[Cite as State v. Watkins,

.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-120567 TRIAL NO. B-1105308 Plaintiff-Appellee, :

vs. : O P I N I O N.

ANTHONY WATKINS, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 27, 2013

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

William F. Oswall, Jr., for Defendant-Appellant.

Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

CUNNINGHAM, Judge. {¶1} Defendant-appellant Anthony Watkins appeals the imposition of multiple

sentences upon him following his pleas of no contest to a single count of aggravated-

vehicular homicide and to two counts of aggravated-vehicular assault. While under the

influence of drugs, and without an operator’s permit, Watkins drove his vehicle down a

steep hill even though he knew that the vehicle’s brakes were damaged. He sped through

a stop sign and struck a vehicle being driven by Kathy Embry, killing her passenger, her

grandson Jaylind Raven, and seriously injuring Embry and Watkins’ passenger Lonnie

Lane.

I. The Crash on Sutter Avenue {¶2} In April 2011, the brakes on Watkins’ 1993 Ford Explorer sport utility

vehicle did not function fully. Only one of the vehicle’s four brakes was operational. A

driver would have only minimal stopping power when applying the Explorer’s brakes.

Just days before the fatal accident, Watkins had struck a parked car in Mt. Adams. He had

stopped to fix a tire flattened in the accident. Watkins told an investigating Cincinnati

police officer that his brakes did not work. He was issued a citation. Yet Watkins

continued to drive the vehicle. He did not possess a valid operator’s permit.

{¶3} On the morning of the fatal accident, Watkins had been on a “drug binge.”

At his girlfriend’s urging, Watkins picked up Lane and the two went in search of more

drugs. Watkins, driving the damaged Explorer, turned his vehicle eastbound onto Sutter

Avenue, which runs downhill. As the vehicle travelled down Sutter, Watkins was unable to

slow the vehicle. He ultimately shifted into reverse gear in a futile attempt to stop the

vehicle.

{¶4} Watkins ran a stop sign and crashed into Embry’s vehicle. The 14-year-

old Raven was killed upon impact. Embry suffered serious injuries including a lacerated

liver, intracranial bleeding, a spinal fracture, eye damage, and an injury to her facial

nerves. Her injuries required extensive treatment including several weeks of

2 OHIO FIRST DISTRICT COURT OF APPEALS

hospitalization. Watkins’ passenger Lane suffered a laceration on his forehead, broken

bones, and a closed-brain injury. Watkins admitted to investigating officers at the scene

that he had used drugs the day before the accident. A sample of his blood tested positive

for cocaine, cocaine metabolites, and opiates.

II. Multiple Sentences Imposed {¶5} Watkins entered pleas of no contest to the three charges. The trial court

accepted his pleas, found him guilty of each offense, and continued the matter for

sentencing.

{¶6} After reviewing the presentence investigation, the victims’ statements,

Watkins’ sentencing memorandum and statement of remorse, and the arguments of

counsel, the trial court imposed a nine-year prison term for the aggravated-vehicular

homicide of Raven, a six-year term for the aggravated-vehicular assault of Embry, and a

six-year term for the aggravated-vehicular assault of Lane. The court ordered the sentence

for the aggravated-vehicular-homicide offense to be served consecutively to the prison

term for the aggravated-vehicular assault of Embry. The sentence for the second

aggravated-vehicular-assault offense was to be served concurrently with the other two

prison terms. The aggregate prison term was 15 years’ incarceration. The trial court also

suspended Watkins’ driver’s license for the rest of his life.

III. A Dissimilar Import for Each Person Affected by the Conduct {¶7} In his first assignment of error, Watkins argues that the trial court erred in

imposing multiple sentences for the aggravated-vehicular-homicide and aggravated-

vehicular-assault convictions as they were allied offenses of similar import. Watkins

argues that after the Ohio Supreme Court’s 2010 decision in State v. Johnson,

,

,

, the “focus of our inquiry is now on the

conduct of the accused” as demonstrated by the evidence adduced below. See id. at ¶ 44.

