State v. ReynoldsState v. Reynolds
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Judgment Entry on Appeal: March 13, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Adam Tieger, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Timothy J. McKenna., for Defendant-Appellant.
{¶1} Daniel Reynolds appeals his sentence, after a no-contest plea, for failure to stop after an accident. In his sole assignment of error, Reynolds contends that the trial court erred by sentencing him to prison after erroneously concluding that he had caused physical harm while committing the offense. We agree, and reverse the judgment of the trial court as to the sentence imposed and remand the cause for resentencing consistent with this opinion.
Factual Background
{¶2} Daniel Reynolds pled no contest to a violation of
{¶3} The charges stemmed from Reynolds hitting Deputy Curtis Taylor, a sheriff‘s deputy who was directing traffic on Hamilton Avenue. After the collision, Reynolds left the scene without stopping. Deputy Taylor sustained serious injuries as a result.
{¶4} At the sentencing hearing, the state requested that the court impose a maximum penalty due to the severity of the injuries to Deputy Taylor. The trial court sentenced Reynolds to 18 months’ incarceration, the maximum penalty for a fourth-degree felony.
Law and Analysis
{¶5} In his sole assignment of error, Reynolds argues that the sentence is contrary to law because
{¶6} In reviewing felony sentences, appellate courts must apply the standard of review set forth in
{¶7} Under
{¶8}
{¶9} Both parties agree that Reynolds satisfies the requirements of
{¶10} This court has already determined that the record must establish that the physical harm was caused by the failure to stop and not by the accident or collision in order to impose a prison term. See State v. Jones, 1st Dist. Hamilton No. C-140299, 2015-Ohio-1189, ¶ 14. However, the state requests that this court reconsider the result reached in Jones and hold that the serious physical harm was caused by the continuing course of conduct of causing the accident that resulted in serious physical harm, and then fleeing the scene.
{¶11} We decline the state‘s request. The state‘s interpretation would require this court to insert words into the statute that the legislature did not. See State v. Belcher, 2d Dist. Clark No. 2018-CA-70, 2019-Ohio-1468, ¶ 21 (explaining that “[i]f the legislature intended for the exception in
Conclusion
{¶12} Finding merit to Reynolds‘s assignment of error, we reverse the judgment of the trial court as to the sentence imposed and remand the cause for resentencing. The court‘s judgment is affirmed in all other respects.
Judgment affirmed in part, reversed in part, and cause remanded.
BERGERON, J., concurs.
MOCK, P.J., dissents.
MOCK, P.J., dissenting.
{¶13} I recognize that the outcome in this case is controlled by this court‘s decision in State v. Jones, 1st Dist. Hamilton No. C-140299, 2015-Ohio-1189. But I believe that Jones was wrongly decided. The state has requested that we revisit that decision, and I believe that we should.
{¶14} In Jones, the defendant was charged with failure to stop or exchange information after an accident when her sport utility vehicle struck a motorcycle seriously injuring the driver. Jones was charged with the offense as a fifth-degree felony. The trial court accepted her guilty plea and sentenced her to 12 months in prison. On appeal, this court concluded that a prison sentence was not available. The court noted that, generally, a nonviolent felony of the fifth degree is presumptively punishable by community control. The court noted that
The presumption of a community-control sanction, however, is subject to the exceptions listed in
R.C. 2929.13(B)(1)(b) . The exception thatthe trial court found applicable in this case, R.C. 2929.13(B)(1)(b)(ii) , permits a court, in its discretion, to impose a term of imprisonment for a nonviolent fifth-degree felony after finding that “the offender caused physical harm to the victim while committing the offense.” (Emphasis added.) See State v. Barnes, 11th Dist. Trumbull No. 2012-T-0049, 2013-Ohio-1298, ¶ 16; see also [State v. Hamilton, 1st Dist. Hamilton No. C-140290, 2015-Ohio-334, ¶ 10-11].
Id. at ¶ 10. The court began by setting forth Jones‘s position:
Jones contends that her sentence was contrary to law because the record before the trial court failed to demonstrate that Jones had caused any physical harm, beyond the injuries inflicted in the actual collision, while committing the punished offense of failure to stop or to exchange information. Jones argues that the victim‘s serious injuries were inflicted by the collision itself, and that there was no evidence in the record that anything she did or failed to do after the accident caused physical harm to the victim.
