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State of Ohio v. David O'neill

November 4, 2011

STATE OF OHIO APPELLEE
v.
DAVID O'NEILL APPELLANT DECIDED:



Trial Court No. 2006CR0047

The opinion of the court was delivered by: Yarbrough, J.

Cite as State v. O'Neill,

DECISION AND JUDGMENT

{¶1} Appellant, David O'Neill, appeals from a judgment of the Wood County Court of Common Pleas, in which he was convicted of aggravated vehicular assault, aggravated vehicular homicide, and operating a vehicle under the influence. On each conviction, appellant was sentenced to a four year prison term, to run concurrently. These sentences were also ordered to run consecutively to a four year prison term previously imposed on a conviction for failing to stop after an accident--making an aggregate prison term of eight years.

{¶2} The procedural history of this case has been sufficiently set forth in State v. O'Neill, 175 Ohio App.3d 402, 2008-Ohio-818 (O'Neill), O'Neill v. Mayberry, 6th Dist. No. WD-08-077, 2009-Ohio-1123 (Mayberry I), and O'Neill v. Mayberry, 6th Dist. No. WD-10-019, 2010-Ohio-1707 (Mayberry II).

{¶3} Nevertheless, for clarity in this decision, a brief summary of the relevant history is appropriate. In February 2006, O'Neill was indicted on five counts in connection with an incident in which O'Neill struck two bicyclists with a silver Jeep; killing one and injuring the other. The counts, listed in numerical order were: (1) aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a), a third degree felony, (2) failure to stop after an accident in violation of R.C. 4549.02(A) and (B), a third degree felony, (3) aggravated vehicular homicide in violation of R.C. 2903.06(A)(1)(a), a second degree felony, (4) operating a vehicle under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a), a first degree misdemeanor, and (5) operating a vehicle under the influence of alcohol in violation of R.C. 4511.19(A)(1)(f), a first degree misdemeanor.

{¶4} The trial court denied O'Neill's motion to suppress the results of his blood alcohol tests performed after his arrest. Pursuant to a negotiated plea agreement, O'Neill pleaded no contest to Counts 1, 2, 3, and 5, and was sentenced to an aggregate prison term of 12 years. Specifically, on Counts 1 and 2, O'Neill was sentenced to a four year prison term, to run concurrently; an eight year prison term as to Count 3, to run consecutively; and on count 5, a five month prison term, to run concurrently to the other sentences.

{¶5} O'Neill appealed his convictions and sentences, asserting that the trial court erred in failing to suppress his blood-alcohol test results. In O'Neill, this court found that the state failed to demonstrate substantial compliance with applicable regulations governing blood-alcohol testing. Due to that error, we vacated O'Neill's conviction for Count 5, operating a vehicle under the influence of alcohol in violation of R.C. 4511.19(A)(1)(f). Because O'Neill's convictions for Count 1-- aggravated vehicular assault, and Count 3-- aggravated vehicular homicide--depended upon a violation of R.C. 4511.19, those convictions were also vacated. However, the conviction and sentence for Count 2--failure to stop after an accident was affirmed. In disposing of the matter, the decision in O'Neill did not specifically state that the case was remanded to the trial court for further proceedings. Mayberry I at ¶ 18.

{¶6} Subsequently, the state proceeded to prosecute O'Neill under the original indictment. In an order denying O'Neill's motion in opposition to jurisdiction, the trial court concluded that our decision on appeal placed O'Neill in the position he was in after indictment but prior to trial. O'Neill then filed his first petition for a writ of prohibition against respondent, seeking to prohibit the trial judge from exercising jurisdiction by conducting a jury trial on the remaining counts.

{¶7} In a decision dated March 9, 2009, this court granted respondent's motion for summary judgment and dismissed O'Neill's first petition for a writ of prohibition. See Mayberry I, supra. In that case, O'Neill argued that the trial court lacked jurisdiction to proceed to trial because this court in O'Neill had not remanded the case back to the trial court after appeal. Addressing the remand issue, we concluded that "the absence of language specifically remanding the case to the trial court was a technical mistake and indicated nothing with respect to the trial court's jurisdiction." Mayberry I at ¶ 18. We thereafter issued an order of errata correcting O'Neill, by adding the following sentence: "This matter is remanded to the trial court for further proceedings consistent with this decision and judgment entry."

