The Akron Legal News

Man who sexually assaulted two young girls loses appeal

ANNIE YAMSON
Special to the Legal News
Published: December 23, 2014

The judgment of the Cuyahoga County Court of Common Pleas was recently affirmed when a panel of judges in the 8th District Court of Appeals overruled the appeal of Wayne Lunder on sex offenses.

Lunder was indicted on April 26, 2013 by the Cuyahoga County Grand Jury in a 13-count indictment charging him with multiple sex offenses committed against two separate victims.

The first 11 counts of the indictment related to events that took place from January 2007 to June 2012 against a victim identified only as Jane Doe I, who was born in 2000.

Those first 11 charges included attempted rape with a sexually violent predator specification, five counts of gross sexual imposition with sexually violent predator specifications, two counts of kidnapping with sexual motivation specifications, corrupting another with drugs and two counts of endangering children.

The last two counts of the indictment related to crimes that took place from 2006 to 2007 against Jane Doe II, who was born in 1991.

The charges included rape and kidnapping with sexually violent predator specifications.

On Feb. 14, 2014, Lunder entered into a plea agreement with the state.

He pleaded guilty to third-degree felony gross sexual imposition and second-degree felony attempted rape. The remaining counts and specifications were dismissed.

Lunder was sentenced to a five-year term of imprisonment for the gross sexual imposition and a consecutive eight years for the attempted rape for a total of 13 years in prison.

He was classified as a Tier III sex offender and received five years of mandatory postrelease control.

In his direct appeal to the 8th District court, Lunder presented three assignments of error, first arguing that the trial court erred by not making the necessary findings prior to imposing maximum and consecutive sentences. The appellate panel disagreed.

“In the instant case, the trial court stated at sentencing that it carefully considered the purposes and principles of felony sentencing under R.C. 2929.11 and the seriousness and recidivism factors under R.C. 2929.12,” wrote Presiding Judge Frank Celebrezze on behalf of the court of appeals.

Celebrezze cited the information in Lunder’s presentence investigation report, the victim impact statements, Lunder’s lack of remorse and the trial court’s finding that Lunder’s “conduct is more serious than the conduct normally constituting the charged offenses.”

“The recidivism factors do indicate that (Lunder) is more likely rather than less likely to commit future crimes,” the trial court stated.

The lower court also emphasized the lasting psychological and emotional harm caused to the victims and how Lunder used his relationship with each of them to facilitate his offenses.

It went on to note that “a minimum term would demean the seriousness of these offenses.”

“Based on this portion of the trial court’s sentencing colloquy, we find that the trial court ... sentenced (Lunder) within the proper statutory range,” Celebrezze wrote.

The appellate panel also found that the trial court stated, on the record, the statutory factors necessary to impose consecutive sentences.

“We find that the trial court’s statements sufficiently addressed the danger appellant poses to the public and the need for consecutive sentences,” wrote Celebrezze, though he noted that the court failed to incorporate the findings into its sentencing entry and ordered that it correct the clerical error with a nunc pro tunc entry “to reflect what actually occurred in open court.”

In his second assignment of error, Lunder argued that his plea was not knowingly made because the trial court failed to properly explain his constitutional privilege against self-incrimination.

However, the appellate panel consulted the record of the proceedings and found that the trial court explained to Lunder, “At trial, you have the right to testify in your own defense but you could choose not to testify and remain silent. If you choose to remain silent at trial, then the state is not permitted to comment on or use that fact against you in any way. Do you understand that?”

Lunder replied that he understood so the court of appeals concluded that he was properly informed of his constitutional rights.

Lunder went on to argue that the trial court should have bifurcated the trial and granted him a separate trial for each victim.

He contended that the trial court’s decision not to sever the charges left him with no choice but to plead guilty or “face the possibility of life in prison, with two unrelated victims testifying against him and bolstering each other’s own credibility by their sheer numbers.”

But the court of appeals found that, even if the trials were separated, Jane Doe I would have likely testified at the trial of Jane Doe II.

“After careful review of the arguments raised by both sides, we find that appellant has failed to establish the requisite prejudice for severance,” Celebrezze concluded.

The judgment of the Cuyahoga County court was affirmed with judges Tim McCormack and Eileen T. Gallagher concurring.

The case is cited State v. Lunder, 2014-Ohio-5341.

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