State v. Liming

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[Cite as State v. Liming, 2004-Ohio-168.] IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee vs. : : C.A. CASE NO. 03CA43 T.C. CASE NO. 02CR688 BRIAN R. LIMING: (Criminal Appeal from Common Pleas Court) Defendant-Appellant : . . . . . . . . . O P I N I O N Rendered on the 16th day of January, 2004. . . . . . . . . . William F. Schenck, Pros. Attorney; Aldolfo A. Tornichio, Asst. Pros. Attorney, 61 Greene Street, Xenia, Ohio 45385, Atty. Reg. No. 0070490 Attorney for Plaintiff-Appellee Jon Paul Rion, One First National Plaza, Suite 2150, 130 West Second Street, P.O. Box 1262, Dayton, Ohio 45402, Atty. Reg. No. 0067020 Attorney for Defendant-Appellant . . . . . . . . . GRADY, J. {¶1} Defendant, Brian R. Liming, appeals from his conviction and resulting sentence for a violation of R.C. 2903.06(A)(2), aggravated vehicular homicide, which were entered on Liming s guilty plea. {¶2} R.C. 2903.06(A) provides: No person, while operating or participating in the operation of a motor vehicle . . . shall cause the death of another . . . in any of the following ways: 2 Paragraph (1) of that section states: As Four ways are set out. the proximate result of committing a violation of division (A) of section 4511.19 equivalent of the municipal Revised Code ordinance. or of a substantially Paragraph (2) states: Recklessly. {¶3} R.C. 2903.06(A)(1), which is founded on an underlying violation of R.C. 4511.19(A), the DUI statute, is a second degree felony for which a 2903.06(B)(1)(a), (C). prison term is mandatory. R.C Second degree felonies are punishable by definite terms of incarceration of two, three, four, five, six, seven, or eight years. {¶4} R.C. R.C. 2929.14(A)(2). 2903.06(A)(2), which is conduct, is a felony of the third degree. A prison term is not mandated. sanction may 2929.15(A)(1). definite years. term be imposed in founded on reckless R.C. 2903.06(B)(1)(b). Therefore, a community control lieu of incarceration. R.C. If a prison term is imposed, it must be for a of incarceration of two, three, four, or five R.C. 2929.15(A)(1). {¶5} Defendant Liming was charged by indictment with two violations of R.C. 2903.06, both arising from the death of Thomas Hawkins, a passenger in Liming s pick-up truck who was killed when it went off the road. violation of R.C. Count I of the indictment alleged a 2903.06(A(1), the alleging an underlying DUI offense. version of the offense Count II alleged a violation of R.C. 2903.06(A)(2), the version founded on reckless conduct. It is undisputed that because the two versions of the same offense are allied offenses of similar import, Liming could be 3 convicted of only one and the State would eventually have to dismiss the other charge. {¶6} R.C. 2942.25(A). Liming was injured in the accident in which Thomas Hawkins was killed. He was taken to Miami Valley Hospital in Dayton, where his blood was drawn. A subsequent blood-alcohol analysis determined that Liming s blood had a concentration of 0.124 per cent by weight of alcohol. R.C. 4511.19(A)(2) prohibits operating a motor vehicle with a concentration of 0.100 per cent or more. {¶7} Liming filed a Crim.R. 12(C)(3) motion evidence of his blood alcohol test results. conducted motion. an evidentiary hearing and to suppress The trial court thereafter denied the Liming subsequently entered a plea of guilty to the R.C. 2903.06(A)(2) offense charged in Count II of the indictment, alleging the reckless conduct offense. The State dismissed Count I, which charged the R.C. 2903.06(A)(1) offense based on a DUI violation. The court referred the matter to its probation department for a presentence investigation and report. {¶8} The sentencing hearing was held on May 16, 2003, approximately two months after Liming had entered his guilty plea. Liming was given the probation officer s written report shortly before the hearing. It contains the following conclusion and recommendation: {¶9} Probation It is the recommendation of the Greene County Adult Department §2929.11(A) and that 2929.13(B) after the available community sanctions. reviewing offender Ohio is not Revised Code amenable to 4 {¶10} The defendant tested above the legal limit for alcohol and the toxicology report showed the defendant has used marijuana at some point. Although this was an accident and not an intentional crime, one life was lost. {¶11} Therefore, it is respectfully recommended the Court sentence the defendant to the Department of Rehabilitation and Correction (Correctional Reception Center) for a period of 4 years for a violation of O.R.C. 2903.06(A)(2), Aggravated Vehicular Homicide, a felony of the third degree in Count II. Count I was dismissed. imposed. It is further recommended that no fine be The defendant is entitled to 1 day jail time credit.1 {¶12} It is also recommended that the defendant s driver s license be revoked pursuant to §4507.16 of the Ohio Revised Code. {¶13} Liming asked for a continuance to present evidence rebutting the statement in the report concerning the test results indicating an elevated blood alcohol level. His attorney stated that witnesses were available, including a police officer who had stopped Liming about one-half hour before the accident and who would testify that Liming was completely sober. (T. 5, 6). Liming stated that he d had nothing at all to drink, and that he and Hawkins had used marijuana the day before the accident. {¶14} The continuance. 