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State v. Ivkovich

Court of Appeals of Ohio, Second District, Montgomery

February 16, 2018

STATE OF OHIO Plaintiff-Appellee
v.
PAUL P. IVKOVICH Defendant-Appellant

         Criminal Appeal from Common Pleas Court Trial Court Case No. 2015-CR-2577

          MATHIAS H. HECK, JR., by HEATHER N. JANS, Attorney for Plaintiff-Appellee

          BROCK SCHOENLEIN, Attorney for Defendant-Appellant

          OPINION

          TUCKER, J.

         {¶ 1} Defendant-appellant, Paul P. Ivkovich, appeals from his convictions for two counts of aggravated vehicular homicide under R.C. 2903.06(A). In four assignments of error, Ivkovich argues that the trial court erred by overruling his motion to suppress the results of a chemical analysis of his blood; by failing to comply fully with Crim.R. 11(C) when it accepted his pleas of no contest; and by improperly sentencing him to a term of imprisonment greater than the mandatory minimum in reliance on findings of fact that were irrelevant or unsupported by the record. We find that the trial court did not err, and we therefore affirm.

         I. Facts and Procedural History

         {¶ 2} Early in the morning of April 30, 2015, Ivkovich was driving in the vicinity of the intersection of East Third Street and McDonough Street in Dayton, accompanied by Sharon M. Crawford. See Tr. of Proceedings 185-186; Appellant's Br. 3. At approximately 2:25 a.m., Ivkovich's vehicle collided with one of the pillars supporting the railroad overpass spanning Third Street. See Tr. of Proceedings 185-186; Pl.'s Mem. in Opp'n to Def.'s Mot. to Suppress 3, Apr. 18, 2016; see also Def's Mot. to Suppress 3, Nov. 30, 2015. Ivkovich and Crawford were taken to Miami Valley Hospital, where Crawford was pronounced dead. Appellant's Br. 3; Appellee's Br. 2.

         {¶ 3} A uniformed officer with the Dayton Police Department reported to the hospital's trauma center between 2:45 and 3:00 a.m. to speak with Ivkovich. Tr. of Proceedings 64-65. In response to the officer's inquiry, Ivkovich acknowledged that he was driving when his vehicle struck the pillar and told the officer that he and Crawford had left a bar shortly beforehand. Id. at 68. Prompted by an odor of alcohol, the officer asked Ivkovich whether he had been drinking at the bar. Ivkovich answered that he had had six or seven beers and two or three shots, and the officer requested Ivkovich's consent to a blood draw for toxicological analysis. Id. at 68-72. Ivkovich consented. Id. at 71-72. The analysis of Ivkovich's blood revealed an alcohol content well in excess of the legal limit for the operator of a motor vehicle. Id. at 165-168 and 235; R.C. 4511.19(A)(1)(b) and (f).

         {¶ 4} On October 20, 2015, a Montgomery County grand jury issued a two-count indictment charging Ivkovich with: (1) aggravated vehicular homicide under R.C. 2903.06(A)(1)(a) for causing the death of Sharon Crawford as a proximate result of his operation of a motor vehicle in violation of R.C. 4511.19(A); and (2) aggravated vehicular homicide under R.C. 2903.06(A)(2)(a) for causing Crawford's death by operating a motor vehicle recklessly. Ivkovich appeared for arraignment on November 3, 2015, and pleaded not guilty.

         {¶ 5} On November 30, 2015, Ivkovich moved to suppress the results of the analysis of his blood as well as the statements he made while in Miami Valley Hospital. Following a hearing, the court overruled Ivkovich's motion with respect to this evidence in a decision docketed on May 16, 2016, and on December 12, 2016, Ivkovich pleaded no contest to both of the charges set forth in the indictment. The State did not agree to make a sentencing recommendation in exchange for Ivkovich's pleas. Tr. of Proceedings 226.

