2004 Ohio 97 | Ohio Ct. App. | 2004
Lead Opinion
{¶ 2} On September 1, 2002 appellant was traveling on Biddle Road in Crawford County, Ohio. Appellant's car collided with the decedent, who was riding a bicycle. The officer who arrived at the scene of the accident reported that he smelled a moderate odor of alcohol on appellant's breath. The officer transported the appellant to the Galion Community Hospital to administer a blood test. The officer performed field sobriety tests at the hospital. The officer rated appellant "satisfactory" to "low satisfactory" on these field tests. The officer also requested that a blood-alcohol test be taken by the hospital. The blood-alcohol test result was .157 by weight, exceeding the legal limit in Ohio.
{¶ 3} On September 10, 2002, a grand jury indicted appellant, charging her with aggravated vehicular homicide. Appellant executed a waiver of her right to jury trial and a bench trial was held March 3, 2003. Prior to trial, the parties entered stipulations of fact. Among these stipulations were that appellant's blood-alcohol level at the time of the accident was .157, that appellant was driving the vehicle that struck the decedent, that the collision caused the decedent's death and that the offense occurred in Crawford County, Ohio.
{¶ 4} Following the presentation of evidence, the trial court found appellant guilty of aggravated vehicular homicide and sentenced her to seven years in prison.
{¶ 5} It is from this decision that appellant appeals, setting forth two assignments of error for our review.
{¶ 6} It is well-settled that in order to establish a claim of ineffective assistance of counsel, appellant must show two components: (1) counsel's performance was deficient or unreasonable under the circumstances; and (2) the deficient performance prejudiced the defense. State v. Kole (2001),
{¶ 7} In order to show that an attorney's conduct was deficient or unreasonable, the appellant must overcome the presumption that the attorney provided competent representation, and show that the attorney's actions were not trial strategies prompted by "reasonable professional judgment." Strickland v.Washington (1984),
{¶ 8} Crim.R. 11 provides that one of the rights an accused is entitled to during a criminal prosecution is that of the state "to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself." To establish the specific offense of aggravated vehicular homicide, in violation of R.C.
{¶ 9} In the case sub judice, trial counsel stipulated that appellant was driving the vehicle that collided with the decedent, that the collision caused the victim's death, that the offense occurred in Crawford County, Ohio and that the appellant's blood-alcohol content exceeded the legal limit.
{¶ 10} The appellant argues that her counsel was ineffective in stipulating to all of the elements of the offense of aggravated vehicular homicide. According to appellant, trial counsel's actions effectively abolished the requirement for the state to prove its case, although the appellant never consented to relinquish that right by entering a guilty or no contest plea. Stipulating to the elements of the offense, she argues, had the effect of a guilty plea with none of the benefits frequently attendant to a negotiated plea of guilty, such as a reduced sentence. Appellant claims that counsel's stipulations were unreasonable under the circumstances and violated her right to require the state to prove its case beyond a reasonable doubt. For the following reasons we do not agree.
{¶ 11} Trial counsel stipulated that appellant's blood-alcohol level was over the legal limit and that she was driving a motor vehicle. This is sufficient to find a violation of R.C.
{¶ 12} One of the key requirements in an aggravated vehicular homicide case is proof of causation. As previously stated, the state must prove that the defendant caused the death of anotheras the proximate result of violating R.C.
{¶ 13} Appellant claims that counsel's trial theory — that speeding and not intoxication proximately caused the accident — was unreasonable and could not have possibly succeeded in light of the stipulations that were entered. Appellant was charged with a violation of R.C.
{¶ 14} After reviewing the record, we can appreciate that trial counsel was faced with a difficult task in preparing a defense. We cannot presume arguing that appellant's reckless operation and not her intoxication was the cause of the accident was an unreasonable trial strategy under the particular circumstances of this case, considering the evidence against appellant.
{¶ 15} Were we to accept appellant's argument that this trial tactic was unreasonable, appellant still bears the burden of establishing that the result of the proceeding would have been different but for counsel's actions. Strickland,
{¶ 16} In some cases, prejudice is presumed. Actual or constructive denial of the assistance of counsel is presumed to result in prejudice, as well as representation by counsel who has a conflict of interest and state interference with counsel's assistance. Id. at 692. In all other cases the appellant bears the burden of demonstrating that the result of the proceeding would have been different but for counsel's unprofessional errors. "Prejudice from defective representation sufficient to justify reversal of a conviction exists only where the result of the trial was unreliable or the proceeding fundamentally unfair because of the performance of trial counsel." State v. Carter
(1995),
{¶ 17} Appellant asserts in the present case that had trial counsel not stipulated to all of the elements of the offense, she may have been acquitted. Appellant also infers that there were possible bases for suppressing the results of the blood-alcohol test. Alternatively, appellant argues that if she had entered a guilty plea, she would have likely received a lesser sentence than the sentence with which she was charged.
