[Cite as State v. Moore,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY

STATE OF OHIO, : Case No. 18CA1070

Plaintiff-Appellee, :

v. : DECISION AND JUDGMENT ENTRY TONYA J. MOORE, :

Defendant-Appellant. : RELEASED: 04/10/2019 ______________________________________________________________________ APPEARANCES:

Matthew F. Loesch, Portsmouth, Ohio, for appellant.

C. David Kelley, Adams County Prosecutor, and Kris D. Blanton, Assistant Adams County Prosecutor, West Union, Ohio, for appellee. ______________________________________________________________________ Hess, J.

{¶1} Tonya Moore pleaded guilty to three counts of aggravated vehicular

assault in violation of R.C. 2903.08(A)(1)(a), third-degree felonies, and the trial court

sentenced her to an aggregate four-year prison term and three years of mandatory

post-release control. Moore asserts that her sentence is void because post-release

control is discretionary in this instance and that her aggregate prison term is excessive

because the trial court failed to properly consider the seriousness and recidivism factors

in R.C. 2929.12. Because Moore did not commit a sex offense or offense of violence,

post-release control is discretionary. However, only the portion of her sentence

imposing post-release control is contrary to law and void. She did not establish by the

requisite clear and convincing evidence that her prison term is either contrary to law or Adams App. No. 18CA1070 2

not supported by the record. Thus, we affirm in part, reverse in part, and remand for

further proceedings consistent with this opinion.

I. FACTS

{¶2} The Adams County Grand Jury indicted Moore on three counts of

aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a), third-degree felonies.

She initially pleaded not guilty. At the first change of plea hearing, Moore pleaded guilty

as charged after the court notified her that the maximum sentence for each offense was

36 months in prison, that the mandatory minimum prison term for each offense was nine

months, and that she was subject to up to three years of discretionary post-release

control for each offense. Before sentencing, the court determined this information was

incorrect, so it permitted Moore to withdraw her plea.

{¶3} During the second change of plea hearing, Moore again pleaded guilty as

charged after the court advised her that the maximum sentence for each offense was 60

months in prison, the mandatory minimum prison term for each offense was 12 months,

and post-release control was mandatory for three years because she committed

offenses of violence. Moore explained that the night before she committed the

offenses, she took five Xanax pills without a prescription to calm her nerves. She drove

a vehicle, and she was charged in a separate case in Pike County with operating a

vehicle under the influence of alcohol or drugs (“OVI”). Moore claimed that the next

day, unaware that she was still under the influence of the Xanax, she drove to her

doctor’s office and then to a hospital to pick up medical reports. She denied taking her

prescription Valium or Ativan that day. After leaving the hospital, she caused an Adams App. No. 18CA1070 3

accident that resulted in serious physical harm to Roy Heisler, Carolyn Heisler, and

Kimberly Staten.

{¶4} The trial court conducted a sentencing hearing at which it considered the

record, oral statements, victim impact statements, presentence investigation report,

principles and purposes of sentencing in R.C. 2929.11(A), and seriousness and

recidivism factors in R.C. 2929.12. It sentenced Moore to mandatory two-year prison

terms on each count, with the sentence on Count II to run concurrent to the sentence on

Count I and the sentence on Count III to run consecutive to the other sentences, for an

aggregate four-year prison term. The court noted that Moore told law enforcement she

took Suboxone, Ativan, and Valium the day of the accident, and the court expressed

that it did not “think we’re getting the full amount of dosages of things that were

happening.” It also noted that after Moore was charged in the Pike County case, which

ultimately resulted in a physical control conviction, she acted with “utter reckless

disregard” by driving the next day with “multiple drugs being taken in that process.” The

court notified Moore post-release control was mandatory for a period of three years,

imposed a class three license suspension, and ordered her to pay $477.11 in restitution.

II. ASSIGNMENTS OF ERROR

{¶5} Moore assigns the following errors for our review1:

I. Appellant’s sentence is void as the trial court improperly ordered that she was subject to mandatory post release control.

II. The trial court abused its discretion by failing to properly consider and apply the seriousness and recidivism factors to the Appellant.

1The assignments of error are taken from page three of Moore’s appellate brief. We note that they are stated differently on pages five and eight of her brief. Adams App. No. 18CA1070 4

III. STANDARD OF REVIEW

{¶6} When reviewing felony sentences appellate courts must apply the

standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum,

,

,

, ¶ 1, 7. R.C. 2953.08(G)(2) provides that “[t]he

appellate court’s standard for review is not whether the sentencing court abused its

discretion”; rather, the appellate court may increase, reduce, modify, or vacate and

remand a challenged felony sentence if the court clearly and convincingly finds either:

(a) That the record does not support the sentencing court’s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

{¶7} “Although R.C. 2953.08(G)(2)(a) does not mention R.C. 2929.11 and

2929.12, the Supreme Court of Ohio has determined that the same standard of review

applies to those statutes.” State v. Shankland, 4th Dist. Washington App. Nos. 18CA11

& 18CA12,

, ¶ 19, citing Marcum at ¶ 23.

