State v. Demirci
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[Cite as State v. Demirci, 2013-Ohio-2399.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO,
Plaintiff-Appellee,
:
OPINION
:
CASE NO. 2011-L-142
- vs -
:
VOLKAN DEMIRCI,
:
Defendant-Appellant.
:
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 10 CR
000573.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For PlaintiffAppellee).
Timothy J. Fitzgerald, Gallagher, Sharp, Fulton & Norman, Sixth Floor, Bulkley
Building, 1501 Euclid Avenue, Cleveland, OH 44115-2108 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1}
Defendant-appellant, Volkan Demirci, appeals his convictions and
sentence for Aggravated Vehicular Assault and Operating a Vehicle Under the Influence
of Alcohol, following the entry of a written guilty plea in the Lake County Court of
Common Pleas. Demirci was sentenced to an aggregate prison term of four years. The
issues before this court are: whether a sentencing court exercises sound, reasonable,
and legal decision-making in sentencing an offender to four years’ imprisonment and
imposing a nine-year license suspension in the absence of factors enhancing the
seriousness of the crime and given a low probability of recidivism; whether a trial court
abuses its discretion by ordering restitution based on an erroneous estimation of the
offender’s ability to pay; and whether the failure to merge convictions for Aggravated
Vehicular Assault and Operating a Vehicle Under the Influence of Alcohol as allied
offenses of similar import constitutes plain error. For the following reasons, we affirm
the trial court.
{¶2}
On September 21, 2010, the Lake County Grand Jury indicted Demirci for
Aggravated Vehicular Assault (Count One), a felony of the third degree, in violation of
R.C. 2903.08(A)(1), for serious physical harm caused to Joseph P. Jukiewicz, as the
result of committing an OVI offense; Aggravated Vehicular Assault (Count Two), a
felony of the third degree, in violation of R.C. 2903.08(A)(1), for serious physical harm
caused to Melissa A. Fife, as the result of committing an OVI offense; Vehicular Assault
(Count Three), a felony of the fourth degree, in violation of R.C. 2903.08(A)(2), for
serious physical harm caused to Joseph P. Jukiewicz; Vehicular Assault (Count Four), a
felony of the fourth degree in violation of R.C. 2903.08(A)(2), for serious physical harm
caused to Melissa A. Fife; and Operating a Vehicle Under the Influence of Alcohol
(Count Five), a misdemeanor of the first degree, in violation of R.C. 4511.19(A)(1)(b),
for operating a vehicle with a concentration of eight-hundredths of one percent or more
by weight per unit volume of alcohol in his whole blood.
{¶3}
On September 23, 2010, Demirci entered a plea of not guilty.
{¶4}
On December 17, 2010, Demirci entered a Written Plea of Guilty to
Aggravated Vehicular Assault (Count One), amended to include the names of both
2
Joseph P. Jukiewicz and Melissa A. Fife, and Operating a Vehicle Under the Influence
of Alcohol (Count Five).
{¶5}
On December 21, 2010, the trial court entered a Judgment Entry
accepting Demirci’s plea and, upon the State’s motion, nolling the remaining counts of
the Indictment.
{¶6}
On February 2, 2011, a Sentencing Memorandum was filed on Demirci’s
behalf. The Memorandum detailed Demirci’s background: his birth in Germany in 1976
to Turkish parents; his emigration to the United States in 2001 on a student visa; his
marriage to a woman from Lake County; the birth of his son in 2007; an injury to his left
hand while cutting granite on a 10” table saw in 2008; his subsequent depression and
anxiety; and the breakdown of his marriage.
{¶7}
The Memorandum detailed the following factors affecting the seriousness
of his crimes: he “did not expect to cause harm to the victims”; his conduct was the
result “of his own stupidity”; and “the victims suffered significant and severe injuries.”
