CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2011-04-0531
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government Services Center, for plaintiff-appellee.
Fred Miller, Baden & Jones Bldg., for defendant appellant.
(¶ 1} Defendant-appellant, Julio Cesar Olvera, appeals from a decision of the Court of Common Pleas of Butler County sentencing him to a term of 36 months in prison.
(¶ 2} On April 3, 2011, Olvera was operating a motor vehicle when he went left of center and struck a vehicle that was being operated by Jennifer Bowling. Olvera exited his vehicle and observed Bowling lying in her vehicle. Although able to observe Bowling's condition, Olvera testified that he did not offer any first aid, nor did he attempt to alert emergency personnel to the accident scene. Olvera and his passenger then left their vehicle and the accident scene to tend to their own injuries. The two walked to Olvera's nearby residence where they were driven to the emergency room by Olvera's roommate. At the emergency room, Olvera admitted that his injuries were the result of a motor vehicle collision. Bowling died as a result of injuries sustained in the car accident.
(¶ 3} On May 25, 2011, Olvera was indicted on five counts: (1) vehicular manslaughter, (2) failure to stop after an accident, (3) operating a motor vehicle without a valid license, (4) operation of a motor vehicle without proof of financial responsibility, and (5) driving left of center. Olvera was never charged with any offenses involving alcohol or intoxication, although later at trial, evidence was introduced indicating Olvera had been drinking that evening.
(¶ 4} On June 21, 2011, Olvera pled guilty to the charges of vehicular manslaughter and driving left of center and was sentenced to 90 days in jail. He pled not guilty to the remaining charges. Two of the charges were tried to the bench and eventually dismissed while the remaining charge was tried to a jury where Olvera was found guilty of failure to stop after an accident. The trial court sentenced him to 36 months in prison. Olvera now appeals from the trial court's sentencing decision, raising a single assignment of error for review:
(¶ 5} A SENTENCE IS CONTRARY TO LAW WHEN THE TRIAL COURT PUNISHES A DEFENDANT FOR A NON-INDICTED OFFENSE, WHEN IT TAKES INTO CONSIDERATION NON-STATUTORY FACTORS IN ORDER TO JUSTIFY A MAXIMUM SENTENCE, AND WHEN THERE ARE NO STATUTORY SERIOUSNESS OR RECIDIVISM FACTORS THAT WOULD JUSTIFY AN INCREASED SENTENCE.
(¶ 6} In his sole assignment of error, Olvera argues the trial court erred in sentencing him to the maximum 36-month prison sentence because the trial court relied on uncharged conduct in making its sentencing decision.
(¶ 7} This court has recently set forth the current law relating to appellate review of criminal sentencing in State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315. In Crawford, we determined that the standard of review set forth in R.C. 2953.08(G)(2) governs review of all felony sentences. Id. at ¶ 6. Pursuant to R.C. 2953.08(G)(2), when hearing an appeal of a trial court's sentencing decision, "[t]he appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing." State v. Pearce, 12th Dist. Clermont No. CA2013-01-001, 2013-Ohio-3484, ¶ 24.
(¶ 8} An appellate court may take any action authorized under R.C. 2953.08(G)(2) only if the court "clearly and convincingly finds" either: (1) "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;" or (2) "[t]hat the sentence is otherwise contrary to law." Crawford at ¶ 7; Pearce at ¶ 25. A sentence is not clearly and convincingly contrary to law where the trial court considers the purposes and principles of R.C. 2929.11, as well as the factors listed in R. C. 2929.12, and sentences appellant within the permissible statutory range. Crawford at ¶ 9; State v. Elliott, 12th Dist. Clermont No. CA2009-03-020, 2009-Ohio-5926, ¶ 10.
(¶ 9} In making such a determ ination, it is "important to understand that the clear and convincing standard used by R.C. 2953.08(G)(2) is written in the negative." Crawford at ¶ 8, quoting State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 21. "It does not say that the trial judge must have clear and convincing evidence to support its findings." Id. To the contrary, "it is the court of appeals that must clearly and convincingly find that the record does not support the court's findings." Id. As such, the language in R.C. 2953.08(G)(2) establishes an "extremely deferential standard of review" for "the restriction is on the appellate court, not the trial judge." Id.
(¶ 10} In essence, Olvera argues that the severity of the punishment was not based upon the conduct for which he was convicted, suggesting the trial court was "motivated by the fact that he did not render assistance at the scene to Jennifer Bowling, that he did not call 911, and that [Olvera] was avoiding detection for a more serious crime, [a]ggravated [v]ehicular [h]omicide." ...