State v. Vanderhoof

2013 Ohio 5366

• Court: Ohio Court of Appeals
• Decided: December 9, 2013
• Docket: 2013-L-036
• Status: Published

Opinion

[Cite as State v. Vanderhoof, 2013-Ohio-5366.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2013-L-036 - vs - :

DANIEL A. VANDERHOOF, JR., :

Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 12 CR 000846.

Judgment: Affirmed.

Charles E. Coulson, Lake County Prosecutor, and Alana A. Rezaee, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

Vanessa R. Clapp, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Daniel A. Vanderhoof, Jr., appeals from the judgment of the

Lake County Court of Common Pleas, sentencing him to an aggregate term of 16 years

imprisonment followed by a 180-day term in the Lake County Jail. We affirm.

{¶2} In the early-morning hours of December 9, 2012, appellant was driving a

vehicle in a residential neighborhood at speeds exceeding 60 mph. Appellant

proceeded down a dead-end road, eventually crashing through an occupied home. Two of the three family members in the home were seriously injured, one of which was a

three-year-old boy. Appellant fled the scene, but was eventually apprehended. He was

intoxicated and non-cooperative with officers. After his arrest, appellant’s BAC was

measured at .172.

{¶3} Appellant was indicted on the following 11 counts: (1) aggravated

vehicular assault, a felony of the second degree, in violation of R.C. 2903.08(A)(1)(a),

that specified appellant was driving under suspension; (2) aggravated vehicular assault,

a felony of the second degree, in violation of R.C. 2903.08(A)(1)(a), that specified

appellant was driving under suspension; (3) operating a vehicle under the influence of

alcohol, a drug of abuse, or a combination of them, a misdemeanor of the first degree,

in violation of R.C. 4511.19(A)(1)(a); (4) aggravated vehicular assault, a felony of the

second degree, in violation of R.C. 2903.08(A)(1)(a), that specified appellant was

driving under suspension; (5) aggravated vehicular assault, a felony of the second

degree, in violation of R.C. 2903.08(A)(1)(a), that specified appellant was driving under

suspension; (6) operating a vehicle under the influence of alcohol, a drug of abuse, or a

combination of them, a misdemeanor of the first degree, in violation of R.C.

4511.19(A)(1)(h); (7) vehicular assault, a felony of the third degree, in violation of R.C.

2903.08(A)(2)(b), that specified appellant was driving under suspension; (8) vehicular

assault, a felony of the third degree, in violation of R.C. 2903.08(A)(2)(b), that specified

appellant was driving under suspension; (9), driving under suspension, an unclassified

misdemeanor, in violation of R.C. 4510.111(A); (10) failure to stop after an accident

involving the property of others, a misdemeanor of the first degree, in violation of R.C.

4549.03(A); and (11) operating a motor vehicle without a valid license, a minor

2 misdemeanor, in violation of R.C. 4510.12(A)(1). Appellant entered a plea of not guilty

to all charges.

{¶4} Appellant later withdrew his previous plea of not guilty and entered pleas

of guilty to counts one, two, and three. The court nolled the remaining counts in the

indictment and ordered a presentence investigation report. The matter came on for

sentencing and, after a hearing, the court sentenced appellant to a mandatory prison

term of eight years on count one; a mandatory prison term of eight years on count two;

and 180 days of local incarceration on count three. The court ordered the terms

imposed for counts one and two to be served consecutively to each other, for an

aggregate term of 16 years. The court further ordered the 180-day term of local

incarceration to follow appellant’s prison term. Finally, the court ordered appellant to

pay $62,240.41 in restitution to his victims.

{¶5} Appellant filed a timely notice of appeal and assigns two errors for our

review. His first assignment of error provides:

{¶6} “The trial court erred by sentencing the defendant-appellant to maximum

and consecutive terms of imprisonment.”

{¶7} “[A]ppellate courts must apply a two-step approach when reviewing felony

sentences. First, they must examine the sentencing court’s compliance with all

applicable rules and statutes in imposing the sentence to determine whether the

sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the

trial court’s decision in imposing the term of imprisonment is reviewed under the abuse-

of-discretion standard.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶26.

3 {¶8} H.B. 86, which became effective on September 30, 2011, revived the

language provided in former R.C. 2929.14(E) and moved it to R.C. 2929.14(C)(4). The

revisions to the felony sentencing scheme under H.B. 86 now require a trial court to

make specific findings when imposing consecutive sentences.

{¶9} R.C. 2929.14(C)(4) provides:

{¶10} If multiple prison terms are imposed on an offender for convictions

of multiple offenses, the court may require the offender to serve the

prison terms consecutively if the court finds that the consecutive

service is necessary to protect the public from future crime or to

punish the offender and that consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and

to the danger the offender poses to the public, and if the court also

finds any of the following:

{¶11} (a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a

sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18

of the Revised Code, or was under post-release control for a prior

offense.

{¶12} (b) 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 so committed was so great or unusual

that no single prison term for any of the offenses committed as part

4 of any of the courses of conduct adequately reflects the

seriousness of the offender’s conduct.

{¶13} (c) The offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from

future crime by the offender.

{¶14} Appellant does not assert his sentence was contrary to law. And, the

record is clear, the trial court imposed sentences within the applicable felony range and

made the appropriate findings in support of consecutive sentences. Appellant’s

argument therefore focuses upon the trial court’s exercise of discretion in imposing

sentence. In particular, appellant contends the trial court abused its discretion by failing

to give appropriate consideration and adequate weight to his genuine remorse, his

acknowledgement of his problems with alcohol and his acceptance of responsibility.

We do not agree.