{¶ 18} While we may engage in speculation that had the blood-alcohol test been suppressed or had trial counsel set forth a different argument on appellant's behalf that the result of the proceeding might have been different, we are only able to speculate. The evidence against appellant was substantial. There were several eyewitnesses to the accident. Police officers testified that they were suspicious that appellant had been drinking, a fact which was verified by the blood-alcohol test. Testimony indicated that appellant was traveling at a speed that was nearly double that of the posted limit. Even if the blood-alcohol test had been suppressed, there is nothing in the record to indicate that appellant would not still have been convicted. Moreover, the record does not demonstrate, nor does appellant contend, that she was willing to plead guilty or that a plea bargain was offered and/or rejected.
{¶ 19} We find that appellant has failed to demonstrate that the proceeding was unreliable or fundamentally unfair due to defense counsel's arguments or trial strategies. Even if we assume for purposes of argument that counsel's tactics were unreasonable under the circumstances, appellant has still failed to make a showing that prejudice resulted from counsel's actions.
{¶ 20} Accordingly, appellant's first assignment of error is overruled.
{¶ 21} Following her conviction, appellant was sentenced to seven years in prison. Under this assignment of error, appellant claims that the sentence imposed on her is not "reasonably calculated to achieve the two overriding purposes of felony sentencing" as set forth by R.C.
{¶ 22} We note that in reviewing the sentencing decision of a trial court, we must review the factual findings of the trial court under a clear and convincing standard. State v. Martin
(1999),
{¶ 23} When aggravated vehicular homicide is caused by a violation of R.C.
{¶ 24} One of these exceptions is when "the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender." R.C.
{¶ 25} The sentencing hearing in the case sub judice sets forth the trial court's reasons for imposing a near-maximum sentence. The trial court found that although the appellant had not served a previous prison term for a criminal offense, she had a prior OMVI conviction, she had an extensive traffic history of speed offenses which demonstrated a lack of regard for traffic laws, she was driving twice the posted speed limit in a residential area and that she failed to cooperate with police after the accident. The court found that the shortest prison term would demean the seriousness of the crime and would not adequately protect the public from future crime by the appellant.
{¶ 26} We find that the appellant has not demonstrated, by clear and convincing evidence, that the imposition of sentence by the trial court was in error. The trial court did not fail to explain its reasons for imposing the sentence, the proper procedures were followed and the sentence appears to be supported by the record.
{¶ 27} Additionally, appellant claims that her sentence is not consistent with sentences imposed for similar crimes committed by similar offenders. "The party claiming that a sentence is inconsistent with sentences given in other cases bears the burden of providing the court with sentences imposed for similar crimes by similar offenders which validate the claim of inconsistency." State v. Agner (2003), Logan App. NO. 8-02-28, 2003-Ohio-5458; citing State v. Hanson (2002), Lucas App. No. L-01-1217, 2002-Ohio-1522. Appellant herein has failed to provide the court with evidence of the sentences imposed for similar crimes by similar offenders in Crawford County. The only cases cited by appellant are those that support the proposition that sentences should be consistent among similar offenders charged with similar offenses. None of these cases are germane to our determination of whether appellant's sentence is consistent with that of similar offenders charged with similar offenses. Since appellant has failed to provide a basis upon which we may review this argument, we decline to do so.
{¶ 28} Accordingly, appellant's second assignment of error is overruled.
{¶ 29} Having found no error prejudicial to appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment affirmed.
Bryant, P.J., concurs. Walters, J., dissents.
Dissenting Opinion
{¶ 30} I must respectfully dissent from the majority herein. The majority bases its conclusion that counsel was not ineffective upon the suggestion that in spite of the stipulation of all of the essential elements of the offense of vehicular homicide, that these stipulations did not amount to a guilty plea because the state was still required to prove that the appellant's driving under the influence proximately caused the decedent's death. This construction is specious.
{¶ 31} Counsel stipulated that Appellant was driving the vehicle that collided with the decedent; that the collision caused the death; and that Appellant's blood-alcohol content exceeded the legal limit. The majority suggests that the trial court could still have found that Appellant's speed was the factor that caused the decedent's death; not her driving with a blood-alcohol content of .157. This theory, however, would only be available if the defense had also challenged the BAC test results. Once the state established, through the stipulations alone, that Appellant was driving with a prohibited concentration of alcohol, that she collided with the decedent, and that the collision caused the death, the offense of aggravated vehicular homicide is complete. While Appellant's speed might have been an additional cause, it could not be the sole cause of decedent's death in light of the stipulations. The flaw in the majority's analysis is borne out by a review of the transcript, which demonstrates that there was no additional independent evidence of causation presented to the trial court, other than a deputy sheriff who testified that her speed was a contributing factor.
{¶ 32} I would find that when counsel stipulates all of the essential elements of a crime necessary to establish his client's guilt, in spite of the client's not guilty plea, and without the client's consent, that due process has been violated and that counsel has per se provided ineffective assistance regardless of the weight of the evidence against the defendant, and despite the merits of an "honest approach" strategy. Brown v. Rice
(W.D.N.C. 1988),