State v. Ward , 2017 Ohio 13 ( 2017 )

[Cite as State v. Ward, 2017-Ohio-13.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104012
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DERICK ALLEN WARD
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-598195-A
BEFORE: Blackmon, J., E.A. Gallagher, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: January 5, 2017
ATTORNEY FOR APPELLANT
Dale M. Hartman
1295 Green Road
South Euclid, Ohio 44121
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Nathalie E. Naso
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶1} Appellant Derick Allen Ward (“Ward”) appeals convictions for aggravated
vehicular homicide, failure to stop after an accident, and failure to comply and assigns six
errors for our review.1
{¶2} Having reviewed the record and pertinent law, we affirm Ward’s
convictions. The apposite facts follow.
{¶3} Ward entered a guilty plea to aggravated vehicular homicide, failure to stop
after an accident, and failure to comply with the signal of a police officer. The facts
underlying the plea were that on January 24, 2015, at approximately 5:32 p.m., while
fleeing officers, Ward, who had a suspended driver’s license, fled from University
Heights police officers at a high rate of speed. He eventually crashed into the victim
who was jogging on South Park Boulevard. Ward fled the scene of the accident.
{¶4} It took police several weeks to determine who was driving the vehicle
because Ward told the officers that someone had stolen his vehicle. Eventually, officers
recovered a hat belonging to Ward containing shards of glass from the vehicle’s
windshield, which linked Ward to the incident. Ward was thereafter arrested by police.
{¶5} After hearing from the victim’s wife, other family members, work
colleagues, and Ward, the trial court sentenced Ward to eight years for the aggravated
vehicular homicide and imposed 36 months on the counts for failure to comply and
See appendix.
1
failure to stop to be served concurrent with each other but consecutive with the
aggravated vehicular homicide count for a total of 11 years in prison.
Failure to Explain Rights
{¶6} We will address Ward’s first and second assigned errors together. He
argues in these assigned errors that the trial court failed to explain and determine if he
understood the rights he was waiving by pleading guilty.
{¶7} In order for a plea to be given knowingly and voluntarily, the trial court
must follow the mandates of Crim.R. 11(C). If a defendant’s guilty plea is not voluntary
and knowing, it has been obtained in violation of due process and is void. Boykin v.
Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
{¶8} A trial court must strictly comply with Crim.R. 11 as it pertains to the
waiver of federal constitutional rights. These include the right to a jury trial, the right of
confrontation, and the privilege against self-incrimination. Id. at 243-44. Under the
more stringent standard for constitutionally protected rights, a trial court’s acceptance of a
guilty plea will be affirmed only if the trial court engaged in meaningful dialogue with the
defendant which, in substance, explained the pertinent constitutional rights “in a manner
reasonably intelligible to that defendant.” State v. Ballard, 51 Ohio St.2d 86, 364 N.E.2d
1163 (1977), paragraph two of the syllabus.
{¶9} Substantial compliance with Crim.R. 11(C) is sufficient when waiving
nonconstitutional rights. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
The nonconstitutional rights that a defendant must be informed of are the nature of the
charges with an understanding of the law in relation to the facts, the maximum penalty,
and that after entering a guilty plea or a no contest plea, the court may proceed to
judgment and sentence. Crim.R. 11(C)(2)(a) and (b). Substantial compliance means
that under the totality of the circumstances, the defendant subjectively understands the
implications of hisplea and the rights he is waiving. Nero at 108.
{¶10} A review of the plea hearing shows that under the totality of the
circumstances, Ward understood both his constitutional and nonconstitutional rights that
he was waiving by entering a plea. Prior to explaining the rights that Ward was waiving,
the trial court stated: “It is important that you interrupt me should there be any one of the
rights we go over that you fail to understand?” Thereafter, prior to explaining each right,
the court inquired, “do you understand?” Each time, Ward stated that he understood.
Because Ward told the court that he understood the rights that he was waiving, the trial
court had no reason to provide further explanation. Moreover, our review shows that the
trial court explained each constitutional right in a reasonably intelligible manner and more
than substantially complied in explaining each nonconstitutional right. Accordingly,
Ward’s first and second assigned errors are overruled.
Probation
{¶11} In his third assigned error, Ward argues that the trial court erred by failing to
inform him that he was ineligible for probation. He claims if had he known this, he
would not have entered a guilty plea.