Id. at ¶ 11. The state‘s counterargument was that the severity of the victim‘s injury was exacerbated by the fact that Jones‘s failure to stop and contact authorities delayed an emergency medical response. But the court found no evidence of this in the record. Without further analysis, the court concluded:
In this case, the requirements of
R.C. 2929.13(B)(1)(a) were met. Jones was presumptively ineligible for a prison term for the fifth-degree felony of failure to stop, which was not an offense of violence or a qualifying assault offense. On the state of the record before us,however, we clearly and convincingly find that the record does not support the trial court‘s determination that Jones had caused physical harm to the victim while committing the offense of failure to stop. There is no evidence to support a finding that the exception in R.C. 2929.13(B)(1)(b)(ii) applied to Jones. Thus, the sentence was contrary to law. See Hamilton, 1st Dist. Hamilton No. C-140290, 2015-Ohio-334, at ¶ 16.
{¶15} The problem with this analysis is how the Jones court defined the offense.
{¶16} When an element of a statute raises the degree of an offense, that element becomes an essential element of the offense. See State v. Allen, 29 Ohio St.3d 53, 54, 506 N.E.2d 199 (1987). The Ohio Supreme Court in Allen, addressing the effect of a prior OVI conviction, concluded that “the fact of a prior conviction did not simply enhance the penalty. It transformed the crime itself by increasing its degree. In such a case, the prior conviction is an essential element of the crime and must be proved by the state.” Id. Thus, elements that elevate the degree of offense
{¶17} This can also be seen in this state‘s jurisprudence relating to the amendment of indictments. As the Ohio Supreme Court has held,
Under Crim.R. 7(D), a court may amend an indictment “at any time” if the amendment does not change “the name or identity of the crime charged.” We consider whether an amendment that changes the penalty or degree of a charged offense is permissible under Crim.R. 7(D). We hold that Crim.R. 7(D) does not permit the amendment of an indictment when the amendment changes the penalty or degree of the charged offense, because such a change alters the identi[t]y of the offense.
State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d 609, ¶ 1. As the Fourth Appellate District noted, amending an indictment in such a way that the degree of the offense is increased is impermissible because “the amendment effectively changes the identity of the crime in violation of Crim.R. 7(D).” State v. Davis, 4th Dist. Highland No. 06CA26, 2007-Ohio-2249, ¶ 24; see State v. Jones, 2015-Ohio-4116, 43 N.E.3d 833, ¶ 125 (2d Dist.); State v. Shockey, 2019-Ohio-2417, 139 N.E.3d 486 (9th Dist.).
{¶18} In Jones, the defendant could not have been tried for the offense as a felony unless the indictment indicated that the accident she fled from caused serious physical harm. Adding that allegation not only elevated the penalty for the crime, but it altered the identity of the offense. Similarly, if the state had failed to prove that
{¶19} I recognize that the Second Appellate District has rejected this argument. In adopting the rationale of the Jones decision, the court stated:
The State maintains that the decision in Jones was incorrect because serious physical harm is an element of the failure to stop offense as a fifth-degree felony. The State‘s argument is flawed, however, because the felony enhancement element of
R.C. 4549.02 provides that the offense becomes a fifth-degree felony if ”the accident or collision results in serious physical harm to a person[.]” (Emphasis added.)R.C. 4549.02(B)(2)(a) . The statute does not state that the offense becomes a fifth-degree felony if the failure to stop caused serious physical harm. Therefore, serious physical harm flowing from the failure to stop is not an element of the offense. In turn, a conviction for fifth-degree felony failure to stop does not by itself support a finding that the offense caused physical harm. Rather, there must be some evidence that the failure to stop offense resulted in further physical injury beyond what was sustained in the accident.
(Emphasis sic.) State v. Belcher, 2d Dist. Clark No. 2018-CA-70, 2019-Ohio-1468, ¶ 19. The foundation of the court‘s analysis is the statement that “[t]he statute does not state that the offense becomes a fifth-degree felony if the failure to stop caused serious physical harm.” But by beginning its discussion in this way, the Second
{¶20} With the allegation of serious physical harm, the very identity of the offense changed. The crime of leaving the scene of an accident, as a fourth-degree felony, cannot as a matter of law be completed without the offender causing serious physical harm and knowing about that harm prior to flight. Under Ohio law, there simply is no “failure to stop offense” that is a felony that does not result in serious physical harm.
{¶21} Since the felony version of fleeing the scene of an accident requires proof that the defendant caused serious physical harm, and a conviction thereon cannot be obtained without proof of such harm, the course of committing the fleeing the scene of an accident begins with the accident and injury and is complete when the defendant flees. I believe that any other reading of the statute is inconsistent with how our jurisprudence treats elements that increase the degree of an offense, and it is a distinction that the Jones court failed to consider. For this reason, I would overrule our prior decision in Jones, conclude that the trial court had the discretion to impose a prison term in this case, and affirm the judgment of the trial court.
Please note:
The court has recorded its own entry on the date of the release of this opinion.