[Cite as State v. Kelley, 2013-Ohio-1899.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98928



                                       STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                     TAKARA KELLEY
                                                       DEFENDANT-APPELLANT




                         JUDGMENT:
               CONVICTIONS AFFIRMED, SENTENCE
           VACATED, AND REMANDED FOR RESENTENCING


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-547114

        BEFORE:           Boyle, P.J., Celebrezze, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                       May 9, 2013
ATTORNEY FOR APPELLANT

Gayl M. Berger
30650 Pinetree Road
Suite 19
Cleveland, Ohio 44124

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: T. Allan Regas
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:

       {¶1} Defendant-appellant, Takara Kelley, appeals her 31-year prison sentence.

She raises three assignments of error for our review:

       1. The trial court erred by sentencing appellant for convictions that are
       allied offenses of similar import that should have been merged.

       2. The trial court’s imposition of a thirty-one year prison term was contrary
       to law and an abuse of discretion.

       3. Appellant was denied her constitutional right to effective assistance of
       counsel.

       {¶2} We find merit to Kelley’s first assignment of error and vacate her sentence

and remand for a new sentencing hearing.

                       Procedural History and Factual Background

       {¶3} In February 2011, Kelley was charged with 14 counts of aggravated

vehicular homicide, aggravated vehicular assault, and driving while under the influence.

Kelley withdrew her former plea of not guilty in August 2011 and pleaded guilty to six

counts, including two counts of aggravated vehicular homicide in violation of R.C.

2903.06(A)(1)(a), three counts of aggravated vehicular assault in violation of R.C.

2903.08(A)(1)(a), and one count of driving while under the influence of alcohol in

violation of R.C. 4511.19(A)(1)(a). The remaining counts were nolled.

       {¶4} The trial court sentenced Kelley on September 20, 2011, to ten years on

each count of aggravated vehicular homicide, seven years on one count of aggravated

vehicular assault, two years each on the other two counts of aggravated vehicular assault,
and time served for driving while under the influence of alcohol.     The court ordered that

each term be served consecutive to one another for a total of 31 years in prison.       The

trial court further suspended Kelley’s driver’s license for life and advised her that she

would be subject to a mandatory five years of postrelease control.

       {¶5} Kelley appealed to this court. See State v. Kelley, 8th Dist. No. 97389,

2012 Ohio-2309.     We dismissed Kelley’s appeal, however, for lack of a final appealable

order because the trial court failed to sentence Kelley on Count 13 (driving under the

influence), “as required under R.C. 4511.19(G)(1)(a)(i) and 4511.19(G)(1)(a)(iii), to a

mandatory term of imprisonment and a mandatory fine for the misdemeanor offense of

driving under the influence.” Id. at ¶ 4.

       {¶6} Upon dismissal of Kelley’s appeal, the trial court held a resentencing

hearing on Count 13, driving while under the influence of alcohol.           The trial court

sentenced Kelley to six months and six days on Count 13, and ordered that it be served

concurrent to the sentence it previously imposed.         The trial court also imposed a

mandatory fine of $1,075. The trial court issued a final judgment, including Kelley’s

entire sentence.   It is from this judgment that Kelley appeals.



                                       Allied Offenses

       {¶7} In her first assignment of error, Kelley argues that her conviction under R.C.

4511.19(A)(1)(a)     should     have    merged     with    R.C.      2903.06(A)(1)(a)   and

2903.08(A)(1)(a), as they were allied offenses of similar import.
       {¶8} Aggravated vehicular homicide under R.C. 2903.06(A)(1)(a)
       provides:       No person, while operating or participating in the operation of
       a motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or
       aircraft, shall cause the death of another * * * [a]s the proximate result of
       committing a violation of division (A) of section 4511.19 of the Revised
       Code or of a substantially equivalent municipal ordinance[.]

       {¶9} Aggravated vehicular assault under R.C. 2903.08(A)(1)(a) provides:

       No person, while operating or participating in the operation of a motor
       vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft, shall
       cause serious physical harm to another person * * * [a]s the proximate
       result of committing a violation of division (A) of section 4511.19 of the
       Revised Code or of a substantially equivalent municipal ordinance[.]

       {¶10} R.C. 4511.19(A)(1)(a) provides that “[n]o person shall operate any vehicle,

streetcar, or trackless trolley within this state, if, at the time of the operation, * * * [t]he

person is under the influence of alcohol, a drug of abuse, or a combination of them.”

