State v. Petrovich , 2019 Ohio 3547 ( 2019 )

[Cite as State v. Petrovich, 2019-Ohio-3547.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2019-L-007
- vs - :
RICHARD PETROVICH, III, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2017 CR
000862.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).
Cory R. Hinton, Hanahan & Hinton, LLC, 8570 Mentor Ave., Mentor, OH 44060 (For
Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Richard Petrovich, appeals from his five-year
sentence for Aggravated Vehicular Assault and Operating a Vehicle Under the Influence
of Alcohol in the Lake County Court of Common Pleas. The issues to be determined in
this case are whether a trial court errs in sentencing a defendant when it finds a lack of
factors making the offenses less serious without discussing each factor and whether
separate counts of Aggravated Vehicular Assault arising from a single car accident must
merge as allied offenses when there are multiple victims. For the following reasons, we
affirm the judgment of the lower court.
{¶2} On April 10, 2018, Petrovich was indicted by the Lake County Grand Jury
for nine counts of Aggravated Vehicular Assault, felonies of the second degree, in
violation of R.C. 2903.08(A)(1)(a); nine counts of Operating a Vehicle Under the
Influence of Alcohol, misdemeanors of the first degree, in violation of R.C.
4511.19(A)(1)(a), (b), and (e); one count of Endangering Children, a felony of the fifth
degree, in violation of R.C. 2919.22(C)(1); one count of Driving Under Financial
Responsibility Law Suspension or Cancellation, an unclassified misdemeanor, in
violation of R.C. 4510.16(A); one count of Operating a Motor Vehicle without a Valid
License, a minor misdemeanor, in violation of R.C. 4510.12(A); an Occupant
Restraining Devices violation, a minor misdemeanor, in violation of R.C.
4513.263(B)(1); and a Child Restraint System violation, a misdemeanor of the fourth
degree, in violation of R.C. 4511.81(C).
{¶3} On October 29, 2018, a plea hearing was held at which Petrovich pled
guilty to three counts of Aggravated Vehicular Assault and one count of Operating a
Vehicle Under the Influence of Alcohol, in violation of R.C. 4511.19(A)(1)(a), which
charges arose from a car accident that occurred when Petrovich was driving a vehicle
with five children and one adult passenger while under the influence of alcohol. A Nolle
Prosequi was entered on the remaining counts. The guilty plea was accepted by the
trial court and a Written Plea of Guilty was filed.
{¶4} A sentencing hearing was held on December 11, 2018. Defense counsel
requested a two-year prison sentence and argued that the counts of Aggravated
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Vehicular Assault should merge. Counsel argued as mitigating evidence that
Petrovich’s blood alcohol level was not over the legal limit by a “tremendous amount,”
he “did decent on his sobriety test results,” and there was a “gray area” regarding the
cause of the accident. Counsel emphasized that this was Petrovich’s first felony case.
Petrovich expressed remorse and several family members spoke favorably about him
and his relationship with his children.
{¶5} The State emphasized the severity of the accident, which caused physical
and psychological injuries to the victims, including broken bones, concussions, and a
severed artery, and the lack of functional safety restraints in the vehicle. The State
noted Petrovich’s past traffic violations, including an OVI. The State requested a prison
term of six years and argued merger should not occur since there were multiple victims.
{¶6} The court stated its consideration of the R.C. 2929.12 factors,
emphasizing the serious physical and psychological harm to the victims, as well as the
ages of the child victims and their relationship with Petrovich, their father. It found no
factors making the crime less serious. The court also noted these were his first felonies
but he had prior misdemeanor offenses and took into account Petrovich’s showing of
remorse and acceptance of responsibility. The court found that the offenses should not
merge and ordered a sentence of five years for each count of Aggravated Vehicular
Assault and a 60-day sentence for OVI, to run concurrently for a total term of five years.
The sentence was memorialized in a December 18, 2018 Judgment Entry of Sentence.
{¶7} Petrovich timely appeals and raises the following assignments of error:
{¶8} “[1.] The trial court erred on December 18, 2018 because its sentence
was contrary to law and an abuse of discretion.
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{¶9} “[2.] The trial court erred on December 18, 2018 because it failed to
merge the sentences for counts 1, 7, and 13.”
