[Cite as State v. Riley, 2012-Ohio-1086.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY
STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 11CA14 : vs. : Released: March 12, 2012 : JASON W. RILEY, : DECISION AND JUDGMENT : ENTRY Defendant-Appellant. : APPEARANCES:
Bradley P. Koffel, The Koffel Law Firm, Columbus, Ohio, for Appellant.
Keller J. Blackburn, Athens County Prosecutor, and Sabrina J. Ennis, Athens County Assistant Prosecutor, Athens, Ohio, for Appellee.
McFarland, J.:
{¶1} Appellant Jason Riley (“Riley”) pled guilty to aggravated vehicular
homicide and aggravated vehicular assault. The trial court sentenced Riley to four
years and eleven months total, to run consecutively to his sentences from other
cases. Riley raises two assignments of error, arguing 1) the trial court erred by
failing to merge the two counts as allied offenses of similar import, and 2) the trial
court erred by disapproving of Riley’s participation in a transitional control
program, pursuant to R.C. 2967.26, in its sentencing entry. Having reviewed the
record, we find the trial court did not err, and we affirm the trial court’s judgment. Athens App. No. 11CA14 2
FACTS
{¶2} In the late hours of November 14, 2009 and into the next morning,
Riley and his girlfriend, Stephanie Gaddis (“Gaddis”), and his cousin, Howard
Holcomb (“Holcomb”), were drinking at a bar. The three left the bar, with Riley
driving. Admittedly travelling at an excessive rate of speed, Riley lost control of
the vehicle and veered from the roadway. Holcomb suffered serious injuries, as
did Riley. Unfortunately, Gaddis passed away.
{¶3} Riley pled guilty to one count of aggravated vehicular homicide and
one count of aggravated vehicular assault. The trial court sentenced Riley to four
years and eleven months total, to be served consecutively to his sentences on two
other cases. Riley now appeals.
ASSIGNMENTS OF ERROR
I. “The trial court erred when it failed to merge the defendant’s
convictions.”
II. “The trial court erred by including in the sentencing entry a provision
that the defendant is not to be considered or released on transitional
control.”
I. Allied Offenses
{¶4} In his first assignment of error, Riley argues the trial court erred in
failing to merge his convictions for aggravated vehicular homicide and aggravated Athens App. No. 11CA14 3
vehicular assault. Riley contends while there were two separate victims, both
crimes occurred as the result of a single act and should have merged at sentencing.
We disagree.
{¶5} When determining whether multiple offenses should have merged
under R.C. 2941.25, “[o]ur standard of review is de novo.” State v. Buckta (Nov.
12, 1996), 4th Dist. No. 96 CA 3. See, also, Coleman v. Davis, 4th Dist. No.
10CA5, 2011-Ohio-506, at ¶ 16 (“We review questions of law de novo.”), quoting
State v. Elkins, 4th Dist. No. 07CA1, 2008-Ohio-674, at ¶ 12, quoting Cuyahoga
Cty. Bd. of Commrs. v. State, 112 Ohio St.3d 59, 2006-Ohio-6499, 858 N.E.2d
330, at ¶ 23.
{¶6} R.C. 2941.25 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.” Athens App. No. 11CA14 4
{¶6} As the Supreme Court explained in State v. Johnson, 128 Ohio St.3d
153, 2010-Ohio-6314, 942 N.E.2d 1061, under R.C. 2941.25, “the court must
determine prior to sentencing whether the offenses were committed by the same
conduct.” Johnson at ¶ 47. The initial question is whether it is possible to commit
the two offenses with the same conduct. Johnson at ¶ 48. If so, we must then look
to the facts of the case and determine whether the two offenses actually were
committed by the same conduct, “i.e., ‘a single act, committed with a single state
of mind.’” Johnson at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-
Ohio-4569, 895 N.E.2d 149, at ¶ 50. “If the answer to both questions is yes, then
the offenses are allied offenses of similar import and will be merged.” Johnson at
¶ 50.