       {¶11} The state concedes that Kelley’s conviction under R.C. 4511.19(A)(1)(a)

was an allied offense of similar import to her convictions under R.C. 2903.06(A)(1)(a)

(the victims were two adults) and 2903.08(A)(1)(a) (the victims were three children).

But it asserts that upon remand, it would elect to have Kelley sentenced on aggravated

vehicular homicide, and thus, she would receive the same sentence.             It requests that

pursuant to R.C. 2953.08(G)(2), this court modify Kelley’s sentence to reflect the correct

sentence, rather than remand for resentencing just so the state can elect which allied

offense it will pursue for purposes of sentencing and conviction.

       {¶12} We reject the state’s request due to the many nuances the trial court must

remove from Kelley’s sentence if the state elects, as it says it will, for Kelley to be

sentenced on aggravated vehicular homicide, rather than R.C. 4511.19(A)(1)(a).             The
trial court is in a better position than this court to issue the correct journal entry.

       {¶13} Kelley’s first assignment of error is sustained.             We therefore vacate

Kelley’s sentence and remand for a new sentencing hearing as set forth below.

                                     Resentencing Hearing

       {¶14} In State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381,

the Ohio Supreme Court explained the proper procedure a trial court should follow when

conducting a resentencing hearing after an appellate court finds an error involving allied

offenses of similar import.      In Wilson, the defendant was convicted of kidnapping,

felonious assault, and aggravated robbery.      On direct appeal to this court, we determined

that kidnapping and felonious assault, as well as kidnapping and aggravated robbery,

were allied offenses of similar import, and that Wilson did not have a separate animus for

the kidnapping (but we held that felonious assault and aggravated robbery were not allied

offenses and not subject to merger).              State v. Wilson, 8th Dist. No. 91971,

2010-Ohio-1196, ¶ 92, 96, 97.          We vacated the sentence imposed for all three of

Wilson’s convictions and remanded for a new sentencing hearing for the state to elect

which allied offense it would pursue for purposes of sentencing.         Id. at ¶ 98.     The state

appealed to the Ohio Supreme Court, arguing that Wilson was not entitled to a new

sentencing hearing and that the remand should be limited to the state’s election of which

offense it wished to pursue. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d

381, ¶ 7.

       {¶15} The Ohio Supreme Court affirmed our decision, holding that “[w]hen a
cause is remanded to a trial court to correct an allied-offenses sentencing error, the trial

court must hold a new sentencing hearing for the offenses that remain after the state

selects which allied offense or offenses to pursue.”   Id., paragraph one of the syllabus.

       {¶16} The Ohio Supreme Court distinguished State v. Saxon, 109 Ohio St.3d 176,

2006-Ohio-1245, 846 N.E.2d 824, where it had held that “only the sentences for the

offenses that were affected by the appealed error are reviewed de novo; the sentences for

any offenses that were not affected by the appealed error are not vacated and are not

subject to review.” Wilson, citing Saxon at paragraph three of the syllabus.       The high

court explained:

               In Saxon, the trial court exceeded the maximum sentence allowed by
       statute for one offense but not another offense, and the appellant took issue
       with only the former on appeal. The appellate court vacated both
       sentences and remanded the matter to the trial court for resentencing. Id.
       at ¶ 3. This court reversed, holding that a reviewing court can vacate only
       the sentence from which an appellant appealed and cannot vacate “the
       entire multiple-offense sentence based upon an appealed error in the
       sentence for a single offense.” Saxon at paragraph three of the syllabus.
       Our Saxon holding does not affect the outcome of the present case. The
       issue in Saxon was “whether an appellate court may modify or vacate the
       entire multiple-offense sentence when a defendant assigns as error the
       sentence as to only one or more of those offenses but not the entire
       multiple-offense sentence.” Id. at ¶ 1. The same issue could not be
       raised here, because the appealed sentencing error affects Wilson’s
       sentences for all three offenses.

              The sentences imposed for Wilson’s kidnapping, felonious-assault,
       and aggravated-robbery convictions must be remanded so that the state can
       select which offenses it wants to pursue for sentencing: the counts of
       felonious assault and aggravated robbery, or the count of kidnapping.
       Pursuant to [State v. Whitfield,] 124 Ohio St.3d 319, 2010-Ohio-2, 922
       N.E.2d 182, the trial court must accept the state’s selection, merge the
       offenses accordingly for the purposes of sentencing, and impose a sentence
       that is appropriate for the remaining offense or offenses. Given the
        foregoing, the appellate court properly vacated all three of Wilson’s
        sentences and remanded the matter to the trial court for a new sentencing
        hearing.

