State v. Rich

[Cite as State v. Rich, 2014-Ohio-4623.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2014-01-002
: OPINION
- vs - 10/20/2014
:
DANIEL GUY RICH, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR13-05-0849
Michael T. Gmoser, Butler County Prosecuting Attorney, Kimberly L. McManus, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Jonathan N. Fox, 8310 Princeton-Glendale Road, West Chester, Ohio 45069, for defendant-
appellant
RINGLAND, P.J.
{¶ 1} Defendant-appellant, Daniel Guy Rich, appeals from a decision of the Butler
County Court of Common Pleas sentencing him to a total prison term of 72 months. For the
reasons detailed below, we affirm.
{¶ 2} On May 17, 2013, appellant, while intoxicated, drove his uninsured vehicle
down Route 73 in Middletown, Ohio and collided with an oncoming vehicle driven by Rose
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Hughes. The Hughes vehicle had three passengers: William Hughes, Spirit Caskey, and a
four-month-old child. As a result of the accident, Caskey was thrown from the vehicle and
sustained severe injuries, including a broken pelvis, which required her to use a wheelchair
throughout recovery. Rose Hughes and William Hughes also suffered injuries as a result of
the collision. Fortunately, the four-month-old child was not seriously harmed.
{¶ 3} Appellant was subsequently indicted for six counts, including: (1) three counts
of aggravated vehicular assault in violation of R.C. 2903.08, each a third-degree felony; (2)
two counts of operating a vehicle under the influence in violation of R.C. 4511.19, both first-
degree misdemeanors; and (3) one count of operating a motor vehicle without a valid license
in violation of R.C. 4510.12, a first-degree misdemeanor.
{¶ 4} The parties reached a plea agreement. As a result, appellant pled guilty to the
first two counts of aggravated vehicular assault. The remaining charges contained in the
indictment were merged.
{¶ 5} The trial court ordered a presentence investigation and conducted a sentencing
hearing. Appellant presented mitigating testimony offered by two individuals at the hearing.
After hearing the evidence, the trial court sentenced appellant to 48 months in prison on
count one and 24 months in prison on count two and ordered that those sentences be served
consecutively. Appellant now appeals, raising three assignments of error for review.
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE TRIAL COURT ERRED BY SENTENCING DEFENDANT TO
CONSECUTIVE SENTENCES.
{¶ 8} In his first assignment of error, appellant argues the trial court erred by failing to
make the findings required by R.C. 2929.14(C)(4) before imposing consecutive sentences.
We find no merit to appellant's argument.
{¶ 9} Pursuant to R.C. 2929.14(C)(4), a trial court must engage in a three-step
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analysis and make certain findings before imposing consecutive sentences. State v. Setty,
12th Dist. Clermont No. CA2013-06-049, 2014-Ohio-2340, ¶ 112. First, the trial court must
find that the consecutive sentence is necessary to protect the public from future crime or to
punish the offender. State v. Dillon, 12th Dist. Madison No. CA2012-06-012, 2013-Ohio-335,
¶ 9. Second, the trial court must find that consecutive sentences are not disproportionate to
the seriousness of the offender's conduct and to the danger the offender poses to the public.
Id. Third, the trial court must find that one of the following applies:
(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.
(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 of any of the courses of conduct adequately
reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
R.C. 2929.14(C)(4)(a)-(c).
{¶ 10} "A trial court satisfies the statutory requirement of making the required findings
when the record reflects that the court engaged in the required analysis and selected the
appropriate statutory criteria." Setty at ¶ 113, citing State v. Sturgill, 12th Dist. Clermont No.
CA2013-01-002, 2013-Ohio-4648, ¶ 48. When imposing consecutive sentences, a trial court
is not required to articulate reasons to support its findings, or "to give a talismanic incantation
of the words of the statute." State v. Bonnell, ___ Ohio St.3d ___, 2014-Ohio-3177, ¶ 29.
However, the record must be sufficient for a reviewing court to determine that the court has
engaged in the required sentencing analysis and has made the findings required by the
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statute. Id. at ¶ 36. In Bonnell, the Ohio Supreme Court clarified that a trial court must
announce the requisite consecutive findings at the sentencing hearing, and the court must
incorporate those findings into the sentencing entry. Id. at syllabus.
{¶ 11} Here, the record reflects that the trial court made the findings required by R.C.
