State v. WitwerState v. Witwer
- Reporters:
- ,
- Before:
- Sweeney
Thе full texts of the opinions of the Supreme Court of Ohio are being transmitted electronically beginning May 27, 1992, pursuant to a pilot project implemented by Chief Justice Thomas J. Moyer.
Please call any errors to the attention of the Reporter‘s Office of the Supreme Court of Ohio. Attention: Walter S. Kobalka, Reporter, or Justine Michael, Administrative Assistant. Tel.: (614) 466-4961; in Ohio 1-800-826-9010. Your comments on this pilot project are also welcome.
NOTE: Corrections may be made by the Supreme Court to the full texts of the opinions after they have been rеleased electronically to the public. The reader is therefore advised to check the bound volumes of Ohio St.3d published by West Publishing Company for the final versions of these opinions. The advance sheets to Ohio St.3d will also contain the volume and page numbers where the opinions will be found in the bound volumes of the Ohio Official Reports.
Criminal procedure -- Penalties and sentencing -- Court of common pleas may impose indefinite term of incarceration prescribed by
A court of common pleas may impose the indеfinite term of incarceration prescribed by
(Submitted July 8, 1992.)
Certified by the Court of Appeals for Licking County, No. CA-3587.
At approximately 2:00 p.m. on March 20, 1989, defendant-appellee, John Witwer, departed from his home in Lexington, Ohio, operating a 1988 Dodge Dakota pickup truck. Appellee was accompanied by his wife and daughtеr, who were passengers in the vehicle. Their destination was Lithopolis, Ohio, where they planned to visit Mrs. Witwer‘s parents. Under usual circumstances, appellee would have travelled Interstate Route 71 as far as Columbus, but because road repairs were underway on that stretch of highway, appellee chose to proceed from Lexington through Mount Vernon on Ohio Route 13 to Ohio Route 661 southbound. Ohio Route 661 southbound terminates in Granville, Ohio. (See Appendix.) [* The Appendix is a map and is not available through electronic trаnsmission *].
At approximately 1:30 p.m. on May 20, 1989, Rebecca Roberts was engaged in her employment as a waitress for the Alladin Restaurant in Granville when she was visited by her daughter, Gail Durham, and Gail‘s friend, Joan Howard, who had travelled from Columbus to Granville to visit Mrs. Roberts. At 2:30 p.m., Mrs. Roberts completed her work schedule and decided to accompany Durham and Howard on visits to garage sales held around the Granville area. Thereafter, they returned to the restaurant, where Mrs. Roberts retrieved her automobile and followed the Chevrolet Cavalier driven by Durham toward the
Route 661 southbound immediately north of Granville is a two-lane road traversing rolling terrain in Licking County. The road ascends from where it is intersected by Dry Creek Road from the east to a high point at Cambria Mill Road, which also intersects Route 661 from the east. South of Dry Creek Road, Route 661 southbound descends from Cambria Mill Road toward the village of Granville. (See Appendix.) A passing zone extends from Dry Creek Road sоuthbound on Route 661 for approximately one-tenth of a mile. Thereafter, for the succeeding four miles, Route 661 southbound is a no-passing zone. For at least one-quarter of a mile north of Dry Creek Road, Route 661 southbound is also a no-passing zone.
At approximately 4:00 p.m. on May 20, 1989, Maxine Hull was driving her automobile southbound on Route 661. Her husband and two granddaughters were passengers in the vehicle. During this time she was following a truck which was pulling a horse trailer. The truck was operated by Theodore Current. As she proceeded along Routе 661, Mrs. Hull noticed that the blue pickup truck driven by appellee had passed a gray automobile travelling behind her despite the fact that a double yellow line on the pavement indicated that the area was a no-passing zone. Thereafter, the pickup truck passed the Hull vehicle in the no-passing zone and pulled between it and the horse trailer.
Immediately after entering the right lane, appellee reemerged into the left lane to pass the horse trailer as both vehicles approached Dry Creek Road. Stopped at the intersection at Route 661 on Dry Creek Road was a vehicle operated by Lori Kinman. While the pickup truck operated by appellee and the horse trailer operated by Current occupied both lanes of Route 661, Kinman made a left turn from Dry Creek Road to southbound Route 661 approximately one-quarter of a mile south of the approaching vehicles. After Kinman‘s entry onto Route 661 southbound, appellee briefly pulled behind the Kinman vehicle. Thereafter, appelleе pulled out across a double yellow line into the left lane and collided head-on with the Cavalier operated by Durham in the northbound lane of Route 661. Although appellee applied his brakes prior to impact, his speed at that time was estimated to be between fifty-seven and sixty-two miles per hour. As a result of the collision, Durham suffered severe trauma to her heart and brain, resulting in her death.
