State v. Russell, Unpublished Decision (3-13-2000)
State v. Russell, Unpublished Decision (3-13-2000)
Opinion of the Court
OPINION
Defendant-Appellant, Donnie R. Russell, brings this appeal from a judgment of conviction and sentence issued by the Court of Common Pleas of Auglaize County, ordering Appellant to serve maximum, consecutive prison terms on two counts of attempted aggravated vehicular homicide. For the reasons stated below, we vacate the trial court's judgment and remand the matter for resentencing.On March 15, 1999, at approximately 10:00 p.m., while traveling northbound on Interstate 75, Appellant struck the rear of a vehicle driven by Dorothy Allen, forcing it off the road. As a result of the collision, Allen's vehicle flipped over twice, eventually landing in a ditch. Appellant then struck the rear of a tractor-trailer truck. He continued down the highway for another two-tenths of a mile before stopping on the shoulder. Appellant fled the scene on foot and was later found hiding facedown in a field. The authorities noticed an odor of alcohol and Appellant admitted to having consumed a pitcher of beer at a restaurant prior to the accident. Appellant was then taken into custody without incident.
Meanwhile, Allen was "care-flighted" to Miami Valley Hospital in Dayton, Ohio, where she spent four days undergoing treatment for several serious injuries. Allen's sister, Katherine Miller, who was riding in the passenger seat, was also injured and treated at another facility for various bone fractures and a pulmonary contusion. In addition to the physical injuries, Allen's vehicle sustained serious damage. The driver of the tractor-trailer was not injured.
Appellant subsequently pled guilty to two counts of attempted aggravated vehicular homicide, violations of R.C.
Thereafter, on September 20, 1999, the trial court conducted the sentencing hearing and, based upon various findings, ordered Appellant to serve the maximum prison term of 18 months on each count and ordered the sentences served consecutively. This appeal followed.
The trial court failed to properly follow the sentencing criteria set forth in Ohio Revised Code Sections2929.13 and2929.14 , resulting in the Defendant-Appellant receiving the maximum sentence on each count.
R.C.
Due to the July 1, 1996 enactment of Senate Bill 2, Ohio felony sentencing law requires a trial court to make various findings before it may properly impose a sentence. With regard to those findings, this court has consistently held that "it is the trial court's findings under R.C.
When sentencing an offender on a fourth degree felony, a trial court may impose a prison term ranging from six to eighteen months. See R.C.
(a) In committing the offense, the offender caused physical harm to a person.
(b) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person with a deadly weapon.
(c) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person, and the offender previously was convicted of an offense that caused physical harm to a person.
(d) The offender held a public office or position of trust and the offense related to that office or position * * *.
(e) The offender committed the offense for hire or as part of an organized criminal activity.
(f) The offense is a sex offense that is a fourth or fifth degree felony * * *.
(g) The offender previously served a prison term.
(h) The offender previously was subject to a community control sanction, and the offender committed another offense while under the sanction.
If the trial court finds that one or more of these factors exists, and, "after considering the factors set forth in section
Upon finding that prison is the most appropriate punishment, the trial court must then turn to R.C.
Pursuant to R.C.
In the instant case, the record indicates that the trial court properly considered all relevant statutes and made the required findings necessary to impose the maximum sentence. Moreover, the sentencing hearing transcript reveals that the trial judge stated that his reason for imposing the maximum sentence was the fact that Appellant has had previous convictions for various offenses involving alcohol and violence. Therefore, despite Appellant's claims to the contrary, we find that the trial court did not err sentencing Appellant to the maximum prison term.
The trial court's ordering the sentences of Defendant-Appellant to be served consecutively to each other was unsupported by the record and was contrary to law.
R.C.
(4) 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 sentence 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:
* * *
(b) The harm caused by the multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of a single course adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
Additionally, in imposing consecutive sentences, the trial court must also follow the mandates contained in R.C.
While the record demonstrates that the trial court complied with R.C.
Accordingly, Appellant's second assignment of error is sustained.
Having found error prejudicial to the Appellant herein, in the particulars assigned and argued, the judgment of sentencing is vacated and the matter remanded for resentencing.
Sentence vacated and remanded for resentencing.
SHAW and BRYANT, JJ., concur.
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