2929.14(C)(4) before imposing consecutive sentences. The trial court found that consecutive
sentences were necessary to protect the public and punish the offender. The trial court also
found that consecutive sentences were not disproportionate to the seriousness of the
conduct. Furthermore, the trial court found that appellant's history of criminal conduct
demonstrated that consecutive sentences were necessary to protect the public from future
1
crime. Specifically, the court stated:
The sentences will run consecutive to one another.
The Court will find under the circumstances of this case that the
presumption regarding concurrent sentences has been rebutted.
That * * * it is necessary that consecutive sentences be imposed
in order to adequately protect the public, punish the Defendant,
and that the imposition of consecutive sentences is not
disproportionate.
And I'll further find that the harm is so great or unusual that a
single term does not adequately reflect the seriousness of the
Defendant's conduct. And the Defendant's criminal history shows
that consecutive terms are needed to protect the public.
The trial court's findings were also journalized in its sentencing entry.
{¶ 12} From the trial court's statements at the sentencing hearing and the language
utilized in the sentencing entry, it is clear that the trial court complied with the dictates of R.C.
2929.14(C)(4). Accordingly, the trial court did not err by imposing consecutive sentences in
this matter. Appellant's first assignment of error is overruled.
{¶ 13} Assignment of Error No. 2:
1. For example, the trial court noted "there's a lot in his record to suggest that he has a horrible substance abuse
problem. He's got prior DUIs, a prior fleeing, eluding and I believe he went to prison for [that offense]."
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{¶ 14} THE TRIAL COURT ERRED BY CONSIDERING NON-STATUTORY
SENTENCING FACTORS.
{¶ 15} In his second assignment of error, appellant argues the trial court erred by
considering nonstatutory factors in the imposition of his prison term. Specifically, appellant
complains the trial court inappropriately considered evidence that he did not have a driver's
license or automobile insurance at the time of the accident. As a result, appellant argues that
his sentence is contrary to law. We disagree.
{¶ 16} "The standard of review set forth in R.C. 2953.08(G)(2) shall govern all felony
sentences." State v. Grisham, 12th Dist. Warren No. CA2013-12-118, 2014-Ohio-3558, ¶ 44,
quoting State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶ 6.
Pursuant to R.C. 2953.08(G)(2), when hearing an appeal of a trial court's felony sentencing
decision, "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." State v. Olvera, 12th Dist. Butler No. CA2012-10-199,
2013-Ohio-3992, ¶ 8; State v. Pearce, 12th Dist. Clermont No. CA2013-01-001, 2013-Ohio-
3484, ¶ 24. However, as explicitly stated in R.C. 2953.08(G)(2), "[t]he appellate court's
standard for review is not whether the sentencing court abused its discretion." Grisham at ¶
44; State v. Jackson, 12th Dist. Butler No. CA2013-10-192, 2014-Ohio-3779, ¶ 35.
{¶ 17} Instead, an appellate court may take any action authorized under R.C.
2953.08(G)(2) only if the court "clearly and convincingly finds" either: (1) "the record does not
support the sentencing court's findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant," or (2) "[t]hat the sentence is otherwise contrary to law."
Crawford at ¶ 7; Pearce at ¶ 25. A sentence is not clearly and convincingly contrary to law
where the record supports the trial court's findings under R.C. 2929.14(C)(4) and where the
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trial court considers the purposes and principles of R .C. 2929.11, as well as the factors listed
in R.C. 2929.12, and sentences within the permissible statutory range. Olvera at ¶ 8; State v.
Swift, 12th Dist. Butler No. CA2013-08-161, 2014-Ohio-2004, ¶ 31.
{¶ 18} According to R.C. 2929.12(B)(2), conduct may be considered more serious
when "[t]he victim of the offense suffered serious physical, psychological, or economic harm
as a result of the offense." The factors set forth in R.C. 2929.12 are non-exclusive and
provides that the trial court may consider "any other relevant factors." R.C. 2929.12 (B).
{¶ 19} Appellant was convicted of two counts of aggravated vehicular assault in
violation of R.C. 2903.08(A)(1)(a), a third-degree felony. The possible prison term for that
offense is 12, 18, 24, 30, 36, 42, 48, 54, or 60 months. R.C. 2929.14(3)(a). Thus, the trial
court's imposition of a 48-month sentence on count one and a 24-month sentence on count
two fell within the permissible statutory range for the offense.
{¶ 20} In making its sentencing decision, the trial court considered all of the relevant
seriousness and recidivism factors set forth in R.C. 2929.11 and R.C. 2929.12. The trial
court also noted the serious physical harm suffered by the victims as a result of appellant's
actions and prior criminal history, as well as his substance abuse problem.