The Memorandum detailed the following factors affecting the likelihood of recidivism:
“he was never delinquent as a child”; he has never “been convicted of or pled guilty to a
criminal offense” (although he was charged with OVI in 2005, the charge was reduced
to reckless operation - a “traffic offense”); he “received his United States Citizenship in
January of 2010”; and he has voluntarily begun attending AA meetings and sought
treatment with a therapist.
{¶8}
The Memorandum asserted that Demirci is “utterly remorseful” for his
actions:
3
{¶9}
He asserts there is not a day goes by that he does not think of the
couple he has injured. He truly understands what kind of deep,
undesirable situation and the pain he has caused them. He knows
that they are hurting and in turn he feels their pain, and he explains
it [i]s an “irony a very strange irony … I myself have these difficult
times due to some other person’s mistake now I am the one who is
mistaken. I feel very sad and angry, and I don’t know if I can ever
forgive myself … The accident with my hand had a huge negative
impact in my life. Feeling of being disabled or loss of functions is
indescribably
awful.
I
was
always
having
a
hard
time
understanding those who say that they are half person [sic]. But
now I realize how it feels to be not complete.”
{¶10} On February 3, 2011, the sentencing hearing was held. At the hearing,
Demirci’s attorney reiterated the points made in the Sentencing Memorandum.
Demirci’s mother spoke on his behalf, stating that she was very sorry for the victims and
that Demirci tried to make a decent life for himself in this country. Demirci’s wife (they
were in the process of divorcing) spoke on his behalf, stating that Demirci has a close
relationship with their son and has taken him to counseling to prepare him for his
impending imprisonment. Demirci spoke on his own behalf, apologizing to the victims
and his own family. Demirci’s AA sponsor spoke on his behalf.
{¶11} The prosecutor addressed the court and described how Demirci struck the
victims, who were riding on a motorcycle, with his Ford F-150 “full go.” The prosecutor
described the victims’ injuries as having “repercussions for years and years to come,
4
and that will continue to affect these people’s lives.” Melissa Fife addressed the court,
describing the pain she has suffered as the result of her injuries (fractured sternum,
pelvis, and vertebrae; rods in her leg and back; knee surgery); medical bills in the
amount of $135,000; and losing her job and her home as a result of the accident.
Joseph Jukiewicz submitted a written victim impact statement. Jukiewicz continued to
suffer the effects of his injuries and had uncovered medical expenses in the amount of
$5,000. The prosecutor stated that Demirci had insurance, but that it would not cover
the costs of the victims’ injuries.
The prosecutor was unaware of how much the
insurance would be able to cover.
{¶12} At the close of the hearing, the trial court stated: “Certainly the Court
understands that the Defendant is genuinely remorseful and has very little criminal
record.
However, the Court also recognizes the extreme amount of physical,
psychological, and economic harm done to the victims in this case.” For Aggravated
Vehicular Assault (Count One), the court sentenced Demirci to serve a four-year prison
term and suspended his license for nine years. For Operating a Vehicle Under the
Influence of Alcohol (Count Five), the court sentenced Demirci to serve 180 days in jail
(concurrent with the four-year sentence imposed for Count One), imposed a fine of
$375, and suspended his license for two years. Additionally, the court ordered Demirci
to pay restitution in the amount of $5,000 to Jukiewicz and $134,928.69 to Fife.
{¶13} On February 14, 2011, the trial court issued a Judgment Entry of
Sentence.
{¶14} On November 1, 2011, Demirci filed a Motion for Delayed Appeal, which
this court granted on April 16, 2012. On December 3, 2012, this court released its
5
opinion in State v. Demirci, 11th Dist. No. 2011-L-142, 2012-Ohio-5593, affirming the
court’s judgment in part, reversing in part, and remanding the matter. The state of Ohio
later filed a timely application of reconsideration pursuant to App.R. 26(A) pertaining to
the issue of whether appellant’s convictions for aggravated vehicular assault and
operating a vehicle while intoxicated should have been merged. This court granted the
application and vacated its December 3, 2012 opinion and judgment. We now proceed
in light of the judgment granting reconsideration.