{¶8} “The defendant bears the burden of establishing by clear and convincing

evidence that the sentence is either contrary to law or not supported by the record.”

Shankland at ¶ 20. Clear and convincing evidence is

that measure or degree of proof which is more than a mere “preponderance of the evidence,” but not to the extent of such certainty as is required “beyond a reasonable doubt” in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.

State ex rel. Rogers v. Dept. of Rehab. & Correction, ___ Ohio St.3d ___, 2018-Ohio-

5111, ___ N.E.3d ___, ¶ 5, quoting Cross v. Ledford,

,

(1954), paragraph three of the syllabus. Adams App. No. 18CA1070 5

IV. POST-RELEASE CONTROL

{¶9} In the first assignment of error, Moore maintains that her sentence is void

because the trial court erred in concluding a violation of R.C. 2903.08(A)(1)(a) is an

offense of violence and subject to mandatory post-release control. The state argues

that if the trial court erred in imposing post-release control, only that portion of the

sentence is void and subject to resentencing. Alternatively, it asserts that Moore was

“not prejudiced by the trial court’s overstating the severity of the term of post-release

control at the sentencing hearing,” so “resentencing is not required and post-release

control is subject to the authority of the parole board and to be imposed by the parole

board.”

{¶10} In State v. Grimes,

,

,

,

the Supreme Court of Ohio explained:

It is settled that “a trial court has a statutory duty to provide notice of postrelease control at the sentencing hearing” and that “any sentence imposed without such notification is contrary to law.” State v. Jordan,

,

,

, ¶ 23. Concomitantly, because a court is generally said to speak only through its journal, id. at ¶ 6, the trial court is “required to incorporate that notice into its journal entry imposing sentence,” id. at ¶ 17.

Id. at ¶ 8.

{¶11} “When a court fails to properly impose post-release control for a particular

offense, the offending portion of the sentence is void, must be set aside, and is subject

to review and correction.” (Emphasis added.) State v. Taylor, 4th Dist. Lawrence No.

15CA12,

, ¶ 41, citing State v. Fischer,

, 2010-Ohio-

6238,

, ¶ 27-29; State v. Triplett, 4th Dist. Lawrence No. 10CA35, 2011-

Ohio-4628, ¶ 4. “[I]n the absence of a proper sentencing entry imposing postrelease Adams App. No. 18CA1070 6

control, the parole board’s imposition of postrelease control cannot be enforced.” State

v. Bloomer,

,

,

.

{¶12} At the sentencing hearing, the court must, among other things, “notify the

offender that he or she ‘will’ or ‘may’ ‘be supervised under section 2967.28 of the

Revised Code after the offender leaves prison if the offender is being sentenced for’ a

felony.” Grimes at ¶ 9, quoting former R.C. 2929.19(B)(2)(c) and (d) (now codified at

R.C. 2929.19(B)(2)(d) and (e)). The sentencing entry must also indicate “whether

postrelease control is discretionary or mandatory.” Id. at ¶ 1.

{¶13} R.C. 2967.28(B) states that “[e]ach sentence to a prison term * * * for a

felony of the third degree that is an offense of violence and is not a felony sex offense

shall include a requirement that the offender be subject to a period of post-release

control imposed by the parole board after the offender's release from imprisonment.”

The mandatory period of post-release control for this type of offense is three years.

R.C. 2967.28(B)(3). For a third-degree felony that is not an offense of violence or sex

offense, R.C. 2967.28(C) provides that “[a]ny sentence to a prison term * * * shall

include a requirement that the offender be subject to a period of post-release control of

up to three years after the offender’s release from imprisonment, if the parole board * * *

determines that a period of post-release control is necessary for that offender.”

{¶14} R.C. 2901.01(A)(9) defines “offense of violence” as any of the following:

(a) A violation of section 2903.01, 2903.02, 2903.03, 2903.04, 2903.11, 2903.12, 2903.13, 2903.15, 2903.21, 2903.211, 2903.22, 2905.01, 2905.02, 2905.11, 2905.32, 2907.02, 2907.03, 2907.05, 2909.02, 2909.03, 2909.24, 2911.01, 2911.02, 2911.11, 2917.01, 2917.02, 2917.03, 2917.31, 2919.25, 2921.03, 2921.04, 2921.34, or 2923.161, of division (A)(1) of section 2903.34, of division (A)(1), (2), or (3) of section 2911.12, or of division (B)(1), (2), (3), or (4) of section 2919.22 of Adams App. No. 18CA1070 7

the Revised Code or felonious sexual penetration in violation of former section 2907.12 of the Revised Code;

(b) A violation of an existing or former municipal ordinance or law of this or any other state or the United States, substantially equivalent to any section, division, or offense listed in division (A)(9)(a) of this section;

(c) An offense, other than a traffic offense, under an existing or former municipal ordinance or law of this or any other state or the United States, committed purposely or knowingly, and involving physical harm to persons or a risk of serious physical harm to persons;

(d) A conspiracy or attempt to commit, or complicity in committing, any offense under division (A)(9)(a), (b), or (c) of this section.