{¶7} “Conversely, if the court determines that the commission of one
offense will never result in the commission of the other, or if the offenses are
committed separately, or if the defendant has separate animus for each offense,
then, according to R.C. 2941.25(B), the offenses will not merge.” Johnson at ¶ 51.
Here, Riley’s crimes are of dissimilar import and do no not merge.
{¶8} State v. Jones (1985), 18 Ohio St.3d 116, 480 N.E.2d 408, discussed
the issue of whether a defendant could be convicted of multiple counts of
aggravated vehicular homicide resulting from a single collision. The relevant
inquiry is “whether the legislature intended the relevant statute[s] to authorize Athens App. No. 11CA14 5
multiple convictions.” Jones at 117. While General Assembly has amended the
statutes proscribing aggravated vehicular homicide (R.C. 2903.06) and aggravated
vehicular assault (R.C. 2903.08) since Jones, their legislative intent and import
remain the same.
{¶9} R.C. 2903.08 punishes a person for operating a motor vehicle and
causing “serious physical harm to another person.” R.C. 2903.06 punishes a
person for operating a motor vehicle and causing “the death of another.” The
import of each statute is the harm the operator of the motor vehicle caused a
specific person. When there is a single victim, the harm the operator caused the
victim is the same when the victim sustains serious physical harm as it is if the
victim dies from said physical harm. That is, the serious physical harm Riley
caused Gaddis merged into her death.
{¶10} However, when the operator causes serious physical harm to two
persons and the second person dies, the harm amongst the two victims is not the
same. The harm the operator caused to each victim has its own unique import. If
“crimes are perpetrated against different victims they are crimes of ‘dissimilar
import.’” State v. Scheutzman, 4th Dist. No. 07CA22, 2008-Ohio-6096, at ¶ 13.
Here, the serious physical harm Riley caused Holcomb is separate and distinct
from Gaddis’ death. The two crimes are of dissimilar import and do not merge
under R.C. 2941.25(B). Athens App. No. 11CA14 6
{¶11} Therefore, we overrule Riley’s first assignment of error.
II. Disapproval of Transitional Control
{¶12} In his second assignment of error, Riley argues the trial court’s
disapproval of his participation in a transitional control program within its
sentencing entry was both premature and improper. Rather, Riley believes the trial
court should have waited until the adult parole authority (“APA”) sent notice of its
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[Cite as State v. Riley, 2012-Ohio-1086.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY
STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 11CA14 : vs. : Released: March 12, 2012 : JASON W. RILEY, : DECISION AND JUDGMENT : ENTRY Defendant-Appellant. : APPEARANCES:
Bradley P. Koffel, The Koffel Law Firm, Columbus, Ohio, for Appellant.
Keller J. Blackburn, Athens County Prosecutor, and Sabrina J. Ennis, Athens County Assistant Prosecutor, Athens, Ohio, for Appellee.
McFarland, J.:
{¶1} Appellant Jason Riley (“Riley”) pled guilty to aggravated vehicular
homicide and aggravated vehicular assault. The trial court sentenced Riley to four
years and eleven months total, to run consecutively to his sentences from other
cases. Riley raises two assignments of error, arguing 1) the trial court erred by
failing to merge the two counts as allied offenses of similar import, and 2) the trial
court erred by disapproving of Riley’s participation in a transitional control
program, pursuant to R.C. 2967.26, in its sentencing entry. Having reviewed the
record, we find the trial court did not err, and we affirm the trial court’s judgment. Athens App. No. 11CA14 2
FACTS
{¶2} In the late hours of November 14, 2009 and into the next morning,
Riley and his girlfriend, Stephanie Gaddis (“Gaddis”), and his cousin, Howard
Holcomb (“Holcomb”), were drinking at a bar. The three left the bar, with Riley
driving. Admittedly travelling at an excessive rate of speed, Riley lost control of
the vehicle and veered from the roadway. Holcomb suffered serious injuries, as
did Riley. Unfortunately, Gaddis passed away.
