[Cite as State v. Irwin-Debraux, 2019-Ohio-5013.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 28309
                                                    :
 v.                                                 :   Trial Court Case No. 2018-CR-3580
                                                    :
 ALYSSA IRWIN-DEBRAUX                               :   (Criminal Appeal from
                                                    :   Common Pleas Court)
         Defendant-Appellant                        :
                                                    :

                                              ...........

                                              OPINION

                          Rendered on the 6th day of December, 2019.

                                              ...........

MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

MATTHEW M. SUELLENTROP, Atty. Reg. No. 0089655, 6 North Main Street, Suite 400,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                              .............




TUCKER, J.
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       {¶ 1} Defendant-appellant, Alyssa Irwin-Debraux, appeals from her convictions for

one count of grand theft of a motor vehicle, a fourth-degree felony pursuant to R.C.

2913.02(A)(1) and (B)(5); one count of involuntary manslaughter, a first-degree felony

pursuant to R.C. 2903.04(A) and (C); and one count of failure to comply with an order or

a signal of a police officer, a third-degree felony pursuant to R.C. 2921.331(B) and

(C)(5)(a). Raising two assignments of error, Irwin-Debraux argues that her sentences

should be vacated because the trial court ordered her to serve three terms in prison

consecutively without fulfilling the requirements of R.C. 2929.14(C)(4); because the court

failed to consider the purposes and principles of sentencing; and because the aggregate

term of imprisonment imposed by the court constitutes cruel and unusual punishment.

       {¶ 2} We find that the trial court erred by ordering Irwin-Debraux to serve terms in

prison for grand theft of a motor vehicle and involuntary manslaughter in the absence of

the findings required by R.C. 2929.14(C)(4), but otherwise, we find that her arguments

lack merit. Therefore, the case is remanded to the trial court for resentencing consistent

with this opinion. In all other respects, Irwin-Debraux’s convictions are affirmed.

                             I. Facts and Procedural History

       {¶ 3} On September 11, 2018, Irwin-Debraux stole a 2009 Jeep Patriot and fled

from the ensuing police pursuit. In her attempt to evade capture, she drove the vehicle

at speeds ranging from 65 to 80 m.p.h. along State Route 741, at times crossing into the

opposing lanes of traffic.

       {¶ 4} A motorist attempting to avoid a head-on collision with Irwin-Debraux instead

collided with a vehicle being driven by Mary Taulbee. Taulbee’s vehicle spun through
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an intersection and was struck by a police cruiser involved in the pursuit of Irwin-Debraux.

Mary Taulbee died from the injuries she suffered. The officer, too, was injured, though

he survived.

       {¶ 5} After the accident, Irwin-Debraux tested positive for the consumption of

several illicit substances. She was 18 years of age at the time.

       {¶ 6} On September 24, 2018, a Montgomery County grand jury indicted Irwin-

Debraux on one count of grand theft of a motor vehicle. By way of a bill of information

filed on December 20, 2018, she was charged with one count of failure to comply with an

order or a signal of a police officer and one count of involuntary manslaughter; on the

same date, she pleaded guilty as charged on all counts.

       {¶ 7} The trial court held a sentencing hearing on February 7, 2019, and on

February 8, 2019, it filed a corresponding judgment entry of conviction. Irwin-Debraux

timely filed her notice of appeal to this court on February 25, 2019.

                                       II. Analysis

       {¶ 8} For her first assignment of error, Irwin-Debraux contends that:

               THE TRIAL COURT ERRED IN NOT MAKING THE REQUISITE FINDINGS

       PURSUANT TO R.C. §2929.14(C)[.]

       {¶ 9} Irwin-Debraux argues that the trial court erred by ordering that she serve her

sentences consecutively, because the court did not comply with the requirements of R.C.

2929.14(C)(4).    Appellant’s Brief 4-5.      As the State concedes, Irwin-Debraux’s

argument has merit. See Appellee’s Brief 4-5.

       {¶ 10} Under R.C. 2929.14(C)(4), where a defendant is convicted of more than one

offense and is sentenced to a term of imprisonment for each of the offenses, the
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sentencing “court may require [that the] offender * * * serve the * * * terms consecutively,”

if the court finds that: (1) “consecutive service is necessary [either] to protect the public

from future crime” or “to punish the offender” sufficiently; (2) consecutive service would

not be “disproportionate to the seriousness of the offender’s conduct and to the danger

the offender poses to the public”; and (3) one of the additional conditions listed in R.C.