1 trial court denied Liming s motion for a The court did, however, permit Liming to present The text of the written report recommends four years. However, the probation officer indicated that was an error, and that his actual recommendation was five years. (T. 11). the testimony of his parents. 5 Each stated that when they saw Liming the at the hospital after accident he symptoms of being under the influence of alcohol. did not show Liming and the State stipulated that, if called, the police officer who had stopped Liming before the accident would testify concerning Liming s demeanor, but they didn t further stipulate what his demeanor was. {¶15} Liming s attorney also moved, alternatively, to vacate Liming s guilty plea. He contended that the parties had stipulated when the plea was entered that the accident in which Thomas Hawkins was killed had resulted from a defective tire on Liming s pick-up truck. He further contended that, when he and Liming met with the probation officer, the officer agreed to confine the grounds for his sentencing recommendation to the matter of the defective tire. {¶16} The trial court vacate his guilty plea. likewise denied Liming s motion to The court stated that even though the factual stipulation by the Prosecutor at the time of the plea may have been something regarding a(n) under inflated tire, the court certainly cannot just ignore the fact that there was alcohol testing . . . at Miami Valley Hospital. (T. 13). The court added that there was no underlying agreement regarding the plea that would prevent the court from considering the evidence in imposing a sentence. (T. 14). The court later emphasized that it cannot just take the fact that there was a high concentration of alcohol in your blood and shove that under the rug and ignore it (T. 41), adding that the court has to take all relevant 6 facts into account, and those are definitely relevant facts. (T. 42). {¶17} At the conclusion of the hearing the trial court sentenced Liming to serve a five year term of incarceration, the maximum available term. R.C. 2929.15(A)(1). timely notice of appeal. The matter is now before us on three assignments of error. To facilitate our Liming filed a analysis, we will consider Liming s assignment in reverse order. {¶18} THIRD ASSIGNMENT OF ERROR {¶19} THE MATTER SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE TRIAL COURT COMMITTED TWO ERRORS IN SENTENCING. {¶20} R.C. 2929.12 requires the court to consider certain seriousness and recidivism factors when it imposes a sentence within an available statutory range of sentences. Paragraph (B)(2) of that section requires the court to consider whether [t]he victim of the offense suffered serious physical, psychological, or economic harm as a result of the offense. Defendant argues that this consideration is tautological with respect to a homicide offense, because the victim s death necessarily constitutes serious physical harm. {¶21} In its sentencing statement the court found that there was physical harm to a person. (T. 44). finding with reference to R.C. 2929.13(B). felonies of the fourth and fifth degree. The court made its That section concerns Defendant was convicted of a felony of the third degree, so the finding was not required. The court was nevertheless required by R.C. 2929.12(B)(2) to 7 consider whether serious physical harm was suffered by the victim of the offense when imposing its sentence. {¶22} Defendant first argues that the serious physical harm consideration ought not apply to a homicide offense, analogizing to the double count provisions in the Federal sentencing law that preclude reference to the same conduct to support two or more sentence enhancement provisions. similarity. We do not see a direct The matter of the victim s death is an element of the offense of aggravated vehicular homicide as R.C 2903.06(A) defines it. The serious physical harm consideration in R.C. 2929.12(B)(2) pertains to the sentence the court imposes for the offense. Because the two apply in different ways, we find no inherent conflict. {¶23} In any event, R.C. 2929.12(B)(2) requires the court only to consider whether the victim suffered serious physical harm as indicating that the offender s conduct is more serious than conduct normally constituting the offense. Id. As an R.C. 2903.06 aggravated vehicular homicide offense always involves a death, the same serious physical harm factor applies in every case. That uniform application neutralizes the matter, so as to make any one instance of aggravated vehicular homicide no more or less serious grounds. than any others founded on the same statutory In other words, every person who is found guilty of committing the offense is, subject to a like result, at least with reference to the same finding of seriousness. find that account. Defendant Liming suffered any prejudice We cannot on that 8 {¶24} Liming s second argument of error portrays reversible error that requires us to reach the trial court s sentencing judgment and remand for resentencing. {¶25} Liming was sentenced to five years imprisonment upon his conviction for a third degree felony, the maximum available term. R.C. 2929.15(A)(1). When it imposes a maximum available term of imprisonment, the court must make certain findings. 2929.14(C). The two findings that might apply to R.C. Liming s offense are that he committed the worst form of the offense and/or poses the greatest likelihood of committing future crimes. Id. The court made neither finding. {¶26} Liming s sentence was imposed upon his conviction for a single offense. When the court imposes a maximum available sentence in that instance, the court must make a finding that gives its reasons for selecting the sentence it imposed. 