State v. Irwin-Debraux

2020 Ohio 4591

• Court: Ohio Court of Appeals
• Decided: September 25, 2020
• Docket: 28689
• Status: Published

Opinion

[Cite as State v. Irwin-Debraux, 2020-Ohio-4591.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28689 : v. : Trial Court Case No. 2018-CR-3580 : ALYSSA IRWIN-DEBRAUX : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 25th day of September, 2020.

MATHIAS H. HECK JR., by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

ADAM J. ARNOLD, Atty. Reg. No. 0088791, 120 West Second Street, Suite 1717, Dayton, Ohio 45402 Attorney for Defendant-Appellant

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HALL, J. -2-

{¶ 1} Alyssa Irwin-Debraux appeals from the trial court’s amended judgment entry

following a remand for resentencing to address the absence of consecutive-sentence

findings.

{¶ 2} Irwin-Debraux’s appointed appellate counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the

absence of any non-frivolous issues for review. Appointed appellate counsel notes that

the trial court made the required consecutive-sentence findings on remand, and counsel

states that he sees no other potential issues. We notified Irwin-Debraux of the Anders

filing and invited her to file her own brief. Irwin-Debraux responded with two pro se filings

in which she claims her sentence is contrary to law and cites various reasons why she

believes an aggregate 13-year prison term is improper. In response, the State maintains

that Irwin-Debraux’s sentence is not contrary to law and that the trial court made all

required consecutive-sentence findings.

{¶ 3} The record reflects that Irwin-Debraux pled guilty to charges of involuntary

manslaughter, grand theft of a motor vehicle, and failure to comply with an order or signal

of a police officer. The charges involved Irwin-Debraux stealing a vehicle and leading

police on a high-speed chase on State Route 741 while she was under the influence of

illicit substances. During the pursuit, a motorist trying to avoid a head-on collision with

Irwin-Debraux struck another vehicle, which spun through an intersection and was hit by

a police cruiser. The collision killed the driver of the vehicle hit by the cruiser. The officer

involved in that collision was injured but survived. Following Irwin-Debraux’s guilty plea,

the trial court imposed three consecutive prison terms totaling 13 years. The trial court -3-

did not make any findings for consecutive sentences.

{¶ 4} On appeal, we observed that Irwin-Debraux was required by statute to serve

her sentence for failure to comply with an order or signal of a police officer consecutively

to her other two sentences. Therefore, no consecutive-sentence findings under R.C.

2929.14(C)(4) were required for the trial court to impose a consecutive sentence for the

failure-to-comply conviction. We noted, however, that findings under R.C. 2929.14(C)(4)

were required for the trial court to order consecutive service of the prison sentences it

imposed for involuntary manslaughter and grand theft of a motor vehicle. Because the

trial court made no consecutive-sentence findings, we remanded for resentencing

consistent with our opinion. See State v. Irwin-Debraux, 2d Dist. Montgomery No. 28309,

2019-Ohio-5013, ¶ 9-13.

{¶ 5} On remand, the trial court held another sentencing hearing at which it re-

imposed the same sentences it originally had imposed. The trial court also made the

following findings for consecutive sentences under R.C. 2929.14(C)(4):

I specifically find that consecutive sentences are necessary to punish

the offender. And that consecutive sentences are not disproportionate to

the seriousness of Ms. Irwin-Debraux, [sic] and to the danger she poses to

the public. And at least two of the multiple offenses were committed as part

of one, or more, course of conduct by the Defendant. And the harm caused

by two, or more, of the multiple offenses was so great and unusual that no

single prison term can adequately reflect the seriousness of the defendant’s

conduct.

(January 6, 2020 Resentencing Tr. at 4.) -4-

{¶ 6} The trial court subsequently filed an amended judgment entry in which it re-

imposed Irwin-Debraux’s sentence. The amended judgment entry includes the following

consecutive-sentence findings:

The Court finds that consecutive sentencing is necessary to punish

Defendant. Consecutive sentencing is not disproportionate to the

seriousness of Defendant’s conduct and to the danger Defendant poses to

the public. At least two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or more of

the multiple offenses was so great and unusual that no single prison term

can adequately reflect the seriousness of Defendant’s conduct.

(January 7, 2020 Amended Judgment Entry at 2.)

{¶ 7} Upon review, we agree with appointed appellate counsel that the trial court

made all required consecutive-sentence findings under R.C. 2929.14(C)(4) and that Irwin-

Debraux’s consecutive sentences are not contrary to law. In the portion of the

resentencing transcript quoted above, the trial court apparently omitted the word

“conduct.” Regardless, when the passage is read in context, it is clear to us that the trial

court was making a finding under R.C. 2929.14(C)(4), as reflected in the trial court’s

amended judgment entry. We note too that the trial court was not obligated to impose

concurrent sentences on remand. When a trial court imposes consecutive sentences

without making the required statutory findings, a remand is needed for the court “to

consider whether consecutive sentences are permitted under R.C. 2929.14(C)(4) based

on evidence that is properly before it and to make, or not make, the appropriate findings.”

State v. Brewer, 2017-Ohio-119, 80 N.E.3d 1257, ¶ 20 (2d Dist.). Therefore, the trial court -5-

did not err in making findings under R.C. 2929.14(C)(4) on remand. In this appeal of the

very limited issue of consecutive sentence imposition, an argument that consecutive

sentences are contrary to law is frivolous.

