[Cite as State v. Billenstein, 2014-Ohio-255.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MERCER COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 10-13-10

        v.

RYAN J. BILLENSTEIN,                                     OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Mercer County Common Pleas Court
                            Trial Court No. 12-CRM-100

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                            Date of Decision: January 27, 2014




APPEARANCES:

        Robert J. Huffman, Jr. for Appellant

        Matthew K. Fox for Appellee
Case No. 10-13-10


ROGERS, J.

       {¶1} Defendant-Appellant, Ryan Billenstein, appeals the judgment of the

Court of Common Pleas of Mercer County finding him guilty of two counts of

aggravated vehicular manslaughter, one count of vehicular assault, and one count

of operating a vehicle while under the influence of alcohol and/or drugs and

sentencing him to 13 years in prison. On appeal, Billenstein contends that the trial

court erred by: (1) failing to suppress in-custody statements Billenstein made; (2)

failing to orally advise Billenstein that counts one, two, and five of the indictment

carried a mandatory term of incarceration; (3) failing to orally advise Billenstein

that he would be ineligible for community control and judicial release; (4) failing

to advise Billenstein of the elements of post release control; (5) failing to advise

Billenstein of the mandatory suspension of his operator’s license; and (6)

imposing consecutive sentences.       Billenstein also argues that he was denied

effective assistance of counsel. For the reasons that follow, we affirm in part and

reverse in part the trial court’s judgment.

       {¶2} On August 16, 2012, the Mercer County Grand Jury indicted

Billenstein on two counts of aggravated vehicular homicide in violation of R.C.

2903.06(A)(1)(a);(B)(1)(2)(a), felonies of the second degree; two counts of

aggravated vehicular homicide in violation of R.C. 2903.06(A)(2)(a);(B)(1)(3),

felonies of the third degree; one count of aggravated vehicular assault in violation


                                          -2-
Case No. 10-13-10


of R.C. 2903.08(A)(1)(a);(B)(1), a felony of the third degree; one count of

vehicular assault in violation of R.C. 2903.08(A)(2)(b);(C)(1)(2), a felony of the

fourth degree; one count of operating a vehicle while under the influence of

alcohol and/or drugs of abuse in violation of R.C. 4511.19(A)(1)(a);(G)(1)(a)(i), a

misdemeanor of the first degree; one count of operating a vehicle while under the

influence   of     alcohol    and/or   drugs     of   abuse   in   violation   of   R.C.

4511.19(A)(1)(b);(G)(1)(a)(i), a misdemeanor of the first degree; and one count of

operating a vehicle while under the influence of alcohol and/or drugs of abuse in

violation of R.C. 4511.19(A)(1)(j)(vii);(G)(1)(a)(i), a misdemeanor of the first

degree. The indictment arose from Billenstein’s alleged involvement in a single

vehicle accident, which resulted in the death of two individuals and seriously

injured another.

                             Billenstein’s Motion to Suppress

       {¶3} On October 9, 2012, Billenstein filed a motion to suppress “the arrest

and observations of the officer” arguing that the officer did not have reasonable

suspicion upon which he could stop and detain Billenstein. Billenstein’s motion

also moved the trial court to suppress the results of Billenstein’s blood test.

Billenstein argued that the blood was not drawn within two hours of him

“operating a motor vehicle; an alcohol substance may have been used as an

antiseptic; the blood was not drawn with a sterile, dry needle into a vacuum


                                           -3-
Case No. 10-13-10


container with a solid anti-coagulant or according to laboratory protocol, nor was

the solution nonvolatile and aqueous.” (Docket No. 21, p. 1-2). Billenstein also

argued that the blood was not kept in a tamper proof container, did not contain the

name of the suspect, the date and time of collection, or the initials of the person

collecting the sample.     Lastly, Billenstein argued that his blood was not

refrigerated while stored, kept for one year after the date of the incident, and not

collected by qualified personnel as defined in R.C. 1547.11.

       {¶4} Billenstein filed an amended motion to suppress on October 17, 2012.