On October 13, 1989, appellee was indicted by the Licking County Grand Jury on one count of aggravated vehicular homicide in violation of
Upon appeal, the court of appeals reversed the trial court
Robert L. Becker, Prosecuting Attorney, and Kenneth W. Oswalt, for appellant.
John W. Witwer, pro se.
Sweeney, J. Appellee herein was convicted of a violation of
“(A) No person, while operating or participating in the operation of a motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft, shall recklessly cause the death of another.
“(B) Whoever violates this section is guilty of aggravated vehicular homicide, a felony of the fourth degree.1 If the offender has previously been convicted of an offense under this section or section 2903.07 of the Revised Code, aggravated vehicular homicide is a felony of the third degree.” (Footnote added.)
The penalties for commission of a fourth degree felony are set forth in
“(D) Whoever is convicted of or pleads guilty to a felony of the third or fourth degree and did not, during the commission of that offense, cause physical harm to any person or make an actual threat of physical harm to any person with a deadly weapon, as defined in section 2923.11 of the Revised Code, and who has not previously been convicted of an offense of violence shall be imprisoned for a definite term, and, in addition, may be fined or required to make restitution. The restitution shall be fixed by the cоurt as provided in this section. If a person is convicted of or pleads guilty to committing, attempting to commit, or complicity in committing a violation of section 2909.03 of the Revised Code that is a felony of the third or fourth degree and is sentenced pursuant to this division, he shall be required to reimburse agencies for their investigation or prosecution costs in accordance with section 2929.28 of the Revised Code.
“The terms of imprisonment shall be imposed as follows:
“(1) For a felony of the third degree, the term shall be one, one and one-half, or two years;
“(2) For a felony of the fourth degree, the term shall be six months, one year, or eighteen months.” (Emphasis added.)
Thus,
“(B) Except as provided in division (D) of this section, section 2929.71, and Chapter 2925. of the Revisеd Code, terms of imprisonment for felony shall be imposed as follows:
“***
“(7) For a felony of the fourth degree, the minimum term shall be eighteen months, two years, thirty months, or three years, and the maximum term shall be five years.” (Emphasis added.)
Accordingly, where an accused commits a fourth degree felony causing physical harm he is eligible to be sentenced pursuant to
“Imposition of an indefinite term pursuant to division (B)(6) or (7) of section 2929.11 of the Revised Code is precluded unless the indictment, count in the indictment, or information charging the offense specifies either that, during the commission of the offense, the offender caused physical harm to any person or made an actual threat of physical harm to any person with a deadly weapon, as defined in section 2923.11 of the Revised Code, or that the offender has previously been convicted of or pleaded guilty to an offense of violence. Such a specification shall be stated at the end of the body of the indictment, count, or information and shall be in substantially the following form:
“‘Specification (or, Specification to the First Count). The grand jurors (or insert the person‘s or the prosecuting attorney‘s name when appropriate) further find and specify that (set forth the allegation either that, during the commission of the offense, the offender caused рhysical harm to any person, or made an actual threat of physical harm to any person with a deadly weapon, or that the offender has previously been convicted of or pleaded guilty to an offense of violence).‘” (Emphasis added.)
Accordingly, an accused may be sentenced to the indefinite term of incarceration provided by
Thus, a conviction on the specification contained in
Accordingly, we conclude that a court of common pleas may impose the indefinite term of incarceration prescribed by
After his conviction on the underlying felony, appellee was convicted of the specification by the trial court. The parties had previously stipulated that the guilt determination on the specification would be made by the court rather than the jury.
Appellee was thereafter sentenced tо a term of incarceration of from two and one-half to five years. On August 21, 1990, a journal entry was filed by the common pleas court, which reflected that appellee had been sentenced to a term of two and one-half to five years for violation of
“Assignment of Error No. Four: The indeterminate sentence imposed by the trial court subjected appellant to double jeopardy contrary to the United Stаtes Constitution and the Constitution of Ohio.”
