STATE OF OHIO v. JOHN SARIGIANOPOULOS
CASE NO. 12 MA 141
STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
December 19, 2013
[Cite as State v. Sarigianopoulos, 2013-Ohio-5772.]
Hon. Cheryl L. Waite, Hon. Gene Donofrio, Hon. Joseph J. Vukovich
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Youngstown Municipal Court of Mahoning County, Ohio Case No. 12 TRC 959Y. JUDGMENT: Affirmed.
For Plaintiff-Appellee: Atty. Dana Lantz, Youngstown City Prosecutor; Atty. Kathleen Thompson; Atty. Bassil Ally, Assistant City Prosecutors, 26 S. Phelps Street, Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Edward A. Czopur, DeGenova & Yarwood, Ltd., 42 North Phelps St., Youngstown, Ohio 44503
WAITE, J.
{¶1} Appellant John Sarigianopoulos entered a no contest plea to a second offense of operating a vehicle under the influence of drugs or alcohol (OVI). He now appeals his 60-day jail term on the grounds that it was not proportionate to sentences given in other OVI cases. Appellant caused a head-on collision while intoxicated, and was a repeat OVI offender. By law, the court could have sentenced Appellant to 180 days in jail, and was required to impose at least a 10-day jail term. His 60-day jail term is only one-third of the possible maximum sentence. Appellant did not raise the issue of the allegedly disproportionate sentence in any previous appeal, and the matter is now res judicata. Furthermore, there was no error or abuse of discretion in the court‘s sentence in light of Appellant‘s prior criminal record, his failure to take responsibility for his actions, the seriousness of the accident caused by Appellant, and the moderate sentence that was imposed. The judgment of the trial court is affirmed.
Procedural History
{¶2} On April 5, 2012, Appellant failed to stop at a stop sign and caused an accident with two other vehicles, including a head-on collision with a Pontiac minivan. The accident occurred in the City of Youngstown at the intersection of Lansdowne Boulevard and Stewart Avenue. Officers at the scene of the accident concluded that Appellant had been drinking and driving. Appellant failed field sobriety tests and refused to take a breathalyzer test. He admitted at the scene that he had consumed a few drinks. He was charged with third offense OVI,
{¶3} Sentencing was held on August 6, 2012. Appellant‘s counsel asked for the minimum sentence to be imposed. Appellant argued that the brakes failed in his vehicle and that he was under stress due to a death in the family. He also blamed the accident on medication he was taking. The court interpreted these arguments as failure to take responsibility for the accident, particularly since Appellant admitted to drinking and driving. The court noted Appellant‘s prior OVI convictions, the seriousness of the accident, and Appellant‘s lack of remorse as reasons for imposing a 60-day jail term. The judge also imposed a fine, court costs, a license suspension, three years of intensive probation supervision, and drug counseling. This appeal followed.
ASSIGNMENT OF ERROR
The trial court abused its discretion by imposing a sentence that was disproportionate to the sentences it imposed in numerous other like
{¶4} We review misdemeanor sentences for abuse of the trial court‘s discretion.
{¶5} When sentencing for a misdemeanor offense, the trial court is guided by the “overriding purposes of misdemeanor sentencing,” which are to protect the public from future crime by the offender and others, and to punish the offender.
(B) A sentence imposed for a misdemeanor or minor misdemeanor violation of a Revised Code provision or for a violation of a municipal ordinance that is subject to division (A) of this section shall be reasonably calculated to achieve the two overriding purposes of misdemeanor sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender‘s conduct and its impact upon the victim, and consistent with
sentences imposed for similar offenses committed by similar offenders.
(Emphasis added.)
{¶6} Appellant argues that his sentence is not proportionate to sentences imposed on similarly situated defendants. Appellant did not raise this issue at trial. Hence, it is reviewed on appeal for plain error. State v. Lazazzera, 7th Dist. No. 12 MA 170, 2013-Ohio-2547, ¶34. Under
{¶7} “Plain error is one in which but for the error, the outcome of the trial would have been different.” State v. Hancock, 7th Dist. No. 09-JE-30, 2010-Ohio-4854, ¶55, citing State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978). In order to prevail under a plain error analysis, the appellant bears the burden of demonstrating that the outcome of the trial clearly would have been different but for the error. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶17.
{¶8} Although there is no express indication in the record that the trial judge considered whether the 60-day jail term was consistent with sentences imposed for similar offenses, a reviewing court will presume the regularity of a sentence absent evidence to the contrary. State v. James, 7th Dist. No. 07 CO 47, 2009-Ohio-4392, ¶50, 85. Under the plain error analysis, Appellant would also need to show that his sentence clearly would have been less severe had the trial court correctly considered the proportionality of the sentence.
{¶9} Appellant has attached to his brief on appeal a series of judgment entries issued by the same trial judge, all of which involve an OVI charge. Appellant would like us to compare the facts of those cases with the facts in his case so that we can rule on his proportionality argument. We have previously held that: “a trial court may not take judicial notice of earlier proceedings, either in its own court or another court, except for proceedings in the immediate case under consideration.” State v. LaFever, 7th Dist. No. 02 BE 72, 2003-Ohio-6545, ¶27. We can, however, examine the analysis in the judgment entries as opinions of a trial court, and rely on them as persuasive legal authority if needed. Although judgment entries and judicial opinions are typically distinct and separate legal documents, often a trial court will enter its legal reasoning into the judgment entry, thus providing legal authority for future cases. We have reviewed such trial court judgments in other criminal appeals when a sentencing proportionality issue has arisen. State v. Lazazzera, 7th Dist. No. 12 MA 170, 2013-Ohio-2547.
{¶10} The trial court judgment entries cited by Appellant do not in any way serve to illustrate Appellant‘s argument. They do not provide the facts and
{¶11} Proportionality in sentencing does not mean that sentences for similar crimes must be identical. It means they must be consistent, forming a rational and predictable pattern. State v. Georgakopoulos, 8th Dist. No. 81934, 2003-Ohio-4341, ¶26. If a trial judge were required to give precisely the same sentence to every defendant who pleads no contest to a second offense OVI, all discretion in a trial judge would be extinguished.
{¶12} The minimum jail term for a second offense of OVI within six years is 10 days in jail.
{¶13} Given the seriousness of the offense, the defendant‘s criminal history, and his failure to take responsibility for his actions, there was no plain error or abuse of discretion in imposing a 60-day jail term. There is no indication that this sentence is disproportionate to other sentences imposed for similar crimes with similarly situated defendants. Appellant‘s assignment of error is overruled and the judgment of the trial court is affirmed.
Waite, J.
Donofrio, J., concurs.
Vukovich, J., concurs.