THE STATE OF OHIO, APPELLEE, v. EARLEY, APPELLANT.
Nos. 2014-1278 and 2014-1454
Supreme Court of Ohio
Submitted June 10, 2015—Decided November 10, 2015.
145 Ohio St.3d 281, 2015-Ohio-4615
LANZINGER, J.
{¶ 14} We affirm.
Judgment affirmed.
O‘CONNOR, C.J., and PFEIFER, O‘DONNELL, LANZINGER, KENNEDY, FRENCH, and O‘NEILL, JJ., concur.
Duane Gregley, pro se.
Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for appellee.
{¶ 1} In this case, we are asked to determine whether a trial court may impose cumulative sentences for aggravated vehicular assault in violation of
I. Case Background
{¶ 2} A Cuyahoga County Grand Jury indicted appellant, Antonia Earley, on two counts of aggravated vehicular assault, one count of endangering children, two counts of OVI, and one count of using weapons while intoxicated, all with forfeiture specifications. Earley pleaded guilty to one count of aggravated vehicular assault, a felony of the third degree, in violation of
{¶ 3} Earley appealed her sentences, claiming that aggravated vehicular assault is an allied offense of OVI and that they should have merged. The court of
{¶ 4} The appellate court certified that its decision conflicted with State v. West, 2d Dist. Montgomery No. 23547, 2010-Ohio-1786, 2010 WL 1632316; State v. Mendoza, 6th Dist. Wood No. WD-10-008, 2012-Ohio-5988, 2012 WL 6617859; and State v. Phelps, 12th Dist. Butler No. CA2009-09-243, 2010-Ohio-3257, 2010 WL 2723103. In those cases, without addressing the possible impact of
{¶ 5} We accepted the conflict certified to us by the Eighth District Court of Appeals:
When the offense of operating a motor vehicle while under the influence in violation of
R.C. 4511.19(A)(1) is the predicate conduct for aggravated vehicular assault in violation [of]R.C. 2903.08(A)(1) , are the two offenses allied, and if so, doesR.C. 2929.41(B)(3) create an exception that allows a trial court to impose a sentence for both offenses?
140 Ohio St.3d 1450, 2014-Ohio-4414, 17 N.E.3d 597. We also accepted the proposition of law raised in Earley‘s discretionary appeal:
When the offense of operating a vehicle while under the influence,
R.C. 4511.19(A)(1)(a) , is the predicate conduct for aggravated vehicular assault,R.C. 2903.08(A)(1)(a) , Ohio‘s allied-offense statute,R.C. 2941.25 , must be considered before a court may determine whether concurrent or consecutive sentences will be imposed under [R.C.] 2929.41(B)(3) . Fifth and Fourteenth Amendments, United States Constitution; Section 10, Article I, Ohio Constitution;R.C. 2941.25 .
140 Ohio St.3d 1451, 2014-Ohio-4414, 17 N.E.3d 598.
II. Analysis
{¶ 6} The specific language found in
{¶ 7}
(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.
(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.
{¶ 8} While
A jail term or sentence of imprisonment imposed for a misdemeanor violation of section
4510.11 ,4510.14 ,4510.16 ,4510.21 , or4511.19 of the Revised Code shall be served consecutively to a prison term that is imposed for a felony violation of section2903.06 ,2903.07 ,2903.08 , or4511.19 of the Revised Code or a felony violation of section2903.04 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.
B. The Parties’ Arguments
{¶ 9} Earley argues that her aggravated-vehicular-assault and OVI offenses are allied offenses of similar import pursuant to State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, and that the trial court committed plain error when it sentenced her for both.
{¶ 10} The state responds that the trial court properly sentenced Earley for both aggravated vehicular assault and OVI. It argues that the plain language of
C. The Offenses Are Not Allied Offenses of Similar Import
{¶ 11} We conclude that the trial court did not err in sentencing Earley for both OVI in violation of
{¶ 12} We have applied a three-part test under
As a practical matter, when determining whether offenses are allied offenses of similar import within the meaning of
R.C. 2941.25 , courts must ask three questions when defendant‘s conduct supports multiple offenses: (1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation? An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered.
Ruff at ¶ 31; see also id. at paragraphs one, two, and three of the syllabus.
{¶ 13} The two particular offenses at issue here—felony aggravated vehicular assault under
(A) No person, while operating or participating in the operation of a motor vehicle, * * * shall cause serious physical harm to another person or another‘s unborn in any of the following ways:
(1)(a) As the proximate result of committing a violation of division (A) of section
4511.19 of the Revised Code or of a substantially equivalent municipal ordinance.
{¶ 14}
(A)(1) No person shall operate any vehicle * * * within this state, if, at the time of the operation, any of the following apply:
(a) The person is under the influence of alcohol, a drug of abuse, or a combination of them.
OVI in violation of
{¶ 15} By criminalizing aggravated vehicular assault under
{¶ 16} Thus, because the affirmative answer to the first Ruff question allows Earley to be separately convicted of each offense, the trial court did not commit plain error—and did not err at all—in not merging the convictions.
D. R.C. 2941.25 and 2929.41(B)(3) Have Independent Effect
{¶ 17} We further hold that
{¶ 18} The allied-offense statute,
{¶ 20} By explicitly providing that a sentence for a violation of
III. Conclusion
{¶ 21} We accordingly hold that a trial court may impose cumulative sentences for aggravated vehicular assault in violation of
Judgment affirmed.
O‘CONNOR, C.J., and PFEIFER and O‘NEILL, JJ., concur.
O‘DONNELL, KENNEDY, and FRENCH, JJ., concur in judgment.
O‘DONNELL, J., separately concurring.
{¶ 22}
{¶ 24} It provides:
(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.
(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.
{¶ 25}
A jail term or sentence of imprisonment imposed for a misdemeanor violation of section * * *
4511.19 of the Revised Code shall be served consecutively to a prison term that is imposed for a felony violation of section * * *2903.08 * * * when the trial court specifies that it is to be served consecutively.
(Emphasis added.)
{¶ 26} By using this language, the General Assembly expressed its intent to vest a sentencing court with discretion to impose consecutive sentences for the felony of aggravated vehicular assault and a misdemeanor OVI offense whenever the court exercises its discretion to impose sentence in that fashion. In State v. Kreischer, 109 Ohio St.3d 391, 2006-Ohio-2706, 848 N.E.2d 496, this court stated: “[W]hen the General Assembly has plainly and unambiguously conveyed its legislative intent, there is nothing for a court to interpret or construe, and therefore, the court applies the law as written.” Id. at syllabus.
{¶ 27} The majority concludes that
{¶ 28} The allied offense statute provides general rules on whether multiple sentences may be imposed, whereas
{¶ 29} Accordingly, regardless of whether the felony offense of aggravated vehicular assault and the misdemeanor offense of OVI qualify as allied offenses of similar import for purposes of
{¶ 30} For this reason, I concur in the judgment entered in this case.
KENNEDY and FRENCH, JJ., concur in the foregoing opinion.
Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Brett Hammond and T. Allan Regas, Assistant Prosecuting Attorneys, for appellee.
Timothy Young, Ohio Public Defender, and Nikki Trautman Baszynski, Assistant Public Defender, for appellant.
Kitrick, Lewis & Harris Co., L.P.A., Mark Kitrick, and Elizabeth Mote, urging affirmance for amicus curiae Mothers Against Drunk Driving.
Ron O‘Brien, Franklin County Prosecuting Attorney, and Michael P. Walton, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Franklin County Prosecuting Attorney Ron O‘Brien.