from Logan County Common Pleas Court Trial Court No.
Gatterdam for Appellant
C. Stewart for Appellee
Defendant-appellant, Edward Keith Marland
("Marland"), appeals the October 17, 2016 judgment
entry of sentence of the Logan County Court of Common Pleas.
For the reasons that follow, we affirm in part and reverse in
part. We remand the case to the trial court to correct a
problem with its merger procedure.
This case stems from an incident in the early morning hours
of October 18, 2015. Shortly after midnight on that date,
motorist Joshua VanBuskirk ("VanBuskirk") came to
the scene of a car crash on State Route 292 between East
Liberty, Ohio and Ridgeway, Ohio. That crash involved Marland
and a motorcyclist named James Long Jr. ("Long").
Soon after arriving at the scene of the accident, VanBuskirk
called for emergency responders, who soon arrived. Police
repeatedly sought Marland's consent to draw his blood to
determine its alcohol content, but he refused. Police also
conducted a number of field sobriety tests, the results of
which led them to believe that Marland operated his vehicle
while under the influence of alcohol. Police then arrested
Marland and eventually took him to a nearby hospital, where
he consented to a blood draw.
On November 12, 2015, the Logan County Grand Jury indicted
Marland on three counts. (Doc. No. 2). On November 18, 2015,
Marland appeared for arraignment and pled not guilty to the
counts in the indictment. (Doc. No. 5). The State filed an
amended indictment on December 8, 2015. (Doc. No. 21). The
amended indictment charged Marland with: Count One of
operating a vehicle under the influence of alcohol or drugs
("OVI") in violation of R.C. 4511.19(A)(1)(a), a
misdemeanor of the first degree; Count Two of OVI in
violation of R.C. 4511.19(A)(1)(b), a misdemeanor of the
first degree; Count Three of OVI in violation of R.C.
4511.19(A)(1)(j)(viii)(I), a misdemeanor of the first degree;
and Count Four of aggravated vehicular homicide in violation
of R.C. 2903.06(A)(1)(a), a felony of the first degree. (Doc.
No. 21). On December 15, 2015, Marland appeared for
arraignment and pled not guilty to the counts in the amended
indictment. (Doc. No. 32).
Marland filed several motions to suppress evidence. (Doc.
Nos. 10, 11, 12, 20, 50, 64). The motion to suppress evidence
relevant here is the one filed on August 3, 2016. (Doc. No.
64). As part of that motion to suppress evidence, Marland
sought the suppression of the blood drawn from him because
the blood was not timely drawn and because he did not consent
to the blood draw, thus rendering the blood draw an illegal
search under both constitutional and statutory provisions.
(Doc. No. 64).
On August 12, 2016, the trial court denied Marland's
motion to suppress evidence, finding that Marland's blood
had been drawn within three hours of the accident, and the
trial court further found that the blood draw was not an
unconstitutional search because exigent circumstances existed
and because Marland consented to the blood draw. (Doc. No.
On September 2, 2016, Marland appeared at a change-of-plea
hearing and pled no contest to each of the counts in the
amended indictment. (Doc. No. 70). In an entry journalized
September 15, 2016, the trial court found Marland guilty of
each of the charges to which he pled no contest.
On October 3, 2016, the trial court held a sentencing hearing
and sentenced Marland to six months in prison as to Count
One, six months in prison as to Count Two, six months in
prison as to Count Three, and six years in prison as to Count
Four. (Doc. No. 82). The trial court specifically found that
Counts One, Two, and Three merged. (Id.). The trial
court ordered that the sentences for all counts be run
concurrently for a total of six years of incarceration.
(Id.). The trial court filed its judgment entry of
sentence on October 17, 2016. (Id.).
Marland filed his notice of appeal on November 1, 2016. (Doc.
No. 96). He brings two assignments of error for our review.
of Error No. I
Trial Court Erred In Denying Appellant's Motion To
Suppress Evidence Contrary To Appellant's Statutory
Rights And Rights Under the Fourth Amendment To The U.S.
Constitution And Corresponding Rights Under the Ohio
In his first assignment of error, Marland argues that the
trial court erred in denying his motion to suppress evidence
because his statutory rights and his rights under the
constitutions of Ohio and of the United States were violated.
Specifically, Marland argues that R.C. 4511.19(D)(1)(b)
states that evidence of blood-alcohol concentration is
admissible only if the blood used to discern that
concentration is drawn within three hours of the alleged
violation. In short, Marland argues that the testimony of
VanBuskirk never established when the accident occurred and
that portions of VanBuskirk's testimony indicate that
there was greater gap between the accident and
VanBuskirk's arrival than the trial court assumed.