State v. Earley (Slip Opinion)

2015 Ohio 4615, 145 Ohio St. 3d 281
CourtOhio Supreme Court
DecidedNovember 10, 2015
Docket2014-1278 and 2014-1454
StatusPublished
Cited by146 cases

This text of 2015 Ohio 4615 (State v. Earley (Slip Opinion)) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Earley (Slip Opinion), 2015 Ohio 4615, 145 Ohio St. 3d 281 (Ohio 2015).

Opinions

Lanzinger, J.

{¶ 1} In this case, we are asked to determine whether a trial court may impose cumulative sentences for aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a) and operating a motor vehicle while under the influence of alcohol or drugs (“OVI”) in violation of R.C. 4511.19(A)(1)(a) when the offense of operating a vehicle while under the influence is the predicate conduct for aggravated vehicular assault. We hold that it may.

I. Case Background

{¶ 2} A Cuyahoga County Grand Jury indicted appellant, Antonia Earley, on two counts of aggravated vehicular assault, one count of endangering children, two counts of OVI, and one count of using weapons while intoxicated, all with forfeiture specifications. Earley pleaded guilty to one count of aggravated vehicular assault, a felony of the third degree, in violation of R.C. 2903.08(A)(1)(a); one count of endangering children, a felony of the third degree, in violation of R.C. 2919.22(A); one count of OVI, a misdemeanor of the first degree, in violation of R.C. 4511.19(A)(1)(a); and the accompanying forfeiture specifications. The state requested a nolle prosequi on the remaining counts, and those were dismissed. The trial court sentenced Earley to a term of three years for aggravated vehicular assault, 36 months for endangering children, and six months for OVI, all to run concurrently.

{¶ 3} Earley appealed her sentences, claiming that aggravated vehicular assault is an allied offense of OVI and that they should have merged. The court of appeals affirmed the judgment of the trial court and held that even assuming that [283]*283aggravated vehicular assault and OVI are allied offenses, R.C. 2929.41(B)(3) creates an exception that permits a trial court to impose a sentence for both.

{¶ 4} The appellate court certified that its decision conflicted with 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; and State v. Phelps, 12th Dist. Butler No. CA2009-09-243, 2010-Ohio-3257, 2010 WL 2723103. In those cases, without addressing the possible impact of R.C. 2929.41(B)(3), the appellate courts either held that an aggravated-vehicular-assault offense and an OVI offense merged or remanded the case to the trial court for further proceedings to determine whether the offenses should merge pursuant to R.C. 2941.25. West at ¶ 45; Mendoza at ¶ 10-11; Phelps at ¶ 30-32.

{¶ 5} We accepted the conflict certified to us by the Eighth District Court of Appeals:

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, does R.C. 2929.41(B)(3) create an exception that allows a trial court to impose a sentence for both offenses?

140 Ohio St.3d 1450, 2014-Ohio-4414, 17 N.E.3d 597. We also accepted the proposition of law raised in Earley’s discretionary appeal:

When the offense of operating a vehicle while under the influence, R.C. 4511.19(A)(1)(a), is the predicate conduct for aggravated vehicular assault, R.C. 2903.08(A)(1)(a), Ohio’s allied-offense statute, R.C. 2941.25, must be considered before a court may determine whether concurrent or consecutive sentences will be imposed under [R.C.] 2929.41(B)(3). Fifth and Fourteenth Amendments, United States Constitution; Section 10, Article I, Ohio Constitution; R.C. 2941.25.

140 Ohio St.3d 1451, 2014-Ohio-4414, 17 N.E.3d 598.

II. Analysis

{¶ 6} The specific language found in R.C. 2941.25 and 2929.41 guides us in deciding whether R.C. 2929.41(B)(3) creates an exception that allows a trial court to impose a sentence for both aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a) and OVI in violation of R.C. 4511.19(A)(1)(a) when the OVI offense is the predicate conduct for aggravated vehicular assault.

[284]*284 A. Statutory Provisions

{¶ 7} R.C. 2941.25 sets forth when a defendant may be convicted of multiple offenses. It provides:

(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.

{¶ 8} While R.C. 2941.25 focuses on multiple convictions, R.C. 2929.41 addresses sentencing, providing instruction to the trial court on whether prison terms shall be served consecutively or concurrently. R.C. 2929.41(A) provides, “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.” And R.C. 2929.41(B)(3) states:

A jail term or sentence of imprisonment imposed for a misdemeanor violation of section 4510.11, 4510.14, 4510.16, 4510.21, or 4511.19 of the Revised Code shall be served consecutively to a prison term that is imposed for a felony violation of section 2903.06, 2903.07, 2903.08, or 4511.19 of the Revised Code or a felony violation of section 2903.04 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.

B. The Parties’Arguments

{¶ 9} Earley argues that her aggravated-vehicular-assault and OVI offenses are allied offenses of similar import pursuant to State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, and that the trial court committed plain error when it sentenced her for both.

{¶ 10} The state responds that the trial court properly sentenced Earley for both aggravated vehicular assault and OVI. It argues that the plain language of R.C. 2929.41(B)(3) demonstrates the General Assembly’s intent to allow cumula[285]*285tive punishments for those offenses, and it suggests that our analysis for determining whether offenses merge pursuant to R.C. 2941.25 does not apply.

C. The Offenses Are Not Allied Offenses of Similar Import

{¶ 11} We conclude that the trial court did not err in sentencing Earley for both OVI in violation of R.C. 4511.19(A)(1)(a) and aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a), because we hold that the two offenses are not allied offenses of similar import. In so concluding, we note that Earley’s reliance upon Johnson is misplaced. The lead opinion in Johnson did not receive the support of a majority of this court, and more recent decisions of this court have rendered the analysis of the Johnson lead opinion largely obsolete. See State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995,

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2015 Ohio 4615, 145 Ohio St. 3d 281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-earley-slip-opinion-ohio-2015.