Because the state relied upon the same conduct to demonstrate all three offenses, Watkins

3 OHIO FIRST DISTRICT COURT OF APPEALS

asserts that the three offenses were allied offenses and the trial court erred in not affording

him the protections of Ohio’s multiple-count statute, R.C. 2941.25. We disagree.

{¶8} Watkins has preserved this matter for appellate review. He properly

suggested to the trial court in his sentencing memorandum filed prior to sentencing that

the imposition of multiple sentences was error. See State v. Morgan,

,

,

(1st Dist.).

{¶9} Under R.C. 2953.08(G)(2), an appellate court may vacate a sentence and

remand for a new sentencing hearing if the sentence is contrary to law. A sentence that

contains an allied-offense error is contrary to law. See State v. Underwood,

,

,

, ¶ 26; see also State v. Wilson,

,

,

, ¶ 14; R.C. 2953.08(A)(4). Thus we may only modify

or vacate Watkins’ multiple sentences if we “clearly and convincingly find” that the trial

court failed to adhere to all applicable rules and statutes in imposing the multiple

sentences. See R.C. 2953.08(G)(2); see also State v. White, 1st Dist. Hamilton No. C-

130114,

, (Sept. 27, 2013); State v. Alexander, 1st Dist. Hamilton Nos. C-

110828 and C-110829,

. We review the decision to deny Watkins the

protections of the multiple-count statute without deference to the trial court’s ruling. See

State v. Williams,

,

,

.

{¶10} While Watkins correctly notes the renewed focus on the accused’s conduct

in our allied-offenses analysis, he ignores the underlying purpose of that analysis. The

touchstone of our analysis, both before and after Johnson, has remained legislative intent:

Did the General Assembly intend multiple punishments for these offenses? Johnson,

,

,

, at ¶ 46 (explaining that in deciding

whether to afford a defendant the protections of the multiple-count statute, “the intent of

the General Assembly is controlling”); see State v. Rance,

,

(1999) (holding that a defendant may be punished for multiple offenses

4 OHIO FIRST DISTRICT COURT OF APPEALS

arising from a single criminal act, so long as the General Assembly intended cumulative

punishment).

{¶11} Courts determine the General Assembly’s intent to provide or to restrict

multiple punishments for a single course of conduct by applying R.C. 2941.25. See State v.

Anderson,

,

, ¶ 19 (1st Dist.), citing Johnson,

,

,

, at syllabus. Subsection (B) of R.C. 2941.25

provides the following:

Where the defendant’s conduct constitutes two or more offenses of

dissimilar import, * * * the indictment or information may contain

counts for all such offenses, and the defendant may be convicted of all of

them.

(Emphasis added.) See Johnson,

,

,

,

at ¶ 51.

{¶12} In 1985, the Ohio Supreme Court identified the General Assembly’s

intention to provide for multiple punishments in cases like this one where the offense is

defined in terms of conduct towards “another,” and the offender has committed a single

act resulting in multiple victims. In State v. Jones,

,

(1985), the Ohio Supreme Court held that multiple convictions for aggravated-vehicular

homicide, in violation of R.C. 2903.06, can arise from a single instance of a person’s

reckless operation of his vehicle. The Supreme Court first examined the text of the

vehicular-homicide statute that prohibited recklessly causing the death “of another.”

. Holding that the statute, by being framed in terms of an offender’s conduct towards

another, authorized a conviction for each person killed by a reckless driver, the Supreme

Court concluded that the killing of the two passengers in the defendant’s vehicle as a result

of the defendant’s reckless operation of the vehicle constituted two offenses of dissimilar

import. The conduct of recklessly causing the death of two persons with the defendant’s

5 OHIO FIRST DISTRICT COURT OF APPEALS

automobile represented “two offenses of dissimilar import—the ‘import’ under R.C.

