State v. BurrellState v. Burrell
Criminal Appeal from the Court of Common Pleas, Case No. 2008 CR 0125.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Holly L. Bednarski, Bednarski & Reece, L.P.A., 159 South Main Street, #300, Akron, OH 44308; Thomas M. DiCaudo, Kaffen, Zimmerman, DiCaudo & Yoder, 520 South Main Street, #500, Akron, OH 44311-1077 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Melissa L. Burrell, appeals from the judgment of the Portage County Court of Common Pleas sentencing her to an eight year term of imprisonment after entering pleas of guilty to one count of aggravated vehicular homicide and one count of operating a motor vehicle while under the influence of a drug of abuse. At issue is whether the trial court erred in imposing the prison term for the crimes to which she pleaded guilty. For the reasons that follow, we affirm.
{¶3} “I was heading on Old Forge Rd and I had the car peg[g]ed at top speed when I hit another vehical [sic] head on.”
{¶4} While discussing the crash with the officer who responded to the scene, appellant stated she was trying to commit suicide. The reconstruction report indicated appellant was traveling between 66 mph and 81 mph upon impact.
{¶5} On February 26, 2008, the Portage County Grand Jury indicted appellant on one count of felony murder, in violation of
{¶6} Appellant was released on bond pending further proceedings. In the meantime, defense counsel filed several motions, including a motion to dismiss the felony murder charge; a motion to suppress evidence of bodily fluid test results; and any evidence of appellant‘s verbal statements to officers after the crash.
{¶8} Several days later, appellant entered a written plea of guilty to one count of aggravated vehicular homicide, in violation of
{¶9} A sentencing hearing was held on June 13, 2008, at which the court received two oral victim impact statements as well as multiple documents, including several letters submitted on appellant‘s behalf. After arguing, inter alia, that the facts of the case represent “truly the worse [sic] form of this offense,” the state recommended that the court order appellant to serve a term of eight years in prison for the crimes to which she pleaded.
{¶10} In mitigation, defense counsel submitted a report from an independent reconstruction analyst indicating the position of appellant‘s vehicle at the time of impact
{¶11} After considering the information submitted at the hearing, the trial court sentenced appellant to a term of eight years in prison for aggravated vehicular homicide; and a term of 180 days in jail with a lifetime suspension of her driver‘s license for operating a vehicle under the influence. The court ordered the jail time to run concurrently with the term of imprisonment.
{¶12} Appellant now appeals and asserts two related assignments of error which we shall address together. They provide:
{¶13} “[1.] The sentenced [sic] imposed by the trial court was not reasonably calculated to achieve the overriding purposes established by O.R.C. [Sec.]
{¶14} “[2.] The sentenced [sic] imposed by the trial court was not commensurate with appellant Burrell‘s conduct nor was it consistent with sentences imposed for similar crimes committed by similar offenders.”
{¶15} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, the Supreme Court of Ohio established a two-step analysis for an appellate court reviewing a felony sentence. In the first step, we consider whether the trial court “adhered to all applicable rules and statutes in imposing the sentence.” Id. at 25. “As a purely legal question, this is subject to review only to determine whether it is clearly and convincingly contrary to law, the standard found in
{¶16} Under the first prong of Kalish, a reviewing court is required to consider whether the sentence complies with all applicable rules and statutes to ensure the sentence is not clearly and convincingly contrary to law. Id. at ¶4. As the Ninth Appellate District recently observed:
{¶17} ”Kalish did not specifically provide guidance as to the ‘laws and rules’ an appellate court must consider to ensure the sentence clearly and convincingly conforms with Ohio law. The specific mandate of Kalish is that the sentence fall within the statutory range for the felony of which a defendant is convicted. Id. at ¶15.” State v. Gooden, 9th Dist. No. 24896, 2010-Ohio-1961, at ¶48.
{¶18} Appellant‘s felony sentence for aggravated vehicular homicide was within the statutory range for a second degree felony. Appellant‘s sentence, therefore, did not go beyond or run afoul of sentencing laws as they existed at the time she was sentenced. As the imposition of appellant‘s sentence passes the first prong of Kalish, we must next determine whether the trial court abused its discretion in selecting its sentence.
{¶19} Appellant asserts several arguments to support her position that the trial court abused its discretion in sentencing her to the maximum term of imprisonment for the second degree felony to which she pleaded. First, appellant contends her eight year sentence does not serve the underlying purposes of felony sentencing; to wit: “*** to protect the public from future crime by the offender and others and to punish the offender.”
{¶20} Although appellant minimizes her criminal history, the fact remains that she has a criminal history. This does provide some foundation for the court to conclude she may recidivate. Moreover, even assuming appellant has struggled with a drug problem and mental illness, she is not entitled to excuse her criminal history on this basis. The record indicates that, at the time of the underlying incident, appellant was 20 years old. In her adult life, appellant had been convicted of three offenses, two of which were felonies. Considering these points, we believe the trial court‘s sentence was rationally calculated to protect the public from future crimes appellant would commit and punish appellant, i.e., appellant‘s sentence was reasonably fashioned to achieve the overriding purposes of Ohio‘s felony sentencing laws. We therefore find no abuse of discretion.
{¶21} Next, appellant argues her sentence was not commensurate with her conduct. We disagree.
{¶22} The record indicates appellant recklessly drove her vehicle at a high rate of speed in order to kill herself. She did so with complete disregard to the safety of the general public and other motorists. In the end, instead of accomplishing her purported
{¶23} Appellant‘s final argument alleges that her sentence was not consistent with other sentences imposed on offenders who have committed similar crime. Appellant supports her argument by listing several cases from this district wherein defendants were sentenced to lesser terms of imprisonment after being convicted of aggravated vehicular homicide. This argument is not well-taken.
{¶24} This court has held that a direct comparison of cases does not necessarily demonstrate appellant was treated in a manner inconsistent with other, similarly situated defendants. In other words, a “numerical comparison to other sentences is not dispositive of the issue of consistency” in felony sentencing. State v. Swank, 11th Dist. No. 2008-L-019, 2008-Ohio-6059, at ¶52. In holding that cases cannot be formulaically compared in the abstract, we are acknowledging that the circumstances and realities of one case will invariably differ from another. Similarly, by designating a range from which a judge can select an appropriate sentence, Ohio‘s sentencing laws recognize that some situations merit a greater punishment than others, even when different defendants commit the same crime. A felony-two, for example, is punishable between
{¶25} As discussed supra, the trial court‘s sentence was within the applicable felony range and congruent with the principles and purposes of felony sentencing. The court further stated on record that it had considered Ohio‘s sentencing statute in selecting appellant‘s sentence. We therefore hold, in adhering to the statutory framework, the trial court imposed a sentence consistent with the circumstances of the case. State v. Greitzer, 11th Dist. No. 2006-P-0090, 2007-Ohio-6721, at ¶25. (Holding consistency in sentencing is derived from the proper application of Ohio‘s felony sentencing guidelines.) We find no abuse of discretion.
{¶26} One final point deserves attention. In its response brief, the state concedes the trial court failed to properly notify appellant of postrelease control during the sentencing hearing. This issue was not assigned as error in appellant‘s brief. Nevertheless,
{¶27} Appellant‘s two assignments of error are therefore overruled.
{¶28} For the reasons discussed in this opinion, the judgment of the Portage County Court of Common Pleas is affirmed.
MARY JANE TRAPP, P.J.,
TIMOTHY P. CANNON, J.,
concur.