STATE OF OHIO v. PAUL P. IVKOVICH
Appellate Case No. 27465
Trial Court Case No. 2015-CR-2577
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
February 16, 2018
[Cite as State v. Ivkovich, 2018-Ohio-609.]
TUCKER, J.
(Criminal Appeal from Common Pleas Court)
Rendered on the 16th day of February, 2018.
MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Rеg. No. 0084470, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
BROCK SCHOENLEIN, Atty. Reg. No. 0084707, 371 West First Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant
I. Facts and Procedural History
{¶ 2} Early in the morning of April 30, 2015, Ivkovich was driving in the vicinity of the intersection of East Third Street and McDonough Street in Dayton, accompanied by Sharon M. Crawford. See Tr. of Proceedings 185-186; Appellant’s Br. 3. At approximately 2:25 a.m., Ivkovich’s vehicle collidеd with one of the pillars supporting the railroad overpass spanning Third Street. See Tr. of Proceedings 185-186; Pl.’s Mem. in Opp’n to Def.’s Mot. to Suppress 3, Apr. 18, 2016; see also Def’s Mot. to Suppress 3, Nov. 30, 2015. Ivkovich and Crawford were taken to Miami Valley Hospital, where Crawford was pronounced dead. Appellant’s Br. 3; Appellee’s Br. 2.
{¶ 3} A uniformed officer with the Dayton Police Department reported to the hospital’s trauma center between 2:45 and 3:00 a.m. to speak with Ivkovich. Tr. of Proceedings 64-65. In response to the officer’s inquiry, Ivkovich acknowledged that he was driving when his vehicle struck the pillar and told the officer that he and Crawford had left a bar shortly beforehand. Id. at 68. Prompted by an odor of alcohol, the officer
{¶ 4} On October 20, 2015, a Montgomery County grand jury issued a two-count indictment charging Ivkovich with: (1) aggravated vehicular homicide under
{¶ 5} On November 30, 2015, Ivkovich moved to suppress the results of the analysis of his blood as well as the statements he made while in Miami Valley Hospital. Following a hearing, the court overruled Ivkovich’s motion with respect to this evidence in a decision docketed on May 16, 2016, and on December 12, 2016, Ivkovich pleaded no contest to both of the charges set forth in the indictment. The State did not agree to make a sentencing recommendation in exchange for Ivkovich’s pleas. Tr. of Proceedings 226.
{¶ 6} At Ivkovich’s sentencing hearing on January 17, 2017, the court mergеd the two counts of the indictment, and the State elected to proceed on Count 1 (aggravated vehicular homicide under
II. Analysis
{¶ 7} Ivkovich’s first and second assignments of error relate to the trial court’s ruling on his motion to suppress.1 Appellate “review of a motion to suppress presents a mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. As the trier of fact, a trial court “is in the best position to weigh * * * evidence * * * and evaluate [the credibility of] witness[es],” so an “appellate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence.” Id., citing State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Graves, 12th Dist. Clermont No. CA2015-03-022, 2015-Ohio-3936, ¶ 9, citing State v. Cruz, 12th Dist. Preble No. CA2013-10-008, 2014-Ohio-4280, ¶ 12. Accepting the trial court’s findings of fact as true, “the appellate court must then independently determine, without deference to the [trial court’s legal] conclusion[s],” whether the “facts satisfy the applicable * * * standard.” Burnside, 2003-Ohio-5372, ¶ 8, citing Fanning, 1 Ohio St.3d
{¶ 8} For his first assignment of error, Ivkovich contends that:
THE TRIAL COURT ERRED IN DETERMINING THAT THE BLOOD DRAW WAS CONDUCTED IN SUBSTANTIAL COMPLIANCE WITH THE OHIO ADMINISTRATIVE CODE.