{¶10} In his first assignment of error, Petrovich argues that the trial court’s
sentence was contrary to law and an abuse of discretion since it erred in finding there
were no factors to make the crimes less serious under R.C. 2929.12(C). He also
argues that the sentence was disproportionate to those ordered in similar cases.
{¶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 either * * * (a) [t]hat the record does not support
the sentencing court’s findings under division (B) or (D) of section 2929.13 * * * [or] (b)
[t]hat the sentence is otherwise contrary to law.” Id. “‘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.’” (Citation omitted).
State v. Wilson, 11th Dist. Lake No. 2017-L-028, 2017-Ohio-7127, ¶ 18. “[A]n appellate
court may vacate or modify any sentence that is not clearly and convincingly contrary to
law only if the appellate court finds by clear and convincing evidence that the record
does not support the sentence.” State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-
1002, 59 N.E.3d 1231, ¶ 23.
{¶12} A court imposing a felony sentence is required to consider the statutory
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sentencing factors in R.C. 2929.11 and .12, but “there is no requirement to make
specific findings or use specific language during the sentencing hearing.” State v.
Crandall, 11th Dist. Ashtabula No. 2016-A-0030, 2016-Ohio-7920, ¶ 36, citing State v.
Jackson, 11th Dist. Lake No. 2014-L-124, 2015-Ohio-2608, ¶ 21.
{¶13} Here, it is evident that the court stated it considered the statutory factors
under R.C. 2929.12. Petrovich contends, however, that the court did not actually
consider the R.C. 2929.12(C) factors and/or erred in not finding those factors
applicable.
{¶14} Pursuant to R.C. 2929.12(C), the trial court shall consider, inter alia, the
following “as indicating that the offender’s conduct is less serious than conduct normally
constituting the offense”: “In committing the offense, the offender did not cause or
expect to cause physical harm to any person or property” and “[t]here are substantial
grounds to mitigate the offender’s conduct, although the grounds are not enough to
constitute a defense.”
{¶15} This court has held that, “[s]imply because the trial court did not find the
factors identified by appellant to militate in favor of a less severe sentence does not
imply the sentence is contrary to law,” and found sentences were not contrary to law
when they “were within the statutory range and there is nothing in the record to suggest
the trial court ignored the factors appellant identifies on appeal.” State v. Miller, 11th
Dist. Lake No. 2018-L-133, 2019-Ohio-2290, ¶ 25. Here, the court stated both at
sentencing and in the sentencing entry that it considered the R.C. 2929.12 factors,
which is sufficient to demonstrate it did so. Petrovich’s sentence was within the
statutory range and he does not point to anything in the record showing the court
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ignored the sentencing factors.
{¶16} Moreover, the grounds Petrovich argues should have rendered his
sentence less serious were reasonably rejected by the trial court. Petrovich claims as
“substantial grounds to mitigate [his] conduct” pursuant to R.C. 2929.12(C)(4) that his
blood alcohol level was not “over [the .08 limit] by a tremendous amount,” as it was a
.108, and that he had not overdosed, was not unconscious, and “seemed to still have
his composure about him,” performing well on field sobriety tests. The fact that his
blood alcohol level was .108 demonstrates only that he committed the offense of OVI,
and does not show that his conduct was less serious than that typically constituting the
offenses. While he may have performed well on sobriety tests, Petrovich does not
demonstrate how this renders less serious his conduct of driving while his blood alcohol
level was over the legal limit with children lacking proper restraints and without a valid
driver’s license.
{¶17} Petrovich also argues that the court should have found he did not expect
to cause harm pursuant to R.C. 2929.12(C)(3), which requires the court to consider
whether the offender “cause[d] or expect[ed] to cause physical harm to any person or
property.” There is no question that Petrovich did cause serious physical harm to the
victims. As to his expectation, Petrovich chose to voluntarily drive a vehicle while
intoxicated, an act which could easily be anticipated to result in physical harm to a
person or property.
{¶18} Finally, Petrovich argues that the Aggravated Vehicular Assault charges
were elevated from a third to a second degree felony as a result of a license
suspension, which arose from failure to pay child support “rather than a traffic related
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incident.” It is unclear why this would mitigate his conduct. R.C. 2903.08(B)(1)(a)
allows for Aggravated Vehicular Assault to be charged as a second degree felony as a
result of a license suspension and having a suspension is the exact conduct an offender
would commit to be charged in that manner. Having a license suspended for child
support “rather than a traffic related incident” does not make less serious Petrovich’s
conduct of driving without a license, while intoxicated, with child passengers in improper
restraints.
