State v. GoodnightState v. Goodnight
Erik M. Jones, 1700 West Market Street, Suite 195, Akron, OH 44313-7002 (For Defendant-Appellant).
O P I N I O N
TIMOTHY P. CANNON, J.
{¶1} Appellant, Brandy D. Goodnight, appeals the judgment entered by the Lake County Court of Common Pleas. The trial court sentenced Goodnight to an aggregate prison term of nearly eight and one-half years for her convictions for aggravated vehicular homicide and operating a vehicle under the influence of alcohol (“OVI“).
{¶3} As a result of this incident, Goodnight was indicted with a total of seven counts, including one count of aggravated vehicular homicide in violation of
{¶4} Goodnight initially pled not guilty to these counts.
{¶5} Goodnight withdrew her not guilty plea and pled guilty to one count of aggravated vehicular homicide in violation of
{¶7} Goodnight filed a notice of appeal in November 2007. This court dismissed her initial appeal because it was filed more than 30 days after the trial court‘s sentencing entry. State v. Goodnight, 11th Dist. No. 2007-L-201, 2008-Ohio-528, at ¶12.
{¶8} After her initial appeal was dismissed, Goodnight filed a motion for leave to file a delayed appeal pursuant to
{¶9} Goodnight raises four assignments of error. We will address her assignments of error out of numerical order. Goodnight‘s third assignment of error is:
{¶10} “The trial court abused its discretion by sentencing appellant to maximum and consecutive terms of incarceration, where the record reveals that such terms are unreasonable.”
{¶11} After the State v. Foster decision, “[t]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences.” State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, at paragraph seven of the syllabus. The Supreme Court of Ohio, in a plurality opinion, has recently held that felony sentences are to be reviewed under a two-step process. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, at ¶26. The court held:
{¶13} “The term ‘abuse of discretion’ connotes more than an error of law or of judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” State v. Adams (1980), 62 Ohio St.2d 151, 157. (Citations omitted.)
{¶14} Initially, we note that Goodnight‘s eight-year sentence is within the statutory range for a second-degree felony, pursuant to
{¶15} Goodnight argues that her sentence is unreasonable in light of the statutory factors and guidelines contained in
{¶16}
{¶17} In its judgment entry of sentence, the trial court stated that it had “considered the purposes and principles of sentencing under
{¶18}
{¶19}
{¶21} “[A]n extensive record, and it includes as a juvenile, truant from home, unruly, truant from home, ungovernable, theft, no operator‘s license, seat belts. And as an adult sale of liquor, attempted possession of cocaine, disorderly conduct, disorderly conduct, contempt of court, disorderly conduct. Under age sale, contempt of court, disorderly conduct, contempt of court, operating a vehicle under the influence of alcohol in 2000, for which she had the opportunity to serve the driver improvement program. Not long after that - - actually a month after that another OVI, and she was ordered to undergo chemical evaluation and intervention. A warrant was issued after that for failure to pay fines. Another warrant was issued for continued [failure] to pay fines. She‘s had a few seat belt violations, [and] driving under suspension.”
{¶22} Under
{¶23}
{¶24} In this matter, the record demonstrates the trial court considered the purposes and principles of sentencing in
{¶25} Taking all of the above into consideration, we cannot say the trial court abused its discretion by sentencing Goodnight to an aggregate prison term of eight years and 180 days.
{¶26} Goodnight‘s third assignment of error is without merit.
{¶27} Goodnight‘s first assignment of error is:
{¶28} “The trial court abused its discretion by sentencing appellant to a disproportionately long term of incarceration, in violation of her constitutional rights to due process and equal protection.”
{¶29} This court has held that a “numerical comparison to other sentences is not dispositive of the issue of consistency” of felony sentences. State v. Swank, 11th Dist. No. 2008-L-018, 2008-Ohio-6059, at ¶52. In addition, this court has previously held:
{¶30} “[S]entencing consistency is not derived from the trial court‘s comparison of the current case to other sentences given to similar offenders for similar crimes. ***
{¶31} “Appellant concedes that under controlling case law, consistency is not derived from a numerical comparison to the sentences imposed on similar offenders for similar offenses, but rather from the court‘s consideration of the purposes and principles of felony sentencing in
{¶32} As noted above, the record reveals the trial court adequately considered the requisite statutory sentencing factors.
{¶33} Goodnight cites this court‘s opinion in State v. Newman for the proposition that a sentencing court is required to make sure it has all requisite information when considering the proportionality requirement of
{¶34} “However, we note that a trial court has ‘broad discretion to determine the most effective way to comply with the purposes and principles of sentencing within the statutory guidelines.’ [State v. Smith (June 11, 1999), 11th Dist. No. 98-P-0018, 1999
{¶35} We observe that this court affirmed the sentence imposed by the trial court in Newman, even though the trial court did not specifically cite any other cases. Id. at ¶12-17.
{¶36} In the case sub judice, Goodnight brought a Marion County case to the trial court‘s attention for the first time at the sentencing hearing. According to Goodnight‘s argument in her appellate brief, the sentencing hearing in the Marion County case occurred a few months prior to the sentencing hearing in the instant matter. Goodnight provided minimal information to the trial court regarding the Marion County case at the sentencing hearing. Essentially, Goodnight asks us to extend the general statement in State v. Newman – that a trial court provide itself with the requisite information to comply with the sentencing statutes – to a situation where a party gives minimal information regarding a purportedly analogous case to the court at the last minute. Such a holding would have required the trial court, in the middle of the sentencing hearing, to put everything on hold and investigate the Marion County case with nothing more than counsel‘s bare assertions as a starting point. We decline to make this extension.