        {¶17} Here, just as in Wilson, all of Kelley’s convictions are affected because

driving while under the influence and aggravated vehicular homicide, as well as driving

while under the influence and aggravated vehicular assault, are allied offenses of similar

import (although aggravated vehicular homicide and aggravated vehicular assault are not

allied offenses and not subject to merger).          Thus, we must vacate the sentence imposed

for all of Kelley’s convictions and remand for a new sentencing hearing.                 Upon remand,

the state must elect which offenses it wishes to pursue for sentencing: the counts of

aggravated vehicular homicide and aggravated vehicular assault (which are not allied

offenses and not subject to merger), or the count of driving while under the influence of

alcohol.    The trial court must accept the state’s election, merge the offenses accordingly

for the purposes of sentencing, and impose a sentence that is appropriate for the

remaining offense or offenses.

                                            Proportionality

        {¶18} In her second assignment of error, Kelley argues that the trial court’s

imposition of a 31-year prison sentence was contrary to law and an abuse of discretion.

        {¶19} Kelley was sentenced on September 20, 2011, ten days before H.B. No. 86

went into effect.1 Kelley does not argue that the trial court should have made the


         This court dismissed Kelley’s first appeal for lack of a final appealable order because the trial
        1


court failed to sentence Kelley fully as required under Count 13. Kelley was resentenced on August
12, 2012, but only on Count 13. Although she was entitled to a H.B. No. 86 hearing in August
findings under R.C. 2929.14(C)(4) as revived by H.B. No. 86, nor does she argue that the

trial court erred by sentencing her to consecutive sentences.       But Kelley makes a passing

argument that H.B. No. 86 should have been retroactively applied to her case.               We

disagree. The General Assembly expressly provided in Section 4 of H.B. No. 86 that

“[t]he amendments * * * apply to a person who commits an offense specified or penalized

under those sections on or after the effective date of this section[.]”     Therefore, the trial

court was not required to follow the mandates of that bill when sentencing Kelley because

she was not sentenced on or after the effective date of the bill.

       {¶20} Thus, we review Kelley’s sentence under the two-prong test set forth in

State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. Under the first

prong, we review whether the trial court complied with all applicable rules and statutes to

determine if the sentence is clearly and convincingly contrary to law. Id. at ¶ 4.        If the

first prong is satisfied, then we review the trial court’s decision for abuse of discretion.

Id.

       {¶21} At the time of Kelley’s sentencing hearing, trial courts had “full discretion *

* * to sentence defendants within the bounds prescribed by statute.” State v. Foster, 109

Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraphs one through seven of the

syllabus. Further, under Foster, although trial courts still had to consider the purposes

and principles of sentencing under R.C. 2929.11, as well as the seriousness and


2012, that did not affect the other aspects of her September 20, 2011 sentence. Kelley does not
argue that the trial court did not follow H.B. No. 86 when sentencing her on Count 13.
recidivism factors listed in R.C. 2929.12, they did not have to make any findings before

imposing their sentence.   Kalish at ¶ 17-18, citing Foster.

       {¶22} Kelley contends that her sentence is contrary to law because “the record

does not reflect that the trial court sufficiently considered proportionality and consistency

in fashioning the 31-year prison sentence.”     Because her defense counsel did not raise

this issue with the trial court, she also claims in her third assignment of error that she

received ineffective assistance of counsel.

       {¶23} R.C. 2929.11(B) provides that: “A sentence imposed for a felony shall be

* * * consistent with sentences imposed for similar crimes committed by similar

offenders.” Although offenses may be similar, there may be distinguishing factors that

justify dissimilar sentences. State v. Beasley, 8th Dist. No. 82884, 2004-Ohio-988, ¶ 24,

citing State v. Turner, 8th Dist. No. 81449, 2003-Ohio-4933.

       {¶24} At the sentencing hearing, defense counsel informed the court that Kelley

was 27 years old and the mother of two young children.            Defense counsel further

informed the court that Kelley had been attending AA meetings since the accident and

that she was very remorseful.      Kelley apologized to the victims’ family members and to

the court and expressed her remorse over the crimes.       Several family members of the

victims also spoke to the court.