Billenstein reiterated his contentions from his first motion to suppress and also

argued for the trial court to suppress his urine test and any statements Billenstein

made before he was read his Miranda rights.

       {¶5} On November 29, 2012, a suppression hearing was held and the

following relevant evidence was adduced.

       {¶6} The first witness for the State was Marianne Bruns, a medical

laboratory scientist at Mercer Health Community Hospital (“Mercer Health”).

Bruns testified that it is her job to collect and analyze blood, urine, stool, and

sputum specimens. Bruns testified that she was working on July 14, 2012, when

Billenstein was brought to Mercer Health. Bruns explained that a police officer

asked her to perform a legal alcohol specimen on Billenstein and handed her the




                                        -4-
Case No. 10-13-10


appropriate paperwork and kit.          Bruns remembered the officer reading

Billenstein’s Miranda warnings before she took any specimens from Billenstein.

       {¶7} Bruns also testified that she asked Billenstein whether he was

consenting to the legal alcohol draw and Billenstein replied that he was. Bruns

drew Billenstein’s blood at 4:45 a.m., and Billenstein subsequently filled out the

consent form, which was offered into evidence as State’s Exhibit C. Bruns then

testified as to the procedure she followed to draw Billenstein’s blood.

       A: I got the kit from the officer. I reviewed the paperwork a little
       bit, and then I checked the tube that the blood is to be drawn in,
       made sure it was not expired. It was not. Then I went ahead and got
       my supplies ready which would be my needle, my sterile needle –
       it’s called a needle pro. It’s what the needle actually goes into – my
       tourniquet, my gauze, and my iodine and my tape I use to secure the
       gauze after the draw is over.

       ***

       A: I went ahead and tied the tourniquet on the patient; cleaned the
       arm with iodine; let the iodine dry a little bit. Then I went ahead and
       made the venipuncture, put the tube provided by the officer into the
       apparatus. The blood filled the tube. Took the tube off. I took the
       tourniquet off, took the needle out of the arm, put pressure on the
       arm, asked the patient to continue to put pressure where the
       venipuncture site was. And then I labeled the tube with the patient’s
       name and birthday, the date and time of draw, and my initials. Then
       I sealed the tube with the seals provided in the kit – or with the seal.
       Just one. Labeled that with the patient’s name, date of birth, my
       initials, and the date and time of the draw. And I gave that tube to
       the officer.

       ***



                                         -5-
Case No. 10-13-10


      Q: Before retrieving the sample, you’ve already told us this is Mr.
      Billenstein in the courtroom. What did you do consistent with your
      policy and procedure to ID the subject that you were going to draw?

      A:   I asked him for his name and date of birth.

      Q:   Okay. Was he wearing a band at all? Was he a patient?

      A:   Yes, yeah, I checked that.

      Q:   So you did at least two things then?

      A:   Yes.

Suppression Hearing Tr., p. 13-16.

      {¶8} The State and Bruns then had the following exchange:

      Q: * * * Ma’am, did you use an aqueous solution of nonvolatile
      antiseptic on the skin for preparation purposes?

      A:   Correct.

      Q:   Did you use alcohol to prepare the skin for the draw?

      A:   No.

      Q:   Did you draw the blood with a sterile needle?

      A:   Yes.

      Q:   Was that into a vacuum container?

      A:   Yes.

      Q:   Did that container contain a solid anticoagulant?

      A:   Yes.

      Q:   Was it drawn according to your lab protocol?

                                        -6-
Case No. 10-13-10



       A:    Yes.

       Q: With regard to the collection of blood, did you seal them in a
       manner such that tampering could be detected?

       A:    Yes.

       Q:    And did you label them?

       A:    Yes.

       Q:    Did the label include the name of the suspect?

       A:    Yes.

       Q:    Did it include the date and time of collection?

       A:    Yes.

       Q: Did it have the name or initials of yourself as the collecting
       person?

       A:    Yes, my initials.

       Q: Did you also have the name or initials of the person sealing the
       sample?

       A:    Yes, that would be me.

Id. at p. 17-18.

