STATE OF OHIO v. RACHEL R. SCHIDECKER
Appellate Case No. 26334
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
April 10, 2015
[Cite as State v. Schidecker, 2015-Ohio-1400.]
WELBAUM, J.
Trial Court Case No. 2012-CR-3489 (Criminal Appeal from Common Pleas Court)
Rendered on the 10th day of April, 2015.
MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, 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
RICHARD HEMPFLING, Atty. Reg. No. 0029986, 15 West Fourth Street, Suite 100, Dayton, Ohio 45402 Attorney for Defendant-Appellant
WELBAUM, J.
{¶ 2} In support of her appeal, Schidecker contends that the trial court erred in failing to merge the OVI conviction with the other convictions. Schidecker also contends that the trial court erred in requiring that the OVI sentence be served consecutively to the terms for the other convictions.
{¶ 3} We conclude that the trial court did not err in refusing to merge the OVI conviction. Although
{¶ 4} We further conclude that the trial court erred in holding that it was required to impose a consecutive sentence for a misdemeanor OVI conviction pursuant to
I. Facts and Course of Proceedings
{¶ 5} On August 11, 2012, after having consumed alcohol, Rachel Schidecker drover her Ford Explorer almost four miles the wrong way on Interstate 75. At approximately 11:55 p.m., Schidecker crashed into a car being driven by Chereece Rule, killing Rule, and setting Rule‘s passenger, David Wilson, on fire. Wilson was seriously injured in the crash. When Schidecker‘s blood was tested, her blood alcohol content was .236. Since Schidecker was under age 21 at the time, her blood alcohol level was more than 20 times over the legal limit.
{¶ 6} In March 2013, Schidecker was indicted on six counts, including: Count I - AVH, in violation of
{¶ 7} On May 17, 2013, Schidecker filed a motion to suppress evidence. After
{¶ 8} On May 20, 2014, Schidecker appeared in court and pled no contest to all six counts. Schidecker subsequently filed a motion to merge her convictions for purposes of sentencing, as well as a sentencing memorandum. After the State responded, the trial court merged Count II with Count I, merged Count IV with Court III, and merged Counts V and VI. The State elected to have Schidecker sentenced on Counts I, III, and VI, and the trial court, as noted, sentenced Schidecker to three years in prison on Count I and 30 months on Count III, with the sentences to be served concurrently. The court then sentenced Schidecker to thirty days in jail on Count VI, to be served consecutive to the three-year prison term. Schidecker now appeals from her conviction and sentence.
II. Merger
{¶ 9} Schidecker‘s First Assignment of Error states that:
The Trial Court Erred in Failing to Merge Count VI into Counts I and III.
{¶ 10} Under this assignment of Error, Schidecker contends that the trial court erred in refusing to merge Count VI (the OVI charge) with the other counts that were based on an underlying OVI offense. When the court refused to merge the convictions, the trial court stated that it had relied on the authority cited in the State‘s sentencing memorandum, and had found the authority persuasive. In its sentencing memorandum, the State argued that the sentences should not be merged based on
{¶ 11} In pertinent part,
(A) Except as provided in division (B) of this section, division (C) of section
2929.14 , or division (D) or (E) of section2971.03 of the Revised Code, a prison term, jail term, or sentence of imprisonment shall be served concurrently with any other prison term, jail term, or sentence of imprisonment imposed by a court of this state, another state, or the United States. Except as provided in division (B)(3) of this section, a jail term or sentence of imprisonment for misdemeanor shall be served concurrently with a prison term or sentence of imprisonment for felony served in a state or federal correctional institution.* * *
[B](3) A jail term or sentence of imprisonment imposed for a misdemeanor violation of section
4510.11 ,4510.14 ,4510.16 ,4510.21 , or4511.19 of the Revised Code shall be served consecutively to a prison term that is imposed for a felony violation of section2903.06 ,2903.07 ,2903.08 , or4511.19 of the Revised Code or a felony violation of section2903.04 of the Revised Code involving the operation of a motor vehicle by the offender and that is served in a state correctional institution when the trial court specifies that it is to be served consecutively.