2903.06 being each person killed.”

{¶13} It is well-settled in this district’s decisions applying Jones, that when an

offense is defined in terms of conduct towards “another,” then there is a dissimilar import

for each person affected by that conduct. See State v. Ellison, 1st Dist. Hamilton No. C-

050553,

; see also State v. Wright, 1st Dist. Hamilton No. C-

080437,

, ¶ 62.

{¶14} Nothing in Johnson alters this conclusion. See State v. Young, 2d Dist.

Montgomery No. 23642,

, ¶ 39; see also State v. Riley, 4th Dist. Athens No.

11CA14,

; State v. Tapscott,

,

(7th Dist.);

State v. Logan, 8th Dist. Cuyahoga No. 97022,

; State v. Hayes, 9th

Dist. Summit No. 26388,

; State v. Hubbard, 10th Dist. Franklin

No. 11AP-945,

, ¶ 79-80. Under the Johnson analysis, we examine “the

statutory elements of each offense in the context of the defendant’s conduct.” Williams,

,

,

; see State v. Lavender, 1st

Dist. Hamilton No. C-120508,

.

{¶15} Here, Watkins was convicted of aggravated-vehicular homicide, defined as

causing “the death of another” as the proximate result of operating a motor vehicle while

impaired by a drug of abuse. R.C. 2903.06(A)(1)(a). He was also convicted of aggravated-

vehicular assault, in violation of 2903.08(A)(1), which proscribes a person impaired by a

drug of abuse from operating a motor vehicle and causing serious physical harm “to

another person.”

{¶16} Where, as here, an offense is defined in terms of conduct towards

“another,” there is a dissimilar import for each person affected by the conduct. Although

Watkins may only have driven his vehicle into a single collision on Sutter Avenue, that

conduct resulted in the death of another and in serious physical harm to two others.

While the state proceeded against Watkins for offenses arising from a single course of

6 OHIO FIRST DISTRICT COURT OF APPEALS

conduct, each offense involved a separate victim—the aggravated-vehicular homicide of

Raven and the aggravated-vehicular assaults of Embry and Lane. Thus there was a

dissimilar import for each person affected by Watkins’ conduct. Accordingly, multiple

convictions were permitted under R.C. 2941.25.

{¶17} We note that although the trial court did not complete and journalize a

sentencing-findings worksheet, the transcript of the sentencing proceedings reflects that

the trial court engaged in the statutorily mandated three-step analysis and made the

findings required for imposing consecutive sentences under R.C. 2929.14(C). See R.C.

2953.08(G)(1); see also Alexander,

. The first assignment of error

is overruled.

IV. The Seriousness and Recidivism Factors Are Supported By the Record {¶18} In his second assignment of error, Watkins argues that his sentences are

contrary to law because the imposed sentences were not supported by “findings in the

record.” He alleges that the trial court failed to apply or consider the seriousness and

recidivism factors of R.C. 2929.12, and the proportionality goal of R.C. 2929.11(B).

{¶19} Watkins first asserts that the trial court erred in imposing sentences not

supported by the R.C. 2929.12 seriousness and recidivism factors. Again, we disagree.

{¶20} R.C. 2929.12 states that in determining the most effective way to comply

with the purposes and principles of felony sentencing, the trial court shall “consider” the

factors relating to the seriousness of the offender’s conduct and the factors relating to the

likelihood of the offender’s recidivism. Along with R.C. 2929.11, which lists the purposes

and principles of felony sentencing, R.C. 2929.12 serves as an overarching guide for trial

judges to consider in fashioning an appropriate sentence. See Alexander, 2012-Ohio-

3349, at ¶ 23.