       {¶9} After Bruns had drawn Billenstein’s blood, the officer informed her

that he also wanted a urine sample from Billenstein. Bruns then testified that,

according to the procedures she is required to follow, she taped off all the water

sources in the bathroom with evidence tape and also put toilet bluing in the toilet


                                         -7-
Case No. 10-13-10


water.    Bruns then retrieved Billenstein, brought him into the bathroom, and

handed him the urine cup. At 5:05 a.m., Billenstein went into the bathroom, alone,

and urinated into the cup. After he came out, Bruns checked the temperature strip,

recorded it, and then labeled the urine specimen in the same manner as the blood

specimen. She then sealed the urine specimen and gave it the officer.

         {¶10} The State and Bruns then had the following exchange:

         Q: * * * Was the urine deposited into a clean glass or plastic
         screw-top container?

         A:   Yes.

         Q:   Was it capped?

         A:   Yes.

         Q:   Did you actually witness the sample being drawn?

         A:   Being put into the container, no.

         Q:   But you did follow your lab protocol?

         A:   Yes.

         Q: And with regard to the container itself, did you seal it in such a
         manner that tampering could be detected?

         A:   Yes.

         Q: Did you seal it with a label that contained the name of the
         suspect?

         A:   Yes.

         Q:   The date and time of collection?

                                          -8-
Case No. 10-13-10



       A:       Correct.

       Q:       The name or initials of yourself as the collect?

       A:       Yes.

       Q: And the name or initials of yourself as the person sealing the
       sample?

       A:       Yes, yes.

Id. at p. 21.

       {¶11} Bruns testified that Billenstein did not sign an additional consent

form for the urine sample. However, Bruns stated that Billenstein did not object to

her collection of his urine sample in any way.

       {¶12} On cross-examination Bruns testified that she does not remember

specifically asking Billenstein whether he consented to giving a urine sample. She

also testified that Billenstein signed his name on the consent form for the blood

specimen at 5:00 a.m. However, she admitted that she drew Billenstein’s blood at

4:45 a.m.       Bruns explained that she received Billenstein’s verbal consent before

she drew his blood. After she was finished collecting Billenstein’s blood sample,

she had Billenstein sign the form.

       {¶13} The next witness to testify for the State was Deputy Darrell Etgen.

Deputy Etgen testified he is employed with Mercer County as a patrol deputy and

was on duty July 14, 2012. Deputy Etgen testified that he heard Lieutenant


                                            -9-
Case No. 10-13-10


Westgerdes get dispatched to a car accident at 118 and Lange Road around 2:58

a.m. He went to that location to assist Lieutenant Westgerdes and when he arrived

was told to go to Mercer Health to try to get a blood sample from Billenstein.

           {¶14} While at the hospital, Deputy Etgen called Lieutenant Westgerdes on

the phone and asked if he needed to read the BM 2255 form1 to Billenstein.

Deputy Etgen explained that a BM 2255 form is the form police officers read to all

suspected OVIs or impaired drivers when they have probable cause. Deputy

Etgen testified he did not read the BM 2255 form because, at that time, no one

suspected that Billenstein was under the influence of alcohol. Deputy Etgen also

testified that Billenstein was not under arrest when he asked for a blood and urine

specimen.

           {¶15} Deputy Etgen then entered Billenstein’s hospital room with Bruns

and Officer Speckman. After reading Billenstein’s Miranda warnings, Deputy

Etgen asked Billenstein for a voluntary sample of blood. Billenstein agreed, and

the lab technician drew his blood. Deputy Etgen then got a phone call from

Lieutenant Westgerdes who advised Deputy Etgen that they needed Billenstein’s

“consent to search and * * * a voluntary urine sample.” Id. at p. 51. Deputy Etgen

informed the lab technician that he would also need a urine sample. While the lab

technician was getting things ready for the urine sample, Deputy Etgen told



1
    A BM 2255 form is also known as an implied consent form.

                                                  -10-
Case No. 10-13-10


Billenstein that “he was still Mirandized, and [Deputy Etgen] asked [Billenstein] if

he would give a consent to search for a urine sample.” Id. at p. 51-52. Billenstein

then agreed to give a urine sample.