2929.14(C)(4)(a)-(c) is applicable. (Emphasis added.) The “presumption in favor of

concurrent sentences [pursuant to] R.C. 2929.41(A)” applies in the absence of the

foregoing findings or a statutory mandate.            See, e.g., R.C. 2913.02(B)(4) and

2929.14(B)(2)(b)-(d); State v. Withrow, 2d Dist. Clark No. 2015-CA-24, 2016-Ohio-2884,

¶ 29.

        {¶ 11} One such statutory mandate is set forth in R.C. 2921.331. Under R.C.

2921.331(D), if “an offender is sentenced pursuant to [R.C. 2921.331](C)(4) or (5) * * * for

a violation of [R.C. 2921.331](B) * * *,” and if the sentence includes “a prison term for [the]

violation, [then] the offender shall serve [that] term consecutively to any other prison term

or mandatory prison term imposed upon the offender.” Irwin-Debraux pleaded guilty to

a violation of R.C. 2921.331(B), for which the trial court sentenced her to a term in prison

of 18 months pursuant to R.C. 2921.331(C)(5)(a)(i)-(ii). See Bill of Information 1, Dec.

20, 2018; Transcript of Proceedings 8:19-10:17, 11:21-11:25 and 14:14-16:14, Feb. 7,

2019; Termination Entry 1, Feb. 8, 2019. R.C. 2921.331(D) thus obligated the court to

order, as it did, that Irwin-Debraux serve her sentence for violating R.C. 2921.331(B)

consecutively to her sentences for involuntary manslaughter and grand theft of a motor

vehicle. Termination Entry 1.

        {¶ 12} Nevertheless, the consecutive service requirement in R.C. 2921.331(D)
                                                                                          -5-


applied only to Irwin-Debraux’s sentence for failure to comply with an order or a signal of

a police officer. See State v. Johnson, 2d Dist. Clark No. 2018-CA-9, 2018-Ohio-4232,

¶ 1. The statute did not invest the trial court with the authority to require consecutive

service of Irwin-Debraux’s sentences for involuntary manslaughter and grand theft, and

the court lacked the discretion to order as much because it did not comply with R.C.

2929.14(C)(4).

       {¶ 13} Irwin-Debraux’s first assignment of error is sustained.          The case is

remanded to the trial court for resentencing consistent with this opinion.

       {¶ 14} For her second assignment of error, Irwin-Debraux contends that:

              THE SENTENCE [sic] IMPOSED IS CONTRARY TO LAW[.]

       {¶ 15} Here, Irwin-Debraux argues that her sentences are contrary to law in two

respects. See Appellant’s Brief 5-7. First, she claims that the trial court did not consider

“the third principle of felony sentencing” under R.C. 2929.11(A), which is the

“rehabilitat[ion] [of] the offender.” Id. at 6. Second, she faults the court for imposing

sentences that are “excessively harsh to the point of being cruel and unusual

punishment.” Id. at 11. These arguments lack merit.

       {¶ 16} A “trial court has full discretion to impose any sentence within the authorized

statutory range, and [it] is not required to make any findings or [to] give its reasons for

imposing maximum or more than minimum sentences.” State v. King, 2013-Ohio-2021,

992 N.E.2d 491, ¶ 45 (2d Dist.), citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,

845 N.E.2d 470, paragraph seven of the syllabus. Even so, the “court must comply with

all applicable rules and statutes, including R.C. 2929.11 and R.C. 2929.12.” Id., citing

State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 37.
                                                                                             -6-


       {¶ 17} Under R.C. 2929.11(A), a “court that sentences an offender for a felony

shall be guided” by the “overriding purposes” of punishing the offender and “protect[ing]

the public from future crime by the offender and others,” while using “the minimum

sanctions that [it] determines [likely to] accomplish [these] purposes without * * *

unnecessar[ily] burden[ing] * * * state or local government resources.” Accordingly, the

court must “consider the need for incapacitating the offender, deterring the offender and

others from future crime, rehabilitating the offender, and making restitution.” See id.

R.C. 2929.11(B) adds that a felony sentence “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 [any]

victim[s], and consistent with sentences imposed for similar crimes committed by similar

offenders.”

