Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT John Joseph Dowell The Goldberg Law
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: John D. R. Kirkland Assistant
BEFORE: S. Gallagher, P.J., Blackmon, J., and Celebrezze, J.
JOURNAL ENTRY AND OPINION
C. GALLAGHER, JUDGE.
Appellant Joshua Clarke appeals the sentence imposed by the
trial court. Upon review, we affirm.
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.
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.
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
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
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.
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.
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."
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 ...