        {¶16} After Billenstein gave his urine sample, Deputy Etgen left the

hospital with the blood and urine specimens and went to the Sheriff’s Office

where he placed the specimens in a refrigerator in the locked evidence lab.

Deputy Etgen testified that he never placed Billenstein under arrest on July 14,

2012.

        {¶17} On cross-examination, Deputy Etgen testified to the following:

        Q:   I understand he was not under arrest at that point?

        A:   No, he was not.

        Q:   You never placed him under arrest –

        A:   No, I did not.

        Q:   -- on the 14th of July?

        A:   No, I did not.

        Q: Okay. In your estimation was Mr. Billenstein when you
        walked in to read him his Miranda rights, if he said I want to leave,
        was he free to leave at that point?

        A:   Sure he was.

        Q:   And you wouldn’t have stopped him at that point in time?

        A:   (The witness shook his head.)


                                        -11-
Case No. 10-13-10


       Q:       Is that no, sir? You shook your head.

       A: Oh, I’m sorry. No, no, I could not have stopped him if he
       wanted to leave.

Id. at p. 59.

       {¶18} Deputy Etgen then testified that he did not obtain Billenstein’s

written consent on any form the morning of July 14, 2012.

       {¶19} The State then called Officer Dan Speckman to testify.         Officer

Speckman testified that he works for the Coldwater Police Department and was on

duty the morning of July 14, 2012. Deputy Etgen had requested assistance from

Officer Speckman and Officer Powell at Mercer Health that morning. Officer

Speckman arrived before Deputy Etgen and Billenstein.

       {¶20} Officer Speckman testified that he was familiar with Billenstein

because earlier in the night, Officer Powell had made a traffic stop and Billenstein

was the driver.       Officer Speckman testified that Billenstein was very upset.

Officer Speckman also testified:

       A: Yes, I spoke with [Billenstein]. But while there, he was very
       upset. He continued to say that he felt as though he had killed his
       friend Vincent and was crying, very upset about the matter.

       Q: Were those statements in response to any questioning you were
       giving, or how were those statements being made?

       A: He was making those statements while laying [sic] in the
       gurney. Like, he was screaming out to anybody and everybody in
       the room.


                                          -12-
Case No. 10-13-10


       ***

       Q:    But again, did you ask any questions of him?

       A: I asked him if he had been drinking tonight. He advised that he
       had been.

       Q:    And that’s before Etgen gets there?

       A:    What’s that?

       Q:    That’s before Deputy Etgen arrives?

       A:    Yes. Yes, sir.

       Q:    Other than that, any other questions you asked?

       A: I asked him how fast he was going when he made the turn
       because he kept on saying that he was driving too fast and so forth.
       And in response to that, I asked him how fast he had been driving,
       and he said he was at least doing over 80 miles per hour.

       Q: Both of those questions about how fast were you going or did
       you have anything to drink, did you initiate those conversations or
       were those in response to statements he was making?

       A: Those were more in response to what he was making
       statements of. Because like I said, he was very upset, screaming,
       yelling, that sort of things [sic]. So it was me asking him questions
       trying to calm him down and trying to get it so that he could receive
       some treatment with the nurses because the nurses were having some
       trouble trying to get the I.V. in and treat the burns on his arms.

Id. at p. 65-67.

       {¶21} Officer Speckman testified that Billenstein was not under arrest at

that time and also testified that he did not give Billenstein his Miranda warnings.

However, Officer Speckman did confirm that Deputy Etgen gave Billenstein his

                                        -13-
Case No. 10-13-10


Miranda warnings after arriving at the hospital.         He also confirmed that

Billenstein gave his verbal consent for a blood and urine sample.

       {¶22} On December 21, 2012, the State filed its response to defendant’s

motion to suppress. On January 14, 2013, the trial court issued a judgment entry

denying Billenstein’s motion to suppress. The trial court found that Billenstein

knowingly, intelligently, and voluntarily agreed to submit to a blood draw. It

further found that the collection of blood and urine was made within two hours of

the crash that occurred sometime near 2:58 a.m. The trial court also noted that

Bruns secured both specimens from Billenstein in accordance with statutory and

administrative code requirements. Lastly, the trial court found that there was no

actual or constructive seizure of Billenstein, and as a result, any statements

Billenstein made to Officer Speckman were admissible.