{¶ 9} Ivkovich presents a quadripartite argument that the trial court should have suppressed the results of the analysis of his blood. First, he posits that because the State did not establish the expiration date of the test kit used to obtain specimens, it failed to demonstrate that the results of the analysis were reliable. Second, he challenges the authenticity of the specimens introduced into evidence by the State at the hearing on his motion to suppress. Third, he insists the State failed to prove that the analysis of his blood comported with the requirements of
{¶ 10} Regarding the first part of Ivkovich’s аrgument, when a defendant moves to suppress the results of a blood test “in an aggravated vehicular homicide prosecution that depends upon proof of driving under the influence in violation of
{¶ 11} In his motion to suppress, Ivkovich argued that the “manner of the blood draw, and the handling and [the] testing of the blood, was done in violation of the regulations [appearing in
DEFENSE COUNSEL: This expiration [date] on the [test kit] is a sticker, is that correct?
WITNESS: Correct.
DEFENSE COUNSEL: Is there any way to tell when that was placed there?
WITNESS: I would have no clue.
{¶ 12} Even if the issue had been raised in the trial cоurt, Ivkovich suggested only in the most general terms that the test kit might have been expired, meaning that the State would have had only a “fairly slight” burden to “establish substantial compliance” with the applicable regulations. Bissaillon, 2007-Ohio-2349, ¶ 12; see also State v. Johnson, 137 Ohio App.3d 847, 851-853, 739 N.E.2d 1249 (12th Dist.2000). In this respect, the phlebotomist testified on direct examination that checking the expiration date of a test kit is standard procedure, and when shown the kit he used to obtain a specimen from Ivkovich, he verified that the kit’s expiration date had not yet passed at the time he used it. Tr. of Proceedings 19-23 and 29-34. The State accordingly demonstrated that the analysis of Ivkovich’s blood substantially complied with regulatory requirements to the extent of the test kit’s expiration date.
{¶ 13} Regarding the second part of Ivkovich’s argument, Ivkovich notes that the
{¶ 14} Assuming for sake of analysis that Ivkоvich did raise the issue in the trial court, thereby preserving it for appeal, the testimony adduced by the State at the hearing on his motion to suppress sufficed to establish the authenticity of the samples. The phlebotomist testified that the sample vials entered into evidence by the State were the same vials he had used to draw Ivkovich’s blood, and the officer who revised the attached documentation indicated that he simply “corrected” a “couple of items,” including changing the “offense location” from the hospital’s address to the address at which the accident occurred, and adding the name of the Dayton Police officer in charge of the investigation of the accident. Tr. of Proceedings 29-32 and 111-116. As well, the officer who asked Ivkovich to consent to the blood draw testified that he personally witnessed the phlebotomist fill and label the sample vials, and while on the stand, he authenticated the vials—among other things, pointing to the presence of his own initials and those of the
{¶ 15} Regarding the third part of Ivkovich’s argument, Ivkovich claims the State did not meet its burden to demonstrate that the analysis of his blood satisfied the requirements of
{¶ 16} Irrespective of forfeiture, however, Ivkovich’s argument lacks merit. Under
{¶ 17} Similarly, though Ivkovich claims that the State did not meet its burden to show that the equipment used “was calibrated on the schedule required by
{¶ 18} Regarding the fourth part of Ivkovich’s argument, he characterizes the record as insufficient to show that the samples of his blood were retained for a minimum of one year as required by the Ohio Administrative Code; he contended in his motion to suppress that the State “improperly stored and maintained” the samples of his blood, meaning that he has not clearly forfeited this issue on appeal.2 Appellant’s Br. 11-12;
{¶ 19} We find that the issues presented by Ivkovich in support of his first assignment of error either lack merit or have been forfeited as a result of his failure to raise them before the trial court. Consequently, Ivkovich’s first assignment of error is overruled.
{¶ 20} In his second assignment of error, Ivkovich contends that:
THE TRIAL COURT ERRED IN FINDING THAT APPELLANT’S BLOOD SAMPLE WAS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY OFFERED.
