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State v. Kinney

Court of Appeals of Ohio, Seventh District, Monroe

June 28, 2019

STATE OF OHIO, Plaintiff-Appellee,
RICHARD LEE KINNEY, Defendant-Appellant.

          Criminal Appeal from the Court of Common Pleas of Monroe County, Ohio Case No. 2016-118

          James L. Peters, Monroe County Prosecutor, for Plaintiff-Appellee, No Brief Filed.

          Sidney N. Freeman, McNamara, Demczyk Co., L.P.A., for Defendant-Appellant.

          Matt Fortado, for Defendant-Appellant.

          BEFORE: Cheryl L. Waite, Carol Ann Robb, David A. D'Apolito, Judges.


          WAITE, P.J.

         {¶1} Appellant Richard Lee Kinney challenges the sentences ordered by the Monroe County Court of Common Pleas following a resentencing hearing on his convictions for aggravated vehicular homicide and two counts of operating a vehicle while intoxicated ("OVI"). Appellant presents two arguments on appeal: (1) the sentences imposed by the trial court are not supported by the record; and (2) the trial court erred in imposing sentences that are not consistent with and proportional to sentences of similar offenders. A review of the record reflects that Appellant's sentences are supported by the record and are not contrary to law.

         {¶2} Accordingly, Appellant's assignments of error are without merit and are overruled. The judgment of the trial court is affirmed. However, because the record reveals that Appellant was not completely advised at the sentencing hearing or in his sentencing entry as to postrelease control, the matter is again remanded to the trial court, solely to advise Appellant on postrelease control.

         Factual and Procedural History

         {¶3} On March 30, 2016, Appellant was helping a friend excavate. He had his own excavator, towed on a trailer behind his pickup truck. After working, Appellant consumed twelve beers and then elected to drive home in his truck, hauling the excavator. According to the record, although Appellant consumed twelve beers, he felt he was able to drive. The victim, Mary Lu Riley ("Riley"), was driving her vehicle in the opposite direction, toward Appellant, on a two-lane road in Monroe County. Appellant's rig went left of center hitting Riley's car head-on. It is undisputed that Riley subsequently died as a result of the injuries caused by the collision. Appellant was not immediately aware that he actually hit Riley and initially told police that he "nearly hit an oncoming vehicle." (8/14/18 J.E., p. 3.) Appellant was under the impression that a part of his truck broke off, causing him to lose control of the vehicle. It is not clear from the record how far from the collision Appellant's rig came to a stop or whether he was truly aware he had collided with Riley's vehicle. Riley was pinned in her car and conscious for approximately an hour before help arrived and she was extricated from her vehicle. She died at the hospital some time later. Police performed a field sobriety test on Appellant and then a breathalyzer test. He tested at three times over the legal limit.

         {¶4} On April 22, 2016, Appellant was indicted on one count of aggravated vehicular homicide in violation of R.C. 2903.06(A)(1)(a), a felony of the second degree; OVI in violation of R.C. 4511.19(A)(1)(a), a first degree misdemeanor; one count of OVI in violation of R.C. 4511.19(A)(1)(h), a first degree misdemeanor; and one count of failure to control in violation of R.C. 4511.202, a minor misdemeanor. Appellant appeared for arraignment on April 25, 2016 and entered a plea of not guilty. Bond was set and the matter was scheduled for a jury trial.

         {¶5} On May 1, 2017, a change of plea hearing was held where Appellant pleaded no contest to one count of aggravated vehicular homicide and two counts of OVI. Appellant was placed under electronically monitored house arrest while awaiting sentencing. A presentence investigation was ordered. On June 26, 2017, a sentencing hearing was held and Appellant was sentenced to a seven-year term of imprisonment for aggravated vehicular homicide and 180 days on each of the OVI counts. These were to run concurrently, however, with the sentence for aggravated vehicular homicide. The court also ordered a lifetime driving suspension and two days of jail-time credit. Appellant filed a motion for resentencing with the trial court on July 25, 2017, but filed an appeal on July 26, 2017. The trial court denied Appellant's motion on August 3, 2017. Realizing the trial court lacked jurisdiction to issue that judgment, Appellant filed a motion with this Court seeking a partial remand to allow the trial court to consider his motion for resentencing and permit an oral hearing to present evidence. In a judgment entry dated November 3, 2017, we denied Appellant's motion. On November 8, 2017, the state filed a notice that it did not intend to file an appellate brief because as part of the plea agreement it had agreed to remain silent regarding sentencing.