       {¶ 18} Pursuant to R.C. 2929.12(A), in “exercising [its] discretion” to determine “the

most effective way to comply with the purposes and principles of sentencing set forth in

[R.C.] 2929.11,” a court must consider, among other things, a list of nine factors

“indicating that [an] offender’s conduct [was] more serious than conduct normally

constituting” the offense or offenses for which the offender was convicted; a list of four

factors “indicating that the offender’s conduct [was] less serious than conduct normally

constituting the offense [or offenses]”; a list of five factors “indicating that the offender is

likely to commit future crimes”; and another list of five factors “indicating that the offender

is not likely to commit future crimes.” The court “may [also] consider any other factors

that are relevant to [fulfilling the] purposes and principles of [felony] sentencing.” Id.; see

also R.C. 2929.12(B)-(E).
                                                                                          -7-


       {¶ 19} On review of a felony sentence, an appellate court may vacate or modify

the sentence “only if it determines by clear and convincing evidence that the record does

not support the trial court’s findings under the relevant statutes,” or that the sentence “is

otherwise contrary to law.”1 See State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

59 N.E.2d 1231, ¶ 1; see also R.C. 2953.08(G)(2). A sentence “is not contrary to law [if

it falls] within the statutory range [and the trial court] expressly state[s] that it * * *

considered the purposes and principles of sentencing [under] R.C. 2929.11 [and]

2929.12.” (Citation omitted.) State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, ¶ 32

(2d Dist.).

       {¶ 20} In the first part of her argument, Irwin-Debraux suggests that the “trial court

failed to consider the third principle of felony sentencing” under R.C. 2929.11(A). The

court, however, expressly stated in its termination entry that it had “considered the

[sentencing] factors under [R.C.] 2929.11, 2929.12 and 2929.13, as well as all other

relevant provisions” of the Revised Code. Termination Entry 1. Furthermore, although

the court did not refer explicitly to the prospect of Irwin-Debraux’s rehabilitation in its

remarks at her sentencing hearing, the court did state its reasons for imposing nearly the

maximum aggregate sentence. See Transcript of Proceedings 8:10-11:17; see also

R.C. 2929.14(A)(1), (3) and (4). The court thus indicated with equal clarity, albeit by

implication, why it determined that less stringent sanctions would have been



1Irwin-Debraux cites State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d
124, for her assertion that “the trial court’s [sentencing] decision [should] be reviewed
under [the] abuse-of-discretion standard.” See Appellant’s Brief 3. The Kalish decision
was abrogated nearly four years ago. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-
1002, 59 N.E.3d 1231, ¶ 6-7.
                                                                                         -8-


inappropriate.

       {¶ 21} In the second part of her argument, Irwin-Debraux characterizes her

aggregate sentence as “excessively harsh to the point of being cruel and unusual

punishment.” Appellant’s Brief 11. Yet, she has not cited any evidence, let alone clear

and convincing evidence, demonstrating that the record does not support the sentences

imposed by the court, and the sentences themselves were within the ranges authorized

by R.C. 2929.14(A)(1), (3) and (4). The essence of Irwin-Debraux’s argument is that the

trial court “disregarded the mitigating evidence in an arbitrary way” and “did not

appropriately consider all relevant statutory factors,” but a trial court may determine the

relative weight to be accorded the various sentencing factors set forth in R.C. 2929.12(B)-

(E). See, e.g., State v. Bynum, 3d Dist. Shelby No. 17-18-20, 2019-Ohio-3139, ¶ 11; see

Appellant’s Brief 8-9. Regardless of whether the trial court could have sentenced Irwin-

Debraux less stringently, the sentences themselves were not contrary to law, and the

court accurately cited to the record in support of its findings.

       {¶ 22} Additionally, Irwin-Debraux argues that the trial court erred by failing to

conduct a proportionality review. Appellant’s Brief 7-8. She did not raise this argument

before the trial court, and it consequently has been waived. State v. Forney, 2d Dist.

Champaign No. 2012-CA-36, 2013-Ohio-3458, ¶ 20-22; State v. Howard, 7th Dist.

Mahoning No. 15 MA 0031, 2016-Ohio-3246, ¶ 13-14.                  Irwin-Debraux’s second

assignment of error is overruled.

                                      III. Conclusion

       {¶ 23} In the absence of the findings required by R.C. 2929.14(C)(4), the trial court

erred by ordering that Irwin-Debraux serve her term in prison for grand theft of a motor
                                                                                      -9-


vehicle consecutively to her term in prison for involuntary manslaughter. The record

otherwise supports the trial court’s sentencing determinations, and the prison terms

imposed by the court were within statutory limits. Therefore, the case is remanded to

the trial court for resentencing consistent with this opinion; otherwise, Irwin-Debraux’s

convictions are affirmed.



                                    .............



FROELICH, J. and HALL, J., concur.



Copies sent to:

Mathias H. Heck, Jr.
Heather N. Jans
Matthew M. Suellentrop
Hon. Michael W. Krumholtz