{¶15} On appeal, Demirci raises the following assignments of error:
{¶16} “[1.] The trial court committed prejudicial and reversible error in sentencing
Appellant to a four-year prison term and a nine-year driver’s license suspension for one
count of aggravated assault which near-maximum sentence frustrates the purposes and
principles of felony sentencing in Ohio Rev. Code § 2929.11 and reflects the absence of
sound, reasonable, and legal decision-making when considering the sentencing factors
listed in Ohio Rev. Code § 2929.12.”
{¶17} “[2.] The trial court erred by ordering restitution as part of Appellant’s
sentence in the amount of $139,928.69 where the record does not support the trial
court’s declaration of the Appellant’s ability to pay and/or his future ability to pay the
restitution ordered as required by Ohio Rev. Code § 2929.19(B)([5]).”
{¶18} “[3.] The trial court erred by convicting and separately sentencing
Appellant for the crimes of aggravated vehicular assault pursuant to Ohio Rev. Code
§2903.08(A)(1)(a) and operating a vehicle under the influence of alcohol pursuant to
Ohio Rev. Code § 4511.19(A)(1)(a) where those crimes should have been merged as
allied offenses of similar import pursuant to Ohio Rev. Code § 2941.25.”
6
{¶19} “[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 abuseof-discretion standard.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 26.
{¶20} The overriding purposes of felony sentencing in Ohio “are to protect the
public from future crime by the offender * * * and to punish the offender.”
R.C.
2929.11(A). “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).
{¶21} It is well-recognized that a sentencing court “has discretion to determine
the most effective way to comply with the purposes and principles of sentencing.” R.C.
2929.12(A). The Ohio Supreme Court has described a sentencing court’s discretion as
“full discretion to impose a prison sentence within the statutory range.” State v. Mathis,
109 Ohio St.3d 54, 2006-Ohio-855, paragraph three of the syllabus; State v. Ries, 11th
Dist. No. 2008-P-0064, 2009-Ohio-1316, ¶13 (“[s]uch discretion is plenary”). “[T]he trial
court is not obligated, in the exercise of its discretion, to give any particular weight or
consideration to any sentencing factor.” State v. Holin, 174 Ohio App.3d 1, 2007-Ohio6255, ¶34 (11th Dist.).
7
{¶22} Demirci does not contend that his sentence is contrary to law. Rather,
Demirci argues his sentence reflects an absence of “sound, reasonable, and legal
decision-making” given the lack of factors enhancing the seriousness of his crimes
and/or indicating a likelihood of recidivism. Demirci notes that the maximum possible
sentence for third-degree felony Aggravated Vehicular Homicide was five years.
Former R.C. 2929.14(A)(3). “Had the accident here involved an offender who would be
considered one of the worst of the worst - one with an extensive prior felony criminal
record, who had been incarcerated previously, and who showed no genuine remorse for
the serious harm inflicted on his two victims, the most prison time he could have
received would have been one-year longer than the four-year sentence imposed on
Demirci.”
{¶23} Similarly, Demirci argues that his nine-year license suspension, one year
less than the maximum potential license suspension of ten years, fails to promote his
rehabilitation or ability to make restitution.
R.C. 2903.08(B)(2) and 4510.02(A)(3).
“Demirci’s inability to drive for a total of nine-years (at this point, five more years beyond
his release from prison) will make it virtually impossible for him to find gainful
employment to satisfy whatever financial obligations he might have.”
{¶24} The trial court’s imposition of a four-year term of imprisonment and nineyear license suspension was a valid exercise of its discretion, discretion which the Ohio
Supreme Court has repeatedly described as “full.” State v. Elmore, 122 Ohio St.3d 472,
2009-Ohio-3478, ¶8; Mathis, supra, paragraph three of the syllabus; State v. Foster,
109 Ohio St.3d 1, 2006-Ohio-856, paragraph seven of the syllabus. Within the context
of felony sentencing, the Ohio Supreme Court has characterized an abuse of the
8
sentencing court’s discretion as “more than an error of law or judgment; it implies that
the court’s attitude is unreasonable, arbitrary or unconscionable.” (Citation omitted.)