                             Change of Plea Hearing

       {¶23} On March 27, 2013, the trial court conducted a change of plea

hearing. At this hearing Billenstein expressed his intent to withdraw his previous

not guilty pleas and enter no contest pleas to counts I, II, V, and VII of the

indictment.    The trial court then had the following relevant exchange with

Billenstein:

       Trial Court: Now the maximum penalty for each of these offenses
       needs to be stated to you here in these proceedings. For each of the
       first two charges, counts one and two, of aggravated vehicular
       homicide, the maximum penalty is eight years in prison; fines

                                       -14-
Case No. 10-13-10


      totaling $15,000; and the court could revoke your right to drive a
      motor vehicle in the State of Ohio for life. Do you understand that?

      Billenstein: Yes, your Honor.

      Trial Court: For the fifth count of the indictment, the aggravated
      vehicular assault charge, the maximum penalty is 60 months in
      prison, or in effect five years’ a $10,000 fine; and the court must
      suspend your operator’s license to drive a motor vehicle in the State
      of Ohio for two years and can do so for up to ten. Do you
      understand that?

      Billenstein: Yes, sir.

      Trial Court: And for the first degree misdemeanor charge of
      operation of a motor vehicle while under the influence of alcohol or
      drugs of abuse, as contained in count seven of the indictment to
      which you’ve tendered this no contest plea, the maximum penalty is
      six months in jail, three days of which are mandatory unless you
      complete a driver’s intervention course which would void the
      necessity of the mandatory three days; a fine of $1,075, $375 of
      which is mandatory; and the court could suspend your right to drive
      a motor vehicle in the State of Ohio for a minimum of six months up
      to three years. Do you understand the maximum penalties involved
      for this charge contained in count seven?

      Billenstein: Yes, sir.

      ***

      State: If I could just have one moment, your Honor. Your Honor,
      just one detail before proceeding. I would ask the court if it would
      please advise the defendant of the mandatory component of post-
      release control at this time.

      Trial Court: With regard to?

      State: I believe it would apply to counts one and two and also count
      three because of physical harm – or counts one and two and count
      five. It would apply on all those, I believe.

                                      -15-
Case No. 10-13-10



       Trial Court: For a period of?

       Bailiff: Three years.

       Trial Court: Three years. Mr. Billenstein, you’ve acknowledged
       what the prison term could be under each offense. If you are
       sentenced to prison on counts one and two or, for that matter, on
       count three –

       State: Five.

       Trial Court: -- or five – excuse me – the aggravated vehicular
       homicides and the aggravated vehicular assault charge, there is a
       provision in the law that provides when you complete those
       sentences, you are subject to a mandatory period of supervision by
       the Adult Parole Authority called post-release control. And without
       going into the terms of that post-release control that they’re in
       charge of, or that agency is in charge of, if you violate the terms of
       post-release control during that mandatory period of three years for
       any of those offenses, you can be returned to prison for up to one-
       half of the prison term imposed for that offense. Do you understand
       that?

       Billenstein: Yes, your Honor.

(Emphasis added.) Change of Plea Hearing Tr., p. 8-11.

       {¶24} The State then read the stipulated facts into the record. Billenstein

provided the trial court with a written plea agreement, with his signature, and also

executed a written waiver of his constitutional rights in front of the trial court.

The trial court accepted Billenstein’s no contest pleas for the four charges and

found Billenstein guilty on each charge. The trial court ordered a presentence

investigation report and scheduled sentencing for May 1, 2013.


                                       -16-
Case No. 10-13-10


      {¶25} The plea agreement which Billenstein signed stated, in relevant part:

      Maximum Fine: Ct. 1 and 2 - $15,000, Ct. 5 – $10,000, Ct. 7 -
      $1,075.

