2007 Ohio 3850 | Ohio Ct. App. | 2007
Lead Opinion
{¶ 2} On August 5, 2005, at approximately 1:00 a.m., appellant was driving her vehicle in Kirtland Hills when she entered I-90 from the I-90 westbound exit ramp at *2 Center Street. She was heading eastbound on westbound I-90. As she entered the exit ramp, a van was exiting at that ramp. The driver flashed his headlights to warn appellant she was going the wrong way. Appellant noticed the flashing lights and realized she had entered the freeway going the wrong way. However, she did not stop, but instead continued heading toward oncoming traffic, swerving to avoid vehicles.
{¶ 3} The decedent Peter Briggs was driving his truck westbound. He swerved to avoid a collision with appellant's vehicle. Her vehicle struck the right side of Briggs' truck, causing it to spin and go into the median where it rolled over, causing his death by asphyxiation.
{¶ 4} After the collision, the responding police officer smelled a strong odor of alcohol on appellant's breath. Her eyes were bloodshot. When she exited her vehicle, she almost fell and the officer had to catch her to keep her from falling. Appellant refused to take any field sobriety tests.
{¶ 5} Appellant had been out on a date that evening. She had two glasses of wine and two beers at a restaurant and then at a bar. One hour after the crash, appellant's blood alcohol level was .12.
{¶ 6} Prior to this incident, on June 28, 2005, appellant had been arrested for driving under the influence ("OVI"), OVI refusal, and failure to control. She had refused to take any field sobriety tests and breath tests in that case. At the time of the instant incident, appellant was out on bond for the previous arrest, and her license had been suspended.
{¶ 7} Appellant was indicted for aggravated vehicular homicide with specifications for OVI and for driving under suspension ("DUS") in violation of R.C.
{¶ 8} On March 20, 2006, appellant pleaded guilty to aggravated vehicular homicide with a specification for DUS, Count 2, and to BAC, Count 4.
{¶ 9} The sentencing hearing was held on April 24, 2006. The aggravated vehicular homicide offense to which appellant pleaded guilty carried a sentence of two to eight years, and the BAC offense carried a potential sentence of six months. Appellant acknowledged her driver's license had been suspended. Diane Briggs, the decedent's daughter-in-law, testified he was a devoted husband, father and friend. She explained the devastating effect of his death on their family, and asked the court for justice in sentencing appellant. The State requested the maximum sentence for both offenses. The trial court sentenced appellant to five years in prison on Count 2 and six months in prison on Count 4, to run concurrent to the sentence on Count 2.
{¶ 10} Appellant now appeals and states her assignments of error, as follows:
{¶ 11} "[1] The trial court erred when it sentenced appellant in a manner inconsistent and disproportionate with similar Ohio cases.
{¶ 12} "[2] The trial court erred and violated appellant's rights protected by the ex post facto clause of the United States Constitution and the rule of lenity when it *4 sentenced her under a new statute and case law that put her at a severe disadvantage when compared to the law that existed at the time of the offense."
{¶ 13} In her first assignment of error, appellant argues that her sentence was inconsistent with and disproportionate to other sentences imposed for the same offense, in violation of R.C.
{¶ 14} Prior to the Ohio Supreme Court's decision in State v.Foster (2006),
{¶ 15} Appellant was sentenced pursuant to Foster, supra. InFoster the Ohio Supreme Court held that two sections of Ohio's sentencing scheme under S.B. 2 must still be followed by trial courts in sentencing. R.C.
{¶ 16} R.C.
{¶ 17} R.C.
{¶ 18} R.C.
{¶ 19} Here, appellant's position that consistency in a sentence is determined by a numerical comparison to other sentences for similar crimes lacks merit. Simply *6 because appellant's sentence was not identical to sentences in other cases does not imply that her sentence was inconsistent with sentences of other similarly situated offenders.
{¶ 20} Appellant pleaded guilty to aggravated vehicular homicide, a felony of the second degree. She was therefore subject to a mandatory prison term of two, three, four, five, six, seven, or eight years. R.C.
{¶ 21} The court stated on the record that it considered the purposes of felony sentencing under R.C.
{¶ 22} Under factors indicating a higher likelihood of recidivism, the court noted that appellant was on bail for another OVI offense when she committed the instant offense, and that she committed this offense while she was driving under suspension. Appellant pleaded guilty to the specification to Count 2 that she was driving under suspension. As a result, the court discounted her excuse that she felt her driving privileges authorized her to drive to and from a date during which she consumed alcohol. The court found that the presence of these factors indicated a greater likelihood of recidivism. Under factors indicating less likelihood of recidivism, the court noted appellant had otherwise led a law-abiding life and showed genuine remorse. *7
{¶ 23} The court found that Count 2 subjected appellant to a mandatory prison term; that after weighing these factors, a term of imprisonment was consistent with the purposes and principles of sentencing; and that she was not amenable to any available community control sanction.
{¶ 24} Upon review of the record, we hold that appellant's sentence of five years on Count 2 and six months on Count 4 are within the statutory range of penalties for the offenses to which she pleaded guilty. Moreover, the trial court properly applied and considered the statutory sentencing factors before imposing appellant's sentence. The court's sentencing thus met the consistency requirement of R.C.
{¶ 25} While we do not believe that a numerical comparison to other sentences is dispositive of the issue of consistency, we note that courts have imposed similar sentences for similar offenses. In State v.Tomkalski, 11th Dist. No. 2003-L-097,
{¶ 26} Appellant's first assignment of error is without merit. *8
{¶ 27} In her second assignment of error, appellant argues that her sentence is unconstitutional and violates the rule of lenity because she committed her crimes prior to the Supreme Court of Ohio's decision inFoster, supra, but was sentenced pursuant to the post-Foster version of R.C.
{¶ 28} Based on the authority of State v. Elswick, appellant's second assignment of error is without merit.
{¶ 29} For the reasons stated in the Opinion of this court, the assignments of error are without merit, and it is the judgment and order of this court that the judgment of the Lake County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J., concurs in judgment only,
COLLEEN MARY OTOOLE, J., concurs in part, dissents in part with Concurring/Dissenting Opinion.
Dissenting Opinion
{¶ 30} I concur with the majority regarding its disposition of the second assignment of error, but am obliged to dissent regarding disposition of the first.
{¶ 31} By her first assignment, appellant challenges the proportionality of her sentence, pursuant to R.C.
{¶ 32} In the instant case, I believe that either a de novo review, or one premised on abuse of discretion, indicates potential misapplication of those factors indicating a lower chance of recidivism.1 See, e.g., R.C.
{¶ 33} I further question the power of this panel to issue opinions overruling established precedent of this court, and purporting to be binding on other, differently constituted panels. This is in complete contravention of the principle of stare decisis.
{¶ 34} Accordingly, while concurring regarding the second assignment of error, I must dissent regarding the first.