{¶19} Petrovich also argues that the sentence ordered by the court was
disproportionate to similarly situated defendants that had been brought to the court’s
attention at sentencing.
{¶20} In addressing arguments regarding the proportionality of sentences
among similarly situated defendants, this court has repeatedly emphasized that “[a]
consistent sentence is not derived from a case-by-case comparison[.]” (Emphasis sic.)
State v. Sari, 11th Dist. Lake No. 2016-L-109, 2017-Ohio-2933, ¶ 52, citing State v.
Swiderski, 11th Dist. Lake No. 2004-L-112, 2005-Ohio-6705, ¶ 58. Instead, consistent
sentencing is achieved when the trial court applies the statutory sentencing guidelines.
State v. Simpson, 11th Dist. Lake No. 2016-L-014, 2016-Ohio-7746, ¶ 28. This
rationale recognizes that “the goal of felony sentencing pursuant to R.C. 2929.11(B) is
to achieve ‘consistency’ not ‘uniformity.’” (Citation omitted.) Id., citing State v.
Palicka, 8th Dist. Cuyahoga No. 93766, 2010-Ohio-3726, 2010 WL 3169626, *2. “[I]n
order to show a sentence is inconsistent with sentences imposed on other offenders, a
defendant must show the trial court failed to properly consider the statutory purposes
and factors of felony sentencing.” Sari at ¶ 52.
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{¶21} It is not necessary to compare whether the sentence in the present matter
is the same or similar to the cases cited by Petrovich but only to determine whether the
trial court properly performed its duty to apply the required sentencing factors. In
relation to the felony sentences, the court stated that it considered the factors under
R.C. 2929.11 and .12 and nothing in the record shows otherwise. Furthermore,
Petrovich also fails to point to anything in the record demonstrating a lack of
consideration of the misdemeanor sentencing factors, as will be addressed further
below.
{¶22} Finally, the State addresses in its brief the trial court’s failure to state its
consideration of R.C 2929.22(B) misdemeanor sentencing factors for the OVI offense.
Petrovich does not discuss misdemeanor sentencing law nor does he set forth an
argument that the trial court erred in its application of R.C. 2929.22(B). Rather, his
arguments relate to the court’s failure to make a finding that the crimes were “less
serious” under R.C. 2929.12(C) and that the sentence was disproportionate. To the
extent that he generally argues there was an abuse of discretion in sentencing, the
applicable standard for misdemeanor sentences, we will briefly address his OVI
sentence.
{¶23} Misdemeanor sentencing is evaluated under an abuse of discretion
standard of review. State v. Corbissero, 11th Dist. Ashtabula No. 2011-A-0028, 2012-
Ohio-1449, ¶ 53. In sentencing a defendant for a misdemeanor, the trial court must
consider the factors set forth under R.C. 2929.22(B), which include, inter alia, the nature
of the offense, the offender’s criminal history, risk of recidivism, and the vulnerability of
the victim. R.C. 2929.22(B)(1)(a)-(g). In the case of misdemeanors, if the sentence is
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within the statutory limit, even if there is a silent record, there is a presumption that the
trial judge followed the statutory standards, since “there is no requirement that the court
state on the record it considered the statutory sentencing criteria.” (Citations omitted.)
State v. O’Keefe, 11th Dist. Lake No. 2018-L-088, 2019-Ohio-841, ¶ 26.
{¶24} Here, the sentence for OVI was within the statutory limits and although the
court did not reference R.C. 2929.22 at sentencing, Petrovich has not demonstrated an
affirmative indication on the record that the court did not properly consider the
misdemeanor sentencing factors or that it abused its discretion. State v. McDonald,
11th Dist. Ashtabula No. 2018-A-0008, 2018-Ohio-3845, ¶ 23.
{¶25} The first assignment of error is without merit.
{¶26} In his second assignment of error, Petrovich argues the trial court erred in
failing to find the three counts of Aggravated Vehicular Assault were allied offenses
since they resulted from the same conduct.
