State v. WheelerState v. Wheeler
{¶ 1} The sole issue in this appeal case is whether the Lucas County Court of Common Pleas erred in sentencing appellant, Michael J. Wheeler, on one count of aggravated vehicular homicide in violation of
{¶ 2} Briefly, the facts of this action are as follows. On October 4, 2004, appellant was driving his gray and silver GMC pickup truck southbound on Wilkins Road in Swanton, Lucas County, Ohio. Appellant drove his vehicle over thе center line and struck the motorcycle of Bobbie Domoe, who was driving northbound on Wilkins Road. As a result of the accident, Domoe was thrown from his motorcycle, suffered severe head injuries, and died. Appellant, who was driving under a suspended license and has an еxtensive history involving traffic offenses including a number of DUIs, did not stop at the scene of the collision. He subsequently abandoned his truck, which sustained severe damage to the right front tire, at a nearby bar, where he called his wife, who came and picked him up. Appellant later reported that his truck was stolen. He and his wife claimed that appellant was out-of-town when the fatal collision occurred.
{¶ 3} Evidence gathered by the Ohio State Highway Patrol later proved that appellant was driving his truck at the time of the fatal аccident. Based upon this evidence, the Lucas County Grand Jury indicted appellant on both counts as set forth above. However, the count of aggravated vehicular homicide was originally charged as a felony of the first degree. In addition, the indictment contained one count of driving while under the influence of alcohol, a drug of abuse, or a combination of both, in violation of
{¶ 4} Appellant eventually entered a guilty plea, pursuant to North Carolina v. Alford (1970), 400 U.S. 25. In return, appellee, the state of Ohio, dismissed the count based upon the violation of
{¶ 5} On March 21, 2006, the trial court entered a judgment sentencing appellant to the maximum number, eight years, in prison for the violation of
{¶ 6} Appellant appeals his sentence pursuant to
{¶ 7} “A. Appellant‘s sentence should be reversed and modified pursuant to Ohio Revised Code Section
{¶ 8} “1. Appellant‘s sentence was not consistent with sentences imposed for similar crimes committed by similar offenders. R.C. 22929.11(B)”
{¶ 9} “B. The two offenses for which Mr. Wheeler was convicted are allied offenses of similar import and his sentences should have been run concurrently with one another pursuant to
{¶ 10} “C. The trial court errered [sic] when it made findings pursuant to
{¶ 11} We first address the standard of review аpplicable to appellant‘s assignments of error. When a defendant appeals a sentence imposed pursuant to
{¶ 12} In his Assignment of Error A, appellant, citing State v. Williams (Nov. 30, 2000), 6th Dist. Nos. L-00-1027, L-00-1028, argues that in sentencing him to the maximum prison term (eight years) on the aggravated vehicular homicide charge and in
{¶ 13} In Williams, we reversed the defendant‘s sentence as not being consistent “with sentences imposed in similar crimes committed by similar offenders.” Id. Appellant discusses a number of cases in which the defendant was found guilty of aggravated homicide and/or involuntary manslaughter, but received a lesser sentence than appellant. Appellant fails to recognize, however, that this court subsequently overruled Williams in State v. Lathan, 6th Dist. No. L-03-1188, 2004-Ohio-7074. In Lathan, we determined that a comparison of similar cases was not mandated under
{¶ 14} Appellant‘s Assignment of Error B alleges that aggravated vehicular homicide and the failure to stop after an accident are allied offenses of a similar import. To be an allied offense of similar import, a court determine whether the elements of each offense correspond in such a way that the commission of one offense automatically results in the commission of the other. State v. Rance, 85 Ohio St.3d 632, 1999-Ohio-291. If the elements correspond with each other, the offenses are allied offenses of similar import, and the defendant may only be convicted of and sentenced for both
{¶ 15}
{¶ 16} “(A) In case of accident to or collision with persons or property upon any of the public roads or highways, due to the driving or operation thereon of any motor vehicle, the person driving or operating the motor vehicle, having knowledge оf the accident or collision, immediately shall stop the driver‘s or operator‘s motor vehicle at the scene of the accident or collision and shall remain at the scene of the accident until the driver or operator has given the driver‘s or оperator‘s name and address and, if the driver or operator is not the owner, the name and address of the owner of that motor vehicle, together with the registered number of that motor vehicle, to any person injured in the accident or collision or to thе operator, occupant, owner, or attendant of any motor vehicle damaged in the accident or collision, or to any police officer at the scene of the accident or collision. * * *. In the event [an] injured person is unable to comprehend and record the information required to be given by this section, the other driver involved in the accident or collision forthwith shall notify the nearest police authority concerning the location of the accident or collision, and the driver‘s namе, address, and the registered number of the motor vehicle the driver was operating, and then remain at the scene of the
{¶ 17} “* * *
{¶ 18} “(B) Whoever violates division (A) of this section is guilty of failure to stop after an accident, a misdemeanor of the first degree. If the violation results in serious physical harm to a person, failure to stop after an аccident is a felony of the fifth degree. If the violation results in the death of a person, failure to stop after an accident is a felony of the third degree.”
{¶ 19} As can be readily ascertained,
{¶ 20} In his Assignment of Error C, appellant contends that the trial court errеd when it made factual findings, pursuant to
{¶ 21} Although he did not set forth an assignment of error as to the triаl court‘s imposition of consecutive sentences, appellant makes the same contention with regard to comments made by the trial court in ordering that appellant‘s sentences are to be served consecutively. Again, in Foster, the court held that
{¶ 22} We agree with appellant, and appellee appears to concede, that the trial court, in sentencing appellant to maximum, consecutive sentences, employed some of the language previously required by the statutes found unconstitutional by the Foster court. For the following reason, however, we must find that, absent plain error, appellant forfeited his right to raise these issues on appeal.
{¶ 23} In reaching a determination that certain provisions of Ohio‘s Criminal Sentencing Statute were unconstitutional, the Foster court followed Blakely v. Washington (2004), 530 U.S. 296. Id. at paragraph one of the syllabus. In a recent decision, the Ohio Supreme Court revisited the Foster holding and held that a defendant‘s lack of a Blakely “objection [to judicial fact finding in imposing a sentence] in the trial
{¶ 24} As applied to the present case, Blakely was decided on June 24, 2004. Appellant‘s sentencing hearing was held on March 20, 2006. Therefore, appellant was required to object to any alleged judicial fact finding at his sentencing hearing. Appellant failed to make the requisite objection. Consequently, his assignment of error can be examined only for plain error under
{¶ 25} Reversal for plain error is warranted only when the complaining party, in this сase, the defendant, can prove that the outcome of his trial would have been different absent the claimed error. State v. Payne at ¶ 17, quoting State v. Hill (2001), 92 Ohio St.3d 191, 203, 2001-Ohio-141. After Foster, trial courts have full discretion to impose a maximum sentence within the statutory range and to order that sentences be served consecutive to each other. Id. at paragraph three of the syllabus.
{¶ 26} At the sentencing hearing, the trial judge delineated appellant‘s extensive record of motor vehicle violations and criminal offenses. These include a number of DUIs, arrests for driving while his license was under suspension, assault, attemptеd resisting and obstructing arrest, leaving the scene of an accident, and “open container” charges. In total, the court counted 21 offenses committed by appellant, most of which were related to his operation of a motor vehicle. Furthermore, the trial court, in its
{¶ 27} On consideration whereof, this court finds that appellant failed to offer clear and convincing evidence showing that the trial court‘s sentence was contrary to law, and the judgment of the Lucas County Court of Common Pleas is, therefore, affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
JUDGMENT AFFIRMED.