{¶15} At the sentencing hearing, the trial court stated it had considered the

relevant seriousness and recidivism factors set forth under R.C. 2929.12. The court

observed:

{¶16} There are a number of factors that make these crimes more

serious. The victims, at least 2 of the victims suffered serious

physical harm. Both of them came very close to death, based upon

the physical harm done to them. The other child came close to

serious physical harm. He was trapped in his toy [sic] in the room

where you crashed into. The whole family suffered extreme

psychological damage. Something that I would consider to along

5 the lines of post traumatic stress disorder. The family suffered

serious economic harm. Your license was suspended at the time.

You shouldn’t have been in a vehicle at all. If you weren’t in a

vehicle, had you obeyed the suspension, then this crash could not

have occurred. I don’t find any factors that make this offense,

these offenses less serious. In fact, I consider the aggravated

vehicular assaults to be a worst form of those offenses. In terms of

recidivism, not only were you driving on a suspended license, you

have a previous criminal record that is substantial. You have a

minor juvenile record of assault. You do have 2 prior driving under

the influences, in 2002 and 2009. And a misdemeanor charge of

possession of harmful intoxicants from 2002; resisting arrest and

destroying city property in 2002; drug paraphernalia in 2002.

Domestic violence in 2003; drug paraphernalia in 2003. Then you

were in front of me on the felony charges. Two attempted

burglaries and a domestic violence, and I gave you 3 ½ years in

prison. The maximum was 4 years. I gave you 6 months less that

the maximum. So I gave you a break by giving you 6 months less

than the maximum on those 3 charges. You have a contempt of

court in Willoughby in 2005. Petty theft in Mentor, 2005; disorderly

conduct in Mentor in 2005; criminal damaging in Painesville in

2005. And then I gave you the 3 ½ years at the end of 2005, so

you have no record between 2005 and 2009. So apparently I did a

6 good job in keeping society safe by keeping you in prison for 3 ½

years. Then you got out of prison, you got another OVI. Another

drug abuse. Criminal damaging in 2010. Drug paraphernalia in

’11; falsification in ’12. And now this in 2012. You have a long

previous criminal history. You have a rehabilitation failure after

previous convictions. You failed to respond in the past to the

probation that was given to you in the municipal courts, and you

failed to respond to the 6 months less that the maximum

consecutive the last time you were here. There’s a pattern of drug

and alcohol abuse with you, and you have refused to acknowledge

a problem or to seek out treatment. And the Court finds no genuine

remorse. You immediately fled the scene on foot. You immediately

blamed someone else. You blamed the vehicle when you have no

evidence that the vehicle was defective. And even if it was, you still

can’t use that to explain why are you going in excess - - well in

excess - - of 60-some miles per hour on a residential street. And

that was measured after the braking started. In fact, I believe this

offense was committed under circumstances extremely likely to

recur.

{¶17} The foregoing statements demonstrate the court gave careful

consideration to the circumstances of the crimes to which appellant plead as well as

appellant’s personal history, both at the time of sentencing and his previous conduct.

And even though appellant expressed remorse on record, the court was not obligated to

7 accept or give any particular credence to these representations. We therefore hold the

trial court did not abuse its discretion when it imposed the maximum, consecutive

sentences.

{¶18} Appellant’s first assignment of error is without merit.

{¶19} Appellant’s second assignment of error provides:

{¶20} “The trial court violated the defendant-appellant’s rights to Equal

Protection and Due Process under the Fifth and Fourteenth Amendments to the U.S.

Constitution and under Sections 2, 10 and 16, Article I of the Ohio Constitution when it

sentenced him contrary to R.C. 2929.11(B).”

{¶21} Appellant asserts the trial court erred because its sentence was not

consistent with the sentences for similar crimes committed by similar offenders. We do

not agree.

{¶22} R.C. 2929.11(B) provides:

{¶23} A sentence imposed for a felony shall be reasonably calculated to

achieve the two overriding purposes of felony sentencing set forth

in division (A) of this section, commensurate with and not

demeaning to the seriousness of the offender’s conduct and its

impact upon the victim, and consistent with sentences imposed for

similar crimes committed by similar offenders. R.C. 2929.11(B).

{¶24} This court has held that consistency in sentencing is not a matter of

comparing similar offenders or similar cases. State v. DeMarco, 11th Dist. Lake App.

No. 2007-L-130, 2008-Ohio-3511, ¶25. In holding that cases cannot be formulaically

compared in the abstract, we recognize the circumstances and realities attaching to one

8 case will always differ from another. State v. Burrell, 11th Dist. Portage No. 2009-P-

0033, 2010-Ohio-6059. And, by designating a range from which a judge can choose an

appropriate sentence, Ohio law acknowledges that harsher punishments may be

necessary to accomplish the purposes of felony sentencing, even when different

defendants commit the same crimes. Id. Consistency in sentencing is accordingly

measured by a trial court’s proper application and consideration of Ohio’s sentencing

guidelines. State v. Price, 11th Dist. Geauga No. 2007-G-2785, 2008-Ohio-1134, ¶33.

Hence, for an appellant to demonstrate inconsistency in sentencing, he or she must

show the trial court failed to properly consider the relevant statutory factors and

guidelines. Id.

{¶25} As discussed above, the trial court gave careful and appropriate

consideration to the relevant statutory guidelines when it imposed its sentence. We

therefore hold the trial court’s sentence was consistent pursuant to R.C. 2929.11(B).

{¶26} Appellant’s second assignment of error lacks merit.

{¶27} For the reasons discussed in this opinion, the judgment of the Lake

County Court of Common Pleas is affirmed.

DIANE V. GRENDELL, J., concurs,

COLLEEN MARY O’TOOLE, J., concurs in judgment only.