State v. Zsigray ( 2021 )


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  • [Cite as State v. Zsigray, 
    2021-Ohio-1457
    .]
    IN THE COURT OF APPEALS
    ELEVENTH APPELLATE DISTRICT
    ASHTABULA COUNTY, OHIO
    STATE OF OHIO,                                     :        OPINION
    Plaintiff-Appellee,             :
    CASE NO. 2020-A-0044
    - vs -                                    :
    TYLER J. ZSIGRAY,                                  :
    Defendant-Appellant.            :
    Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2019 CR
    00617.
    Judgment: Affirmed.
    Colleen M. O’Toole, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
    Prosecutor, Ashtabula County Prosecutor’s Office, 25 West Jefferson Street, Jefferson,
    OH 44047 (For Plaintiff-Appellee).
    Robert N. Farinacci, 65 North Lake Street, Madison, OH 44057 (For Defendant-
    Appellant).
    MATT LYNCH, J.
    {¶1}       Defendant-appellant, Tyler J. Zsigray, appeals his lifetime driver’s license
    suspension following the entry of guilty pleas to Failure to Stop After an Accident and
    Aggravated Vehicular Homicide. For the following reasons, we affirm the suspension.
    {¶2}       On October 9, 2019, the Ashtabula County Grand Jury returned an
    Indictment charging Zsigray with Failure to Stop After an Accident (Count One), a felony
    of the second degree in violation of R.C. 4549.02(A) and (B)(3)(b); Aggravated Vehicular
    Homicide, a felony of the third degree in violation of R.C. 2903.06(A)(2)(a) and (B)(3);
    and Tampering with Evidence, a felony of the third degree in violation of R.C.
    2921.12(A)(1).
    {¶3}   On December 19, 2019, Zsigray was arraigned and entered a plea of not
    guilty to the charges.
    {¶4}   On August 25, 2020, Zsigray entered a Written Plea of Guilty to Failure to
    Stop After an Accident and Aggravated Vehicular Homicide as charged in the Indictment
    in exchange for having the Tampering with Evidence charge dismissed.
    {¶5}   On August 28, 2020, the sentencing hearing was held. Regarding the
    underlying facts of the crimes, the State made the following statement:
    The State’s evidence would have shown that on or about June
    16th, 2019, in Harpersfield Township, the Defendant struck and killed
    Rhonda Beduhn with his vehicle. She was a pedestrian. Her body
    was found on the side of the road by a passing motorist at
    approximately 6:00 A.M. that morning.
    After Defendant and his co-defendant were arrested, Your
    Honor, they admitted that they went back to the scene of that
    accident that night or early morning in the same vehicle, and they
    saw Rhonda Beduhn, saw her body lying there on the side of the
    road, and they left again. At no time did the Defendant or his co-
    defendant ever call 911 and attempt to render aid to the pedestrian
    that they had just struck and killed.
    And, in fact, Your Honor, they did everything in their power to
    conceal their involvement in the accident. They hid the vehicle. The
    vehicle was found at a relative’s house under a tarp to conceal the
    damage. * * *
    Your honor, as you know, the Defendant was on post-release
    control at that time for an offense of Arson, and so it seems, Your
    Honor, that his concern that day was not for the life of Rhonda
    Beduhn. He was more concerned about the fact that he was on
    parole and more concerned about keeping himself out of trouble than
    he was for attempting to help this woman or save her life or attempt
    to save her life in any way.
    2
    {¶6}   For Failure to Stop After an Accident, the trial court imposed a stipulated,
    indefinite sentence of 8 years with a potential maximum term of 12 years and restitution
    in the amount of $5,000. For Aggravated Vehicular Homicide, the court imposed a
    concurrent 24-month sentence and a lifetime license suspension.
    {¶7}   On August 31, 2020, Zsigray’s sentence was memorialized in a written
    Judgment Entry of Sentence.
    {¶8}   On September 28, 2020, Zsigray filed a Notice of Appeal. On appeal, he
    raises the following assignments of error:
    {¶9}   “[1.] The trial court failed to fully consider the overriding purposes of felony
    sentencing as set forth in R.C. §2929.11 when the Court did not consider the rehabilitation
    of the appellant thereby depriving the appellant of a fair and balanced sentence that
    includes the promotion of rehabilitation.”
    {¶10} “[2.] The trial court erred to the prejudice of the appellant in finding that the
    death of the victim elevated the seriousness of the offenses.”
    {¶11} “The court hearing an appeal [of a felony sentence] shall review the record,
    including the findings underlying the sentence or modification given by the sentencing
    court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce, or otherwise
    modify a sentence that is appealed under this section or may vacate the sentence and
    remand the matter to the sentencing court for resentencing * * * if it clearly and
    convincingly finds * * * [t]hat the sentence is * * * contrary to law.” R.C. 2953.08(G)(2)(b).
    {¶12} “A court that sentences an offender for a felony shall be guided by the
    overriding purposes of felony sentencing.” R.C. 2929.11(A). “The overriding purposes
    of felony sentencing are to protect the public from future crime by the offender and others,
    3
    to punish the offender, and to promote the effective rehabilitation of the offender using
    the minimum sanctions that the court determines accomplish those purposes without
    imposing an unnecessary burden on state or local government resources.” Id.
    {¶13} When imposing a sentence for a felony, the trial court “has discretion to
    determine the most effective way to comply with the purposes and principles of [felony]
    sentencing” and “shall consider the factors * * * relating to the seriousness of the conduct”
