[Cite as State v. Kamara,

.]

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

STATE OF OHIO, : APPEAL NO. C-220614 TRIAL NO. B-2101629 Plaintiff-Appellee, :

: O P I N I O N. VS. :

AMANDA KAMARA, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: June 28, 2023

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Arenstein and Gallagher and Elizabeth Conkin, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

CROUSE, Presiding Judge.

{¶1} Defendant-appellant Amanda Kamara appeals the judgment of the

Hamilton County Court of Common Pleas. Kamara contends that the trial court

improperly determined that her conviction for aggravated vehicular assault was an

offense of violence, and that postrelease control was mandatory. Because we find that

aggravated vehicular assault is not an offense of violence, and therefore postrelease

control is discretionary, we sustain her sole assignment of error and reverse the

judgment of the trial court.

I. Factual and Procedural Background

{¶2} In September 2022, Kamara pleaded guilty to aggravated vehicular

assault under R.C. 2903.08(A)(1)(a), a third-degree felony, and operating a vehicle

under the influence of alcohol (“OVI”) under R.C. 4511.19(A)(1)(a), a first-degree

misdemeanor.

{¶3} In November 2022, the trial court sentenced Kamara to three years’

incarceration for her aggravated-vehicular-assault conviction and 180 days for the

OVI conviction, to be served concurrently and with credit for one day served. The court

advised Kamara that she was subject to a mandatory period of postrelease control

between one and three years, and it imposed a class three driver’s license suspension

for ten years. The court’s sentencing entry mirrors the sentence announced at the

sentencing hearing. Kamara timely appealed.

{¶4} In her sole assignment of error, Kamara contends that the trial court

failed to properly impose postrelease control. Kamara argues that because aggravated

vehicular assault is not an offense of violence, the court erred when it advised her that

she was subject to a mandatory period of postrelease control. Kamara asserts that

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because her offense was a nonviolent third-degree felony, any period of postrelease

control should be discretionary. The state concedes that the court erred in this regard.

II. Law and Analysis

{¶5} “ ‘[A] trial court has a statutory duty to provide notice of

postrelease control at the sentencing hearing.’ ” State v. Bates,

,

,

, quoting State v. Jordan,

,

,

, ¶ 23, overruled on other grounds, State v. Harper,

,

,

. At both the sentencing

hearing and in the sentencing entry, “[t]he trial court must advise the offender * * * of

the term of supervision, whether postrelease control is discretionary or mandatory,

and the consequences of violating postrelease control.” Id. at ¶ 11. “[S]entencing errors

in the imposition of postrelease control render the sentence voidable, not void, and

the sentence may be set aside if successfully challenged on direct appeal.” Harper at ¶

42; see

.

{¶6} A person commits aggravated vehicular assault under R.C.

2903.08(A)(1)(a) when he or she “causes serious physical harm to another person” as

the proximate result of driving “under the influence of alcohol, a drug of abuse, or a

combination of them.” R.C. 2903.08(A)(1)(a); R.C. 4511.19(A)(1)(a). The parties agree

that Kamara’s conviction for aggravated vehicular assault is a third-degree felony and

is the only conviction eligible for postrelease control. See R.C. 2903.08(B)(1)

(providing aggravated vehicular assault is a third-degree felony, subject to several

enumerated exceptions).

{¶7} Pursuant to R.C. 2967.28(B)(4), a sentence for a third-degree felony

that is an offense of violence and not a sex offense shall include a period of postrelease

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control of up to three years, but not less than one year. For a third-degree felony that

is not an offense of violence, R.C. 2967.28(C) provides that any prison term shall

include a period of postrelease control of up to two years “if the parole board * * *

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

{¶8} Thus, the key issue is whether aggravated vehicular assault under R.C.

2903.08(A)(1)(a) is an “offense of violence.” The Ohio Revised Code provides that an

offense of violence means 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, 2903.18, 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, 2917.321, 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 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;

4 OHIO FIRST DISTRICT COURT OF APPEALS

(d) A conspiracy or attempt to commit, or complicity in committing, any

offense under division (A)(9)(a), (b), or (c) of this section;

(e) [Animal cruelty under R.C. 959.131(C).]

R.C. 2901.01(A)(9).

{¶9} While this court has not addressed whether aggravated vehicular

assault meets the definition of an offense of violence, two other appellate districts have

determined that it does not. In State v. Moore, 4th Dist. Adams No. 18CA1070, 2019-

Ohio-1467, ¶ 15, the Fourth Appellate District held that aggravated vehicular assault

under R.C. 2903.08(A)(1)(a) is not an offense of violence, reasoning that R.C.

2903.08(A)(1)(a) is not one of the enumerated statutes in R.C. 2901.01(A)(9)(a) nor is

it “substantially equivalent” to any of those enumerated statutes.

As to R.C.

2901.01(A)(9)(c), the court explained that one does not violate R.C. 2903.08(A)(1)(a)

purposely or knowingly because violations of the OVI statute, upon which the

aggravated-vehicular-assault conviction is predicated, are strict-liability violations.

Thus, the court held that the trial court erred in imposing a mandatory term of

postrelease control. Id. at ¶ 16. The Twelfth Appellate District applied the same

reasoning when it held that vehicular assault under R.C. 2903.08(A)(2)(b) also was

not an offense of violence. State v. Johnson, 12th Dist. Madison No. CA2018-06-020,

.

{¶10} We agree with the reasoning of the Fourth and Twelfth Appellate

Districts and hold that aggravated vehicular assault under R.C. 2903.08(A)(1)(a) is

not an offense of violence under R.C. 2901.01(A)(9). The violation is not one of those

enumerated in division (a), nor is it substantially equivalent to any of those

enumerated offenses. Moreover, under division (c), while there is no question that the

5 OHIO FIRST DISTRICT COURT OF APPEALS

offense caused physical harm, aggravated vehicular assault is a strict-liability offense.

See R.C. 2901.21(B) (“When the language defining an offense does not specify any

degree of culpability, and plainly indicates a purpose to impose strict criminal liability

for the conduct described in the section, then culpability is not required for a person

to be guilty of the offense.”); Grange Ins. Co. v. Cleveland,

,

, ¶ 15 (6th Dist.) (“Aggravated vehicular assault is a strict liability offense.”);

State v. Bremenkamp, 1st Dist. Hamilton Nos. C-130819 and C-130820, 2014-Ohio-

5097, ¶ 10 (“After all, driving under the influence is a strict liability offense[.]”).

Finally, divisions (d) and (e) are clearly not applicable. Therefore, Kamara is not

subject to mandatory postrelease control for her aggravated-vehicular-assault

conviction.

{¶11} Thus, by advising Kamara that her period of postrelease control was

mandatory, the court failed to validly impose postrelease control.

IV. Conclusion

{¶12} We sustain Kamara’s sole assignment of error. The postrelease control

portion of her sentence is reversed and the case is remanded for the proper imposition

of postrelease control consistent with the law and this opinion.

Judgment reversed and cause remanded.

ZAYAS and KINSLEY, JJ., concur.

Please note:

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

6