{¶ 21} Here, Ivkovich argues that he did not genuinely consent to provide samples of his blood to the Dayton Police. See Appellant’s Br. 12. He insists that under the
{¶ 22} Prior to his arrest, a suspect “may voluntarily * * * submit to a blood test to determinе the concentration of alcohol in [his] blood.” City of Fairfield v. Regner, 23 Ohio App.3d 79, 491 N.E.2d 333 (12th Dist.1985), paragraph one of the syllabus; see also State v. Hill, 2d Dist. Montgomery No. 25717, 2014-Ohio-1447, ¶ 12 (citing Regner with approval). Whether the suspect consents “voluntarily” is a question of fact and should be evaluated in light of the circumstances. See, e.g., State v. Black, 2d Dist. Montgomery No. 23524, 2010-Ohio-2916, ¶ 34; State v. Cooper, 6th Dist. Lucas No. L-15-1083, 2016-Ohio-3093, ¶ 21. As part of its evaluation, a court should generally consider:
- Whether the suspect was in custody against his will;
- Whether ” ‘coercive police procedures were used’ ” to obtain consent;
- The ” ‘extent and level of the [suspect]’s cooperation with police,’ ” if any;
- The suspect’s ” ‘awareness of his * * * right to refuse consent’ “;
- The suspect’s ” ‘education and intelligence’ “; and
- Whether the suspect beliеved ” ‘that no incriminating evidence [would] be found.’ ”
See Black, 2010-Ohio-2916, ¶ 35-41, quoting State v. Loyer, 8th Dist. Cuyahoga No. 87995, 2007-Ohio-716, ¶ 9. As noted above, Ivkovich presents this assignment of error
{¶ 23} In the instant case, the trial court found that although Ivkovich “was on a gurney” when he consented to the blood draw, he was “not in custody at the time” becausе he was neither under arrest nor in handcuffs; was “free to ignore the questions” posed by the Dayton Police officer; and was theoretically “free to leave.” Decision, Order & Entry Overruling Def.’s Mot. to Suppress in Part 11, May 16, 2016. It determined that the officer did not employ coercive tactics or make threats to obtain Ivkovich’s consent, noting that “numerous hospital staff [were] in the trauma room with [Ivkovich] while [the officer] was there,” and it credited the officer’s testimony that Ivkovich “was very cooperative, did not have slurrеd speech, * * * responded to * * * questions appropriately and had a normal demeanor.” Id. at 11-12; compare with Tr. of Proceedings 65-72. Based upon these findings of fact, the court held that Ivkovich’s “consent for the blood draw was freely and voluntarily given.” Decision, Order & Entry Overruling Def.’s Mot. to Suppress in Part 12.
{¶ 24} We concur with the trial court. Ivkovich was not in custody when he consented to provide samples of his blood, and the officer’s testimony, as well as that of the phlebotomist, indicate that Ivkovich appeared coherent and able to respond intelligently to inquiries. Absent any evidence of coercion, we find that the first, second and third of the foregoing six factors favor the trial court’s conclusion.
{¶ 25} Despite the fact that the officer intentionally did not advise Ivkovich of his
{¶ 26} The parties have offered little or no evidence of Ivkovich’s education and intelligence, but Ivkovich himself indicated at his plea hearing that he holds a master’s degree. Tr. of Proceedings 227. Given that Ivkovich was therefore fully capable of understanding the significance of the officer’s request, the fifth factor also supports a finding of voluntariness. The sixth factor, on the other hand, favors Ivkovich’s position—he must have known that the results of the blood analysis would likely incriminate him. See Tr. of Proceedings 69.
{¶ 27} On balance, however, consideration of the six factors supports the trial court’s conclusion that Ivkovich consented voluntarily to the blood draw. Ivkovich’s second assignment of error is overruled.
{¶ 28} For his third assignment of error, Ivkovich contends that:
APPELLANT’S PLEA COULD NOT HAVE BEEN ENTERED KNOWINGLY AND INTELLIGENTLY BECAUSE THE TRIAL COURT DID NOT APPRISE APPELLANT ABOUT THE MANDATORY NATURE OF THE REQUIRED PRISON TERMS.
{¶ 29} Ivkovich claims that at his plea hearing, the trial court failed to inform him
{¶ 30} After the bailiff called Ivkovich’s plea hearing to order, the parties notified the court that they had reached a plea agreement, and the court questioned Ivkovich about his personal background. The court then discussed the nature of the offenses to which Ivkovich intended to plead no contest, leading to the following discussion:
THE COURT: * * *. Count 1 is classified as a felony of the second degree. With that classification the maximum penalty in terms of incarceration is eight years in prison. Do you understand that?