{¶ 12} According to Schidecker, authority from our district, as well as the Sixth and Twelfth District Courts of Appeal, holds that AVH and AVA offenses based on OVI are allied offenses of similar import under
{¶ 14} “The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution protect criminal defendants against multiple prosecutions for the same offense.” State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284, ¶ 14. In Ohio,
{¶ 15} “Absent a more specific legislative statement,
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them
{¶ 16} In Johnson, the Supreme Court of Ohio attempted to eliminate wide-spread confusion over how to apply the allied offenses test, stating that “[w]hen determining whether two offenses are allied offenses of similar import subject to merger under
In determining whether offenses are allied offenses of similar import within the meaning of
R.C. 2941.25 , courts must evaluate three separatefactors - the conduct, the animus, and the import. Two or more offenses of dissimilar import exist within the meaning of
R.C. 2941.25(B) when the defendant‘s conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable.
State v. Ruff, Slip Op. No. 2015-Ohio-995 (March 25, 2014), paragraphs one and two of the syllabus.
{¶ 17} In the case before us, Schidecker was found guilty of six counts, and the State elected to have Schidecker sentenced on three counts (I, III, and VI), which included violations of
{¶ 18} In pertinent part,
(A) No person, while operating or participating in the operation of a motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft, shall cause the death of another or the unlawful termination of another‘s pregnancy in any of the following ways:
(1)(a) As the proximate result of committing a violation of division (A) of section
4511.19 of the Revised Code or of a substantially equivalent municipal ordinance; * * *.
{¶ 19} Similarly,
(A) No person, while operating or participating in the operation of a motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft, shall cause serious physical harm to another person or another‘s unborn in
any of the following ways: (1)(a) As the proximate result of committing a violation of division (A) of section
4511.19 of the Revised Code or of a substantially equivalent municipal ordinance; * * *.
{¶ 20} Finally,
(A)(1) No person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation, any of the following apply:
* * *
(f) The person has a concentration of seventeen-hundredths of one per cent or more by weight per unit volume of alcohol in the person‘s whole blood.
{¶ 21} In an opinion filed before Johnson was decided, we held that
Conduct that constitutes the offense of aggravated vehicular assault,
R.C. 2903.08(A)(1)(a) , necessarily also constitutes the offense of operation of a vehicle while under the influence of alcohol, as defined byR.C. 4511.19(A)(1)(h) , because commission of that predicate offense is a necessary component of the resulting aggravated vehicular assault offense. Because the predicate offense is subsumed into the resulting offense, the two are allied offenses of similar import for purposes ofR.C. 2941.25(A) . State v. Duncan, Richland App. No.2009CA028, 2009-Ohio-5668. The merger mandated by that section is not avoided because theR.C. 2903.08(A)(1)(a) offense requires a further finding thatserious physical harm proximately resulted from the predicate R.C. 4511.19(A) offense. Requiring an identity of all elements of both offenses would limit application ofR.C. 2941.25(A) to two violations of the same section of the Revised Code, which double jeopardy bars when both are predicated on the same conduct.
State v. West, 2d Dist. Montgomery No. 23547, 2010-Ohio-1786, ¶ 43.
{¶ 22} In a case also decided prior to Johnson, the Twelfth District Court of Appeals agreed with West that these offenses are allied offenses of similar import. See State v. Phelps, 12th Dist. Butler No. CA2009-09-243, 2010-Ohio-3257, ¶ 28-32. In addition, the Sixth District Court of Appeals held in a case decided after Johnson that the trial court had erred in failing to merge the defendant‘s convictions for violations of
{¶ 23} Schidecker contends that we should follow our prior decision in West, as well as the other cases that have required merger in situations like the present. The State, however, argues that we should follow the view held by the Fifth, Eighth, Tenth, and Eleventh District Courts of Appeals. See State v. Bayer, 10th Dist. Franklin No. 11AP-733, 2012-Ohio-5469; State v. Demirci, 11th Dist. Lake No. 2011-L-142, 2013-Ohio-2399; State v. Dunham, 5th Dist. Richland No. 13CA26, 2014-Ohio-1042; and State v. Earley, 2014-Ohio-2643, 15 N.E.3d 357 (8th Dist.).