      Mandatory Fine: $375

      Maximum O.L. Sanctions: Life

      Prison term is mandatory/consecutive: yes

      ***

      I understand that if I am now on felony probation, parole, under a
      community control sanction, or under post release control from
      prison, this plea may result in revocation proceedings and any new
      sentence could be imposed consecutively. I know any prison term
      stated will be served without good time credit.

      POST RELEASE CONTROL. In addition, a period of supervision
      by the Adult Parole Authority after release from prison may be
      mandatory in this case. * * * If I violate conditions of supervision
      while under post release control, the Parole Board could return me to
      prison for up to nine months for each violation, for a total of ½ of
      my originally stated prison term. If the violation is a new felony, I
      could receive a prison term of the greater of one year or the time
      remaining of post release control, in addition to any other prison
      term imposed for the offense.

(Emphasis sic.) (Docket No. 49, p. 3).

                               Sentencing Hearing

      {¶26} This matter proceeded to sentencing on May 1, 2013. The court

made the following findings pursuant to R.C. 2929.12:

      Trial Court: In this case the court finds the following sentencing
      factors appear to apply based on the information contained in the
      presentence investigation report. First, that the victim suffered

                                         -17-
Case No. 10-13-10


       serious physical, psychological, and economic harm, and at least
       with one of the victims, the offender’s relationship facilitated the
       offense.
              The court further finds with regard to the likelihood of
       recidivism that Mr. Billenstein has no record of being adjudicated as
       a delinquent child and has indicated some degree of remorse during
       the course of the presentence investigation. The court would note
       that with regard to some prior offenses, they involved a prior OVI as
       well as some speeding traffic offenses, and at least the OVI would be
       quasi-criminal offense, and therefore there is no finding that he did
       not have any criminal offense, but that is the extent of his prior
       criminal activity.

Sentencing Hearing Tr., p. 4.

       {¶27} The trial court acknowledged receipt of numerous letters from

friends, family members, and members of the community in support of Billenstein.

It acknowledged receipt of letters from the victims and victim’s representatives.

Billenstein then made a statement to the trial court. Billenstein stated:

       I wanted to take this time to tell the families of Craig and Vincent
       how deeply and truly sorry I am for what has happened. There has
       not been a day that’s went by that I haven’t thought about the pain
       and suffering that you’ve had to go through. Please know that I pray
       for you all every day that God may help heal the hole left in your
       hearts from the tragic loss of these young men. I also wanted
       Bethany to know how sorry I am for the pain that she has been
       through, both physical and emotional, and I pray that she is fully
       healed. I hate that she had to be a part of this horrible tragedy, but I
       thank God that her life was spared.
               * * * I just wanted you to know how sorry I am. I’m still
       brought to tears when I think about that night and the bad decisions
       that I made that caused these two young men to lose their lives. * *
       * I did not deserve to walk away from the accident when they didn’t.
       * * * I will share this story with anyone who will listen so that they
       may hopefully prevent this from happening to someone else. I


                                        -18-
Case No. 10-13-10


          understand that there must be consequences for my mistakes, and I
          stand before you to accept responsibility for my actions.

Id. at p. 6-8.

          {¶28} Next, Gary Galvert, Vincent Gragorce’s brother, made a victim

impact statement. Galvert stated, in relevant part:

          His pictures offer little comfort, only tears and the yearning for his
          voice and presence. We have left his cell phone line open so that we
          may call him just to hear his voice or the leave a tearful message.
          That, too, will be gone soon.
                 Our family is crushed by his death, as are his nieces and
          nephews who loved him dearly. All of the counseling, prayers, and
          well wishes have not lifted our heavy hearts. * * *
                 Our hearts ache; our eyes burn from the tears; and the
          sleepless nights go on. We hope we can find some meaning in the
          senseless death of our beloved son and brother.

Id. at p. 9-10.