{¶3} Riley pled guilty to one count of aggravated vehicular homicide and
one count of aggravated vehicular assault. The trial court sentenced Riley to four
years and eleven months total, to be served consecutively to his sentences on two
other cases. Riley now appeals.
ASSIGNMENTS OF ERROR
I. “The trial court erred when it failed to merge the defendant’s
convictions.”
II. “The trial court erred by including in the sentencing entry a provision
that the defendant is not to be considered or released on transitional
control.”
I. Allied Offenses
{¶4} In his first assignment of error, Riley argues the trial court erred in
failing to merge his convictions for aggravated vehicular homicide and aggravated Athens App. No. 11CA14 3
vehicular assault. Riley contends while there were two separate victims, both
crimes occurred as the result of a single act and should have merged at sentencing.
We disagree.
{¶5} When determining whether multiple offenses should have merged
under R.C. 2941.25, “[o]ur standard of review is de novo.” State v. Buckta (Nov.
12, 1996), 4th Dist. No. 96 CA 3. See, also, Coleman v. Davis, 4th Dist. No.
10CA5, 2011-Ohio-506, at ¶ 16 (“We review questions of law de novo.”), quoting
State v. Elkins, 4th Dist. No. 07CA1, 2008-Ohio-674, at ¶ 12, quoting Cuyahoga
Cty. Bd. of Commrs. v. State, 112 Ohio St.3d 59, 2006-Ohio-6499, 858 N.E.2d
330, at ¶ 23.
{¶6} R.C. 2941.25 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.” Athens App. No. 11CA14 4
{¶6} As the Supreme Court explained in State v. Johnson, 128 Ohio St.3d
153, 2010-Ohio-6314, 942 N.E.2d 1061, under R.C. 2941.25, “the court must
determine prior to sentencing whether the offenses were committed by the same
conduct.” Johnson at ¶ 47. The initial question is whether it is possible to commit
the two offenses with the same conduct. Johnson at ¶ 48. If so, we must then look
to the facts of the case and determine whether the two offenses actually were
committed by the same conduct, “i.e., ‘a single act, committed with a single state
of mind.’” Johnson at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-
Ohio-4569, 895 N.E.2d 149, at ¶ 50. “If the answer to both questions is yes, then
the offenses are allied offenses of similar import and will be merged.” Johnson at
¶ 50.
{¶7} “Conversely, if the court determines that the commission of one
offense will never result in the commission of the other, or if the offenses are
committed separately, or if the defendant has separate animus for each offense,
then, according to R.C. 2941.25(B), the offenses will not merge.” Johnson at ¶ 51.
Here, Riley’s crimes are of dissimilar import and do no not merge.
{¶8} State v. Jones (1985), 18 Ohio St.3d 116, 480 N.E.2d 408, discussed
the issue of whether a defendant could be convicted of multiple counts of
aggravated vehicular homicide resulting from a single collision. The relevant
inquiry is “whether the legislature intended the relevant statute[s] to authorize Athens App. No. 11CA14 5
multiple convictions.” Jones at 117. While General Assembly has amended the
statutes proscribing aggravated vehicular homicide (R.C. 2903.06) and aggravated
vehicular assault (R.C. 2903.08) since Jones, their legislative intent and import
remain the same.
{¶9} R.C. 2903.08 punishes a person for operating a motor vehicle and
causing “serious physical harm to another person.” R.C. 2903.06 punishes a
person for operating a motor vehicle and causing “the death of another.” The
import of each statute is the harm the operator of the motor vehicle caused a
specific person. When there is a single victim, the harm the operator caused the
victim is the same when the victim sustains serious physical harm as it is if the
victim dies from said physical harm. That is, the serious physical harm Riley
caused Gaddis merged into her death.