{¶8} Also in Mayberry I, we determined that O'Neill was unable to demonstrate that the trial court patently and unambiguously lacked jurisdiction to try him on the remaining counts. In so holding, we relied on State ex rel. Douglas v. Burlew, 106 Ohio St.3d 180, 2005-Ohio-4382, in which the Supreme Court determined that "[u]pon remand from an appellate court, the lower court is required to proceed from the point at which the error occurred." Id. at ¶ 11, quoting State ex rel. Stevenson v. Murray (1982), 69 Ohio St.2d 112, 113. In denying O'Neill's motion in opposition to jurisdiction, the trial court determined that our decision in O'Neill, placed O'Neill back in the position he was in when the error occurred; namely, after the trial court's ruling on the suppression motion, but before the plea agreement wherein the state dismissed Count 4 of the indictment-- the general operating a vehicle under the influence ("OVI") charge. In Mayberry I, we determined that the trial court's judgment in this regard was correct. Therefore, because O'Neill was unable to demonstrate that the trial court patently and unambiguously lacked jurisdiction to try him on the charges that remained, he was not entitled to extraordinary relief in prohibition.

{¶9} O'Neill then filed a second petition for a writ of prohibition contending that the trial court scheduled a trial for Monday, April 19, 2010, on the originally indicted charges of aggravated vehicular assault, aggravated vehicular homicide, and the general OVI charge in violation of R.C. 4511.19(A)(1)(a). See Mayberry II, supra. O'Neill did not dispute the trial court's jurisdiction to try him on Count 4--the general OVI charge under R.C. 4511.19(A)(1)(a). Rather, O'Neill contended that respondent had no jurisdiction to try him again for Count 1--the aggravated vehicular assault charge, and Count 3--the aggravated vehicular homicide charge, because this court in O'Neill dismissed those charges and they were predicated on the similarly dismissed per se charge of OVI in violation of R.C. 4511.19(A)(1)(f).

{¶10} In so dismissing appellant's second motion for a writ of prohibition this court again relied on Douglas, which held: "Upon remand from an appellate court, the lower court is required to proceed from the point at which the error occurred." Douglas at ¶ 11. We reasoned that because we remanded the case to the trial court following our determination that appellant's motion to suppress should have been granted in O'Neill, the trial court was required to proceed from the point at which the error occurred, that is, after it denied the motion to suppress but before the plea agreement in which the state dismissed Count 4-- the general OVI offense. We also cautioned that any claim that O'Neill may have in regard to double jeopardy is "remediable by appeal rather than by extraordinary writ." Mayberry II at ¶ 11.

{¶11} Following our decision in Mayberry II, O'Neill pleaded no contest to Counts 1, 3, and 4 as set forth in the original indictment. As to Counts 1 and 3, O'Neill was sentenced to a four year prison term for each charge to run concurrently. As to Count 4, the court imposed a five month sentence, to run concurrently, for a net term of four years. The trial court then ordered these sentences to run consecutively to the four years previously imposed for Count 2, making an aggregate term of eight years.

{¶12} In his instant appeal, O'Neill asserts the following assignments of error:

{¶13} "I. Mr. O'Neill was denied his right under the Ohio Constitution and under the United States Constitution to Due Process of Law when the Trial Court allowed the prosecution to breach its contractual duty under the plea agreement to dismiss the (A)(1)(a) DUI charge and allowed the State to prosecute Mr. O'Neill for that offense both directly and as a necessary predicate to Counts I and III of the Indictment.

{¶14} "II. The Trial Court erred in sentencing Mr. O'Neill for a violation of R.C. §4511.19(A)(1)(a) as well as for Counts I and III, as the same were subject to merger and ...


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