State v. OliverState v. Oliver
For Plaintiff-Appellee: Atty. Paul J. Gains, Mahoning County Prosecutor; Atty. James E. MacDonald, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Louis M. DeFabio, 4822 Market Street, Suite 220, Youngstown, Ohio 44506
OPINION
WAITE, J.
{¶2} Appellant successfully challenged the very same sentence, which the trial court originally imposed on September 11, 2007 in State v. Oliver, 2008-Ohio-6371, based on the trial court‘s failure to place on the record its consideration of the factors set forth in
{¶3}
{¶4} “(b) If a police officer pursues an offender who is violating division (B) of this section and division (C)(5)(a) of this section applies, the sentencing court, in determining the seriousness of an offender‘s conduct for purposes of sentencing the offender for a violation of division (B) of this section, shall consider, along with the factors set forth in sections
{¶5} “(i) The duration of the pursuit;
{¶6} “(ii) The distance of the pursuit;
{¶8} “(iv) Whether the offender failed to stop for traffic lights or stop signs during the pursuit;
{¶9} “(v) The number of traffic lights or stop signs for which the offender failed to stop during the pursuit;
{¶10} “(vi) Whether the offender operated the motor vehicle during the pursuit without lighted lights during a time when lighted lights are required;
{¶11} “(vii) Whether the offender committed a moving violation during the pursuit;
{¶12} “(viii) The number of moving violations the offender committed during the pursuit;
{¶13} “(ix) Any other relevant factors indicating that the offender‘s conduct is more serious than conduct normally constituting the offense.”
{¶14} In Oliver I, we stated, “[t]hese factors do not need to be expressly mentioned nor do specific findings as to the factors need to be shown is that the trial court considered the factors.” (Internal citations omitted.) Id. at ¶28. As a consequence, the trial court, at the resentencing hearing, simply stated that it had considered the factors listed in the statute before re-imposing the original sentence. (2/4/08 Tr., pp. 14-15.)
{¶15} A succinct summary of the trial testimony relevant to this appeal was provided in Oliver I:
{¶17} “During the early morning hours of May 8, 2006, Boardman Police were called to the BP on the corner of South Avenue and Rt. 224. (Tr. 184). The clerk at the BP called the police about two suspects, a male and female, that had previously shoplifted at that store. (Tr. 184, 250). The clerk indicated that the two suspects were driving a 1990 maroon Pontiac with license plate number DRU6603. (Tr. 185-186). Those two suspects were later identified as Willie Oliver and Alicia Adams. (Tr. 263).
{¶18} “The officer did not see the suspects or the car when he checked the BP, however, he did notice them leaving Doral Drive. He proceeded to follow them to I-680. When the vehicle entered the I-680 on ramp, the officer activated his overhead lights. (Tr. 187). At that point the Bonneville accelerated, left the road a couple of times, fishtailed and almost crashed. (Tr. 188). The officer testified that he ended the pursuit because of the danger to the driver and passenger and any other vehicles on the road. (Tr. 189, 210).” Oliver I at ¶2-4.
{¶19} In his first assignment of error, Appellant contends that the trial court abused its discretion when it imposed a four year sentence for failure to comply with the order or signal of a police officer, and that the sentence itself was contrary to law. In his supplemental assignment of error, Appellant contends that the trial court
ASSIGNMENT OF ERROR NO. 1
{¶20} “THE TRIAL COURT‘S SENTENCE OF FOUR (4) YEARS OF IMPRISONMENT WAS CONTRARY TO LAW AND CONSTITUTED AN ABUSE OF DISCRETION.”
{¶21} We review felony sentences using two standards of review. We must determine whether the sentence is contrary to law and whether it constitutes an abuse of discretion. State v. Gratz, 7th Dist. No. 08MA101, 2009-Ohio-695, ¶8; State v. Gray, 7th Dist. No. 07MA156, 2008-Ohio-6591, ¶17. A sentence is clearly and convincingly contrary to law when the sentencing court does not comply with all applicable rules and statutes in imposing the sentence. Gratz, at ¶8, citing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶13-14. An abuse of discretion may occur if the sentencing court unreasonably or arbitrarily weighs the factors in
{¶22} For a felony of the third degree, the minimum sentence is one year and the maximum sentence is five years. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender.
{¶23} The sentencing court has discretion to determine the most effective way to comply with the purposes and principles of sentencing set forth in section
{¶24} Turning to Appellant‘s challenges to the sentence imposed in this case, he first argues that the trial court failed to articulate any consideration of the statutory factors at all. Therefore, he claims, the sentence is contrary to law. In the alternative, he argues that “if the trial court‘s rote recitation that it considered the seriousness factors suffices,” the sentence imposed constitutes an abuse of discretion. (Appellant‘s Brf., p. 13).
