State v. Kamara , 2023 Ohio 2146 ( 2023 )

[Cite as State v. Kamara, 2023-Ohio-2146.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220614
TRIAL NO. B-2101629
Plaintiff-Appellee, :
: O P I N I O N.
VS.
:
AMANDA KAMARA, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: June 28, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Arenstein and Gallagher and Elizabeth Conkin, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Presiding Judge.
{¶1} Defendant-appellant Amanda Kamara appeals the judgment of the
Hamilton County Court of Common Pleas. Kamara contends that the trial court
improperly determined that her conviction for aggravated vehicular assault was an
offense of violence, and that postrelease control was mandatory. Because we find that
aggravated vehicular assault is not an offense of violence, and therefore postrelease
control is discretionary, we sustain her sole assignment of error and reverse the
judgment of the trial court.
I. Factual and Procedural Background
{¶2} In September 2022, Kamara pleaded guilty to aggravated vehicular
assault under R.C. 2903.08(A)(1)(a), a third-degree felony, and operating a vehicle
under the influence of alcohol (“OVI”) under R.C. 4511.19(A)(1)(a), a first-degree
misdemeanor.
{¶3} In November 2022, the trial court sentenced Kamara to three years’
incarceration for her aggravated-vehicular-assault conviction and 180 days for the
OVI conviction, to be served concurrently and with credit for one day served. The court
advised Kamara that she was subject to a mandatory period of postrelease control
between one and three years, and it imposed a class three driver’s license suspension
for ten years. The court’s sentencing entry mirrors the sentence announced at the
sentencing hearing. Kamara timely appealed.
{¶4} In her sole assignment of error, Kamara contends that the trial court
failed to properly impose postrelease control. Kamara argues that because aggravated
vehicular assault is not an offense of violence, the court erred when it advised her that
she was subject to a mandatory period of postrelease control. Kamara asserts that
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OHIO FIRST DISTRICT COURT OF APPEALS
because her offense was a nonviolent third-degree felony, any period of postrelease
control should be discretionary. The state concedes that the court erred in this regard.
II. Law and Analysis
{¶5} “ ‘[A] trial court has a statutory duty to provide notice of
postrelease control at the sentencing hearing.’ ” State v. Bates, 167 Ohio St.3d 197,
2022-Ohio-475, 190 N.E.3d 610, ¶ 11, quoting State v. Jordan, 104 Ohio St.3d 21,
2004-Ohio-6085, 817 N.E.2d 864, ¶ 23, overruled on other grounds, State v. Harper,
160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 40. At both the sentencing
hearing and in the sentencing entry, “[t]he trial court must advise the offender * * * of
the term of supervision, whether postrelease control is discretionary or mandatory,
and the consequences of violating postrelease control.” Id. at ¶ 11. “[S]entencing errors
in the imposition of postrelease control render the sentence voidable, not void, and
the sentence may be set aside if successfully challenged on direct appeal.” Harper at ¶
42; see Bates at ¶ 13.
{¶6} A person commits aggravated vehicular assault under R.C.
2903.08(A)(1)(a) when he or she “causes serious physical harm to another person” as
the proximate result of driving “under the influence of alcohol, a drug of abuse, or a
combination of them.” R.C. 2903.08(A)(1)(a); R.C. 4511.19(A)(1)(a). The parties agree
that Kamara’s conviction for aggravated vehicular assault is a third-degree felony and
is the only conviction eligible for postrelease control. See R.C. 2903.08(B)(1)
(providing aggravated vehicular assault is a third-degree felony, subject to several
enumerated exceptions).
{¶7} Pursuant to R.C. 2967.28(B)(4), a sentence for a third-degree felony
that is an offense of violence and not a sex offense shall include a period of postrelease
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OHIO FIRST DISTRICT COURT OF APPEALS
control of up to three years, but not less than one year. For a third-degree felony that
is not an offense of violence, R.C. 2967.28(C) provides that any prison term shall
include a period of postrelease control of up to two years “if the parole board * * *
determines that a period of post-release control is necessary for that offender.”
{¶8} Thus, the key issue is whether aggravated vehicular assault under R.C.
