STATE OF OHIO, Plaintiff-Appellee, - vs - VOLKAN DEMIRCI, Defendant-Appellant.
CASE NO. 2011-L-142
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
May 28, 2013
[Cite as State v. Demirci, 2013-Ohio-2399.]
CYNTHIA WESTCOTT RICE, J.
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 10 CR 000573. Judgment: Affirmed.
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
{¶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
{¶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
{¶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:
{¶9} He asserts there is not a day goes by that he does not think of the
{¶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,
{¶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
{¶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
{¶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
{¶18} “[3.] The trial court erred by convicting and separately sentencing Appellant for the crimes of aggravated vehicular assault pursuant to
{¶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.”
{¶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.”
{¶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.
{¶24} The trial court‘s imposition of a four-year term of imprisonment and nine-year 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
{¶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.”
{¶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.
{¶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
{¶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.”
{¶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.
{¶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.3d 153, 2010-Ohio-6314, ¶25.
{¶41} Ohio‘s merger statute,
{¶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
{¶44} Furthermore,
{¶45} A jail term or sentence of imprisonment imposed for a misdemeanor violation of section
{¶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
{¶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,
{¶48} We agree with the Tenth District‘s interpretation of
{¶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
{¶50} The third assignment of error is without merit.
{¶51} For the following 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.
STATE OF OHIO, Plaintiff-Appellee, - vs - VOLKAN DEMIRCI, Defendant-Appellant.
CASE NO. 2011-L-142
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
{¶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,
{¶54} The Ohio General Assembly‘s intent on the subject of cumulative punishments for the same conduct is expressed by
{¶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.
{¶58} Demirci pled guilty to Aggravated Vehicular Assault,
{¶60} Conduct that constitutes the offense of aggravated vehicular assault,
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. CA2009-09-243, 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.
{¶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
Id. at ¶ 21. The court of appeals concluded that “the trial court had the discretion, pursuant to
{¶67} The Ohio Supreme Court has stated that merger, for the purposes of
{¶68} In other words, the situation addressed in
{¶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
{¶70} The position that
{¶71} In Moss, the Supreme Court construed both statutes at issue herein. The court recognized that ”
{¶72} In considering whether the imposition of consecutive sentences under
{¶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
{¶74} For the following reasons, I respectfully dissent.