State v. Hernandez
2017 Ohio 4157
| Ohio Ct. App. | 2017Background
- On Sept. 12, 2015, Arturo Diaz Hernandez attempted to pass vehicles in a no-passing zone, entered the oncoming lane, and struck a vehicle head-on; four passengers in the other vehicle sustained serious injuries. Hernandez fled the scene and was later found; his BAC was .238.
- He was indicted on multiple counts including aggravated vehicular assault (three counts), OVI, and driving without a license.
- On Feb. 1, 2016, Hernandez pled guilty to one count of aggravated vehicular assault (2nd-degree felony) and one count of OVI; remaining counts were nolled. A certified interpreter assisted at plea.
- At sentencing (Mar. 4, 2016) the court considered R.C. 2929.11 and 2929.12, the PSI, defense memoranda, and victim impact statements; the court noted flight from the scene, high BAC, serious victim injuries, prior misdemeanor convictions, lack of insurance and license, and limited remorse.
- The trial court imposed an eight-year prison term (the statutory maximum for a second-degree felony). Hernandez timely appealed.
- Appellate counsel filed an Anders/Toney no-merit brief; Hernandez filed a pro se brief. The Seventh District independently reviewed the record and affirmed, granting counsel permission to withdraw.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by imposing the maximum (8-year) sentence for a first felony offender | State: sentence is within statutory range and court complied with R.C. 2929.11 and 2929.12; prison is presumed necessary for these offenses | Hernandez: as a first-time felony offender, the court was limited in imposing the maximum sentence; the sentence is contrary to law | Affirmed: sentence is within statutory range; record supports sentencing findings; no clear and convincing evidence sentence is unsupported or contrary to law |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (procedure for appointed counsel to withdraw when appeal is frivolous)
- State v. Toney, 23 Ohio App.2d 203 (7th Dist. 1970) (Ohio procedure requiring appellate court review when counsel files no-merit brief)
- State v. Marcum, 59 N.E.3d 1231 (Ohio 2016) (standard for appellate review of felony sentences; clear-and-convincing standard to find record does not support sentencing findings)