Kalish, supra, at ¶19.
{¶25} Demirci’s sentence is neither unreasonable nor unconscionable. The trial
court recognized “the extreme amount of physical, psychological, and economic harm
done to the victims in this case.” Demirci contends that such harm is inherent in all
Aggravated Vehicular Assaults as part of the element of “serious physical harm” and,
therefore, an invalid consideration on which to base a sentence. We disagree.
{¶26} A sentencing court is expressly authorized to consider the “serious
physical, psychological, or economic harm [suffered] as a result of the offense.” R.C.
2929.12(B)(2). Some degree of harm is suffered by all victims of crime; the fact that
serious physical harm is an element of the crime should not preclude a court from
considering the actual injuries suffered in the exercise of its discretion to sentence.
State v. Teets, 5th Dist No. 09 CAA 37, 2009-Ohio-6083, ¶ 27.
{¶27} In the present case, the harm suffered by the victims was not merely
serious in the sense that the physical injuries were severe, but also serious in how the
injuries affected their lives.
Both victims lost their jobs and their ability to live
independently; both victims continue to suffer physical incapacity; one victim has been
forced to accept public assistance; the other victim explained that, “most importantly,”
the injuries have hindered his/her efforts to maintain their own sobriety. Consideration
of these injuries constitutes a rational and reasonable basis for the sentence imposed,
regardless of whether there were other factors that would have justified a lesser
sentence.
9
{¶28} We further note that, although Demirci only pled guilty to one count of
Aggravated Vehicular Assault, there were two victims who had their lives marred by his
crime and that his sentence may reflect the harm caused to both victims.
{¶29} Finally, Demirci contends that his sentence is inconsistent and
disproportionate with other similarly situated offenders. We disagree.
{¶30} This court has often held that “sentencing consistency is not derived from
the trial court’s comparison of the current case to prior sentences for similar offenders
and similar offenses.” (Citation omitted.) State v. Rhodes, 11th Dist. No. 2011-L-072,
2012-Ohio-1269, ¶48. “Rather, it is the trial court’s proper application of the statutory
sentencing guidelines that ensures consistency in sentencing. * * * Thus, in order to
show a sentence is inconsistent, a defendant must show the trial court failed to properly
consider the statutory factors and guidelines.” (Citation omitted.) Id. In this case, the
trial court properly considered the relevant factors of R.C. 2929.11 and 2929.12.
{¶31} The first assignment of error is without merit.
{¶32} In the second assignment of error, Demirci contends that the order to pay
$139,928.69 in restitution was based on an “erroneous and flawed” assessment of his
ability to pay.
{¶33} A “court imposing a sentence upon an offender for a felony may sentence
the offender to any financial sanction or combination of financial sanctions,” including
“[r]estitution by the offender to the victim of the offender’s crime * * *, in an amount
based on the victim’s economic loss.” R.C. 2929.18(A)(1). “Before imposing a financial
sanction under section 2929.18 of the Revised Code * * *, the court shall consider the
10
offender’s present and future ability to pay the amount of the sanction * * *.” R.C.
2929.19(B)(5).
{¶34} An order of restitution is reviewed under an abuse of discretion standard.
State v. McNaughton, 11th Dist. No. 2011-L-083, 2012-Ohio-1271, ¶28 (cases cited).
{¶35} Demirci asserts that the trial court abused its discretion in ordering him to
pay restitution in the amount of $139.928.69 in light of the following: he has not worked
since 2010; in 2008, he suffered a serious work-related injury; at his most recent
employment he was earning $15.00/hour or $2,400/month; he owes $25,000 in credit
card bills and $10,000 in attorney fees; he has child support obligations; and his license
will remain suspended for five years following his release from prison.