2929.19(B)(2)(d). R.C. The court stated no such reasons. {¶27} The Supreme Court of Ohio has held that either or both of the foregoing omissions requiring resentencing. 324. constitutes reversible error, State v. Edmonson (1999), 86 Ohio St.3d The State contends that the rule of substantial compliance should apply, because there is ample support in the record for the findings the court was required to make. Edmonson doesn t recognize application of the substantial compliance rule. Indeed, the Supreme Court s more recent holding in State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, requiring the court to orally pronounce the required statutory findings and reasons from the bench, undermines application of the substantial compliance 9 rule. {¶28} The trial court erred when it sentenced Defendant- Appellant Liming to a maximum available prison term for a single offense absent the findings and reasons that R.C. 2929.14(C) and 2929.19(B)(2)(d) require the court to make in order to impose such a sentence. that part. The third assignment of error is sustained, in Otherwise, it is overruled. {¶29} SECOND ASSIGNMENT OF ERROR {¶30} THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION BY DENYING APPELLANT S PETITION TO VACATE THE GUILTY PLEA. {¶31} Motions to withdraw pleas of guilty and no contest are governed by Crim.R. 32.1, which states: {¶32} A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed, but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea. {¶33} Crim.R. 32.1 motions to withdraw a plea made after a convicted defendant learns of his probable sentence should be weighed under the more stringent manifest injustice standard of Crim.R. 32.1 for post-sentence motions. State v. Davis (Jan. 5, 2001), Montgomery App. No. 18172, Grady, J., concurring. A manifest injustice comprehends a fundamental flaw in the path of justice so extraordinary that the defendant could not have sought redress from the resulting prejudice through another form of application reasonably available to him or her. State v. 10 Hartzell (Aug. 20, 1999), Montgomery App. No. 17499, at pp. 4-5. {¶34} Whether to grant a motion made pursuant to Crim.R. 32.1 is a matter committed to the trial court s sound discretion. State v. Xie (1992), 62 Ohio St.3d 521. The term abuse of discretion connotes more than an error of law or judgment; it implies that the court s attitude is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.3d 151, 157. {¶35} Defendant s motion was made before the court imposed a sentence but after Defendant had learned of the contents of the presentence investigation report; specifically, the matter of his blood alcohol level and the recommendation of a maximum sentence of five years. In respect to the court s consideration of those matters in imposing its sentence, Liming s burden was to show that their consideration created a manifest injustice. {¶36} Liming entered a guilty plea to an R.C. 2903.06(A)2) violation. A plea of guilty is a complete admission of guilt. Crim.R. 11(B)1). We have held that evidence of blood-alcohol test results that show a concentration of alcohol greater than the maximum that R.C. 4511.19(A)(2) permits is probative of the element offense. of recklessness in an aggravated vehicular State v. Davis (1983), 13 Ohio App.3d 265. homicide That being the case, we cannot find that the same evidence is excluded from the court s sentence for proper an consideration R.C. when 2903.06(A)(2) the court violation, imposes especially a as sentencing involves broader considerations than the particular conduct out of which a convicted defendant s offense Indeed, the court may even consider uncharged crimes. arose. State v. 11 Tutt (1988), 44 Ohio App.3d 138. {¶37} We cannot find that the trial court abused its discretion when it overruled Liming s motion to vacate his plea on the manifest injustice standard of Crim.R. 32.1. The second assignment of error is overruled. FIRST ASSIGNMENT OF ERROR {¶38} THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION WHEN IT REFUSED TO CONTINUE THE SENTENCING HEARING, AND THAT DECISION DENIED APPELLANT DUE PROCESS OF LAW. {¶39} Liming asked the court to continue the sentencing hearing to allow him to rebut the assertion in the presentence investigation report that his blood-alcohol level had tested at 0.124 per cent after the accident. motion, though it did permit The trial court denied the Liming to present evidence of limited probative value concerning his sobriety. {¶40} Liming s parents both testified that they visited him at the hospital shortly after the accident and that he did not smell of alcohol or appear intoxicated. That information was before the court, as was the stipulation discussed above. The significance of the stipulation appears to be an inference that the Beavercreek officer who had stopped Liming about one halfhour before the accident would not have let him drive away had Liming appeared intoxicated. {¶41} A presentence investigation report serves to inform the sentencing judge of relevant aspects of the defendant s history, so that the court will sentence the defendant in an informed, 12 See Machibroda v. United States responsible, and fair manner. (N.D. Ohio, 1973), 360 F. Supp. 780. The report and its contents are governed by Crim.R. 32.2 and R.C. 2951.03. Paragraph (B)(1) of that section provides that the court, at a reasonable time before imposing sentence shall permit the defendant s counsel to read the report. defendant or the