{¶27} Ohio’s multiple counts or allied offenses of similar import statute provides:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses,
but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in two or
more offenses of the same or similar kind committed separately or
with a separate animus as to each, the indictment or information
may contain counts for all such offenses, and the defendant may be
convicted of all of them.
R.C. 2941.25.
{¶28} “In determining whether offenses are allied offense of similar import within
the meaning of R.C. 2941.25, courts must evaluate three separate factors—the
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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. “[T]wo or more offenses may result
in multiple convictions if any of the following are true: ‘(1) the offenses are dissimilar in
import or significance – in other words, each offense caused separate, identifiable harm,
(2) the offenses were committed separately, and (3) the offenses were committed with
separate animus or motivation.’” State v. Jameson, 11th Dist. Ashtabula No. 2014-A-
0069, 2015-Ohio-4634, ¶ 11, citing Ruff at ¶ 25.
{¶29} Appellate courts review a determination on the issue of merger pursuant
to R.C. 2941.25 under a de novo standard of review. State v. Williams, 134 Ohio St. 3d
482, 2012-Ohio-5699, 983 N.E.2d 245, ¶ 28.
{¶30} As held in Ruff, “[t]wo or more offenses of dissimilar import exist within the
meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses
involving separate victims or if the harm that results from each offense is separate and
identifiable.” Id. at paragraph two of the syllabus. It is not necessary, then, that the
offenses be committed by separate actions of the defendant.
{¶31} Appellate courts addressing cases involving vehicular assault with multiple
victims have held that, pursuant to Ruff, the offenses do not merge. State v. Glover,
12th Dist. Fayette No. CA2016-11-016, 2017-Ohio-7360, ¶ 21 (rejecting the argument
that convictions should merge because they resulted from one collision where there
were multiple victims who suffered physical injuries); State v. Mullins, 4th Dist. Scioto
No. 15CA3716, 2016-Ohio-5486, ¶ 19 (convictions for two counts of vehicular assault
did not merge when the defendant struck one car, injuring two victims). Similar
arguments that offenses for aggravated vehicular assault and aggravated vehicular
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homicide should merge when resulting from one incident have also been rejected.
State v. Rufus, 8th Dist. Cuyahoga No. 105026, 2017-Ohio-5583, ¶ 14.
{¶32} Petrovich’s conduct caused “separate, identifiable harm” to multiple
victims. He was convicted for Aggravated Vehicular Assault for three victims, one adult
and two children. Emily Misch suffered a torn artery in her neck, required 36 stitches,
14 staples, and multiple surgeries, and suffered a mini stroke. K.P. suffered a broken
jaw, concussion, and permanent scarring on her face and head and T.P. had a broken
jaw, ankle, clavicle, tailbone and pelvis.
{¶33} While recognizing the abundant authority for finding merger inapplicable in
cases involving separate victims, Petrovich primarily relies on this court’s opinion in
State v. Long, 11th Dist. Lake No. 2017-L-094, 2018-Ohio-3013, in support of the
conclusion that merger can be warranted even when there are separate victims. In
Long, this court held that two Aggravated Burglary counts should have merged because
although there were multiple occupants in the home that was burglarized, there was
only one act of trespass. In so holding, this court noted that “the Aggravated Burglary
statute is meant to enhance the seriousness of a trespass under circumstances where
the offender raises the risk of harm to occupants of a structure” and “is not meant to
criminalize an offender’s conduct toward the occupants of the structure; rather, the
prosecutor may charge the defendant with an assault offense to satisfy that interest.”
Id. at ¶ 69. In other words, this holding was particular to the offense of Aggravated
Burglary. This court has found the existence of separate victims does not warrant
merger in factual scenarios more similar to the present one, where there is a clear
victim of an assault. See Jameson, 2015-Ohio-4634, at ¶ 18 (holding felonious assault
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offenses against multiple victims of the defendant’s act of shooting at an automobile
should not merge). Thus, Long is distinguishable.
{¶34} The second assignment of error is without merit.
{¶35} For the foregoing reasons, Petrovich’s sentence for Aggravated Vehicular
Assault and OVI in the Lake County Court of Common Pleas is affirmed. Costs to be
taxed against appellant.
CYNTHIA WESTCOTT RICE, J.,
TIMOTHY P. CANNON, J.,
concur.
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