{¶36} Despite the difficulties identified by Demirci, the imposition of $139.928.69
does not constitute an abuse of discretion. Demirci will be thirty-eight-years-old upon
his release from prison; he is in good physical health; he has a bachelor’s degree in
international relations; and he has worked as a foreman and a stone-cutter earning as
much as $31.00/hour. The record before the trial court demonstrates that Demirci has
education, the ability to work, and over twenty-five years until the age of retirement.
{¶37} We further note that payments made by Demirci’s insurance company
through the Adult Parole Authority would be credited against the balance of restitution
ordered. As this court has observed in another case, “[i]f the remorse he expressed at
the sentencing hearing, and his determination to fight his alcoholism, are genuine, he
should be able to lead a productive life upon release, and make the requisite
payments.” State v. Anderson, 172 Ohio App.3d 603, 2007-Ohio-3849, ¶26 (11th Dist.).
{¶38} The second assignment of error is without merit.
11
{¶39} In the third assignment of error, Demirci contends the trial court erred by
failing to merge the convictions for Aggravated Vehicular Assault and Operating a
Vehicle Under the Influence of Alcohol as allied offenses of similar import.
{¶40} “The concept of merger originates in the prohibition against cumulative
punishments as established by the Double Jeopardy clauses of the Fifth Amendment to
the United States Constitution and Section 10, Article I of the Ohio Constitution.” State
v. Miller, 11th Dist. No. 2009-P-0090, 2011-Ohio-1161, ¶35, citing State v. Williams, 124
Ohio St.3d 381, 2010-Ohio-147, ¶12. The United States Supreme Court has noted,
however, “[w]ith respect to cumulative sentences imposed at a single trial, the Double
Jeopardy Clause does no more than prevent the sentencing court from prescribing
greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359,
366 (1983); accord State v. Johnson, 128 Ohio St.3d153, 2010-Ohio-6314, ¶25.
{¶41} Ohio’s merger statute, R.C. 2941.25, provides, in relevant part:
{¶42} “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.”
{¶43} In order to commit the crime of Aggravated Vehicular Assault, one must,
while operating a motor vehicle, cause serious physical harm “[a]s the proximate result
of committing a violation of division (A) of section 4511.19 of the Revised Code,” i.e.,
Operating a Vehicle Under the Influence of Alcohol. R.C. 2903.08(A)(1)(a).
{¶44} Furthermore, R.C. 2929.41(B)(3) provides, in relevant part:
{¶45} A jail term or sentence of imprisonment imposed for a
misdemeanor violation of section 4510.11, 4510.14, 4510.16,
12
4510.21, or 4511.19 of the Revised Code shall be served
consecutively to a prison term that is imposed for a felony violation
of section 2903.06, 2903.07, 2903.08, or 4511.19 of the revised
code or a felony violation of section 2903.04 of the Revised Code
involving the operation of a motor vehicle by the offender and that
is served in a state correctional institution when the trial court
specifies that it is to be served consecutively. (Emphasis added.)
{¶46} In State v. Bayer, 10th Dist. No. 11AP-733, 2012-Ohio-5469, the Tenth
Appellate District addressed the issue of whether merger is required, in light of R.C.
2929.41(B)(3), when a defendant is convicted of aggravated vehicular assault, in
violation of R.C. 2903.08, and operating a vehicle under the influence of alcohol, in
violation of R.C. 4511.19.
The court in Bayer concluded, pursuant to R.C.
2929.41(B)(3), a trial court possesses the discretion to sentence a defendant for both of
these crimes. The Bayer court noted that the statutory language evinces a legislative
intent to permit cumulative punishments where a defendant is found guilty of both
aggravated vehicular assault and operating a vehicle under the influence. Id. at ¶19-22.
Thus, the court found, the language of R.C. 2929.41(B)(3) demonstrates that these
potentially allied offenses are outside the gamut of R.C. 2941.25.. Id. The Bayer court
summarized:
{¶47} [W]here a defendant is found guilty of operating a motor vehicle
while intoxicated and is also found guilty of aggravated vehicular
assault, that defendant may be found guilty and sentenced on both.
