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State v. Clarke

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 18, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
JOSHUA CLARKE DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-612002-A

          ATTORNEY FOR APPELLANT John Joseph Dowell The Goldberg Law Firm, L.L.C.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: John D. R. Kirkland Assistant Prosecuting Attorney

          BEFORE: S. Gallagher, P.J., Blackmon, J., and Celebrezze, J.

          JOURNAL ENTRY AND OPINION

          SEAN C. GALLAGHER, JUDGE.

         {¶1} Appellant Joshua Clarke appeals the sentence imposed by the trial court. Upon review, we affirm.

         {¶2} Appellant was charged under a six-count indictment. He ultimately entered a plea of guilty to the following charges: amended Count 1, aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a), a high-tier felony of the third degree; Count 3, unauthorized use of a motor vehicle in violation of R.C. 2913.03(A), a misdemeanor of the first degree; Count 4, driving under the influence of alcohol or drugs in violation of R.C. 4511.19(A)(1)(a), a misdemeanor of the first degree; and Count 5, criminal damaging in violation of R.C. 2909.06(A)(1), a misdemeanor of the first degree. Counts 2 and 6 were nolled.

         {¶3} The charges arose from a motor vehicle accident in which appellant was operating a F-250 pickup truck that crossed the center line and collided with a car driven by the victim. Appellant had cannabinoids and benzodiazepine in his system, and he had taken his employer's truck without permission. He was not injured in the accident. The victim suffered serious physical harm, including facial lacerations and fractures, collapsed lungs, two broken ribs, a dislocated right ankle, and three fractures in her leg.

         {¶4} At the sentencing hearing, the judge heard from the assistant prosecutor and permitted the victim's mother to read an impact statement written by the victim, who was present in the courtroom. The statement detailed the extent of the victim's injuries and the impact upon her since the accident. The victim's mother then was permitted to address the court. The victim's mother discussed prior family tragedies involving impaired drivers, as well as the pain her daughter endured from the injuries she sustained. Photographs depicting the victim's injuries were submitted.

         {¶5} Defense counsel addressed the court and expressed mitigating factors. It was represented that appellant had certain unfortunate experiences and he self-medicated with marijuana and was given Xanax by some friends to help him forget about things. Defense counsel acknowledged that appellant did not recall anything until being in the police station after the incident. Although appellant did not have any prior felony convictions, he did have a history of traffic violations, including for driving while under suspension. Appellant addressed the court, accepted responsibility, and expressed remorse.

         {¶6} The trial court indicated that it had reviewed the presentence investigation report and taken into consideration the remarks made to the court. The trial court commented upon the nature of the offense and the serious physical and psychological damage to the victim.

         {¶7} The trial court sentenced appellant to a prison term of four years on Count 1, and six months on each of the remaining counts, with all counts to be served concurrent with each other. The trial court advised appellant of postrelease control and ordered restitution. Appellant's driver's license was suspended for ten years.

         {¶8} Appellant timely filed this appeal. Under his first assignment of error, appellant claims as follows: "The trial court unreasonably relied on the irrelevant statements of [the] victim's mother at the sentencing hearing."

         {¶9} In conducting a felony sentencing hearing, R.C. 2929.19(A) allows for "the offender, the prosecuting attorney, the victim or the victim's representative * * * and, with the approval of the court" any other person" to "present information relevant to the imposition of sentence in the case." Pursuant to R.C. 2929.19(B), "the court, before imposing sentence, shall consider the record, any information presented at the hearing by any person pursuant to division (A) * * *, the ...


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