State v. Roberts

[Cite as State v. Roberts, 2016-Ohio-903.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-140331
TRIAL NO. B-1205235
Plaintiff-Appellee, :
vs. :
O P I N I O N.
RANDY ROBERTS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: March 9, 2016
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Scott A. Rubenstein and John D. Hill, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} Randy Roberts was convicted of drunk driving following a hit-skip
accident. Because he had seven prior drunk-driving convictions, he was also convicted
of a repeat-OVI-offender specification. The trial court sentenced him to consecutive
prison terms of five years on the specification and five years on the underlying OVI
offense, a third-degree felony. He now appeals, arguing that his OVI conviction was
against the manifest weight of the evidence, that his attorney was ineffective, and that
his sentence was contrary to law. We find no merit in his challenges to his convictions.
The sentence is a different matter. A recent Ohio Supreme Court decision makes clear
that the felony-three charge for which he was convicted carries a maximum penalty of
three years in prison rather than the five years to which he was sentenced. As a
consequence, we vacate the sentence and remand for resentencing.
I. Background
{¶2} Susan Jacobson was waiting to turn left at a traffic light at the corner of
Knowlton Street and Hamilton Avenue when she spotted in the rear-view mirror a
vehicle speeding towards her. The vehicle struck her car, forcing it across two lanes of
traffic and onto the sidewalk facing the opposite direction. She looked up to see a black
SUV fishtailing away. Emergency personnel had to cut Ms. Jacobson from her vehicle.
The car was totaled. Its rear and side windows were gone, the back end was destroyed,
and the top was crushed in. She suffered neck injuries, required months of physical
therapy, and has chronic pain as a result of her injuries.
{¶3} A UPS driver, Dorian Stone, arrived at the accident scene as the black
SUV was pulling away. After confirming that Ms. Jacobson’s injuries were not life-
threatening, he resumed his delivery route. A few minutes later, he noticed a black SUV
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OHIO FIRST DISTRICT COURT OF APPEALS
with front-end damage. A man, later identified as Mr. Roberts, was surveying the
damage. Mr. Stone called the police. While Mr. Stone was on the phone, Mr. Roberts
walked up to him, asked if he was calling the police, and said that he had just been in an
accident.
{¶4} The police took Mr. Roberts into custody. Because Mr. Roberts had
seven prior OVIs within the previous 20 years, he was charged with two, third-degree
felony OVIs with the repeat-offender specification, leaving the scene of an accident, and
driving while under an OVI suspension. After a jury trial, he was convicted of leaving
the scene of an accident, driving while under an OVI suspension, and one OVI with the
accompanying repeat-offender specification. The court sentenced Mr. Roberts to five
years of incarceration on the repeat-offender specification to be served consecutively to
five years of incarceration on the underlying felony OVI. He received 180 days each on
the remaining two counts. Mr. Roberts now appeals.
II. Manifest Weight
{¶5} In his first assignment of error, Mr. Roberts claims his OVI conviction
was against the manifest weight of the evidence. Mr. Roberts does not dispute that he
was intoxicated, nor does he dispute that the Ford SUV was the vehicle that struck Ms.
Jacobson’s car. The only issue Mr. Roberts disputes is whether he was the person
driving the Ford SUV.
{¶6} Mr. Stone testified that he found Mr. Roberts surveying the damage to
the black, Ford SUV immediately after the accident, and that Mr. Roberts admitted that
he had just been in an accident. Mr. Roberts argues that Mr. Stone’s account was
unreliable because Mr. Stone lacked credibility. But the fact-finder is in the best position
to determine the credibility of evidence, particularly with regard to witness testimony.
State v. Bryan, 101 Ohio St. 3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 116; State v.
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OHIO FIRST DISTRICT COURT OF APPEALS
Williams, 1st Dist. Hamilton Nos. C-060631 and C-060668, 2007-Ohio-5577, ¶ 45.
Based upon our review of the record—including a weighing of the evidence and all
reasonable inferences, and consideration of the credibility of the witnesses—we
cannot conclude that the jury so clearly lost its way as to create a manifest
miscarriage of justice. See State v. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d
541 (1997).
III. Ineffective Assistance
{¶7} In his second assignment of error, Mr. Roberts asserts he was deprived
of his constitutional right to effective assistance of counsel. To succeed on his
ineffective-assistance claim, Mr. Roberts must establish that his trial counsel was
deficient, and that, absent his counsel’s errors, the result of the proceedings would have
been different. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984); see also State v. Pickens, 141 Ohio St. 3d 462, 2014-Ohio-5445, 25
N.E.3d 1023, ¶ 199.
{¶8} Most of Mr. Roberts’s complaints about his trial attorneys are premised
on assertions that are not demonstrated by the record in this case. We are unable to
determine on appeal whether ineffective assistance of counsel occurred where the
allegations of ineffectiveness are based on facts dehors the record. State v. Cooperrider,
4 Ohio St. 3d 226, 228, 448 N.E.2d 452 (1983).
{¶9} The only conduct Mr. Roberts complains of that appears in the record is
his trial counsel’s failure to object to a statement by the prosecutor in closing argument.
During closing argument, the prosecutor stated that Officer Matthew Latzy had testified
that Mr. Roberts matched the description of the driver of the black SUV that had been
provided to him by witnesses to the accident. This characterization of Officer Latzy’s
testimony was incorrect; indeed, the court had refused to allow the officer to provide
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OHIO FIRST DISTRICT COURT OF APPEALS
hearsay testimony about the description of the driver. Thus, the prosecutor’s statement
was improper. But in light of the isolated nature of the comment, and the overwhelming
other evidence in the record, we cannot conclude that the result of the proceedings
would have been different but for defense counsel’s failure to object. The second
assignment of error is overruled.
IV. Sentencing
{¶10} In his third assignment of error, Mr. Roberts argues the trial court
imposed a sentence that is contrary to law. We agree.
{¶11} While this case was pending, the Ohio Supreme Court decided State v.
South, 144 Ohio St. 3d 295, 2015-Ohio-3930, 42 N.E.3d 734. In South, the court clarified
that offenders convicted of a third-degree-felony OVI and a repeat-offender specification
under R.C. 2941.1413, as Mr. Roberts was here, are subject to two different sentencing
ranges. See id. at ¶ 19. First, offenders are subject to a mandatory one-to-five year
sentence for the repeat-offender specification, which must be served prior to and
consecutive to any additional prison term for the underlying OVI conviction. Id.
Second, the court may impose a discretionary term of nine to 36 months for the
underlying third-degree-felony OVI itself. Id. Because Mr. Roberts was sentenced to
five years on the underlying OVI conviction, his sentence is contrary to law. The state
concedes this was in error, and we remand for resentencing in accordance with South.
The third assignment of error is sustained.
V. Conclusion
{¶12} We reverse Mr. Robert’s sentence as contrary to law and remand for
resentencing. We affirm in all other aspects.
Judgment affirmed in part, reversed in part, and cause remanded.
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OHIO FIRST DISTRICT COURT OF APPEALS
H ENDON , P.J., and C UNNINGHAM , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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