State v. Galindo-BarjasState v. Galindo-Barjas
WAITE, J.
{¶1} Appellant Victor M. Galindo-Barjas appeals his felony sentence of two consecutive four-year prison terms after pleading guilty to two counts of aggravated vehicular assault, third degree felonies, and one count of operating a motor vehicle under the influence of alcohol (“OMVI“), a first degree misdemeanor. The trial court sentenced Appellant to less than the ten-year prison term recommended by the prosecutor. Appellant argues that the court abused its discretion by basing its sentence on the harm to victim when “serious physical harm” was already а part of the definition of aggravated vehicular assault. Appellant argues that the court cannot use an element of the crimes as a factor supporting consecutive sentences. In this instance, we cannot agree. Even though “serious physical harm” is an element of aggravated vehicular assаult, there is a range of harm possible within the concept of what constitutes “serious physical harm.” The court was permitted to consider the kind and extent of harm to the victim as a basis for the sentence even though it forms an element of the crime as well. Appellant‘s further assertion that the trial court failed to сonsider any other relevant factor is mere speculation that is not supported by the record.
{¶2} Appellant also contends that the imposition of consecutive sentences was incorrect because the court did not give reasons to support consecutive sentences. Appellant seems to be aware that, under the newly enacted sentencing statutes, the trial court must make certain findings before imposing consecutive sentences, but the law does not require the judge to articulate reasons in support of
{¶3} On July 25, 2011, Appellant was involved in a head-on car collision. There were two people in the other vehicle, and they suffered severe injuries from the accident. Appellant was intoxicated at the time. He was indicted on November 16, 2011. Appellant pleaded guilty to two counts of aggravated vehicular assault,
{¶4} On January 27, 2012, the trial court held a sentencing hearing. One of the victims, Lauren Carissimi, testified at the hearing about the extent of her injuries. She sustained a broken humerus bone, torn neck ligaments, and suffered radial nerve palsy. (1/27/12 Tr., p. 4.) She testified that the accident “caused unspeakable, unthinkable, unimaginable despair, pain, suffering, deep grief emotionally and physically to me and everyone around me, and it is very difficult for me to put it into wоrds.” (1/27/12 Tr., p. 5.) She thought she was going to die. She was hospitalized and endured surgery. She has had both physical and psychological therapy because of the accident. She also stated that her boyfriend‘s injuries “were far worse than mine.” (1/27/12 Tr., p. 4.) She requested imposition of the maximum possible punishment for the crime.
{¶6} The court sentenced Appellant to two prison terms of four years each for the two felony counts, to be served consecutively, and 180 days in jail for OMVI, to be served concurrently. The court included the statutory findings required to impose consecutive prison terms as set forth in newly revised
ASSIGNMENT OF ERROR
THE TRIAL COURT‘S SENTENCE OF TWO (2) CONSECUTIVE FOUR (4) YEAR TERMS OF IMPRISONMENT WAS CONTRARY TO LAW AND CONSTITUTED AN ABUSE OF DISCRETION.
{¶7} Appellant asserts two sentencing errors under this assignment. First, he argues that the trial court abused its discretion by considering an element of the crime as an aggravating sentencing factor. Appellant states that the trial court imposed consecutive sentences based on the serious physical harm suffered by the victims, even though “serious physical harm” is one of the elements of aggravated
{¶8} We review felony sentences using both the “clearly and convincingly contrary to law” standard and the “abuse of discretion” standard. State v. Gratz, 7th Dist. No. 08MA101, 2009-Ohio-695, ¶8; State v. Gray, 7th Dist. No. 07MA156, 2008-Ohio-6591, ¶17. The reviewing court first determines whether the sentencing court complied with all applicable rules and stаtutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. Gratz at ¶8, citing State v. Kalish, 120 Ohio St .3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶13-14. Then, if the sentence is not clearly and convincingly contrary to law, the reviewing court must determine whether the sentencing court abused its discretion in applying the factors in
{¶9}
{¶10} Assuming for the sake of argument that the judge did consider only one factor at sentencing, Appellant further contends that the court should not have relied on serious physical harm to enhance the sentence because it is part of the definition оf the crime. Aggravated vehicular assault is defined in
No person, while operating or participating in the operation of a motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft, shall cause serious physical harm to another person or another‘s unborn in any of thе 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; (Emphasis added.)
{¶11} Appellant submits that to enhance a sentence, the court must look to some fact beyond or besides one which comprises a bаsic element of the crime. In some instances, Appellant would be correct. He cites State v. Stroud, 7th Dist. No. 07 MA 91, 2008-Ohio-3187, in support. In Stroud, the defendant was convicted of voluntary manslaughter. An element of the offense is that the defendant knowingly caused the death of another. The trial court sentenced the defendant to the
{¶12} The crime with which Appellant is charged is not comparable to the crime discussed in Stroud. There are no varying degrees of “death,” whereas “serious physical harm” can take an endless variety of forms. In this case, the victims almost died from their injuriеs, suffering multiple broken bones, nerve and ligament damage, and unendurable pain. The damage is permanent, according to the testimony of the victims. Any one injury to either of the victims could be treated as serious physical harm: one broken bone; one torn ligament; or one cut requiring surgery. The record indicates that the victims suffered multiple serious injuries. In addition, the definition of the crime refers only to physical harm, whereas the sentencing statute refers to physical, psychological or economic harm.
{¶13} Moving on to the argument regarding whether the court properly explained its reasons for imposing cоnsecutive sentences, Appellant correctly posits
(4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve thе prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offendеr poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for а prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the сourses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶14} Prior to 2006, Ohio sentencing law created presumрtions that offenders be given minimum, concurrent terms of incarceration. See former
{¶15} The reasoning in Foster was partially called into question by Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), in which the United States
{¶16} However, the newly-enacted revision of the consecutive sentencing statute has reestablished the requirement that the sentencing judge make certain findings before imposing consecutive sentences. See, e.g., State v. Wilson, 8th Dist. No. 97657, 2012-Ohio-4153, ¶13 (court must again state its findings to support consecutive sentences at the sentencing hearing and in the judgment entry pursuant to the new statute, citing State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473, paragraph one of the syllabus.); State v. Just, 9th Dist. No. 12CA0002, 2012-Ohio-4094, ¶48-49 (court need not explain its reasons for making the consecutive sentencing findings, as the new statute does not require it); State v. Stalnaker, 11th Dist. No. 2011-L-151, 2012-Ohio-3028, ¶15 (trial court must again state the required findings on the record to impose consecutive sentences, but not its reasons supporting those findings).
{¶17} Prior to Foster, the sentencing statutes required bоth findings and reasons in support of those findings in order for a consecutive sentence to be imposed. Foster eliminated both requirements. The recently enacted law is not simply a reenactment of the pre-Foster statute, but is an entirely new law, and the new law requires only that the court make certain findings.
{¶18} A court may impose consecutive sentences under
{¶19} The trial court made the necessary findings in this case and stated them at the sentencing hearing (1/27/12 Tr., p. 19) and in the judgment entry. An appellate court may only sustain an assignment of error challenging the imposition of consecutive sentences under
{¶20} Because we have disposed of Appellant‘s two arguments in his sole assignment of error, the assignment of error is overruled and the judgment of the trial court is affirmed.
Donofrio, J., concurs.
DeGenaro, P.J., concurs.