{¶37} We believe the better rule is, if a criminal defendant requests that the sentencing court consider a specific case for the proportionality analysis, the burden is on the defendant, as is the case with any other evidentiary submissions, to provide the
{¶38} That being said, the trial court did make distinctions between the Marion County case and the case sub judice. The trial court noted the victims in the Marion County case were adults and had the ability to make a decision to get into the vehicle with the impaired driver. Also, the trial court noted that those victims, as adults, could have told the driver not to drive, to slow down, or to stop. However, the trial court noted that the victim in this matter was only two years old, and he had no choice about riding in the vehicle and was not able to convey similar cautionary thoughts to Goodnight. Finally, the trial court noted that there was no evidence that the offender in the Marion County case had prior OVI offenses, while Goodnight had two previous convictions for OVI.
{¶39} Goodnight‘s first assignment of error is without merit.
{¶40} Goodnight‘s second assignment of error is:
{¶41} “The appellant received ineffective assistance of counsel in violation of her rights pursuant to the Sixth Amendment of the United States Constitution and Section 10, Article I of the Ohio Constitution.”
{¶42} In State v. Bradley, the Supreme Court of Ohio adopted the following test to determine if counsel‘s performance is ineffective: “[c]ounsel‘s performance will not be deemed ineffective unless and until counsel‘s performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel‘s performance.” State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus, adopting the test set forth in Strickland v. Washington
{¶43} We note the general rule of appellate practice that “‘an appellate court‘s review is strictly limited to the record that was before the trial court, no more and no less.‘” Condron v. Willoughby Hills, 11th Dist. No. 2007-L-105, 2007-Ohio-5208, at ¶38. (Citation omitted.) See, also, State v. Ishmail (1978), 54 Ohio St.2d 402, paragraph one of the syllabus.
{¶44} There is nothing in the record revealing any more details of the Marion County case than what Goodnight‘s trial counsel provided to the trial court. On appeal, Goodnight has not attempted to supplement the record with additional materials regarding the Marion County case for the limited purpose of determining whether trial counsel‘s performance was deficient. Instead, Goodnight proposes this court contact the Marion County Clerk of Courts as a “copy of said sentencing can be procured for the cost of ten cents per page, plus postage.” We decline to sua sponte consider items outside the record.
{¶45} However, even with the current state of the record, we can still determine that Goodnight was not prejudiced by counsel‘s failure to provide additional details regarding the Marion County case. Again, the trial court distinguished this case from the Marion County case by noting Goodnight‘s prior OVI convictions and the age of the
{¶46} Goodnight‘s second assignment of error is without merit.
{¶47} Goodnight‘s fourth assignment of error is:
{¶48} “The trial court abused its discretion by permitting Assistant Chief Leonard Delcalzo to testify at appellant‘s sentencing, over the objections of defense counsel, and by considering said testimony when sentencing appellant.”
{¶49} Goodnight argues the trial court erred by allowing Assistant Chief Leonard Delcalzo of the Madison Township Police Department to testify at the sentencing hearing. Assistant Chief Delcalzo was one of the law enforcement personnel who responded to the scene of the accident. In addition, he identified six pictures of the accident scene, which were admitted.
{¶50} ”
{¶51} Part of Goodnight‘s argument is that she was prejudiced by Assistant Chief Delcalzo‘s testimony. We note the Rules of Evidence do not apply to sentencing hearings.
{¶52} Secondly, Goodnight argues that the trial court erred by considering Assistant Chief Delcalzo‘s testimony in relation to victim impact evidence.
{¶53} In affirming a sentence for burglary where a police officer testified regarding the victim‘s injuries, the Twelfth Appellate District noted the “appellant has not cited any authority that a trial court‘s findings regarding the victim must come from the victim herself.” State v. Hyland, 12th Dist. No. CA2005-05-103, 2006-Ohio-339, at ¶18. In the case sub judice, the victim was deceased. Assistant Chief Delcalzo was at the scene shortly after the accident. Thus, the trial court did not abuse its discretion by permitting Assistant Chief Delcalzo to testify regarding the accident and the condition of the victim‘s body.
{¶54} Goodnight argues Assistant Chief Delcalzo should not have been permitted to testify regarding the emotional state of himself, other police officers, and firefighters. Assistant Chief Delcalzo testified that the scene was “the most disturbing crash scene he had ever been at,” that “everybody at the scene was emotionally upset,” and that “everyone who responded will remember [the victim] for the rest of their lives.” Goodnight objected to this testimony. The trial court responded to the objection with the following comment: “[t]his is in line with a victim impact statement. A crime was committed against the state. These individuals were there to deal with the aftermath of it. The court will accept it for what it‘s worth.” (Emphasis added.)
{¶56} The trial court did not abuse its discretion by permitting this evidence.
{¶57} Finally, we note the following colloquy, which occurred at the end of Assistant Chief Delcalzo‘s testimony:
{¶58} “Q. *** And I do believe maybe Assistant Chief Delcalzo had something he wanted to say on behalf of Jonathon as well.
{¶59} “A. Your Honor, Mothers that love their children don‘t drive drunk. They don‘t drive in excess of 90 miles an hour *** [a]nd they don‘t drive under the influence of drugs. [The victim] is not in the courtroom today, but he cries from the grave for justice.”
{¶60} The final portion of Assistant Chief Delcalzo‘s testimony appears to be more consistent with an argument from an assistant prosecutor in favor of a longer
{¶61} Goodnight‘s fourth assignment of error is without merit.
{¶62} The judgment of the trial court is affirmed.
DIANE V. GRENDELL, J.,
CYNTHIA WESTCOTT RICE, J.,
concur.