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State v. Petrovich

Court of Appeals of Ohio, Eleventh District, Lake

September 3, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
RICHARD PETROVICH, III, Defendant-Appellant.

          Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2017 CR 000862.

         Judgment: Affirmed.

          Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, (For Plaintiff-Appellee).

          Cory R. Hinton, Hanahan & Hinton, LLC, (For Defendant-Appellant).

          OPINION

          MATT LYNCH, J.

         {¶1} Defendant-appellant, Richard Petrovich, appeals from his five-year sentence for Aggravated Vehicular Assault and Operating a Vehicle Under the Influence of Alcohol in the Lake County Court of Common Pleas. The issues to be determined in this case are whether a trial court errs in sentencing a defendant when it finds a lack of factors making the offenses less serious without discussing each factor and whether separate counts of Aggravated Vehicular Assault arising from a single car accident must merge as allied offenses when there are multiple victims. For the following reasons, we affirm the judgment of the lower court.

         {¶2} On April 10, 2018, Petrovich was indicted by the Lake County Grand Jury for nine counts of Aggravated Vehicular Assault, felonies of the second degree, in violation of R.C. 2903.08(A)(1)(a); nine counts of Operating a Vehicle Under the Influence of Alcohol, misdemeanors of the first degree, in violation of R.C. 4511.19(A)(1)(a), (b), and (e); one count of Endangering Children, a felony of the fifth degree, in violation of R.C. 2919.22(C)(1); one count of Driving Under Financial Responsibility Law Suspension or Cancellation, an unclassified misdemeanor, in violation of R.C. 4510.16(A); one count of Operating a Motor Vehicle without a Valid License, a minor misdemeanor, in violation of R.C. 4510.12(A); an Occupant Restraining Devices violation, a minor misdemeanor, in violation of R.C. 4513.263(B)(1); and a Child Restraint System violation, a misdemeanor of the fourth degree, in violation of R.C. 4511.81(C).

         {¶3} On October 29, 2018, a plea hearing was held at which Petrovich pled guilty to three counts of Aggravated Vehicular Assault and one count of Operating a Vehicle Under the Influence of Alcohol, in violation of R.C. 4511.19(A)(1)(a), which charges arose from a car accident that occurred when Petrovich was driving a vehicle with five children and one adult passenger while under the influence of alcohol. A Nolle Prosequi was entered on the remaining counts. The guilty plea was accepted by the trial court and a Written Plea of Guilty was filed.

         {¶4} A sentencing hearing was held on December 11, 2018. Defense counsel requested a two-year prison sentence and argued that the counts of Aggravated Vehicular Assault should merge. Counsel argued as mitigating evidence that Petrovich's blood alcohol level was not over the legal limit by a "tremendous amount," he "did decent on his sobriety test results," and there was a "gray area" regarding the cause of the accident. Counsel emphasized that this was Petrovich's first felony case. Petrovich expressed remorse and several family members spoke favorably about him and his relationship with his children.

         {¶5} The State emphasized the severity of the accident, which caused physical and psychological injuries to the victims, including broken bones, concussions, and a severed artery, and the lack of functional safety restraints in the vehicle. The State noted Petrovich's past traffic violations, including an OVI. The State requested a prison term of six years and argued merger should not occur since there were multiple victims.

         {¶6} The court stated its consideration of the R.C. 2929.12 factors, emphasizing the serious physical and psychological harm to the victims, as well as the ages of the child victims and their relationship with Petrovich, their father. It found no factors making the crime less serious. The court also noted these were his first felonies but he had prior misdemeanor offenses and took into account Petrovich's showing of remorse and acceptance of responsibility. The court found that the offenses should not merge and ordered a sentence of five years for each count of Aggravated Vehicular Assault and a 60-day sentence for OVI, to run concurrently for a total term of five years. The sentence was memorialized in a December 18, 2018 Judgment Entry of Sentence.

         {¶7} Petrovich timely appeals and raises the following assignments of error:

         {¶8} "[1] The trial court erred on December 18, 2018 because its sentence was contrary to law and an abuse of discretion.

          {¶9} "[2.] The trial court erred on December 18, 2018 because it failed to merge the sentences ...


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