         {¶ 6} At Ivkovich's sentencing hearing on January 17, 2017, the court merged the two counts of the indictment, and the State elected to proceed on Count 1 (aggravated vehicular homicide under R.C. 2903.06(A)(1)(a) for causing the death of another as a proximate result of the operation of a motor vehicle in violation of R.C. 4511.19(A)). The court ordered that Ivkovich serve a mandatory term of imprisonment of four years and advised him that he would be subject to mandatory post-release control for a period of three years after his release from prison. On January 19, 2017, the court docketed a termination entry, and Ivkovich timely filed a notice of appeal on February 16, 2017.

         II. Analysis

         {¶ 7} Ivkovich's first and second assignments of error relate to the trial court's ruling on his motion to suppress.[1] Appellate "review of a motion to suppress presents a mixed question of law and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. As the trier of fact, a trial court "is in the best position to weigh * * * evidence * * * and evaluate [the credibility of] witnesses], " so an "appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence." Id., citing State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Graves, 12th Dist. Clermont No. CA2015-03-022, 2015-Ohio-3936, ¶ 9, citing State v. Cruz, 12th Dist. Preble No. CA2013-10-008, 2014-Ohio-4280, ¶ 12. Accepting the trial court's findings of fact as true, "the appellate court must then independently determine, without deference to the [trial court's legal] conclusion[s], " whether the "facts satisfy the applicable * * * standard." Burnside, 2003-Ohio-5372, ¶ 8, citing Fanning, 1 Ohio St.3d 19, and State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997).

         {¶ 8} For his first assignment of error, Ivkovich contends that:

THE TRIAL COURT ERRED IN DETERMINING THAT THE BLOOD DRAW WAS CONDUCTED IN SUBSTANTIAL COMPLIANCE WITH THE OHIO ADMINISTRATIVE CODE.

         {¶ 9} Ivkovich presents a quadripartite argument that the trial court should have suppressed the results of the analysis of his blood. First, he posits that because the State did not establish the expiration date of the test kit used to obtain specimens, it failed to demonstrate that the results of the analysis were reliable. Second, he challenges the authenticity of the specimens introduced into evidence by the State at the hearing on his motion to suppress. Third, he insists the State failed to prove that the analysis of his blood comported with the requirements of Ohio Adm.Code 3701-53-03 and 3701-53-04, and fourth, he maintains similarly that the State failed to demonstrate that it retained the specimens of his blood for one year after completion of testing as required by Ohio Adm.Code 3701-53-06(A).

         {¶ 10} Regarding the first part of Ivkovich's argument, when a defendant moves to suppress the results of a blood test "in an aggravated vehicular homicide prosecution that depends upon proof of driving under the influence in violation of R.C. 4511.19(A), the [prosecution] must show substantial compliance with R.C. 4511.19(D)(1) and Ohio Adm.Code Chapter 3701-53 before the test results [may be] admi[tted]." State v. Bruce, 2d Dist. Montgomery No. 22612, 2008-Ohio-5514, ¶ 8, citing State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-4629, 833 N.E.2d 1216, ¶ 48. The defendant, however, must " 'state with particularity the legal and factual issues to be resolved.' " State v. Tyner, 2d Dist. Montgomery No. 25405, 2014-Ohio-2809, ¶ 13, quoting State v. Shindler, 70 Ohio St.3d 54, 58, 636 N.E.2d 319 (1994); see also State v. Bissaillon, 2d Dist. Greene No. 06-CA-130, 2007-Ohio-2349, ¶ 11. If the defendant provides a sufficiently particular statement, then "the burden shifts to the [prosecution] to show that it substantially complied" with the relevant regulations. Bissaillon, 2007-Ohio-2349, ¶ 12, citing State v. Plummer, 22 Ohio St.3d 292, 490 N.E.2d 902 (1986), syllabus. The weight of the prosecution's "burden to establish substantial compliance, " in other words, is directly proportional to the extent of the defendant's specificity; a motion to suppress that raises merely a generalized claim of non-compliance imposes only a "fairly slight" burden on the prosecution. (Citations omitted.) See id.