{¶ 8} We also see no potential issue about whether the record clearly and

convincingly fails to support the trial court’s consecutive-sentence findings, as would be

required to vacate or modify Irwin-Debraux’s sentence under R.C. 2953.08(G)(2)(a). At

the original sentencing hearing, the trial court noted that Irwin-Debraux was under the

influence of multiple illegal substances when she fled from police in a stolen vehicle at

speeds of 60 to 80 miles per hour on State Route 741. The trial court disbelieved her

claim that she stole the vehicle to escape from an attempted rape. The trial court noted

that Irwin-Debraux stole the vehicle approximately two hours before the accident,

suggesting that she was not in the process of fleeing from an attempted sexual assault.

The trial court also reasoned that a person fleeing from an attempted rape would stop

and seek assistance from police, not attempt to evade them. The trial court additionally

heard a statement about how the loss of the deceased victim had changed the lives of

surviving family members. The trial court indicated that it also had reviewed letters from

the victim’s family members expressing how dramatically their lives had been changed.

Finally, the trial court rejected Irwin-Debraux’s suggestion that she did not “directly” cause

the victim’s death. (February 7, 2019 Sentencing Tr. at 8-11.) We note too that the trial

court reviewed a presentence-investigation report that detailed Irwin-Debraux’s reckless

driving and included her admission to being under the influence of methamphetamine,

crack cocaine, and marijuana. The PSI report also contained victim-impact statements

and the letters the trial court reviewed. Although the PSI report reflected that Irwin- -6-

Debraux had no prior criminal convictions, the trial court’s consecutive-sentence findings

in this case did not rely on the existence of a criminal history. We see no non-frivolous

argument as to whether the record clearly and convincingly fails to support the trial court’s

imposition of consecutive sentences. To the contrary, the record before us fully supports

the trial court’s sentencing decision.

{¶ 9} In her pro se filings, Irwin-Debraux suggests that consecutive sentences

were not warranted because the officers who pursued her violated their own policies by

engaging in a high-speed pursuit in a residential area during rush hour. Irwin-Debraux

claims that she did not kill anyone, and she attributes the fatal accident to the officers’

actions. She also claims that she was under the influence of illegal drugs because needed

medications had been taken away from her by her mother. Finally, she cites the fact that

she was 18 years old at the time of the accident.

{¶ 10} Upon review, we find Irwin-Debraux’s arguments to be unpersuasive. The

record contains no information about whether the pursuing officers violated departmental

policy. In any event, we note that she pled guilty to involuntary manslaughter which, by

its terms, included an admission that she caused the death of another as a proximate

result of her violation of the offense of failure to comply with the order or signal of a police

officer. Because of that guilty plea, the trial court reasonably found Irwin-Debraux

responsible for causing the victim’s death as a result of her own actions and she cannot

now deny responsibility for the death. The record also contains no information about Irwin-

Debraux self-medicating with illegal drugs to cope with her mother taking away

prescription medication that Irwin-Debraux needed to cope with mental-health issues. As

for Irwin-Debraux’s age, the trial court was aware of her relative youth and presumably -7-

considered that fact.

{¶ 11} Finally, Irwin-Debraux suggests in conclusory fashion that her aggregate

sentence is inconsistent with “R.C. 2929.4” (which we presume is a reference to R.C.

2929.41), R.C. 2929.11, R.C. 2929.12, and R.C. 2929.13. We see no non-frivolous issue.

Our remand was for the limited purpose of giving the trial court an opportunity to make

consecutive-sentence findings under R.C. 2929.14(C)(4). The only issue properly before

us involves the trial court’s consecutive-sentence findings. Res judicata precludes Irwin-

Debraux from raising other issues in this appeal, including whether her sentence is

inconsistent with other statutes. We note too that Irwin-Debraux actually raised an

argument based on R.C. 2929.11 in her first appeal. We addressed the statute there and

rejected her argument. See Irwin-Debraux, 2d Dist. Montgomery No. 28309, 2019-Ohio-

5013, at ¶ 15-20.

{¶ 12} In any event, under R.C. 2929.41(A), prison terms are to be served

concurrently except as provided in other statutes, including R.C. 2929.14(C)(4). Here the

trial court made the requisite findings under R.C. 2929.14(C)(4). Therefore, it was not

required to impose concurrent prison terms. The next statute, R.C. 2929.11, sets forth the

purposes of felony sentencing, and R.C. 2929.12 identifies various “seriousness” and

“recidivism” factors for a trial court to consider. We see no non-frivolous issue for appeal

under either statute. The last statute, R.C. 2929.13, provides guidelines for specific

offenses and degrees of offenses. Irwin-Debraux has not attempted to identify how she

believes it was violated, and we see no non-frivolous issue for appeal.

{¶ 13} Pursuant to our responsibility under Anders, we independently have

examined the record for potential issues and have found none. Accordingly, the judgment -8-

of the Montgomery County Common Pleas Court is affirmed.

DONOVAN, J. and FROELICH, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Heather N. Ketter Adam J. Arnold Alyssa Irwin-Debraux Hon. Michael W. Krumholtz