His brief explained the assignment of error as follows:
“The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution prohibits cumulative punishments for the same offense. Brown v. Ohio (1977), 432 U.S 161. It is clear that the trial court imposed two punishments upon Appellant for one offense.” (Emphasis added.)
The court of appeals entertained the appeal on this basis and, while rejecting the double jeopardy argument, concluded that the imposition of the penalty under
“Obviously cognizant of our decision in [State v.] Patton (Feb. 11, 1991), Stark App. No. CA-8236, unreported, cited supra, this court holds that it is redundant and unwarranted to include the physical harm specification in the offense of aggravated vehicular homicide, notwithstanding whether there were injuries caused from the event which subsequently caused death (as in Kavlich and Runnels) or whether death was immediate as in the case sub judice.
“Death being the ultimate physical harm any offender can cause, we believe that ‘tacking on’ the physical harm specification (at the discretion of the prosecution) is improper, inconsistent, and violative of due process. We conclude that the crime itself for aggravated vehicular homicide subsumes the physical harm specification.
“Appellant‘s third assignment of error is sustained. See our disposition of this cause as to certification infra and in
the judgment entry.” (Emphasis added.)
The case was thereafter certified to this court as being in conflict with the decisions of the Eighth District Court of Appeals in State v. Kavlich (1986), 33 Ohio App.3d 240, 515 N.E.2d 652, and State v. Runnels (1984), 56 Ohio App.3d 100, 565 N.E.2d 610.
Appellee has appeared pro se before this court. The substance of the arguments made for both parties to this court is that
We decline to resolve the present controversy on this basis. As reflected by the record, appellee was sentenced to an indefinite term of incarceration of from two and one-half to five years on the underlying felony. No separate penalty has been imposed for the specification. Unlike
In order for the penalty to be imposed, the indictment must include the specification as well as a count referring to the underlying felony. Inclusion of the specification in the indictment accomplishes a twofold purpose. It alerts an accused that the fourth degree felony of which he has been charged constitutes a felony the commission of which caused physical harm to a person. The specification further apprises the accused that commission of the underlying felony subjects him to the indefinite term of incarceration prescribed by
While appellee challenges this procedure on a constitutional basis, a close analysis of the provisions of
The determination below that imposition of the indefinite term of incarceration constituted separate punishment depriving appellee of his liberty without due process of law is unsupported by the law or the record of the trial court proceedings imposing sentence. Accordingly, the judgment of the court of appeals is reversed and the cause is remanded to the trial court for reimposition and execution of the original sentence.
Judgment reversed and cause remanded.
Moyer, C.J., Douglas, Wright and Resnick, JJ., concur.
Holmes and H. Brown, JJ., dissent.
Holmes, J., dissenting. I must dissent from the majority opinion because I do not believe that the conclusions reached comport with the legislative intent of the statute construed.
“(1) ***5
“***
“(3) An offense, other than a traffic offense, under an existing or former municipal ordinance or law of this or any other state of the United States, committed purposely or knowingly, and involving physical harm to persons or a risk of serious physical harm to persons[.]” (Footnote added.)
The crimes listed in
In addition to these enumerated crimes, the legislature has also provided that an offense committed purposely or knowingly, and involving physical harm to persons or a risk of serious physical harm to persons is also an “offense of violence.”
The culpable mental state of the crime of aggravated vehicular homicide is recklessness, not a higher degree of mental culpability required for crimes of violence, which, in my view, would be required to consider an individual guilty of a specification of physical harm under
I conclude that the legislature intended that in order for
There are situations under the criminal laws where the legislature has clearly manifested an intention to allow the “tacking on” of elements of an offense to enhance the punishment of offenders involved in violent offenses. Our courts have properly recognized this justifiable legislative public policy determination. Accordingly, in State v. Jenkins (1984), 15 Ohio St.3d 164, 177-178, 15 OBR 311, 322-323, 473 N.E.2d 264, 279-280, this court held the aggravated murder statute сonstitutional even assuming that some aggravating factors that may be “tacked on” to an indictment for aggravated murder would simply duplicate an element of the offense, since similar factors are used to elevate the offense from murder to aggravated murder.
Unfortunately, I must admit that
H. Brown, J., concurs in the foregoing dissenting opinion.