         {¶6} On June 29, 2018, we concluded that the record did not reflect that the trial court considered the requisite statutory factors before imposing sentence. Moreover, the trial court cited the incorrect statute at both the sentencing hearing and in the written judgment entry. State v. Kinney, 7th Dist. Monroe No. 17 MO 0016, 2018-Ohio-2785. The matter was remanded for a limited resentencing to review the appropriate sentencing statutes. Id. at ¶ 14.

         {¶7} A resentencing hearing was held on August 14, 2018. The state reiterated at the hearing that it had agreed to remain silent. The prosecutor noted that the victim's family was present and referred the trial court to the victim impact statements from Appellant's first sentencing hearing. Appellant's counsel contended that none of the aggravating factors listed in R.C. 2929.12(B) were present, with the exception of death of the victim, which is an element of the offense of aggravated vehicular homicide. (8/14/18 Tr., p. 8.) Counsel for Appellant also said that there was no evidence in the record that there was a delay in obtaining medical treatment for the victim because of Appellant's action and that Appellant had remained at the scene. Counsel admitted that the only mitigating factor was that Appellant did not intend to cause the victim's death. (8/14/18 Tr., p. 10.) Counsel stated that none of the recidivism factors listed in R.C. 2929.12(D) applied to Appellant, and that Appellant had no prior criminal record, had shown remorse, and had stopped drinking and maintained his sobriety. (8/14/18 Tr., p. 10.) Counsel then raised the issue of consistency and proportionality in sentencing and referred to computerized research he had undertaken using Summit County statistics. This research indicated that there were only four cases where the offender received a greater sentence than Appellant, and those offenders had prior criminal records. (8/14/18 Tr., p. 11.) Appellant's counsel requested a two-year sentence. Appellant elected not to make a statement at sentencing.

         {¶8} The trial court stated at the hearing that it considered the purposes and principles of sentencing set forth in R.C. 2929.11 and R.C. 2929.12:

Additionally, under 2929.12 of the Revised Code, the Court does have discretion to impose said felony sentence and to determine the most effective way to comply with the purposes and principles set forth in 2929.11 of the Revised Code.
The Court is to consider the seriousness and recidivism factors that are set forth in 2929.12(B) (C) (D) and (E), and factors in (F) that would pertain to the offender's service in the U.S. Armed Forces, if any, as well as any other factors that the Court deems relevant to achieve the noted purposes and principles of sentencing set forth in 2929.11.
The Court makes the following findings against this Defendant, as it pertains to the facts of this particular case, and is prepared to order a sentence accordingly.
The Court does find that the physical injuries suffered by Mrs. Riley in this case, who was eighty-five years of age, at the time, was death. She was killed as a result of the crash.
The victim in this case, did nothing to induce or facilitate that offense.
The offender did not act under any provocation.
The Defendant eventually admitted to law enforcement that he did consume twelve beers prior to crashing his motor vehicle, and the trailer he was hauling, head-on into the victim, ultimately killing her.
The Defendant failed field sobriety tests.
His Breathalyzer test revealed a prohibited alcohol content well in excess of the legal limit.
The Court also finds that this Defendant was so intoxicated that he was not certain that he had collided with the victim's vehicle, which led to a critical and ultimately fatal delay in the arrival of assistance.
This Court finds that this Defendant fails to fully accept responsibility for the death of Mrs. Riley as he stated that he was intoxicated but he felt he was okay to drive.
Further, the Defendant made a statement to the Pre-Sentence Report investigator that something broke off his truck causing him to go left of center, ultimately crashing and killing Mrs. Riley.
This is completely contrary to the Ohio State Highway Patrol's report which indicated that he collided head-on with Mrs. Riley's motor vehicle, killing her.

(8/14/18 Tr., pp. 15-18.)

         {¶9} The trial court sentenced Appellant to a term of incarceration of seven years for the aggravated vehicular homicide conviction and 180 days each for the two counts of OVI, both to run concurrently to each other and to the aggravated vehicular homicide sentence, for a total stated prison term of seven years. The Court gave Appellant 416 days of credit for time served. The court again imposed the lifetime driver's license suspension.

         {¶10} Appellant filed ...

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