{¶12} Our review of the record from the plea hearing shows that the trial court
informed Ward that the sentence for aggravated vehicular homicide carried a “mandatory
prison term of anywhere from two to eight years in yearly increments.” When the trial
court asked Ward if he understood, he indicated that he did. Therefore, he was well
aware that he was not going to receive probation. Accordingly, Ward’s third assigned
error is overruled.
Nature of the Crime
{¶13} In his fourth assigned error, Ward argues that the trial court erred by not
determining that Ward understood the nature of the charges to which Ward entered a
guilty plea.
{¶14} “Crim.R. 11(C)(2)(a) requires the court to determine whether a defendant
has an ‘understanding of the nature of the charges,’ but that requirement does not require
the court to inform the accused of the actual elements of the charged offense during the
plea colloquy.” State v. Woodard, 8th Dist. Cuyahoga Nos. 94672 and 94673,
2011-Ohio-104, ¶ 4. Instead, the court must look to the circumstances of the case to
determine whether the defendant understands the charges to which he is pleading. See
State v. Esner, 8th Dist. Cuyahoga No. 90740, 2008-Ohio-6654, ¶ 3; State v. Jones, 8th
Dist. Cuyahoga No. 99703, 2014-Ohio-1634, ¶ 11.
{¶15} In the instant case, the totality of the circumstances indicates that Ward
understood the nature of the charges. At the start of the plea hearing, the prosecutor
identified the terms of the plea agreement and Ward’s trial counsel also informed the
trial court that he had discussed the plea with Ward and that he was in “accord with the
recommendation.”
{¶16} The trial court asked Ward, “Do you fully understand what you are going to
be pleading guilty to?” Ward responded, “Yes, ma’am.” The trial court then proceeded
to state each offense he was pleading to, the degree of felony, and the possible prison
term. After explaining each count, the trial court asked whether Ward understood, to
which he responded that he did. When the court was done stating the charges and
possible sentences, the trial court asked, “Do you have any questions that you would like
to ask of me regarding your plea and the potential consequences?” Ward responded, “No
ma’am.” We conclude that Ward was aware of the nature of the charges to which he
knowingly, intelligently, and voluntarily pleaded guilty. Accordingly, Ward’s fourth
assigned error is overruled.
Allied Offenses
{¶17} In his fifth assigned error, Ward contends that the charges should have
merged because the crimes were the result of the same conduct; therefore, they are allied
offenses.
{¶18} At the sentencing hearing, the trial court heard arguments as to whether the
charges were allied offenses. The state argued that they were separate and distinct
offenses and played a dash-board video cam from the police cruiser as proof. The state
argued that the first offense was committed when Ward chose not to stop when signaled
by the police siren; the second act was committed when he hit and killed the victim; and
the third was committed when he chose to flee the scene of the accident. In response,
defense counsel simply stated, “these are allied offenses and should merge.”
{¶19} The Ohio Supreme Court has recently clarified that in determining whether
offenses are allied offenses of similar import within the meaning of R.C. 2941.25,
“courts must evaluate three separate factors — the conduct, the animus, and the import.”
State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, paragraph one of the
syllabus. If any of the following is true, the offenses do not merge and the defendant
may be convicted and sentenced for multiple offenses:
(1) the offenses are dissimilar in import or significance — in other words,
each offense caused separate, identifiable harm, (2) the offenses were
committed separately, or (3) the offenses were committed with separate
animus or motivation.
Id. at ¶ 25.
{¶20} We conclude that while Ward’s actions were interconnected, they were
independent acts committed with a separate animus. Ward failed to stop when the
officers activated their sirens. He drove recklessly at a high rate of speed which caused
the aggravated vehicular homicide. Finally, he fled the scene of the accident after hitting
the victim. Thus, these three incidents were not all one transaction as Ward alleges, but
consisted of three separately committed offenses that each had a separate animus. See
State v. Mullins, 4th Dist. Scioto No. 15CA3716, 2016-Ohio-5486 (court concluded that
failure to comply, failure to stop after an accident, and aggravated vehicular assault were
not allied offenses because they were committed with a separate animus). Accordingly,
Ward’s fifth assigned error is overruled.