    and “the factors * * * relating to the likelihood of the offender’s recidivism.”        R.C.
    2929.12(A). A non-exhaustive list of factors relating to the seriousness of the conduct
    and the likelihood of recidivism is set forth in divisions (B), (C), (D), and (E) of R.C.
    2929.12.
    {¶14} “[A] sentencing court’s compliance with R.C. 2929.11 and 2929.12 does not
    provide grounds for a reviewing court to vacate or otherwise modify a sentence pursuant
    to R.C. 2953.08(G)(2).” State v. Stanley, 11th Dist. Lake No. 2020-L-065, 2021-Ohio-
    108, ¶ 35. “Nothing in R.C. 2953.08(G)(2) permits an appellate court to independently
    weigh the evidence in the record and substitute its judgment for that of the trial court
    concerning the sentence that best reflects compliance with R.C. 2929.11 and 2929.12.”
    State v. Jones, __ Ohio St.3d __, 
    2020-Ohio-6729
    , __ N.E.3d __, ¶ 42, also at ¶ 39 (“R.C.
    2953.08(G)(2)(b) * * * does not provide a basis for an appellate court to modify or vacate
    a sentence based on its view that the sentence is not supported by the record under R.C.
    2929.11 and 2929.12”).
    {¶15} We note that Zsigray’s prison terms were stipulated to by the parties and
    are not subject to review. The following arguments pertain solely to the appropriateness
    of the lifetime driver’s license suspension.
    4
    {¶16} Under the first assignment of error, Zsigray argues the trial court failed to
    consider his rehabilitation as required by R.C. 2929.11 when it imposed the lifetime
    driver’s license suspension.      “Had rehabilitation been contemplated when passing
    sentence, the burden and permanency of a lifetime driving ban and the challenges and
    difficulties that such a harsh sanction would impose on any effort at a normal, productive
    and law-abiding life may have produced a term less than the maximum possible.”
    Appellant’s brief at 4.
    {¶17} Pursuant to Jones and R.C. 2053.08(G)(2), the trial court’s alleged failure
    to fully consider Zsigray’s rehabilitation is not a proper basis for vacating the lifetime
    suspension. Even prior to the Jones decision, it was well-established that “consideration
    of the appropriate factors set forth in R.C. 2929.11 can be presumed unless the defendant
    affirmatively shows to the contrary.” State v. Clinton, 
    153 Ohio St.3d 422
    , 2017-Ohio-
    9423, 
    108 N.E.3d 1
    , ¶ 243. Here, the trial court’s written Entry of Sentence states
    expressly that it has considered “the principles and purposes of sentencing under R.C.
    2929.11.” Zsigray has made no affirmative showing to the contrary.
    {¶18} The Ohio General Assembly has deemed a lifetime driver’s license
    suspension to be an appropriate part of a sentence for Aggravated Vehicular Homicide.
    R.C. 2903.06(B)(3) (“for a violation of division (A)(2) of this section, the court shall impose
    upon the offender a class two suspension of the offender’s driver’s license”); R.C.
    4510.02(A)(2) (“[f]or a class two suspension, a definite period of three years to life”). The
    sentence imposed by the trial court is within this range and is not otherwise contrary to
    law. We note that, regardless of the convenience it entails, driving in Ohio “is not a right
    but a privilege.” State v. Tanner, 
    15 Ohio St.3d 1
    , 5, 
    472 N.E.2d 689
     (1984). Furthermore,
    5
    even a lifetime suspension is subject to modification or termination under the appropriate
    circumstances. R.C. 4510.54.
    {¶19} The first assignment of error is without merit.
    {¶20} In the second assignment of error, Zsigray argues the trial court improperly
    assessed the seriousness factors under R.C. 2929.12(B) inasmuch as it considered the
    victim’s death which is an element of Aggravated Vehicular Homicide. At the sentencing
    hearing, the court stated: “Looking at the seriousness factors, an innocent life was taken,
    so the more serious factors can’t get any more serious than that.” Zsigray cites to various
    cases in which the courts of appeal noted that consideration of the element inherent in
    the commission of an offense as an aggravating factor was improper. See, e.g., State v.
    Ivkovich, 
    2018-Ohio-609
    , 
    106 N.E.3d 305
    , ¶ 36-37 (2d Dist.) (acknowledging appellant’s
    argument that it was improper to consider the victim’s death as an aggravating factor in
    sentencing for vehicular homicide but, nevertheless, affirming the sentence imposed
    because it fell within the permissible statutory range).
    {¶21} We find no error. Initially, we note that consideration of the victim’s death
    was appropriate with respect to Failure to Stop After an Accident, the more serious of the
    two charges under consideration. Secondly, we emphasize that consideration of the
    factors making a crime more serious is left to the discretion of the sentencing court and
    that this court is not authorized to evaluate whether the court abused its discretion under
    the clearly and convincingly contrary to law standard (thus the Ivkovich court affirmed the
    sentence as “not contrary to law”). Jones, __ Ohio St.3d __, 
    2020-Ohio-6729
    , __ N.E.3d
    __, at ¶ 39 (“R.C. 2953.08(G)(2)(b) * * * does not provide a basis for an appellate court to
    modify or vacate a sentence based on its view that the sentence is not supported by the
    6
    record under R.C. 2929.11 and 2929.12”).
    {¶22} The second assignment of error is without merit.
    {¶23} For the foregoing reasons, Zsigray’s lifetime driver’s license suspension is
    affirmed. Costs to be taxed against the appellant.
    MARY JANE TRAPP, P.J.,
    CYNTHIA WESTCOTT RICE, J.,
    concur.
    7
    

Document Info

Docket Number: 2020-A-0044

Judges: Lynch

Filed Date: 4/26/2021

Precedential Status: Precedential

Modified Date: 4/26/2021