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State v. Lambert

Court of Appeals of Ohio, Second District, Champaign

July 12, 2019

STATE OF OHIO Plaintiff-Appellee
DYLAN W.G. LAMBERT Defendant-Appellant

          Criminal Appeal from Common Pleas Court Trial Court Case No. 2018-CR-35

          JANE A. NAPIER, Attorney for Plaintiff-Appellee.

          APRIL F. CAMPBELL, BRADLEY KOFFEL Attorneys for Defendant-Appellant.


          FROELICH, J.

         {¶ 1} Dylan W.G. Lambert appeals from a judgment convicting him of aggravated vehicular homicide and aggravated vehicular assault and sentencing him to maximum and consecutive prison terms totaling 120 months. The judgment of the trial court will be affirmed.

         Factual and Procedural Background

         {¶ 2} A Champaign County grand jury indicted Lambert on two first-degree misdemeanor counts of operating a vehicle under the influence of alcohol, a drug of abuse, or a combination of them; one second-degree felony count of aggravated vehicular homicide; one third-degree felony count of aggravated vehicular homicide; three third-degree felony counts of aggravated vehicular assault; and three fourth-degree felony counts of vehicular assault. The charges stemmed from a November 3, 2017 collision in which Lambert, then 27 years old, was driving a car that struck another vehicle while attempting to pass that vehicle by crossing a double-yellow line. The collision caused the other car to roll over in a ditch, seriously injuring the minor driver and killing the 15-year-old passenger.[1] Testing after the collision showed Lambert to have a blood alcohol content of .232 grams per milliliter.

         {¶ 3} Lambert was released on an own-recognizance bond, subject to conditions including that he comply with orders of the pretrial services department and that he not consume alcohol or drive a motor vehicle while the case remained pending. (Doc. #8, pp. 1, 3). On June 6, 2018, Lambert entered guilty pleas to the Count Four third-degree felony charge of aggravated vehicular homicide (for the death of the passenger in the other car) and the Count Six third-degree felony charge of aggravated vehicular assault (for the injuries to the driver of the other car), in exchange for dismissal of the other eight counts. (See Plea Hearing Tr., pp. 7-27). At the outset of that hearing, the trial court found Lambert "guilty" of a bond violation for failure to appear for or call to reschedule a pretrial services appointment. (Id., pp. 2-5). On that issue, the court further advised Lambert as follows:

The court would encourage you very strongly not to miss another Pretrial Services's [sic] appointment. A person's conduct while on bond * * * is something that the Court considers as a sentencing factor. It doesn't mean it dominates. And it doesn't mean that it is a minimal factor. Just a tool that the Court uses. * * *

(Id., pp. 5-6).

         {¶ 4} Before accepting Lambert's guilty pleas, the trial court conducted a plea colloquy to assure that Lambert understood the rights that he was waiving and the consequences of his pleas. The court informed Lambert that the Court Four offense of aggravated vehicular homicide carried "a maximum [term of] imprisonment of 60 months and a maximum fine of $10, 000," plus "a mandatory driver's license suspension of not less than three years up to life suspension." (Id., p. 12). As to the Count Six offense of aggravated vehicular assault, the court advised Lambert of the "maximum [sentence of] 60 months in prison," the "maximum fine of $10, 000," and the "mandatory driver's license suspension of not less than two years and no more than ten years," but clarified that "[u]nlike the aggravated vehicular homicide, the aggravated vehicular assault carries with it mandatory imprisonment." (Id., pp. 12-13). "That means that the Court must select a definite sentence on Count Six of 12 months, 18 months, 24 months, 30 months, 36 months, 42 months, 48 months, 54 months, or 60 months." (Id., p. 13).

         {¶ 5} The trial court told Lambert that he could receive maximum consecutive sentences totaling 120 months of prison time and a $20, 000 fine (id., p. 14), and that because the court would "be required to impose a prison term on Count Six," it would "be unlikely that the Court would give you anything else but prison on Count Four." (Id., pp. 15-16). Lambert indicated his understanding of each of the court's advisory statements. He also signed a written plea agreement that repeated the same information. (Doc. #35). The court continued the matter for sentencing memoranda from the parties and a presentence investigation ("PSI").

