State v. Vanderhoof ( 2013 )

[Cite as State v. Vanderhoof, 2013-Ohio-5366.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2013-L-036
- vs - :
DANIEL A. VANDERHOOF, JR., :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 12 CR
000846.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Alana A. Rezaee, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).
Vanessa R. Clapp, Assistant Public Defender, 125 East Erie Street, Painesville, OH
44077 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Daniel A. Vanderhoof, Jr., appeals from the judgment of the
Lake County Court of Common Pleas, sentencing him to an aggregate term of 16 years
imprisonment followed by a 180-day term in the Lake County Jail. We affirm.
{¶2} In the early-morning hours of December 9, 2012, appellant was driving a
vehicle in a residential neighborhood at speeds exceeding 60 mph. Appellant
proceeded down a dead-end road, eventually crashing through an occupied home. Two
of the three family members in the home were seriously injured, one of which was a
three-year-old boy. Appellant fled the scene, but was eventually apprehended. He was
intoxicated and non-cooperative with officers. After his arrest, appellant’s BAC was
measured at .172.
{¶3} Appellant was indicted on the following 11 counts: (1) aggravated
vehicular assault, a felony of the second degree, in violation of R.C. 2903.08(A)(1)(a),
that specified appellant was driving under suspension; (2) aggravated vehicular assault,
a felony of the second degree, in violation of R.C. 2903.08(A)(1)(a), that specified
appellant was driving under suspension; (3) operating a vehicle under the influence of
alcohol, a drug of abuse, or a combination of them, a misdemeanor of the first degree,
in violation of R.C. 4511.19(A)(1)(a); (4) aggravated vehicular assault, a felony of the
second degree, in violation of R.C. 2903.08(A)(1)(a), that specified appellant was
driving under suspension; (5) aggravated vehicular assault, a felony of the second
degree, in violation of R.C. 2903.08(A)(1)(a), that specified appellant was driving under
suspension; (6) operating a vehicle under the influence of alcohol, a drug of abuse, or a
combination of them, a misdemeanor of the first degree, in violation of R.C.
4511.19(A)(1)(h); (7) vehicular assault, a felony of the third degree, in violation of R.C.
2903.08(A)(2)(b), that specified appellant was driving under suspension; (8) vehicular
assault, a felony of the third degree, in violation of R.C. 2903.08(A)(2)(b), that specified
appellant was driving under suspension; (9), driving under suspension, an unclassified
misdemeanor, in violation of R.C. 4510.111(A); (10) failure to stop after an accident
involving the property of others, a misdemeanor of the first degree, in violation of R.C.
4549.03(A); and (11) operating a motor vehicle without a valid license, a minor
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misdemeanor, in violation of R.C. 4510.12(A)(1). Appellant entered a plea of not guilty
to all charges.
{¶4} Appellant later withdrew his previous plea of not guilty and entered pleas
of guilty to counts one, two, and three. The court nolled the remaining counts in the
indictment and ordered a presentence investigation report. The matter came on for
sentencing and, after a hearing, the court sentenced appellant to a mandatory prison
term of eight years on count one; a mandatory prison term of eight years on count two;
and 180 days of local incarceration on count three. The court ordered the terms
imposed for counts one and two to be served consecutively to each other, for an
aggregate term of 16 years. The court further ordered the 180-day term of local
incarceration to follow appellant’s prison term. Finally, the court ordered appellant to
pay $62,240.41 in restitution to his victims.
{¶5} Appellant filed a timely notice of appeal and assigns two errors for our
review. His first assignment of error provides:
{¶6} “The trial court erred by sentencing the defendant-appellant to maximum
and consecutive terms of imprisonment.”
{¶7} “[A]ppellate courts must apply a two-step approach when reviewing felony
sentences. First, they must examine the sentencing court’s compliance with all
applicable rules and statutes in imposing the sentence to determine whether the
sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the
trial court’s decision in imposing the term of imprisonment is reviewed under the abuse-
of-discretion standard.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶26.
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{¶8} H.B. 86, which became effective on September 30, 2011, revived the
language provided in former R.C. 2929.14(E) and moved it to R.C. 2929.14(C)(4). The
revisions to the felony sentencing scheme under H.B. 86 now require a trial court to
make specific findings when imposing consecutive sentences.
{¶9} R.C. 2929.14(C)(4) provides:
{¶10} If multiple prison terms are imposed on an offender for convictions
of multiple offenses, the court may require the offender to serve the
prison terms consecutively if the court finds that the consecutive
service is necessary to protect the public from future crime or to
punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and
to the danger the offender poses to the public, and if the court also
finds any of the following:
{¶11} (a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18
of the Revised Code, or was under post-release control for a prior
offense.
{¶12} (b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or
more of the multiple offenses so committed was so great or unusual
that no single prison term for any of the offenses committed as part
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of any of the courses of conduct adequately reflects the
seriousness of the offender’s conduct.
{¶13} (c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
{¶14} Appellant does not assert his sentence was contrary to law. And, the
record is clear, the trial court imposed sentences within the applicable felony range and
made the appropriate findings in support of consecutive sentences. Appellant’s
argument therefore focuses upon the trial court’s exercise of discretion in imposing
sentence. In particular, appellant contends the trial court abused its discretion by failing
to give appropriate consideration and adequate weight to his genuine remorse, his
acknowledgement of his problems with alcohol and his acceptance of responsibility.
We do not agree.