2903.08(A)(1)(a) is an “offense of violence.” The Ohio Revised Code provides that an
offense of violence means any of the following:
(a) A violation of section 2903.01, 2903.02, 2903.03, 2903.04, 2903.11,
2903.12, 2903.13, 2903.15, 2903.18, 2903.21, 2903.211, 2903.22,
2905.01, 2905.02, 2905.11, 2905.32, 2907.02, 2907.03, 2907.05,
2909.02, 2909.03, 2909.24, 2911.01, 2911.02, 2911.11, 2917.01,
2917.02, 2917.03, 2917.31, 2917.321, 2919.25, 2921.03, 2921.04,
2921.34, or 2923.161, of division (A)(1) of section 2903.34, of division
(A)(1), (2), or (3) of section 2911.12, or of division (B)(1), (2), (3), or (4)
of section 2919.22 of the Revised Code or felonious sexual penetration
in violation of former section 2907.12 of the Revised Code;
(b) A violation of an existing or former municipal ordinance or law of
this or any other state or the United States, substantially equivalent to
any section, division, or offense listed in division (A)(9)(a) of this
section;
(c) An offense, other than a traffic offense, under an existing or former
municipal ordinance or law of this or any other state or the United
States, committed purposely or knowingly, and involving physical harm
to persons or a risk of serious physical harm to persons;
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OHIO FIRST DISTRICT COURT OF APPEALS
(d) A conspiracy or attempt to commit, or complicity in committing, any
offense under division (A)(9)(a), (b), or (c) of this section;
(e) [Animal cruelty under R.C. 959.131(C).]
R.C. 2901.01(A)(9).
{¶9} While this court has not addressed whether aggravated vehicular
assault meets the definition of an offense of violence, two other appellate districts have
determined that it does not. In State v. Moore, 4th Dist. Adams No. 18CA1070, 2019-
Ohio-1467, ¶ 15, the Fourth Appellate District held that aggravated vehicular assault
under R.C. 2903.08(A)(1)(a) is not an offense of violence, reasoning that R.C.
2903.08(A)(1)(a) is not one of the enumerated statutes in R.C. 2901.01(A)(9)(a) nor is
it “substantially equivalent” to any of those enumerated statutes. Id. As to R.C.
2901.01(A)(9)(c), the court explained that one does not violate R.C. 2903.08(A)(1)(a)
purposely or knowingly because violations of the OVI statute, upon which the
aggravated-vehicular-assault conviction is predicated, are strict-liability violations. Id.
Thus, the court held that the trial court erred in imposing a mandatory term of
postrelease control. Id. at ¶ 16. The Twelfth Appellate District applied the same
reasoning when it held that vehicular assault under R.C. 2903.08(A)(2)(b) also was
not an offense of violence. State v. Johnson, 12th Dist. Madison No. CA2018-06-020,
2020-Ohio-2676, ¶ 35-36.
{¶10} We agree with the reasoning of the Fourth and Twelfth Appellate
Districts and hold that aggravated vehicular assault under R.C. 2903.08(A)(1)(a) is
not an offense of violence under R.C. 2901.01(A)(9). The violation is not one of those
enumerated in division (a), nor is it substantially equivalent to any of those
enumerated offenses. Moreover, under division (c), while there is no question that the
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OHIO FIRST DISTRICT COURT OF APPEALS
offense caused physical harm, aggravated vehicular assault is a strict-liability offense.
See R.C. 2901.21(B) (“When the language defining an offense does not specify any
degree of culpability, and plainly indicates a purpose to impose strict criminal liability
for the conduct described in the section, then culpability is not required for a person
to be guilty of the offense.”); Grange Ins. Co. v. Cleveland, 2022-Ohio-4303, 203
N.E.3d 6, ¶ 15 (6th Dist.) (“Aggravated vehicular assault is a strict liability offense.”);
State v. Bremenkamp, 1st Dist. Hamilton Nos. C-130819 and C-130820, 2014-Ohio-
5097, ¶ 10 (“After all, driving under the influence is a strict liability offense[.]”).
Finally, divisions (d) and (e) are clearly not applicable. Therefore, Kamara is not
subject to mandatory postrelease control for her aggravated-vehicular-assault
conviction.
{¶11} Thus, by advising Kamara that her period of postrelease control was
mandatory, the court failed to validly impose postrelease control.
IV. Conclusion
{¶12} We sustain Kamara’s sole assignment of error. The postrelease control
portion of her sentence is reversed and the case is remanded for the proper imposition
of postrelease control consistent with the law and this opinion.
Judgment reversed and cause remanded.
ZAYAS and KINSLEY, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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