         {¶ 11} In his motion to suppress, Ivkovich argued that the "manner of the blood draw, and the handling and [the] testing of the blood, was done in violation of the regulations [appearing in Ohio Adm.Code] 3701-53-01, et seq." Def's Mot. to Suppress 1 and 3. The motion made no mention of the test kit or of the expiration date of any of the kit's components, although during the hearing on the motion, Ivkovich's counsel referred to the kit's expiration date in the following exchange with the phlebotomist who drew Ivkovich's blood:

DEFENSE COUNSEL: This expiration [date] on the [test kit] is a sticker, is that correct?
WITNESS: Correct.
DEFENSE COUNSEL: Is there any way to tell when that was placed there?
WITNESS: I would have no clue.

Tr. of Proceedings 58-59. Ivkovich nevertheless offered no argument related to the test kit's expiration date in his subsequent memoranda in support of suppression, which focused on lack of consent, the mechanics of the blood draw itself, the storage of the samples and unrelated Fourth Amendment issues. See Def.'s Post-Hearing Mem. in Supp. of Mot. to Suppress 2-6, Apr. 4, 2016; Def.'s Post-Hearing Reply Mem. in Supp. of Mot. to Suppress 1-2, Apr. 25, 2016. Thus, Ivkovich did not provide the State with notice that he intended to seek suppression of the analysis of his blood based upon the possible expiration of the test kit, and he thereby forfeited this issue for review on appeal. See State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15; State v. Tyner, 2d Dist. Montgomery No. 25405, 2014-Ohio-2809, ¶ 12-16; State v. Bissaillon, 2d Dist. Greene No. 06-CA-130, 2007-Ohio-2349, ¶ 11-15.

         {¶ 12} Even if the issue had been raised in the trial court, Ivkovich suggested only in the most general terms that the test kit might have been expired, meaning that the State would have had only a "fairly slight" burden to "establish substantial compliance" with the applicable regulations. Bissaillon, 2007-Ohio-2349, ¶ 12; see also State v. Johnson, 137 Ohio App.3d 847, 851-853, 739 N.E.2d 1249 (12th Dist.2000). In this respect, the phlebotomist testified on direct examination that checking the expiration date of a test kit is standard procedure, and when shown the kit he used to obtain a specimen from Ivkovich, he verified that the kit's expiration date had not yet passed at the time he used it. Tr. of Proceedings 19-23 and 29-34. The State accordingly demonstrated that the analysis of Ivkovich's blood substantially complied with regulatory requirements to the extent of the test kit's expiration date.

         {¶ 13} Regarding the second part of Ivkovich's argument, Ivkovich notes that the Dayton Police officer tasked with transporting his blood samples from Miami Valley Hospital to the Miami Valley Regional Crime Laboratory made revisions to the documentation attached to the samples. Appellant's Br. 6-7. Ivkovich contends that "[t]hese changes * * * raise significant questions about the authenticity of the * * * blood sample[s]" introduced at the hearing on his motion to suppress. Id. at 7. Like the expiration date of the test kit, Ivkovich did not address the authentication of the blood samples in his motion to suppress or in his subsequent memoranda in support, and he has accordingly also forfeited this issue for appellate review. Quarterman, 2014-Ohio-4034, ¶ 15; Tyner, 2014-Ohio-2809, ¶ 12-16; Bissaillon, 2007-Ohio-2349, ¶ 11-16; Def.'s Mot. to Suppress 3-4; Def.'s Post-Hearing Mem. in Supp. of Mot. to Suppress 2-5; Def.'s Post-Hearing Reply Mem. in Supp. of Mot. to Suppress 1-2.

         {¶ 14} Assuming for sake of analysis that Ivkovich did raise the issue in the trial court, thereby preserving it for appeal, the testimony adduced by the State at the hearing on his motion to suppress sufficed to establish the authenticity of the samples. The phlebotomist testified that the sample vials entered into evidence by the State were the same vials he had used to draw Ivkovich's blood, and the officer who revised the attached documentation indicated that he simply "corrected" a "couple of items, " including changing the "offense location" from the hospital's address to the address at which the accident occurred, and adding the name of the Dayton Police officer in charge of the investigation of the accident. Tr. of Proceedings 29-32 and 111-116. As well, the officer who asked Ivkovich to consent to the blood draw testified that he personally witnessed the phlebotomist fill and label the sample vials, and while on the stand, he authenticated the vials-among other ...


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