mooney yelled towards the Lawrence house that she knew that Janet Lawrence had called the police. Appellant responded from a second-story window and told the Mooneys to shut up. The Mooneys then yelled words in the nature of a challenge.
Lawrence got his shotgun and some pellets, told his wife to call the police, and went outside. Lawrence fired a shot from his backyard striking Cheryl Mooney and Thurman Dempsey. Cheryl staggered into the garage. Jesse Mooney then fired two shots from a handgun toward Lawrence's house. Running from his yard and across the front of the Mooney residence, Lawrence fired several more shots. Jesse Mooney was fatally struck. Lawrence entered the garage, grabbed Cheryl Mooney and dragged her to the spot where Jesse Mooney was and threw her on top of her husband. Lawrence then fired a shot into her back at close range causing her death. He then left the area.
At trial, several psychiatrists testified for the state and for Lawrence with respect to Lawrence's mental condition. Although the psychiatrists disagreed as to whether Lawrence could distinguish right from wrong, they all agreed that he was suffering from post-traumatic stress disorder. This disorder caused Lawrence to have sleep disturbance and to startle easily during loud noises.
Lawrence was convicted of two counts of aggravated murder with mass murder specifications. Following his sentencing hearing, Lawrence was sentenced to death. Lawrence appealed his conviction and sentence to this court, which affirmed both. The Supreme Court of Ohio vacated Lawrence's death penalty sentence based on the finding that the aggravating circumstances did not outweigh the mitigating factors beyond a reasonable doubt. State v. Lawrence (1989), 44 Ohio St.3d 24, 541 N.E.2d 451.
On remand, the trial court, pursuant to R.C. 2929.06 and the order of the Supreme Court of Ohio, resentenced Lawrence to the following: a term of life imprisonment with parole eligibility after thirty years for the murder of Cheryl Mooney and a term of life imprisonment with parole eligibility after twenty years for the murder of Jesse Mooney. The two sentences were to run consecutively to each other and concurrent with the prior sentence left undisturbed by the Supreme Court of Ohio of ten to twenty-five years on each of two counts of attempted murder and an additional three-year term for the gun specification. This timely appeal follows.
Appellant's sole assignment of error states:
"The trial court abused its discretion by sentencing appellant to two (2) consecutive life sentences with parole eligibility after thirty (30) years on one, and parole eligibility after twenty (20) years on the other."
R.C. 2929.06 governs resentencing when a death sentence has been vacated. It states in pertinent part:
"If the sentence of death that is imposed upon any offender is vacated upon appeal because the court of appeals or the supreme court, in cases in which the supreme court reviews the sentence upon appeal, could not affirm the sentence of death under the standards imposed by section 2929.05 of the Revised Code, * * * the trial court that sentenced the offender shall conduct a hearing to resentence the offender. At the resentencing hearing, the court shall sentence the offender to life imprisonment with parole eligibility after serving twenty full years of imprisonment or to life imprisonment with parole eligibility after serving thirty full years of imprisonment."
Whether a trial court sentences the defendant to life imprisonment with twenty years or thirty years before parole eligibility is within its sound discretion and shall not be set aside upon review absent an abuse of that discretion. State v. Williams (1982), 7 Ohio App.3d 160, 7 OBR 204, 454 N.E.2d 1334, paragraph two of the syllabus; Toledo v. Reasonover (1965), 5 Ohio St.2d 22, 34 O.O.2d 13, 213 N.E.2d 179; State v. Thompson (Nov. 15, 1988), Licking App. No. CA-3351, unreported, 1988 WL 131764. An abuse of discretion connotes more than error of judgment or law; it implies that the trial court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 173, 404 N.E.2d 144, 148.