       {¶25} The state explained that just before noon on a Sunday, “on Franklin and

West 74th, in a 25-mile-an-hour zone, the defendant was coming from a beverage store

after a night of drinking and drugging.”      The state indicated that Kelley’s toxicology
report was positive for cocaine and marijuana, and said that she had a .184 blood alcohol

content.   Further, the state explained that “[t]he black box data from the car’s brain

computer indicates a speed of 78 miles an hour one second before impact,” and informed

the court that Kelley had “[n]umerous license suspensions and no insurance.”

       {¶26} After hearing from defense counsel, Kelley, several family members of the

victims, and the state, the trial court stated:

       After consideration of the record, oral statements made today, the
       presentence report, the purposes and principles of sentencing, the
       seriousness and recidivism factors relative to this offense and this offender,
       and the need for deterrence, incapacitation, rehabilitation and restitution, it
       is ordered that the defendant serve the following stated terms in prison[.]

       {¶27} Kelley cites to two cases that she claims involved similar facts and

convictions and establish that her 31-year sentence was not proportionate to similarly

situated offenders: State v. Beard, 8th Dist. Nos. 84779 and 84780, 2005-Ohio-3417, and

State v. Moore, 8th Dist. No. 85451, 2005-Ohio-4699. After review, we find that

neither of these cases supports Kelley’s position.

       {¶28} In Beard, the defendant was sentenced to 18 years in prison for causing the

death of one person and injuring another while he was intoxicated. The defendant’s

blood-alcohol content was .167, and a glass crack pipe was found inside his vehicle. We

affirmed his sentence on appeal. Id. at ¶ 38. Kelley is not similarly situated to the

defendant in Beard.      Kelley caused the death of two adults and severely injured three

children, with one child being permanently disabled. Accordingly, this case does not

support Kelley’s arguments.
       {¶29} In Moore, the defendant received a 20-year prison sentence for causing the

death of two people.   The defendant in Moore had no prior felony record and had only

misdemeanor traffic offenses.     This court reversed the defendant’s sentence because at

the time of the defendant’s sentence, which was before the Ohio Supreme Court excised

judicial fact-finding in Foster, we determined that the trial court failed to make the

necessary findings before imposing consecutive sentences. Id. at ¶ 13.         We further

determined that the defendant’s sentence was contrary to law because it was inconsistent

with similarly situated offenders, relying on several cases the defendant cited to where

similarly situated defendants received a shorter sentence. Id. at ¶ 15.     Upon remand,

we affirmed the trial court’s imposition of a 16-year sentence. See State v. Moore, 8th

Dist. No. 89779, 2008-Ohio-2365.

       {¶30} We disagree that Kelley is similarly situated to the defendant in Moore.

Again, Kelley not only caused the death of two adults, she severely injured three children,

with one permanently disabled.

       {¶31} Accordingly, we overrule Kelley’s second assignment of error.

                            Ineffective Assistance of Counsel

       {¶32} In her third assignment of error, Kelley maintains that she received

ineffective assistance of counsel because her counsel did not raise the issue of

proportionality at her sentencing hearing.

       {¶33} To demonstrate ineffective assistance of counsel, defendants must satisfy

both parts of a two-prong test.   Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). Defendants must first show that their trial counsel’s

performance was so deficient that the attorney was not functioning as the counsel

guaranteed by the Sixth Amendment to the United States Constitution. Id. Second,

defendants must establish that counsel’s “deficient performance prejudiced the defense.”

Id.   The failure to prove either prong of the Strickland test is fatal to a claim of

ineffective assistance. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000),

citing Strickland, supra.

       {¶34} It is better practice for defense counsel to raise the issue of proportionality

— either orally at the sentencing hearing or preferably in a sentencing memorandum, but

in this case, Kelley has not shown that she was prejudiced by her counsel’s failure to do

so. This is because she has not established that her sentence was disproportionate to

similarly situated offenders.

       {¶35} Accordingly, Kelley’s third assignment of error is overruled.

       {¶36} Convictions affirmed, sentence vacated, and this case is remanded for a new

sentencing hearing.    At the sentencing hearing, the state must elect which offense or

offenses it will pursue for purposes of sentencing and conviction, and the trial court must

impose a sentence that is appropriate for the remaining offense or offenses.

       It is ordered that appellant and appellee share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


_______________________________________
MARY J. BOYLE, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
SEAN C. GALLAGHER, J., CONCUR