{¶ 24} In all these cases, which involved either AVH or AVA and some violation of
{¶ 25} As was noted,
A jail term or sentence of imprisonment imposed for a misdemeanor violation of section
4510.11 ,4510.14 ,4510.16 ,4510.21 , or4511.19 of the Revised Code shall be served consecutively to a prison term that is imposed for a felony violation of section2903.06 ,2903.07 ,2903.08 , or4511.19 of the Revised Code or a felony violation of section2903.04 of the Revised Code involving the operation of a motor vehicle by the offender and that is served in a state correctional institution when the trial court specifies that it is to be served consecutively.
{¶ 26} The appellate courts in the Fifth, Eighth, Tenth, and Eleventh Districts concluded that while
{¶ 27} In October 2014, the Supreme Court of Ohio accepted a certified conflict between the decision in Earley and the decisions in West, Phelps, and Mendoza. See State v. Earley, 140 Ohio St.3d 1450, 2014-Ohio-4414, 17 N.E.3d 597 (Table). The
When the offense of operating a motor vehicle while under the influence in violation of
R.C. 4511.19(A)(1) is the predicate conduct for aggravated vehicular assault in violation [of]R.C. 2903.08(A)(1) , are the two offenses allied, and if so, doesR.C. 2929.41(B)(3) create an exception that allows a trial court to impose a sentence for both offenses?
{¶ 28} Previously, in Earley, the Eighth District Court of Appeals made a number of observations about the decisions in the alleged conflict cases. The Eight District Court of Appeals first noted the State‘s comment that the legislature‘s intent in allowing multiple punishments in
This conflict has also been recognized in the Second, Sixth, and Twelfth Districts; however, these district have taken an opposing view that Ohio‘s General Assembly cannot abrogate the double-jeopardy prohibition of multiple punishments for the same offense, and because
R.C. 2929.41(B)(3) does not explicitly trumpR.C. 2941.25 , aggravated vehicular assault and OVI can be allied offenses that merge for sentencing. See State v. West, 2d Dist. Montgomery No. 23547, 2010-Ohio-1786, 2010 WL 1632316, State v. Mendoza, 6th Dist. Wood No. WD-10-008, 2012-Ohio-5988, 2012 WL 6617859, appeal not accepted, 129 Ohio St.3d 1489, 2011-Ohio-5129, 954 N.E.2d 662; State v. Phelps, 12th Dist. Butler No. CA2009-09-243, 2010-Ohio-3257, 2010 WL 2723103.
{¶ 29} These statements in Earley are inaccurate, however, because West, Mendoza, and Phelps did not discuss, nor did they even mention,
{¶ 30} Likewise, in Phelps, the Twelfth District Court of Appeals did not discuss either
{¶ 31} Finally, the Mendoza decision also does not discuss these matters. The Mendoza decision is very brief. Notably, the case was before the court of appeals on the state‘s concession of error and request that the case be remanded for resentencing. Mendoza, 6th Dist. Wood No. WD-10-008, 2012-Ohio-5988, at ¶ 9. With almost no discussion of the applicable law, the court of appeals remanded the case so that the trial court could merge the OVI conviction with the AVH and AVA convictions, and resentence the defendant. Id. at ¶ 9-10.