[74 Ohio App.3d 595]
In determining the appropriate resentence in a felony case, the trial court is required to consider the factors set forth in R.C. 2929.12. See Columbus v. Bee (1979), 67 Ohio App.2d 65, 21 O.O.3d 371, 425 N.E.2d 409.
R.C. 2929.12 states:
"(A) In determining the minimum term of imprisonment to be imposed for a felony for which an indefinite term of imprisonment is imposed, the court shall consider the risk that the offender will commit another crime and the need for protecting the public from the risk; the nature and circumstances of the offense; the victim impact statement prepared pursuant to section 2947.051 of the Revised Code, if a victim impact statement is required by that section; and the history, character, and condition of the offender and his need for correctional or rehabilitative treatment.
"(B) The following do not control the court's discretion, but shall be considered in favor of imposing a longer term of imprisonment for a felony for which an indefinite term of imprisonment is imposed:
"(1) The offender is a repeat or dangerous offender;
"(2) Regardless of whether the offender knew the age of the victim, the victim of the offense was sixty-five years of age or older, permanently and totally disabled, or less than eighteen years of age at the time of the commission of the offense;
"(3) The victim of the offense has suffered severe social, psychological, physical, or economic injury as a result of the offense.
"(C) The following do not control the court's discretion, but shall be considered in favor of imposing a shorter minimum term of imprisonment for a felony for which an indefinite term of imprisonment is imposed:
"(1) The offense neither caused nor threatened serious physical harm to persons or property, or the offender did not contemplate that it would do so;
"(2) The offense was the result of circumstances unlikely to recur;
"(3) The victim of the offense induced or facilitated it;
"(4) There are substantial grounds tending to excuse or justify the offense, though failing to establish a defense;
"(5) The offender acted under strong provocation;
"(6) The offender has no history of prior delinquency or criminal activity, or has led a law-abiding life for a substantial time before commission of the present offense;
"(7) The offender is likely to respond quickly to correctional or rehabilitative treatment.
[74 Ohio App.3d 596]
"(D) The criteria listed in divisions (B) and (C) of this section do not limit the matters that may be considered in determining the minimum term of imprisonment to be imposed for a felony for which an indefinite term of imprisonment is imposed." (Emphasis added.)
Lawrence contends that the trial court abused its discretion when it resentenced him insofar as it did not consider the mitigating factors in R.C. 2929.12(C)(2), (5), (6) and (7). Lawrence points out that the Supreme Court of Ohio vacated his death sentence after finding that the aggravating circumstances did not outweigh the mitigating circumstances beyond a reasonable doubt. State v. Lawrence, supra, 44 Ohio St.3d at 27, 541 N.E.2d at 455. He contends that the victims provided strong provocation without which his actions may not have occurred and that he lacked substantial capacity to appreciate the criminality of his conduct. Id. at 32, 541 N.E.2d at 459. Appellant also refers to the high probability that he would respond to rehabilitation.
However, our review of the record indicates that the trial court considered the evidence presented during trial and at the sentencing upon remand and the relevant factors within R.C. 2929.12 before it resentenced Lawrence. The trial court did not impose the maximum sentence possible under R.C. 2929.06, which would have been thirty years to life on each of the murder counts, to run consecutively. See State v. Yontz (1986), 33 Ohio App.3d 342, 515 N.E.2d 1012, syllabus. The facts do not support a conclusion that the trial court abused its discretion in resentencing Lawrence.
Accordingly, the judgment of the trial court is affirmed.
Judgment affirmed.
KRUPANSKY, C.J., and JOHN F. CORRIGAN, J., concur.
FOOTNOTES

