Court of Appeals of Ohio, Seventh District, Monroe
Criminal Appeal from the Court of Common Pleas of Monroe
County, Ohio Case No. 2016-118
L. Peters, Monroe County Prosecutor, for Plaintiff-Appellee,
No Brief Filed.
N. Freeman, McNamara, Demczyk Co., L.P.A., for
Fortado, for Defendant-Appellant.
BEFORE: Cheryl L. Waite, Carol Ann Robb, David A.
OPINION AND JUDGMENT ENTRY
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.
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.
and Procedural History
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.
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.
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
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.
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.
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
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
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.)
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.
Appellant filed ...