Inconsistent and Disproportionate Sentence
{¶21} In his sixth assigned error, Ward argues that his combined sentence of 11
years in prison was disproportionate to his crimes given his genuine remorse and the fact
he had never before caused a loss of life and the sentence was inconsistent with sentences
given for similar offenders.
{¶22} R.C. 2953.08 precludes our review of a sentence unless the appellant
advances a claim that the sentence is contrary to law. R.C. 2953.08(A)(4); State v.
Montanez-Roldon, 8th Dist. Cuyahoga No. 103509, 2016-Ohio-3062, ¶ 10, citing State
v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 8. A sentence is
contrary to law if (1) the sentence falls outside the statutory range for the particular
degree of offense, or (2) the trial court failed to consider the purposes and principles of
felony sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12.
Montanez-Roldon at ¶ 11, citing State v. Price, 8th Dist. Cuyahoga No. 103023,
2016-Ohio-591, ¶ 12; State v. Hinton, 8th Dist. Cuyahoga No. 102710, 2015-Ohio-4907,
¶ 10, citing State v. Smith, 8th Dist. Cuyahoga No. 100206, 2014-Ohio-1520, ¶ 13.
{¶23} In this case, the trial court specifically indicated at the sentencing hearing
that it considered the sentencing factors having do with the “seriousness of the offense
and the likelihood of recidivism.” It stated in its sentencing entry that it “considered all
of the required factors of law.” Further, Ward was sentenced to eight years on the
second-degree felony aggravated vehicular homicide count, and 36 months each on a
failure to comply and failure to stop counts, both third-degree felonies. All the sentences
were within the applicable sentencing range.
{¶24} Moreover, although a purely academic discussion, although Ward indicated
remorse at the sentencing hearing, he denied that he was the driver to police at the time of
the incident. It was not until several weeks later that police were able to prove he was in
fact driving the car by finding glass from the windshield in his hat. As the family stated
at the sentencing hearing, his refusal to admit that he was at fault delayed their healing
process and caused them more pain.
{¶25} Additionally, as to his inconsistent sentence argument, this court in
Montanez-Roldon explained:
A consistency-in-sentencing determination, along with all sentencing
determinations pursuant to R.C. 2929.11 and 2929.12, is a fact-intensive
inquiry that does not lend itself to being initially reviewed at the appellate
level. At theleast, any review must begin with the defendant producing a
record for the trial court’s consideration before the final sentence is
imposed. As courts have long concluded, a “defendant must raise [the
consistency-in-sentencing] issue before the trial court and present some
evidence, however minimal, in order to provide a starting point for analysis
and to preserve the issue for appeal.” (Emphasis added.) State v. Spock,
8th Dist. Cuyahoga No. 99950, 2014-Ohio-606, ¶ 37, citing State v. Lang,
8th Dist. Cuyahoga No. 92099, 2010-Ohio-433; State v. Picha, 8th Dist.
Cuyahoga No. 102506, 2015-Ohio-4380, ¶ 9.
Montanez-Roldon, 8th Dist. Cuyahoga No. 103509, 2016-Ohio-3062, ¶ 14.
{¶26} Thus, because Ward did not raise this issue before the trial court, he failed to
preserve the issue for appeal. Accordingly, Ward’s sixth assigned error is overruled.
{¶27} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
EILEEN A. GALLAGHER, P.J., and
SEAN C. GALLAGHER, J., CONCUR
APPENDIX
Assignments of Error
I. The trial court erred in violation of Crim.R. 11(C) by failing to explain
the rights that defendant was waiving by pleading guilty.
II. The trial court’s failure to specifically inquire of defendant whether he
understood the nature of the constitutional rights enumerated in Crim.R.
11(C) constitutes a violation of due process.
III. The trial court erred by failing to inform defendant he was ineligible
for probation thus destroying his ability to make a voluntary, knowing, and
intelligent choice in violation of Crim.R. 11.
IV. The proceedings below were defective in that no inquiry was made
regarding whether defendant understood the nature of the crime and
consequently the court erred in accepting a plea which was neither
knowingly, willingly nor intelligently made in violation of Crim.R. 11 and
defendant’s constitutional rights.
V. The court erred in failing to merge all or some of the charges.
VI. The sentence was disproportionate to the charges.