{¶10} However, when the operator causes serious physical harm to two
persons and the second person dies, the harm amongst the two victims is not the
same. The harm the operator caused to each victim has its own unique import. If
“crimes are perpetrated against different victims they are crimes of ‘dissimilar
import.’” State v. Scheutzman, 4th Dist. No. 07CA22, 2008-Ohio-6096, at ¶ 13.
Here, the serious physical harm Riley caused Holcomb is separate and distinct
from Gaddis’ death. The two crimes are of dissimilar import and do not merge
under R.C. 2941.25(B). Athens App. No. 11CA14 6
{¶11} Therefore, we overrule Riley’s first assignment of error.
II. Disapproval of Transitional Control
{¶12} In his second assignment of error, Riley argues the trial court’s
disapproval of his participation in a transitional control program within its
sentencing entry was both premature and improper. Rather, Riley believes the trial
court should have waited until the adult parole authority (“APA”) sent notice of its
intent to place Riley into transitional control, pursuant to R.C. 2967.26(A)(2), to
disapprove of Riley entering transitional control. We disagree.
{¶13} Normally, whether a prisoner would be eligible for transitional control
is uncertain because his eligibility is partially based upon his behavior while
incarcerated. The APA would assess the prisoner’s eligibility when his remaining
sentence nears 180 days. Ohio Adm.Code 5120-12-01(F) provides, “In order to be
eligible for transitional control transfer pursuant to section 2967.26 of the Revised
Code, a prisoner must meet all of the following minimum criteria: * * * (8)
Prisoners shall not have a designated security level of level 3, level 4 or level 5.
(9) Prisoners shall not be currently confined in any institution control status as a
result of any disciplinary action.” (Emphasis added.) Thus, on appeal, whether a
prisoner would qualify for a transitional control transfer at a later date would be
uncertain because his designated security level and whether he was confined in
institutional control at that later date are unknown. Without knowing whether a Athens App. No. 11CA14 7
prisoner is eligible for transitional control, this Court cannot determine whether the
trial court’s entry disapproving of the prisoner’s transfer to transitional control has
resulted in prejudice to the prisoner; the issue would be unripe for review. See,
State v. Moss, 186 Ohio App.3d 787, 2010-Ohio-1135, 930 N.E.2d 838 (discussing
ripeness).
{¶14} However, in this case, Riley is already disqualified from being
transferred to transitional control. Specifically, to be eligible for transfer to
transitional control, a prisoner “shall not have any past or current convictions for *
* * aggravated vehicular assault, section 2903.08, * * * or aggravated vehicular
homicide, section 2903.06 of the Revised Code.” Ohio Adm.Code 5120-12-
01(F)(12). This is exactly to what Riley pled: aggravated vehicular assault, under
R.C. 2903.08(A)(2)(b), and aggravated vehicular homicide, under R.C.
2903.06(A)(2)(a). Consequently, Riley is ineligible for transitional control and the
trial court’s disapproval is moot. Thus, we overrule Riley’s second assignment of
error.
JUDGMENT AFFIRMED.
Harsha, J., concurring.
{¶15} I concur in the judgment because I conclude the two offenses are
crimes of similar import, i.e., it is possible to commit both by the same conduct.
However, I also conclude they were not actually committed with a single state of Athens App. No. 11CA14 8
mind, i.e., Riley possessed a separate animus toward each victim although the
crimes were committed at the same time. See R.C. 2941.25(B) and 1973
Legislative Service Commission comments to 1972 Am.Sub.H.B. No. 511, cited in
Johnson, supra, at footnote 2. In all other regards, I concur in judgment and
opinion. Athens App. No. 11CA14 9
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Abele, P.J.: Concurs in Judgment and Opinion. Harsha, J.: Concurs with Concurring Opinion.
For the Court,
BY: _________________________ Matthew W. McFarland, Judge
NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.