* Reporter's Note: A motion for leave to appeal to the Supreme Court of Ohio was overruled in (1991), 62 Ohio St.3d 1414, 577 N.E.2d 660. on June 17, 1991.⁵

     Her Social Security Number was 293-50-8352.² Cheryl Lynn Gilbert was born on November 15, 1952.² As of September 11, 1971,her married name was Mooney.¹ She married Jesse Edward Mooney, son of William Edward "Bill" Mooney and Anna Eva Craft, on September 11, 1971 at Ohio.¹ Cheryl Lynn Gilbert and Jesse Edward Mooney were divorced on June 9, 1981 at Cuyahoga Co., Ohio.³ Cheryl Lynn Gilbert died on August 25, 1985 at Garfield Heights, Cuyahoga Co., Ohio, at age 32.⁴

     His Social Security Number was 236-01-2979.² Dorsey Alfonso Browning married Grace Pearl Craft, daughter of Jesse James Craft and Lela Mae Kingrea.^1,3 Dorsey Alfonso Browning was born on November 19, 1907 at Logan Co., West Virginia.² He died on September 13, 1975 at Logan Co., West Virginia, at age 67.^2,1

     Her married name was Harper.¹ Gladys Unknown married Ralph W. Harper, son of Howard Herbert Harper and Laura J. Elmore.¹ Gladys Unknown was born circa 1914 at West Virginia.¹

     Fred N. Turner was buried at Roselawn Memorial Gardens, 2880 North Franklin Street, Christiansburg, Montgomery Co., Virginia.² He married Virginia Ethel "Virgie" Harris, daughter of Samuel Elijah Edmond "Ed" Harris and Agnes Lula Wilson.^1,2 Fred N. Turner was born on March 11, 1908 at Christiansburg, Montgomery Co., Virginia.^2,3 He died on February 20, 1988 at Livonia, Wayne Co., Michigan, at age 79.²

     Paul Madison Fulcher was buried at Sunset Cemetery, 501 South Franklin Street, Christiansburg, Montgomery Co., Virginia.¹ He was born on February 10, 1904 at Virginia.¹ He married Agnes Lula Wilson, daughter of Samuel Conner Wilson and Lydia Rosabelle Poff, circa 1924.^1,2,3 Paul Madison Fulcher died on June 11, 1936 at age 32.¹

     Paul Madison Fulcher Jr. was buried at Sunset Cemetery, 501 South Franklin Street, Christiansburg, Montgomery Co., Virginia.² He was born on July 17, 1927 at Virginia.^1,2 He died on November 22, 1952 at age 25.²

     Leslie Ray Fulcher was buried at Arlington National Cemetery, Arlington, Virginia.^2,3 His Social Security Number was 229-24-1500.⁴ He married Erna Unknown.² Leslie Ray Fulcher married Beate Unknown.³ Leslie Ray Fulcher was born on February 1, 1930 at Roanoke, Virginia.^1,2,4 He died on January 1, 2004 at Fredericksburg, Virginia, at age 73.^2,3,4 He Leslie Ray Fulcher, 73, of Fredericksburg died Thursday, Jan. 1, 2004, at Mary Washington Hospital. He had retired from the U.S. Army as a master sergeant after 22 years of service. Survivors include his wife, Beate J. Fulcher; a stepson, Karl H. Bentley of Saxe; a stepdaughter, Coleena Clore of Stafford; five stepgrandchildren; and one stepgreat-grandchild. Services will be private at Arlington National Cemetery. Covenant Funeral Service, Fredericksburg, handled arrangements. on January 3, 2004.³

     Freddy E. Turner was buried at Woodlawn Memorial Park, Bluewell, Mercer Co., West Virginia.¹ His Social Security Number was 401-40-8196.³ He married Catherine DeGeorge.^1,2 Freddy E. Turner was born on December 23, 1931 at Stone, Pike Co., Kentucky.¹ He died on April 28, 1996 at Durham, Durham Co., North Carolina, at age 64.^1,3