{¶ 32} Our district also has not previously considered the interplay of
{¶ 33} Recently, the Supreme Court of Ohio stressed that ”
{¶ 34} In Miranda, the Supreme Court of Ohio considered whether trial courts “can impose separate sentences for engaging in a pattern of criminal activity under
{¶ 35} According to the court, the starting point for analysis is with the statute itself. Id. at ¶ 11. In this regard, the Supreme Court of Ohio instructed that:
“The primary goal in construing a statute is to ascertain and give effect to the intent of the legislature.” State ex rel. Cordray v. Midway Motor Sales, Inc., 122 Ohio St.3d 234, 2009-Ohio-2610, 910 N.E.2d 432, ¶ 15. “A court must look to the language and purpose of the statute in order to determine legislative intent.” State v. Cook, 83 Ohio St.3d 404, 416, 700 N.E.2d 570 (1998). “[W]hen the General Assembly has plainly and unambiguously
conveyed its legislative intent, there is nothing for a court to interpret or construe, and therefore, the court applies the law as written.” State v. Kreischer, 109 Ohio St.3d 391, 2006-Ohio-2706, 848 N.E.2d 496, syllabus.
{¶ 36} Turning to the statutes themselves, we note that
{¶ 37} In addition, when
{¶ 38} Finally, other than having been subsequently renumbered as subsection (B)(3), this part of
{¶ 39} In view of these facts, the only conclusion that can be drawn is that the General Assembly intended to allow for multiple punishments in
{¶ 40} We also note that even if the offenses were allied offenses under
{¶ 41} Based on the preceding discussion, the trial court did not err in failing to
III. Consecutive Sentence
{¶ 42} Schidecker‘s Second Assignment of Error states that:
The Trial Court Erred in Requiring the Sentence for the OVI Charge (Count VI) to Run Consecutively to Counts I and III.
{¶ 43} Under this assignment of error, Schidecker contends that the trial court erred in imposing the misdemeanor OVI sentence consecutively to the two other sentences. Schidecker‘s argument is based on the fact that the trial court apparently concluded it had no choice under
{¶ 44} During the sentencing hearing, the trial court stated that:
The Court imposes a sentence of 30 consecutive days of local incarceration which, by law, must run consecutively to the sentence on Count I and Count III. I will say again that the Court believes, as a matter of law, that the sentence on Count VI, the OVI count, must run consecutively to the sentence on Count I and Count III. That‘s my legal determination based on the authorities I‘ve reviewed prior to sentencing. The first six consecutive days of that sentence on Count VI are mandatory and cannot be reduced.
July 1, 2014 Sentencing Hearing Transcript, pp. 170-171.
{¶ 45} We agree with Schidecker that the trial court erred when it concluded that it was required to impose the misdemeanor OVI sentence consecutively. In this regard,
{¶ 46} The wording of the statute clearly gives the trial court discretion to decide whether the misdemeanor term should be served consecutively. Thus, in Bayer, the court of appeals stressed that the trial court “had the discretion pursuant to
{¶ 47} Likewise, the trial court in Earley, 2014-Ohio-2643, 15 N.E.3d 357 (8th Dist.), ordered the felony and misdemeanor OVI sentences to run concurrently. Id. at ¶ 5. In all these cases, the appellate courts concluded that the trial courts had acted within their discretion, and affirmed the imposition of the OVI sentence, whether it had been imposed consecutively or concurrently. Bayer at ¶ 22; Dunham at ¶ 76-78; Demirci at ¶ 49-50; and Earley at ¶ 20-21.
{¶ 48} As a final matter, we note that the State does not explicitly concede error in
{¶ 49} Based on the preceding discussion, the Second Assignment of Error is sustained. The judgment of the trial court will be reversed, but only with respect to the consecutive sentence imposed for the OVI conviction, and this matter will be remanded to the trial court for further proceedings, including consideration of whether the record supports consecutive sentences.
IV. Conclusion
{¶ 50} Schidecker‘s First Assignment of Error having been overruled, and her Second Assignment of Error having been sustained, the judgment of the trial court is affirmed in part, and reversed only with respect to the consecutive sentence imposed for Schidecker‘s OVI conviction. On remand, the trial court is to determine whether the record supports consecutive sentences. This matter is remanded for further proceedings consistent with this opinion.
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DONOVAN, J. and HALL, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Kirsten A. Brandt
Richard Hempfling
Hon. Michael W. Krumholtz