Assuming, arguendo, that OVI and AVA are allied offenses, R.C.
13
2929.41(B)(3) creates an exception to the general rule provided in
R.C. 2941.25 that allied offenses must be merged so that a
defendant may be convicted, i.e., found guilty and sentenced, on
either the OVI or the AVA, but not both.
{¶48} We agree with the Tenth District’s interpretation of R.C. 2929.41(B)(3).
{¶49} In this case, the trial judge entered convictions for both aggravated
vehicular assault and operating a vehicle under the influence of alcohol and ordered
them to be served concurrently, an act, in this court’s view, that is authorized by the
discretion afforded the court under R.C. 2929.41(B)(3). We therefore conclude the trial
court did not err when it did not merge Demirci’s convictions for aggravated vehicular
assault and operating a vehicle under the influence of alcohol for purposes of
sentencing.
{¶50} The third assignment of error is without merit.
{¶51} For the foregoing reasons, the judgment of the Lake County Court of
Common Pleas is affirmed.
THOMAS R. WRIGHT, J., concurs,
DIANE V. GRENDELL, J., concurs in part, and dissents in part, with a Dissenting
Opinion.
________________
DIANE V. GRENDELL, J., concurs in part, and dissents in part, with a Dissenting
Opinion.
14
{¶52} I concur in the judgment and opinion of this court with respect to the first
two assignments of error. With respect to the third assignment of error, I dissent and
would reverse the judgment of the trial court so as to require the merger of the
convictions for Aggravated Vehicular Assault and Operating a Vehicle Under the
Influence of Alcohol.
{¶53} In the third assignment of error, Demirci argued the trial court erred by
failing to merge the convictions for Aggravated Vehicular Assault and Operating a
Vehicle Under the Influence of Alcohol, under Ohio’s multiple counts/allied offenses of
similar import statute, R.C. 2941.25.
{¶54} The Ohio General Assembly’s intent on the subject of cumulative
punishments for the same conduct is expressed by R.C. 2941.25, the multiple counts or
allied offenses of similar import statute, which “manifests the General Assembly’s intent
to permit, in appropriate cases, cumulative punishments for the same conduct.” State v.
Rance, 85 Ohio St.3d 632, 710 N.E.2d 699 (1999), paragraph three of the syllabus,
overruled in part on other grounds by State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio6314, 942 N.E.2d 1061.1 The allied offenses statute addresses the issue of “whether
cumulative punishments imposed within a single trial for more than one offense
resulting from the same criminal conduct violate the federal and state constitutional
provisions against double jeopardy.” Id. at 639. “The sole question, then, is one of
state statutory construction: are the offenses at issue those certain offenses for which
1. The Ohio Supreme Court in Johnson overruled Rance “to the extent that it calls for a comparison of
statutory elements solely in the abstract under R.C. 2941.25.” 2010-Ohio-6314, at ¶ 44. The third
paragraph of the syllabus in Rance, therefore, remains unaffected, including the proposition that “R.C.
2941.25’s two-step test answers the constitutional and state statutory inquiries.” 85 Ohio St.3d 632, at
paragraph three of the syllabus.
15
the General Assembly has approved multiple convictions pursuant to R.C. 2941.25?”
Id.
{¶55} Ohio’s multiple counts statute provides:
{¶56} (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.
{¶57} (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.
{¶58} Demirci
pled
guilty
to
Aggravated
Vehicular
Assault,
R.C.
2903.08(A)(1)(a), as charged in Count One of the Indictment: “VOLKAN DEMIRCI did,
while operating a vehicle * * *, cause serious physical harm * * * as the proximate result
of committing a violation of R.C. Section 4511.19(A) * * *: Operating a Vehicle Under the
Influence of Alcohol.”
Demirci also pled guilty to the underlying predicate offense,
Operating a Vehicle Under the Influence of Alcohol, R.C. 4511.19(A)(1)(b), as charged
in Count Five of the Indictment.