         {¶ 6} On July 23, 2018, the trial court sentenced Lambert to the maximum sentences of 60 months for both aggravated vehicular assault and aggravated vehicular homicide, to be served consecutively for a total prison term of 120 months; a lifetime driver's license suspension for the aggravated vehicle homicide; fines of $1, 000 for each offense, for a total of $2, 000; plus costs. Before doing so, the court reviewed the PSI, the sentencing memoranda, and written statements from Lambert's and the victims' families, and also heard oral statements from the injured driver of the other car and the family of the victim killed in the accident. Both orally at the sentencing hearing and in its written judgment entry, the trial court set forth its reasoning for imposing maximum consecutive sentences.

         {¶ 7} Lambert appeals, asserting two assignments of error:[2]

1) The trial court's decision to impose consecutive sentences should be vacated; and
2)There is clear and convincing evidence that the record does not support the trial court's imposition of the maximum sentence, and [Lambert's] sentences are also contrary to law.

         Standard of Review

         {¶ 8} In reviewing felony sentences, appellate courts must apply the standard of review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing, only if it "clearly and convincingly" finds either (1) that the record does not support certain specified findings or (2) that the sentence imposed is contrary to law.

         {¶ 9} In determining the sentence for an individual offense, the trial court has full discretion to impose any sentence within the authorized statutory range, and the court is not required to make any findings or give its reasons for imposing a maximum or more than minimum sentence. State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial court must consider the statutory criteria that apply to every felony offense, including those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App.3d 500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.

         {¶ 10} R.C. 2929.11 requires trial courts to be guided by the overriding purposes of felony sentencing. Those purposes are "to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources." R.C. 2929.11(A). The court must "consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both." Id. R.C. 2929.11(B) further provides that "[a] sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing * * *, commensurate with and not demeaning to the seriousness of the offender's conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders."

         {¶ 11} In general, it is presumed that prison terms will be served concurrently. R.C. 2929.41(A); State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 16, 23 ("judicial fact-finding is once again required to overcome the statutory presumption in favor of concurrent sentences"). However, after determining the sentence for a particular crime, a sentencing judge has discretion to order an offender to serve individual counts of a sentence consecutively to each other or to sentences imposed by other courts. R.C. 2929.14(C)(4) permits a trial court to impose consecutive sentences if it finds that (1) consecutive sentencing is necessary to protect the public from future crime or to punish the offender, (2) consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and (3) any of the following applies:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

         Assignment of Error Regarding Maximum Sentences

         {¶ 12} Lambert maintains that the trial court erred in multiple respects as to the reasons it gave for imposing maximum sentences in his case. First, he argues that his failure to appear for a pretrial services appointment was not "a bond violation" and therefore should not have been considered as a sentencing factor. Next, he argues that the trial court improperly relied on Lambert's family's history with alcohol as a factor that supported a longer sentence. Lambert also contends that the trial court failed to consider its responsibility "to promote Lambert's rehabilitation," despite rehabilitation's being a required sentencing consideration. Finally, he suggests that as "a first-time offender who "led a law-abiding life," he should not have been given maximum sentences.

         a. Bond Violation

         {¶ 13} Lambert's arguments do not demonstrate that the maximum sentences imposed by the trial court clearly and convincingly were not supported by the record or were contrary to law. Regardless of whether Lambert's failure to appear for an April 5, 2018 pretrial services appointment constituted "a bond violation"[3] nothing suggests that the missed appointment significantly influenced the trial court's sentencing decision. With respect to Lambert's conduct while free on bond, the trial court expressed far greater concern that Lambert, by his own admission, had consumed alcohol on at least two occasions, despite being ordered not to do so.

         {¶ 14} As a preliminary matter at the time of sentencing, the trial court remarked on the State's having "allege[d] that [Lambert] violated bond by consuming alcoholic beverages." (Sentencing Hearing Tr., p. 5). Through both counsel and his own oral affirmation, Lambert admitted those allegations. (Id., p. 6). The court found Lambert "guilty of violating bond" and indicated that it would consider such violations "as a sentencing factor." (Id.).

         {¶ 15} Later, when reviewing the statutory sentencing factors, the trial court referred to two exhibits submitted in conjunction with the State's sentencing memorandum. The court noted that one photograph, dated April 27, 2018, [4] depicted

         Lambert playing a video game and drinking a Coors Light beer while seated next to an infant. (See Doc. #38, Exh. 2). The court continued:

[Trial Court]: And Coors Light was the same beer can found in your vehicle at the time of the ...

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