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State v. Cargill

Court of Appeals of Ohio, Eighth District

June 27, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
JAMES CARGILL DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-561451

ATTORNEYS FOR APPELLANT Robert L. Tobik State Public Defender By: Cullen Sweeney Assistant Public Defender

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor By: Mary Weston, Daniel T. Van Assistant County Prosecutors The Justice Center.

BEFORE: E.A. Gallagher, J., Jones, P.J., and Kilbane, J.

JOURNAL ENTRY AND OPINION

EILEEN A. GALLAGHER, JUDGE

{¶ 1} Defendant-appellant, James Cargill, appeals his 12-month prison sentence for failure to comply. We hold that the trial court improperly found appellant's conviction constituted an "offense of violence" pursuant to R.C. 2901.01(A)(9), vacate his sentence as contrary to law and remand for resentencing.

{¶2} Appellant was charged with failure to comply in violation of R.C. 2921.331(B). The indictment contained a furthermore clause specifying that through the operation of his motor vehicle appellant "caused a substantial risk of serious physical harm to persons or property." The offense, as indicted, was a felony of the third degree. R.C. 2921.331(C)(5)(a)(ii).

{¶3} Pursuant to a plea agreement with the state, the furthermore clause was deleted and Cargill pled guilty to a violation of R.C. 2921.331 and 2921.331(C)(4), which provides that, "in committing the offense, the offender was fleeing immediately after the commission of a felony." The crime to which appellant pled guilty was a felony of the fourth degree pursuant to R.C. 2921.331(C)(4).

{¶ 4} At sentencing the trial court, relying upon information in the presentence investigation report, found appellant's offense constituted an offense of violence, sentenced him to a 12-month prison term and suspended his drivers license permanently. This appeal followed.

{¶ 5} Cargill's sole assignment of error states:

The trial court erred when it sentenced Mr. Cargill contrary to law, imposing a one-year term of imprisonment rather than community control sanctions as required by R.C. 2929.13.

{¶6} R.C. 2929.13(B)(1)(a) provides that a trial court shall sentence an offender to a community control sanction if an offender pleads guilty to a felony of the fourth degree that is not an offense of violence and the factors in R.C. 2929.13(B)(1)(a)(i)-(iv) are satisfied. Appellant argues that he did not enter a guilty plea admitting that his conduct involved physical harm to persons or a risk of serious physical harm to persons and the trial court erred in engaging in judicial fact finding to conclude that his crime constituted an offense of violence. The state does not dispute that the required factors are applicable to appellant, but argues that the trial court was not bound to impose a community control sanction because appellant's offense constituted an offense of violence.

{¶7} R.C. 2901.01(A)(9) defines an "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), (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.

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

{¶8} As appellant's conviction is not an offense that the legislature has categorically deemed an offense of violence in all instances by way of R.C. 2901.01(A)(9)(a), his conviction may only be treated as an offense of violence if R.C. 2901.01(A)(9)(c) applies.

{¶9} The question before this court is how to properly apply R.C. 2901.01(A)(9)(c). The state urges the adoption of a categorical approach that considers whether the elements of the offense are of the type that would justify the offense's categorization as an offense of violence without inquiry into the specific conduct of the particular offender at issue. In other words, under the categorical approach, a court must look generally at an offense and decide if it commonly involves "physical harm to persons or a risk of serious physical harm to persons." Importantly, the categorical approach does not require the defined elements of the offense itself to actually include "physical harm to persons or a risk of serious physical harm to persons." Under this approach, although a particular offense in certain instances does not involve "physical harm to persons or a risk of serious physical harm to persons, " if the court deems that such offense commonly does involve such harm or risk, the offense is judicially amended into the list of automatic crimes of violence contained within R.C. 2901.01(A)(9)(a). The categorical approach is utilized by the federal courts in applying their own distinct, violent felony statute defined in 18 U.S.C. 924(e)(2)(B)(ii). Because we find significant differences between Ohio's offense of violence definition and the federal violent felony definition, we reject the use of the categorical approach to classify crimes under R.C. 2901.01(A)(9)(a).

{ΒΆ 10} Our prior cases in which R.C. 2901.01(A)(9)(c) has arisen have not delved into significant analysis of the statutory language and provide little guidance as to the proper manner for determining whether a crime ...


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