16
{¶59} As several courts have recognized, Aggravated Vehicular Assault is an
allied offense of similar import, under R.C. 2941.25, to the underlying offense of
Operating a Vehicle Under the Influence of Alcohol.
{¶60} Conduct that constitutes the offense of aggravated vehicular
assault, R.C. 2903.08(A)(1)(a), necessarily also constitutes the
offense of operation of a vehicle while under the influence of
alcohol * * *, because commission of that predicate offense is a
necessary component of the resulting aggravated vehicular assault
offense.
Because the predicate offense is subsumed into the
resulting offense, the two are allied offenses of similar import for
purposes of R.C. 2941.25(A). * * * Defendant may be convicted of
only one, unless the two offenses were committed separately or
with a separate animus as to each. R.C. 2941.25(B).
State v. West, 2nd Dist. No. 23547, 2010-Ohio-1786, ¶ 43-44; State v. Mendoza, 6th
Dist. No. WD-10-008, 2012-Ohio-5988, ¶ 10; State v. Phelps, 12th Dist. No. CA200909-243, 2010-Ohio-3257, ¶ 32.
{¶61} The majority concludes that a sentencing court has “discretion” as to
whether the trial court may enter separate convictions for Aggravated Vehicular Assault
and its underlying predicate offense of Operating a Vehicle Under the Influence of
Alcohol. Supra at ¶ 49. I disagree.
{¶62} The majority’s decision is based solely on the recent Tenth District Court
of Appeals decision, State v. Bayer, 10th Dist. No. 11AP-733, 2012-Ohio-5469.
17
{¶63} The Tenth District acknowledged that, under the multiple counts statute,
the State may charge a defendant with two or more offenses of similar import, but may
only obtain one conviction. Id. at ¶ 19. The court further noted that, “where other more
specific legislative statements of legislative intent exist, a court may consider those
statements in determining whether the General Assembly intended to allow imposition
of cumulative punishments for allied offenses.” Id. The court found a statement of
“more specific” legislative intent in R.C. 2929.41(B)(3): “A jail term or sentence of
imprisonment imposed for a misdemeanor violation of * * * 4511.19 of the Revised Code
shall be served consecutively to a prison term that is imposed for a felony violation of * *
* 2903.08 * * * of the Revised Code * * * when the trial court specifies that it is to be
served consecutively.”
{¶64} The Tenth District construed the statutes as follows:
{¶65} The General Assembly * * * clearly reflected its intent that a trial
court may, in its discretion, sentence a defendant for both OVI and
AVA. That intent conflicts with the intent reflected in R.C. 2941.25.
That is, R.C. 2929.41 evidences the intent of the legislature that
those two offenses should not merge‒a conclusion that necessarily
follows from the fact that a trial court could not order sentences to
be served consecutively unless the court had first imposed more
than just one sentence.
Id. at ¶ 21. The court of appeals concluded that “the trial court had the discretion,
pursuant to R.C. 2929.41(B)(3), to enter convictions of both OVI and AVA and to
sentence appellant to serve consecutive sentences for those two crimes.” Id. at ¶ 22.
18
{¶66} The Bayer decision is not persuasive.
The statute relied upon, R.C.
2929.41, addresses the issue of whether sentences may be served concurrently or
consecutively, not whether allied offenses must be merged. The idea that trial courts
have discretion as to whether allied offenses should merge is dubious. The General
Assembly established the constitutional parameters for imposing multiple punishments
for the same offense in R.C. 2941.25, not R.C. 2929.41. Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314, 942 N.E.2d 1061, at ¶ 26 (a “defendant is not placed in jeopardy twice
for the same offense so long as courts properly apply R.C. 2941.25 to determine the
intent of the General Assembly with regard to the merger of offenses”).
A careful
consideration of the Ohio Supreme Court’s jurisprudence demonstrates this point.
{¶67} The Ohio Supreme Court has stated that merger, for the purposes of R.C.