{¶21} It is clear from the record and the trial court's remarks at the sentencing

hearing that the court considered a number of factors relating to the seriousness of

7 OHIO FIRST DISTRICT COURT OF APPEALS

Watkins’ conduct and to the likelihood of his offending in the future before imposing

sentence. Watkins had operated a mechanically defective vehicle while, by his own

admission, on “a pretty strong drug binge,” and without a current operator’s permit. He

recklessly struck another vehicle and killed an innocent motorist and seriously injured two

others. See R.C. 2929.12(B)(2). The court acknowledged Watkins’ discouraging record of

juvenile adjudications, prior adult misdemeanor convictions for traffic, drug, and assault

offenses, and his failed attempts at rehabilitation. See R.C. 2929.12(D)(2)-(D)(4). The

court also acknowledged Watkins’ genuine remorse for his actions—a factor indicating

that Watkins is less likely to reoffend. See R.C. 2929.12(E)(5). Each of these factors is

amply supported in the record.

{¶22} We, therefore, conclude that the trial court adhered to the statutory

requirements of R.C. 2929.11 and 2929.12 in imposing sentence. We do not clearly and

convincingly find that the trial court erred in weighing these statutory factors to fashion

appropriate sentences. See R.C. 2953.08(G)(2)(b).

V. The Sentences Are Consistent With Local Judicial Practice {¶23} Finally, Watkins challenges the proportionality of his sentences. In his

sentencing memorandum, filed with the trial court, and in his appellate brief, Watkins

provided one-paragraph synopses of eight other cases of aggravated-vehicular homicide or

aggravated-vehicular assault decided in Hamilton County. The sentences imposed in

those cases ranged from one year to eight years in length. In light of those sentences,

Watkins argues that the 15-year aggregate sentence imposed upon him violated the

proportional-sentencing goal of Ohio’s felony-sentencing scheme.

{¶24} R.C. 2929.11(B) provides that a felony sentence must be “consistent with

sentences imposed for similar crimes committed by similar offenders.” But as this court

held in 2003, “[c]onsistency * * * does not necessarily mean uniformity. * * * Accordingly,

consistency accepts divergence within a range of sentences and takes into consideration

8 OHIO FIRST DISTRICT COURT OF APPEALS

the trial court’s discretion to weigh relevant statutory factors.” State v. Ryan, 1st Dist.

Hamilton No. C-020283,

. ¶ 10, citing Griffin and Katz, Sentencing

Consistency: Basic Principles Instead of Numerical Grids: The Ohio Plan, 53 Case

W.Res.L.Rev. 1 (2002).

{¶25} A trial court is not required to make express findings that the imposed

sentences are consistent with other similarly situated offenders. See State v. Marshall,

8th Dist. Cuyahoga No. 89551,

. A reviewing court “is to examine

the available data not to determine if the trial court has imposed a sentence that is in

lockstep with others, but whether the sentence is so unusual as to be outside the

mainstream of local judicial practice.” Ryan at ¶ 10. While offenses may be similar,

distinguishing factors may justify dissimilar treatment. See id. at ¶ 12.

{¶26} We have reviewed the entire record in this case, including the transcript of

the sentencing hearing. It is clear that the trial court properly considered the most

effective means of complying with the principles and purposes of sentencing. Each

sentence imposed was within the statutory range provided by law. See R.C. 2929.14(A).

In light of the seriousness of Watkins’ actions in driving a mechanically defective vehicle

while impaired by drugs and without an operator’s permit, we cannot say that a nine-year

sentence for aggravated-vehicular homicide and six-year prison terms for aggravated-

vehicular assault are so unusual as to be outside the mainstream of local judicial practice.

{¶27} Therefore, we do not clearly and convincingly find that the sentences

imposed were contrary to law. See R.C. 2953.08(G)(2)(b). The second assignment of

error is overruled.

{¶28} Therefore, the trial court’s judgment is affirmed.

Judgment affirmed.

HILDEBRANDT, P.J., and FISCHER, J., concur.

Please note:

The court has recorded its own entry on the date of the release of this opinion.

9