{¶15} Moore’s offenses do not satisfy any of the definitions of an “offense of

violence.” A violation of R.C. 2903.08(A)(1)(a) is not an offense enumerated in R.C.

2901.01(A)(9)(a), and it is not substantially equivalent to any section, division, or

offense listed in that division as required by R.C. 2901.01(A)(9)(b). Moore’s offenses

also do not satisfy R.C. 2901.01(A)(9)(c) because they were not committed purposely or

knowingly. A violation of R.C. 2903.08(A)(1)(a) does not require such intent. It only

requires that an individual, while operating a motor vehicle, cause serious physical harm

to another person as a proximate result of committing a violation of R.C. 4511.19(A) or

a substantially equivalent municipal ordinance. R.C. 2903.08(A)(1)(a). Violations of

R.C. 4511.19(A), the OVI statute, “are strict liability violations.” State v. Dunn, 4th Dist.

Pickaway No. 06CA6,

. Moreover, the trial court specifically found

Moore acted recklessly and not intentionally. Finally, Moore did not engage in

conspiracy, attempt, or complicity for purposes of R.C. 2901.01(A)(9)(d).

{¶16} Because the trial court sentenced Moore to prison terms for third-degree

felonies that are not offenses of violence or sex offenses, post-release control is

discretionary in this case. Thus, the trial court erred at both the sentencing hearing and Adams App. No. 18CA1070 8

in the sentencing entry when it stated that post-release control is mandatory. Because

the post-release control portion of Moore’s sentence is contrary to law and void, we

sustain the first assignment of error to the extent it challenges that portion of her

sentence, reverse that portion of her sentence, and remand for resentencing on post-

release control. We overrule the first assignment of error to the extent it asserts the

remainder of her sentence is void.

V. EXCESSIVE PRISON TERM

{¶17} In the second assignment of error, Moore maintains that her aggregate

prison term is excessive. Her individual prison terms are not contrary to law because

they are within the statutory range, the court stated that it considered the factors in R.C.

2929.11 and 2929.12, and it had no obligation to make specific findings regarding these

factors. See State v. Brown, 4th Dist. Ross No. 18CA3643,

, ¶ 30; R.C.

2929.14(A)(3)(a).

{¶18} Moore asserts that the trial court abused its discretion by failing to properly

apply the seriousness and recidivism factors in R.C. 2929.12. She claims that the

circumstances of this case, such as that she committed her offenses under

circumstances not likely to recur, that she does not have a history of criminal

convictions except for the physical control conviction, that she showed genuine

remorse, and that she did not have a relationship with the victims that facilitated the

offenses, warrant a shorter sentence. The state notes that abuse of discretion is not the

correct standard of review, R.C. 2953.08(G)(2), and it asserts that Moore failed to show

that her sentence is clearly and convincingly not supported by the record. Adams App. No. 18CA1070 9

{¶19} Moore essentially challenges the weight the trial court accorded the

pertinent factors. “We have consistently rejected similar contentions. Simply because

the court did not balance the factors in the manner appellant desires does not mean that

the court failed to consider them, or that clear and convincing evidence shows that the

court’s findings are not supported by the record.” Brown at ¶ 36. “[P]recedent refutes

any contention that each statutory or other relevant factor is entitled to equal or a certain

weight in the balancing process.” State v. Yost, 4th Dist. Meigs No. 17CA10, 2018-

Ohio-2719, ¶ 19. The trial court was free to place additional weight on the fact that after

being charged in the Pike County case, Moore drove again the next day even though

she had taken additional medications and was still under the influence of Xanax.

{¶20} Finally, we note Moore does not challenge the consecutive sentencing

findings the trial court made pursuant to R.C. 2929.14(C)(4) during the sentencing

hearing. Although the trial court failed to incorporate the statutory findings into the

sentencing entry, “such a clerical mistake may be corrected by the court through a nunc

pro tunc entry to reflect what actually occurred in open court.” State v. Bonnell,

,

,

. The trial court may address this

issue on remand.

{¶21} Moore did not meet her burden to establish by clear and convincing

evidence that her prison terms are either contrary to law or not supported by the record.

Accordingly, we overrule the second assignment of error.

VI. CONCLUSION

{¶22} Having sustained part of Moore’s first assignment of error, we reverse the

post-release control portion of her sentence and remand for resentencing on that Adams App. No. 18CA1070 10

matter. Having overruled the remainder of Moore’s assignments of error, we affirm the

judgment of the trial court in all other respects.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED. Adams App. No. 18CA1070 11

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN PART and that the CAUSE IS REMANDED. Appellant and Appellee shall split the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the ADAMS COUNTY COURT OF COMMON PLEAS 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.

Abele, P.J. & Smith, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________ Michael D. Hess, 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.