Recognizing that this typically occurs only moments before the sentencing hearing, R.C. 2951.03(B)(2) states: {¶42} Prior defendant presentence sentencing, the the and to defendant s counsel to and, its investigation report court in shall permit comment the on the discretion, may permit the defendant and the defendant s counsel to introduce testimony or other information that relates to any alleged factual inaccuracy contained in the report. {¶43} Liming didn t challenge the factual accuracy of the blood-alcohol test results, at least not with respect to the procedures that were followed to obtain those results. issue had been resolved against Liming s motion to suppress. him when the court That denied Instead, Liming s challenge was to the implication the test result evidence created; that he was under the influence of alcohol when the accident occurred. Thus, he wanted to present evidence that he was sober. {¶44} The court was not required to act on the implication of intoxication or impairment the test results created. Operating a vehicle with a blood-alcohol level above the statutory maximum is contrary to the public policy of the State of Ohio, and the court could rely on that alone without reaching the matter of actual 13 impairment. {¶45} Nevertheless, the court is charged by R.C 2929.12 to consider the seriousness of an offender s conduct when it imposes a sentence. not If Liming s ability to operate a motor vehicle was substantially impaired by alcohol, notwithstanding the statutory limit, then his reckless conduct was arguably less serious, meriting less than the maximum sentence. {¶46} Narrow as this predicate cause may be, we believe that Liming was entitled to the opportunity that R.C. 2951.03(B)(2) affords him to challenge the presentence investigation report. The State argues that he was given that opportunity, when his parents testified. However, their testimony concerned Liming s condition after the accident when he had been hospitalized for injuries, not his condition before. Liming s condition before the accident was far more probative of his contention that he was not impaired. {¶47} Liming requested a continuance to obtain the needed information. record The court denied his request. sufficiently portrays the surprise We believe that the on which Liming s request was founded. {¶48} The State dismissed the more serious R.C. 2903.06(A)(1) aggravated vehicular homicide charge based on an alleged DUI violation, which alcohol test. depended on the results of Liming s blood The court had ruled the test results admissible. Nevertheless, Liming had some reason to believe that the State s decision to drop the R.C. 2903.06(A)(1) charge removed the bloodalcohol test results from consideration. 14 {¶49} Liming had additional reason to believe that the test results were not a matter determinative of the court s sentencing decision because, according to Liming, the State had stipulated at the plea proceeding that the cause of the accident was a defective tire. the plea The record before us contains proceeding. The agreement of any kind. State argues no transcript of that there was no However, the court s comment, quoted above, indicates that some such stipulation was made. If so, Liming had reason to believe that it excluded his blood-alcohol level as an operative cause of the accident. {¶50} Liming contended that the court s probation officer had privately agreed to base his recommended sentence on the matter of the defective tire. We cannot know that he did. However, it is evident that the sole basis of the officer s recommended five year maximum sentence was Liming s blood-alcohol test results. If so, the officer broke his promise, casting a shadow on his recommendation. Whether he broke his promise can t be determined absent an evidentiary hearing. {¶51} Finally, the fact that his blood alcohol level was again fully in consideration was a matter of which Liming was unaware until only moments before the sentencing hearing. might have been prepared to present implications that evidence presented. evidence to rebut He the However, on this record he may just as well not have been prepared. {¶52} As we discussed above, the court was required to weigh the seriousness of Liming s conduct when it chose which sentence to impose out of an available range. Liming s blood-alcohol test 15 results were relevant to that issue, as the probation officer s recommendation shows. Liming should challenge their factual inaccuracy. have an opportunity R.C. 2951.01(B)(2). to If a reasonable continuance is required for that purpose, the court should grant one. {¶53} These considerations largely go to Liming s contention when his motion was made witnesses to prove it. alcohol pads applied that he was sober and could call At oral argument, he also argued that to his injuries may have produced elevated blood alcohol level shown by the test result. the Some allusion was made to that proposition at the hearing on the motion to suppress, but no evidence was offered to support it. We leave it to the trial court to decide whether to hear evidence on the matter. {¶54} The first assignment of error is sustained. Conclusion {¶55} Having sustained the first assignment of error and the third assignment of error, in part, we will reverse DefendantAppellant s sentence and remand for resentencing. has no effect on his conviction. BROGAN, J. and YOUNG, J., concur. Copies mailed to: Adolfo A. Tornichio, Esq. Jon Paul Rion, Esq. Hon. J. Timothy Campbell This decision

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