IVKOVICH: Yes.
THE COURT: The maximum penalty in terms of a fine for that offense is $15,000. Do you understand that?
IVKOVICH: Yes.
THE COURT: Count 2 is classified as a felony of the third degree. With that classification the maximum penalty in terms of incarceration is—we have different types of felony 3s. I believe with this one it’s probably[] the maximum, five years.
THE STATE: It is, Your Honor.
THE COURT: Counsel agree. Okay. Maximum penalty in terms of incarceration is five years. Do you understand that?
IVKOVICH: Yes.
THE COURT: Maximum penalty in terms of fine is $10,000. Do you understand that?
IVKOVICH: Yes.
* * *
THE STATE: And, Your Honor, also when you indicated on Count Number 1 that it was a felony of the second degree, a maximum of eight years in prison, that is a mandatory sentence.
THE COURT: Do you understand that with regarding to Count 1, Mr. Ivkovich—
IVKOVICH: Yes.
THE COURT: —that the [c]ourt cannot consider community control sanctions or probation? There will be a prison sentence. You understand that?
IVKOVICH: M-hum. Yes.
Tr. of Proceedings 228-230. As this exchange illustrates, the court did inform Ivkovich that his sentence pursuant to
{¶ 31} In the argument accompanying his third assignment of error, Ivkovich relies entirely on the fact that the trial court did not speak the word “mandatory” in its remarks. This argument is without merit. Ivkovich’s third assignment of error is overruled.
{¶ 32} For his fourth assignment of error, Ivkovich contends that:
THE TRIAL COURT IMPROPERLY ENHANCED APPELLANT’S SENTENCE BY MAKING FACTUAL FINDINGS THAT WERE EITHER IMPROPER OR INCONSISTENT WITH THE EVIDENCE.
{¶ 33} Although the trial court did not impose any sentence “enhancement,” Ivkovich insists that the court erred to his рrejudice in its application of
{¶ 34} On review of a felony sentence, “an appellate court may vacate or modify [the] sentence * * * only if it determines by clear and convincing evidence that the record does not support the trial court’s findings under relevant statutes or that the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1; see also
{¶ 35} Here, the termination entry reflects that the trial court merged Count 1 and Count 2 of the indictment for sentencing purposes, and the State elected to proceed on Count 1, which charged Ivkovich with violating
{¶ 36} The trial court expressly stated during Ivkovich’s sentencing hearing that it had considered the provisions of
{¶ 37} Although this argument has merit to the extent that the trial court considered Crawford’s death as a factor indicating that Ivkovich’s conduct was more serious than conduct normally constituting a violation of
{¶ 38} Ivkovich also faults the trial cоurt for its determination “that [his] relationship with [Crawford] facilitated the offense.” Tr. of Proceedings 251; see also
{¶ 39} The premise underlying these suggestions is an obvious straw man. That is, Ivkovich presupposes that his relationship with Crawford, his “longtime girlfriend,” could not have made his offense more serious for purposes of
{¶ 40} Having reviewed the record, we find that it supports the trial court’s findings for purposes of
III. Conclusion
{¶ 41} We find that the securing, testing and retention of Ivkovich’s blood substantially complied with the requirements established by the Ohio Administrative Code; that Ivkovich voluntarily consented to provide samples of his blood for toxicological analysis; that the trial court informed him that he would have to serve a mandatory period of incarceration; and that the sentence imposed by the trial court was not contrary to law. Therefore, we overrule Ivkovich’s assignments of error and affirm the triаl court’s ruling on his motion to suppress, the acceptance of his plea agreement and the sentence imposed.
. . . . . . . . . . . . .
HALL, J., concurs.
DONOVAN, J., concurring in judgment only.
Mathias H. Heck, Jr.
Heather N. Jans
Brock Schoenlein
Hon. Timothy N. O’Connell