{¶25} The trial court in this case did not mention any of the factors listed in
{¶27} With respect to the factors listed in
{¶28} Appellant further argues that the court abused its discretion in imposing a four year sentence based on sentences previously imposed by Ohio courts for more egregious violations of the statute. For instance, the Eighth District Court of Appeals affirmed a four year sentence in State v. Jones, 8th Dist. No. 477530, 2008-Ohio-802, ¶17, where the defendant ran stop signs while leading police on a 90 mph chase through an active school zone. Another defendant who led police on a two mile chase at speeds reaching 120 mph through a busy construction zone on Interstate 71 received a 17 month sentence. See State v. Battle, 8th Dist. No. 82503, 2003-Ohio-4951, at ¶3-5.
{¶30} Moreover, in the case sub judice, during the limited time that the officer pursued Appellant, Appellant‘s car “accelerated, left the road a couple of times, fishtailed and almost crashed. (Tr. 188).” Oliver I at ¶4. Although the chase was brief, the trial testimony established that Appellant recklessly operated his car in a particularly dangerous area of the road; the on-ramp of a highway.
{¶31} In addition to Appellant‘s reckless conduct during the commission of the crime, his trial counsel conceded that, even without the attempted murder charge erroneously included in his pre-sentence investigation report, see infra, Appellant had a lengthy criminal history. Moreover, Appellant was on parole when he committed the crimes at issue in this appeal. Therefore, the trial court did not abuse its discretion in imposing a four year sentence.
{¶32} Because Appellant‘s sentence is not contrary to law and does not constitute an abuse of discretion on the part of the trial court, Appellant‘s first assignment of error is overruled.
{¶33} “THE TRIAL COURT ERRED, PURSUANT TO OHIO REVISED CODE §2951.03(B)(5), BY IMPOSING A SENTENCE WITHOUT MAKING A FINDING AFTER THE DEFENDANT MADE SPECIFIC OBJECTIONS TO AN ALLEGED, PRIOR CONVICTION IN THE PRE-SENTENCE REPORT. FURTHER, THE APPELLANT WAS DENIED DUE PROCESS OF LAW AT THE SENTENCING HEARING.”
{¶34} At the original sentencing hearing, the state recommended the maximum sentence. The state relied upon Appellant‘s criminal record, arguing:
{¶35} “[B]ased upon the pre-sentence investigation,* * *[Appellant] has been convicted of 15 different offenses. Four of those were felonies, including one for attempted murder. [Appellant] served a seven-year period on this attempted murder charge, which may even indicate that his record would be worse if he was out during that period.” (9/11/07 Tr., p. 3.)
{¶36} Appellant‘s trial counsel objected to the content of the presentence report, stating that Appellant was never convicted of attempted murder. According to his trial counsel, Appellant has a common name, which he shares with both his father and his son, who have both been convicted of a number of crimes, and one other Willie Oliver, who his trial counsel had represented in Youngstown Municipal Court. Trial counsel explained that, “[b]ecause of that, some of this has bled across into the PSI.” (9/11/07 Tr. p., 7.) However, even without the erroneous information, trial counsel conceded that Appellant had “a lengthy record.” (9/11/07 Tr. p., 6.)
{¶38} “[Appellant] was convicted of a robbery, an aggravated felony two, in Trumbull County in 1995. It is a pre-Senate Bill 2 robbery, so that‘s why it‘s an agg [sic] felony two. It was an indefinite sentence, which was three to 15 years, which was the minimum, and he had a firearm specification. He basically has served about ten years of that sentence because he‘s serving part of that sentence now on a parole violation based on this case. He has a felony receiving stolen property from Judge Durkin‘s [sic] that I believe arose some time in 2004, and he has these cases. So there certainly is a criminal record there; however, I think when you‘re doing this balancing test, * * * recidivism certainly is more likely than not * * * *” (2/4/09 Tr., p. 11.)
{¶39} The record reflects that in addition to the crimes listed by his trial counsel, Appellant has previous convictions for assault, drug abuse, drug possession, theft, carrying a concealed weapon, and mishandling a firearm in a motor vehicle. Appellant does not argue that he was not convicted of these crimes. Based on Appellant‘s criminal history, his counsel conceded at the resentencing hearing that “recidivism certainly is more likely than not,” and that Appellant, “hasn‘t responded favorably to rehabilitative efforts in the past.” (2/4/09 Tr., pp. 10-11.)
{¶41}
{¶42} “(5) If the comments of the defendant or the defendant‘s counsel, the testimony they introduce, or any of the other information they introduce alleges any factual inaccuracy in the presentence investigation report or the summary of the report, the court shall do either of the following with respect to each alleged factual inaccuracy:
{¶43} “(a) Make a finding as to the allegation;
{¶44} “(b) Make a determination that no finding is necessary with respect to the allegation, because the factual matter will not be taken into account in the sentencing of the defendant.”
{¶45} Interpreting
{¶46} The facts in this case are similar to the facts presented in State v. Elder, 8th Dist. No. 80677, 2002-Ohio-3797. In Elder, the Eighth District Court of Appeals
{¶47} Because the record does not reflect that the trial court relied on an erroneous conviction, which appears to have been mistakenly included in the original PSI, in imposing sentence at Appellant‘s resentencing, Appellant‘s supplemental assignment of error is also overruled and the trial court‘s decision is affirmed in total.
Donofrio, J., concurs.
DeGenaro, J., concurs.