State v. Stewart

2013 Ohio 5623

Procedural entryThis page is a short order in State v. Stewart. Read the opinion of the Court — 193 Ohio App. 3d 716 →

Ohio Court of Appeals·Decided December 20, 2013·No. 2013-CA-22·Published

Opinion

[Cite as State v. Stewart, 2013-Ohio-5623.]

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

STATE OF OHIO

Plaintiff-Appellee

CHRISTOPHER STEWART

Defendant-Appellant

Appellate Case No. 2013-CA-22

Trial Court Case No. 2012-CR-783

(Criminal Appeal from (Common Pleas Court) ...........

OPINION

Rendered on the 20th day of December, 2013.

...........

LISA M. FANNIN, Atty. Reg. No. 82337, Clark County Assistant Prosecutor, 50 East Columbia Street, P.O. Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee

LINDA JOANNE CUSHMAN, Atty. Reg. No. 43543, 150 North Limestone Street, Suite 206, Springfield, Ohio 45501 Attorney for Defendant-Appellant

CHRISTOPHER STEWART, Inmate No. 677317, London Correctional Facility, P.O. Box 69, London, Ohio 43140 Defendant-Appellant

............. 2

WELBAUM, J.

{¶ 1} Defendant-Appellant, Christopher Stewart, appeals from his conviction and

sentences following guilty pleas to violations of Aggravated Vehicular Homicide and Aggravated

Vehicular Assault. Appellate counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967), wherein she recites that she has found no

potential assignments of error having arguable merit. She states two possible assignments of

error which we have considered. We have performed our duty, under Anders, to review the record

independently, and we also find no potential assignments of error having arguable merit.

{¶ 2} On September 10, 2012, Stewart was indicted by the Clark County Grand Jury

on one count of Aggravated Vehicular Homicide, R.C. 2903.06(A)(1)(a), a felony of the first

degree, Aggravated Vehicular Assault, R.C. 2903.08(A)(2)(b), a felony of the second degree

(both with specifications that at the time Stewart was driving under suspension), and Operating a

Vehicle Under the Influence of Alcohol or Drugs, R.C. 4511.19(A)(1)(a), in Case No.

2012-CR-620.

{¶ 3} On November 13, 2012, Stewart was indicted on charges of Aggravated

Vehicular Homicide, R.C. 2903.06(A)(1)(a), a felony of the first degree, Aggravated Vehicular

Assault, R.C. 2903.08(A)(1)(a), a felony of the second degree (both with specifications that at the

time Stewart was driving under suspension), Operating a Vehicle Under the Influence of Alcohol

or Drugs, R.C. 4511.19(A)(1)(b), and Operating a Vehicle Under the Influence of Alcohol or

Drugs, R.C. 4511.19(A)(1)(j)(viii)(I), in Case No. 2012-CR-783.

{¶ 4} Since the charges in the two cases arose out of the same incident, on December

10, 2012, the trial court consolidated the cases by agreement of the parties, thereby adding 3

additional charges to the first indictment. The parties reached a negotiated plea agreement.

{¶ 5} Stewart entered a plea of guilty to one count of Aggravated Vehicular Homicide,

R.C. 2903.06(A)(1)(a), a felony of the first degree, with a specification that he was driving

under suspension at the time of the offense, and one count of Aggravated Vehicular Assault, R.C.

2903.08(A)(1)(a) a felony of the third degree, after such specification had been dismissed. The

State also dismissed Case No. 2012-CR-620 and the remaining two counts of Operating a

Vehicle Under the Influence of Alcohol or Drugs. The court ordered a pre-sentence investigation.

{¶ 6} The court sentenced Stewart to maximum prison terms, 11 years for the

aggravated vehicular homicide and five years for the aggravated vehicular assault to be served

consecutively, for a total of 16 years. The court suspended Stewart’s driver’s license for life and

imposed the mandatory five year term of post release control.

{¶ 7} The charges arose from Stewart causing the death of William E. Parks and

extremely serious physical harm to Cynthia Parks while driving under the influence of alcohol

and drugs. Stewart was so impaired he did not realize he was driving his truck in the wrong

direction on a one way street, when it hit the Parks’ motorcycle head-on. Tr., p. 10. Stewart had

six prior convictions for impaired driving and was on probation and driving under suspension

from a recent conviction. Tr., p. 11.

{¶ 8} The first possible assignment of error states,

THE TRIAL JUDGE DID NOT CONSIDER ALL NECESSARY FACTORS

PRIOR TO DETERMINING THE SENTENCE TO THE DETRIMENT OF

APPELLANT.

{¶ 9} The trial court failed to state that it considered the principles and purposes of 4

sentencing under R.C. 2929.11 and balanced the seriousness and recidivism factors under R.C.

2929.12. However, we have previously stated that:

The trial court failed to refer to seriousness or recidivism during the

sentencing hearing, and failed to refer to these matters in the sentencing entry,

other than stating that it had “reviewed sentencing factors.” September 11, 2012

Judgment Entry, Doc. # 55, p. 1.

Nonetheless, “[a] trial court is not required to state that it has considered

R.C. 2929.11and R.C. 2929.12. Unless the sentence it imposes is contrary to law,

a trial court is presumed to have considered them.” (Citation omitted.) State v.

Neff, 2d Dist. Clark No. 2012–CA–31, 2012–Ohio–6047, ¶ 5. This presumption

arises, even if the statutes are not specifically mentioned in the record. State v.

Vannatta, 2d Dist. Champaign No. 10CA34, 2011–Ohio–5074, ¶ 11, citing State

v. Cave, 2d Dist. Clark No. 09–CA–6, 2010–Ohio–1237, ¶ 10, and Kalish, 120

Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124, at ¶ 18, n. 4. State v. Gibson,

2d Dist. Champaign No. 2012-CA-38, 2013-Ohio-2930, ¶ 34-35.

{¶ 10} Here, the trial court imposed the maximum sentence, which was within the

statutory range. The trial court stated at the sentencing hearing that it considered the pre-sentence

investigation, Stewart’s six prior convictions for OVI, that Stewart committed the offenses while

on probation and under suspension for OVI, and that Stewart was under the influence of

marijuana and alcohol when he drove his truck the wrong direction on a one-way street.

{¶ 11} Although the trial court failed to state that it considered the seriousness and 5

recidivism factors, from the foregoing record, and the language contained in the sentencing entry,

we may presume that it considered the law. February 1, 2013 Judgment Entry of Conviction Doc.

No.9, p. 1.

{¶ 12} The second possible assignment of error states,

THE TRIAL JUDGE ERRED IN FINDING THE NECESSARY

REQUIREMENTS FOR IMPOSING CONSECUTIVE SENTENCES.

{¶ 13} We reject this suggestion because the trial court stated the required findings for

imposition of consecutive sentences at the sentencing hearing. Tr., p. 11-12.

{¶ 14} Stewart has appealed his conviction and sentence. His appellate counsel has

filed a brief pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967), stating that

he can find no potential assignments of error having arguable merit. By entry filed on August

29, 2013, Stewart was advised that an Anders brief had been filed on his behalf, and he was given

60 days from that date to file his own pro se brief. He has not filed a pro se brief.

{¶ 15} In Anders, the United States Supreme Court held that if counsel does a

conscientious examination of the case and determines an appeal to be frivolous, counsel should

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