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State of Ohio v. Volkan Demirci

December 3, 2012

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
VOLKAN DEMIRCI, DEFENDANT-APPELLANT.



Criminal Appeal from the Lake County Court of Common Pleas, Case No. 10 CR 000573.

The opinion of the court was delivered by: Diane V. Grendell, J.

Cite as State v. Demirci,

OPINION

Judgment: Affirmed in part, reversed in part, and remanded.

{¶1} Defendant-appellant, Volkan Demirci, appeals his convictions and sentence for Aggravated Vehicular Assault and Operating a Vehicle Under the Influence of Alcohol, following the entry of a written guilty plea in the Lake County Court of Common Pleas. Demirci was sentenced to an aggregate prison term of four years. The issues before this court are: whether a sentencing court exercises sound, reasonable, and legal decision-making in sentencing an offender to four years' imprisonment and imposing a nine-year license suspension in the absence of factors enhancing the seriousness of the crime and given a low probability of recidivism; whether a trial court abuses its discretion by ordering restitution based on an erroneous estimation of the offender's ability to pay; and whether the failure to merge convictions for Aggravated Vehicular Assault and Operating a Vehicle Under the Influence of Alcohol as allied offenses of similar import constitutes plain error. For the following reasons, we affirm in part and reverse in part the Judgment of the court below, and remand this matter for merger and resentencing.

{¶2} On September 21, 2010, the Lake County Grand Jury indicted Demirci for Aggravated Vehicular Assault (Count One), a felony of the third degree in violation of R.C. 2903.08(A)(1), for serious physical harm caused to Joseph P. Jukiewicz, as the result of committing an OVI offense; Aggravated Vehicular Assault (Count Two), a felony of the third degree in violation of R.C. 2903.08(A)(1), for serious physical harm caused to Melissa A. Fife, as the result of committing an OVI offense; Vehicular Assault (Count Three), a felony of the fourth degree in violation of R.C. 2903.08(A)(2), for serious physical harm caused to Joseph P. Jukiewicz; Vehicular Assault (Count Four), a felony of the fourth degree in violation of R.C. 2903.08(A)(2), for serious physical harm caused to Melissa A. Fife; and Operating a Vehicle Under the Influence of Alcohol (Count Five), a misdemeanor of the first degree in violation of R.C. 4511.19(A)(1)(b), for operating a vehicle with a concentration of eight-hundredths of one percent or more by weight per unit volume of alcohol in his whole blood.

{¶3} On September 23, 2010, Demirci entered a plea of not guilty.

{¶4} On December 17, 2010, Demirci entered a Written Plea of Guilty to Aggravated Vehicular Assault (Count One), amended to include the names of both Joseph P. Jukiewicz and Melissa A. Fife, and Operating a Vehicle Under the Influence of Alcohol (Count Five).

{¶5} On December 21, 2010, the trial court entered a Judgment Entry accepting Demirci's plea and, upon the State's motion, nolling the remaining counts of the Indictment.

{¶6} On February 2, 2011, a Sentencing Memorandum was filed on Demirci's behalf. The Memorandum detailed Demirci's background: his birth in Germany in 1976 to Turkish parents; his emigration to the United States in 2001 on a student visa; his marriage to a woman from Lake County; the birth of his son in 2007; an injury to his left hand while cutting granite on a 10" table saw in 2008; his subsequent depression and anxiety; and the breakdown of his marriage.

{¶7} The Memorandum detailed the following factors affecting the seriousness of his crimes: he "did not expect to cause harm to the victims"; his conduct was the result "of his own stupidity"; and "the victims suffered significant and severe injuries." The Memorandum detailed the following factors affecting the likelihood of recidivism: "he was never delinquent as a child"; he has never "been convicted of or pled guilty to a criminal offense" (although he was charged with OVI in 2005, the charge was reduced to reckless operation - a "traffic offense"); he "received his United States Citizenship in January of 2010"; and he has voluntarily begun attending AA meetings and sought treatment with a therapist.

{¶8} The Memorandum asserted that Demirci is "utterly remorseful" for his actions:

{¶9} He asserts there is not a day goes by that he does not think of the couple he has injured. He truly understands what kind of deep, undesirable situation and the pain he has caused them. He knows that they are hurting and in turn he feels their pain, and he explains it [i]s an "irony a very strange irony ... I myself have these difficult times due to some other person's mistake now I am the one who is mistaken. I feel very sad and angry, and I don't know if I can ever forgive myself ... The accident with my hand had a huge negative impact in my life. Feeling of being disabled or loss of functions is indescribably awful. I was always having a hard time understanding those who say that they are half person [sic]. But now I realize how it feels to be not complete."

{ΒΆ10} On February 3, 2011, the sentencing hearing was held. At the hearing, Demirci's attorney reiterated the points made in the Sentencing Memorandum. Demirci's mother spoke on his behalf, stating that she was very sorry for the victims and that Demirci tried to make a decent life for himself in this country. Demirci's wife (they were in the process of divorcing) spoke on his behalf, stating that Demirci has a close relationship with their son and has taken him to counseling to prepare him for his impending ...


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