2941.25, occurs after a verdict is returned (or plea entered) and before sentencing.
“Allied offenses of similar import do not merge until sentencing, since a conviction
consists of verdict and sentence.” State v. McGuire, 80 Ohio St.3d 390, 399, 686
N.E.2d 1112 (1997); Johnson at ¶ 47 (“[u]nder R.C. 2941.25, the court must determine
prior to sentencing whether the offenses were committed by the same conduct”). If the
trial court must apply R.C. 2941.25 prior to sentencing, it does not “necessarily” follow,
as the Tenth District concluded, that R.C. 2929.41(B)(3) constitutes an exception to the
multiple counts statute, inasmuch as R.C. 2929.41(B)(3) could only apply to allied
offenses where the offenses are committed separately and/or with a separate animus.
{¶68} In
other
words,
the
situation
addressed
in
R.C.
2929.41(B)(3)
presupposes separate convictions and sentences for Aggravated Vehicular Assault and
Operating a Vehicle Under the Influence of Alcohol. As the Bayer court surmised, “a
19
trial court could not order sentences to be served consecutively unless the court had
first imposed more than just one sentence.” 2012-Ohio-5469, at ¶ 21. The multiple
counts statute, as shown above, is applied prior to sentencing and prevents separate
convictions from being entered.
{¶69} In State v. Green, 11th Dist. No. 2011-L-037, 2012-Ohio-2355, this court
applied such reasoning to reject the State’s argument that R.C. 2929.14(E)(3) mandates
that a conviction for Grand Theft must be served consecutively to any other prison
terms imposed, including those for allied offenses.
We held: “The imposition of a
mandatory consecutive sentence for Grand Theft is conditional upon the offender’s
conviction for Grand Theft. As noted above, the merger of allied offenses occurs at the
time of sentencing, i.e., prior to conviction ‘since a conviction consists of verdict and
sentence.’ McGuire, 80 Ohio St.3d at 399, 686 N.E.2d 1112.” Id. at ¶ 67.
{¶70} The position that R.C. 2929.41 does not constitute an exception to the
multiple counts statute is further supported by the Ohio Supreme Court’s decision in
State v. Moss, 69 Ohio St.2d 515, 433 N.E.2d 181 (1982).
{¶71} In Moss, the Supreme Court construed both statutes at issue herein. The
court recognized that “R.C. 2929.41 does empower trial courts, in a single criminal
proceeding, to sentence defendants to serve consecutive terms of imprisonment for the
violation of more than one criminal statute.” Id. at 518. But, rather than finding that
R.C. 2929.41 was an exception to the constitutional limitations expressed in R.C.
2941.25, the court found R.C. 2929.41 was subject to those limitations. “The trial
court’s discretion to order such cumulative sentences is not, however, constitutionally
20
unbridled. The General Assembly must have, in effect, authorized the imposition of the
consecutive sentences.” Id. at 518-519.
{¶72} In considering whether the imposition of consecutive sentences under
R.C. 2929.41 was duly authorized, the Supreme Court looked to the multiple counts
statute. The court concluded: “The General Assembly then has authorized trial courts,
in a single criminal proceeding, to convict and to sentence a defendant for two or more
offenses, having as their genesis the same criminal conduct or transaction, provided
that the offenses (1) were not allied and of similar import, (2) were committed separately
or (3) were committed with a separate animus as to each offense.” Id. at 519.
{¶73} In the present case, the offenses of Aggravated Vehicular Assault and
Operating a Vehicle Under the Influence of Alcohol offenses were allied offenses and
were not committed separately or with a separate animus. Accordingly, they should
have been merged prior to the imposition of sentence, according to R.C. 2941.25.
Since only one conviction could have been entered, the question of whether the trial
court could exercise its discretion to impose concurrent or consecutive sentences under
R.C. 2929.41 does not arise. Demirci’s convictions should be reversed and this case
remanded for merger and resentencing.
{¶74} For the foregoing reasons, I respectfully dissent.
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