     Catherine DeGeorge was buried at Woodlawn Memorial Park, Bluewell, Mercer Co., West Virginia.² Her married name was Turner.¹ She married Freddy E. Turner, son of Fred N. Turner and Virginia Ethel "Virgie" Harris.^1,2 Catherine DeGeorge was born on May 8, 1931 at Aflex, Pike Co., Kentucky.^3,2 She died on April 11, 2013 at Bluestone, Mercer Co., West Virginia, at age 81.^2,3 She BLUEFIELD, W.Va. — Catherine DeGeorge Turner of Bluefield, W.Va, died Thursday April 11, 2013. Born May 8, 1931 in Aflex, Ky., she was a daughter of the late Domenic DeGeorge and Elsie Thompson DeGeorge. Catherine was a 1949 graduate of Williamson High School. She was a member of First Presbyterian Church where she served as Circle Chairman. She was awarded life membership in the Presbyterian Women. Catherine loved to travel. She enjoyed her Wednesday morning bowling league for many years. In addition to her parents, she was preceded in death by her husband, Freddy E. Turner; daughter, Linda J. Turner and son-in-law, John Gimpl; son, Mark E. Turner, D.O; brother and sister-in-law, Mike and Jean DeGeorge; and brother-in-law, Blake Dempsey. Survivors include her sister, Bridgie Dempsey of Williamson, W.Va; sister-in-law, Betty Alcox of and her husband Irvine of Garden City, Mich; grandchildren, Cathleen Roark of Milwaukee, Wisc., Joshua Gimpl of Milwaukee, Anthony Turner of Front Royal, Va., Mark E. Turner, II of Bluefield, W.Va; three great-grandchildren, special nieces and nephews, cousins and special friends. The family will receive friends on Saturday April 13, 2013 from 3:00-4:00 p.m. at First Presbyterian Church in Bluefield, W.Va. Funeral services will follow at 4:00 p.m. from First Presbyterian Church with Dr. W.D. Hasty, Jr. officiating. Burial will be private at Woodlawn Memorial Park in Bluewell, W.Va.. In lieu of flowers, memorial contributions, if desired, may be made to First Presbyterian Church, 208 Tazewell Avenue, Bluefield, WV 24701. on April 12, 2013.²

     Linda Jean Turner was buried at Woodlawn Memorial Park, Bluewell, Mercer Co., West Virginia.³ She was born on March 18, 1952 at Williamson, Mingo Co., West Virginia.³ As of March, 1970,her married name was Roark.³ She married Terrance Roark in March, 1970.³ As of May, 1976,her married name was Gimpl.³ Linda Jean Turner married Jon J. Gimpl in May, 1976.^2,3 Linda Jean Turner died on January 15, 2001 at Menomonee Falls, Waukesha Co., Wisconsin, at age 48.³

     Dr. Mark E. Turner was buried at Woodlawn Memorial Park, Bluewell, Mercer Co., West Virginia.⁴ His Social Security Number was 395-70-3182.⁵ He Dr. Mark E. Turner, 44, of Amherst and formerly of Bluefield, died Tuesday, January 27, 2004, in Amherst. Born February 14, 1959 in Bluefield, he was a son of Catherine DeGeorge Turner of Bluefield and the late Freddy E. Turner. Mark was a graduate of Beaver High School, Bluefield State College and West Virginia School of Osteopathic Medicine. He was an emergency room physician in Loraine, Ohio and was of the Protestant faith. He served as medical director of the Amherst Fire Department. In addition to his father, he was preceded in death by his sister Linda J. Turner. He is survived by his mother, Catherine DeGeorge Turner of Bluefield; two sons, Mark E. Turner II of Bluefield and Anthony G. Turner and wife Reaninia of North Tazewell, Virginia. Funeral services will be conducted at 2PM Sunday at Mercer Funeral Home and Crematory with Dr. W.D. Hasty, Jr., officiating. The family will receive friends Sunday one hour before the service. Entombment and crypt-side rites will be private. The family suggests that contributions be made to the First Presbyterian Church of Bluefield.³ He was born on February 14, 1959 at Bluefield, Mercer Co., West Virginia.^5,3 He died on January 27, 2004 at Amherst, Lorain Co., Ohio, at age 44.^3,5