{¶15} At the sentencing hearing, the trial court stated it had considered the
relevant seriousness and recidivism factors set forth under R.C. 2929.12. The court
observed:
{¶16} There are a number of factors that make these crimes more
serious. The victims, at least 2 of the victims suffered serious
physical harm. Both of them came very close to death, based upon
the physical harm done to them. The other child came close to
serious physical harm. He was trapped in his toy [sic] in the room
where you crashed into. The whole family suffered extreme
psychological damage. Something that I would consider to along
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the lines of post traumatic stress disorder. The family suffered
serious economic harm. Your license was suspended at the time.
You shouldn’t have been in a vehicle at all. If you weren’t in a
vehicle, had you obeyed the suspension, then this crash could not
have occurred. I don’t find any factors that make this offense,
these offenses less serious. In fact, I consider the aggravated
vehicular assaults to be a worst form of those offenses. In terms of
recidivism, not only were you driving on a suspended license, you
have a previous criminal record that is substantial. You have a
minor juvenile record of assault. You do have 2 prior driving under
the influences, in 2002 and 2009. And a misdemeanor charge of
possession of harmful intoxicants from 2002; resisting arrest and
destroying city property in 2002; drug paraphernalia in 2002.
Domestic violence in 2003; drug paraphernalia in 2003. Then you
were in front of me on the felony charges. Two attempted
burglaries and a domestic violence, and I gave you 3 ½ years in
prison. The maximum was 4 years. I gave you 6 months less that
the maximum. So I gave you a break by giving you 6 months less
than the maximum on those 3 charges. You have a contempt of
court in Willoughby in 2005. Petty theft in Mentor, 2005; disorderly
conduct in Mentor in 2005; criminal damaging in Painesville in
2005. And then I gave you the 3 ½ years at the end of 2005, so
you have no record between 2005 and 2009. So apparently I did a
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good job in keeping society safe by keeping you in prison for 3 ½
years. Then you got out of prison, you got another OVI. Another
drug abuse. Criminal damaging in 2010. Drug paraphernalia in
’11; falsification in ’12. And now this in 2012. You have a long
previous criminal history. You have a rehabilitation failure after
previous convictions. You failed to respond in the past to the
probation that was given to you in the municipal courts, and you
failed to respond to the 6 months less that the maximum
consecutive the last time you were here. There’s a pattern of drug
and alcohol abuse with you, and you have refused to acknowledge
a problem or to seek out treatment. And the Court finds no genuine
remorse. You immediately fled the scene on foot. You immediately
blamed someone else. You blamed the vehicle when you have no
evidence that the vehicle was defective. And even if it was, you still
can’t use that to explain why are you going in excess - - well in
excess - - of 60-some miles per hour on a residential street. And
that was measured after the braking started. In fact, I believe this
offense was committed under circumstances extremely likely to
recur.
{¶17} The foregoing statements demonstrate the court gave careful
consideration to the circumstances of the crimes to which appellant plead as well as
appellant’s personal history, both at the time of sentencing and his previous conduct.
And even though appellant expressed remorse on record, the court was not obligated to
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accept or give any particular credence to these representations. We therefore hold the
trial court did not abuse its discretion when it imposed the maximum, consecutive
sentences.
{¶18} Appellant’s first assignment of error is without merit.
{¶19} Appellant’s second assignment of error provides:
{¶20} “The trial court violated the defendant-appellant’s rights to Equal
Protection and Due Process under the Fifth and Fourteenth Amendments to the U.S.
Constitution and under Sections 2, 10 and 16, Article I of the Ohio Constitution when it
sentenced him contrary to R.C. 2929.11(B).”
{¶21} Appellant asserts the trial court erred because its sentence was not
consistent with the sentences for similar crimes committed by similar offenders. We do
not agree.
{¶22} R.C. 2929.11(B) provides:
{¶23} A sentence imposed for a felony shall be reasonably calculated to
achieve the two overriding purposes of felony sentencing set forth
in division (A) of this section, commensurate with and not
demeaning to the seriousness of the offender’s conduct and its
impact upon the victim, and consistent with sentences imposed for
similar crimes committed by similar offenders. R.C. 2929.11(B).
{¶24} This court has held that consistency in sentencing is not a matter of
comparing similar offenders or similar cases. State v. DeMarco, 11th Dist. Lake App.
No. 2007-L-130, 2008-Ohio-3511, ¶25. In holding that cases cannot be formulaically
compared in the abstract, we recognize the circumstances and realities attaching to one
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case will always differ from another. State v. Burrell, 11th Dist. Portage No. 2009-P-
0033, 2010-Ohio-6059. And, by designating a range from which a judge can choose an
appropriate sentence, Ohio law acknowledges that harsher punishments may be
necessary to accomplish the purposes of felony sentencing, even when different
defendants commit the same crimes. Id. Consistency in sentencing is accordingly
measured by a trial court’s proper application and consideration of Ohio’s sentencing
guidelines. State v. Price, 11th Dist. Geauga No. 2007-G-2785, 2008-Ohio-1134, ¶33.
Hence, for an appellant to demonstrate inconsistency in sentencing, he or she must
show the trial court failed to properly consider the relevant statutory factors and
guidelines. Id.{¶25} As discussed above, the trial court gave careful and appropriate
consideration to the relevant statutory guidelines when it imposed its sentence. We
therefore hold the trial court’s sentence was consistent pursuant to R.C. 2929.11(B).
{¶26} Appellant’s second assignment of error lacks merit.
{¶27} For the reasons discussed in this opinion, the judgment of the Lake
County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J., concurs,
COLLEEN MARY O’TOOLE, J., concurs in judgment only.
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