The Court has considered the purposes and principles of
sentencing. The Court has weighed the recidivism and the
seriousness factors.
***
The Court will find that the Defendant in this case was
cooperative. He is remorseful. I don't think he's an ill spirited or
mean person. He's probably a great guy. But he's made some
very bad, very poor decisions regarding when he should drive,
what he should drive, whether he should have insurance. And all
those bad decisions culminated on this evening to cause some
very serious injuries to some innocent people.
{¶ 21} Based on our review, we find no error in the trial court's imposition of sentence.
The court considered the relevant seriousness factors and other relevant factors as set forth
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in R.C. 2929.12. The record does not demonstrate that the trial court considered any
inappropriate factor not permitted by law.2 Accordingly, we find that appellant's sentence is
supported by the record and is not contrary to law. Appellant's second assignment of error is
overruled.
{¶ 22} Assignment of Error No. 3:
{¶ 23} THE TRIAL COURT ERRED BY NOT TREATING THE TWO COUNTS OF
AGGRAVATED VEHICULAR ASSAULT AS ALLIED OFFENSES OF SIMILAR IMPORT.
{¶ 24} In his third assignment of error, appellant alleges the trial court erred by failing
to merge the two counts of aggravated vehicular assault. Appellant's argument is without
merit.
{¶ 25} The Ohio Supreme Court has set forth a test to determine whether offenses are
allied offenses of similar import under R.C. 2941.25. State v. Johnson, 128 Ohio St. 3d 153,
2010-Ohio-6314. Under the Johnson test, the first inquiry focuses on whether it is possible to
commit the offenses with the same conduct. State v. Kinsworthy, 12th Dist. Warren No.
CA2013-06-053, 2014-Ohio-1584, ¶ 75, citing Johnson at ¶ 48. In making this determination,
it is not necessary that the commission of one offense would always result in the commission
of the other. State v. Kwambana, 12th Dist. Clermont No. CA2013-12-092, 2014-Ohio-2582,
¶ 9. Rather, the question is merely whether it is possible for the offenses to be committed
with the same conduct. Id.
{¶ 26} If it is possible to commit both offenses with the same conduct, the court must
2. In fact, we note the record reflects it was appellant who repeatedly brought up the issue of automobile
insurance when arguing for leniency, as appellant argued that he intended on fully compensating the victims
following his release from prison. Indeed, the trial court clearly expressed a desire to move on to other topics,
noting "I don't know. You know what? I'm not going to make this sentencing hearing about some civil liability
insurance coverage." The trial court re-emphasized this point when the issue was raised again by appellant's
trial counsel: "this is a criminal sentencing hearing. I'm not making it about a restitution hearing. I'm not making
it about an insurance coverage hearing. I'm not making it about a hearing whether or not an attorney should
warrant on behalf of his client that restitution will be paid. It's not what this is about."
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next determine whether the offenses were in fact committed by the same conduct, that is, by
a single act, performed with a single state of mind. Kinsworthy at ¶ 76. If so, the offenses
are allied offenses of similar import and must be merged. Id.; Johnson at ¶ 50. On the other
hand, if the offenses are committed separately or with a separate animus, the offenses will
not merge. State v. Lane, 12th Dist. Butler No. CA2013-05-074, 2014-Ohio-562, ¶ 10, citing
Johnson at ¶ 51.
{¶ 27} As we have previously held, "where a defendant's conduct injures multiple
victims, the defendant may be convicted and sentenced for each offense involving a separate
victim. State v. Phelps, 12th Dist. Butler No. CA2009-09-243, 2010-Ohio-3257, ¶ 16; State v.
Watkins, 1st Dist. Hamilton No. C-120567, 2013-Ohio-4222, ¶ 16 ("where * * * an offense is
defined in terms of conduct towards 'another,' there is a dissimilar import for each person
affected by the conduct").
{¶ 28} Here, appellant's conduct caused serious physical harm to three victims and
seriously endangered a fourth victim, a four-month-old child. The injuries sustained by
Caskey were particularly devastating, as she was thrown from the vehicle and sustained a
broken pelvis and was confined to a wheelchair. In addition, the driver and passenger, Rose
Hughes and William Hughes also suffered injuries as a result of the accident. As a result of
a plea bargain, appellant pled guilty to only two counts of aggravated vehicular assault.
Accordingly, the trial court properly sentenced appellant to two counts of aggravated
vehicular assault. Appellant's third assignment of error is not well-taken.
{¶ 29} Judgment affirmed.
S. POWELL and M. POWELL, JJ., concur.
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