          {¶29} Tracy Gengler, the mother of Craig Gengler, then spoke. Tracy

stated:

          * * * Not only did I lose a child that day, I had extra worry on my
          mind about my other children that were traveling and pregnant and
          just back from deployment, that they would be safe, and also for my
          sons that were there with me.
                  I had to quit my job towards the end of the year. I couldn’t
          work seven days a week and 12 hours every other day anymore,
          crying at work all the time and being through two doctors and two
          counselors. I stay at home most of the time and don’t talk to many
          people, including my kids. Losing my son has ripped the floor out
          from under me. I found myself pushing my other children away
          because I guess part of me is thinking that if I don’t stay close, then
          if I lose another, then it won’t hurt so bad. I know that’s wrong, but
          I find myself doing it anyways. * * *


                                           -19-
Case No. 10-13-10


               I’m not trying to take another child away from their parents or
       a father away from his children. Mr. Billenstein made the choices
       freely. He has been taking people on these rides for years, taking
       people’s lives in his hands for years. He felt untouchable by the law
       and death or injury. He had numerous times that night to change the
       path he chose to take. * * *
               I believe he should have to do the full sentence. He would
       still have visits, phone calls, and eventually freedom. Craig, myself,
       and his siblings all got a life sentence.

Id. at p. 11-14.

       {¶30} Craig’s father, Bill Ross, was the next person to give a victim impact

statement. He stated:

       At 5:50 in the morning on July 14th, I answered the front door of my
       home to two Darke County sheriffs. My life has never been the
       same since.
              I cannot describe the pain of being told that your child is
       gone; the pain of seeing your child cold and lifeless on a table; the
       pain of seeing him in a casket or picking out his headstone. It’s a
       pain I do not wish on anyone. * * *
              At times, overwhelming pain is often followed by deep-seated
       anger. This was not an accident. An accident is an incident that
       happens unexpectedly and unintentionally. It may have been
       unexpected, but the high rate of speed and every other act of the
       early hours that morning were intentional. When you’re pulled over
       by an officer of the law and released with a warning, count your
       blessings and drive right.
              However, Mr. Billenstein takes off with total disregard for the
       officer’s warning and continues to drive recklessly and without
       regard to anyone else’s safety or well-being. * * *
              This has put a strain on my marriage, my faith, and my work
       and my friendships. It seems like every moment of my life is an
       endless and emotional roller-coaster ride. * * *
              I feel Ryan Billenstein should get the maximum penalty for
       his crimes. Even with the maximum sentence, he will still be able to
       have a relationship with his sons.


                                        -20-
Case No. 10-13-10


Id. at p. 15-17.

        {¶31} The State then spoke at the sentencing hearing. The State argued for

a prison sentence and highlighted the fact that Billenstein was given a warning

about his erratic driving by the Coldwater Police Department shortly before the

fatal car crash. The State also pointed out that Billenstein had a blood alcohol

level of .110 and 297 nanograms per milliliter of marijuana metabolite at the time

of the crash. The State then highlighted Billenstein’s criminal record.

        When we look at [Billenstein’s] prior juvenile and adult history, he
        has a reckless operation in 2002; speed violation in 2003; an OVI in
        2003; three separate speed violations in 2005; a speed violation in
        2006; two separate speed violations in 2007; three separate speed
        violations in 2008; four speed violations separately in 2010; and
        other assorted offenses – traffic control device, et cetera [sic]. So we
        know from those objective facts the defendant’s penchant to drive
        fast and take his life and others into his own hands.

Id. at p. 20.

        {¶32} The trial court then announced its sentence. It stated, in relevant

part:

        [A] prison sentence is certainly consistent with the purposes and
        principles of Ohio Revised Code Section 2929.11 and generally the
        purposes of sentencing to punish the offender and protect the public.
               It will therefore be the sentence of the law and judgment of
        this court that the defendant serve the mandatory terms of five years
        with the Ohio Department of Rehabilitation and Correction on each
        of counts one and two, the aggravated vehicular homicide charges,
        and that he understand[s] that those are mandatory in nature. He’s
        not subject to early release but must serve the entire periods of
        incarceration hereby ordered as five-year definite sentences; and in
        additional to that, he serve a definite prison term of 36 months * * *

                                         -21-
Case No. 10-13-10


       for the offense of aggravated vehicular assault, the third degree
       felony.
              These, the court finds, are ordered to be served consecutively
       as a result of these crimes being ones that are multiple in nature, and
       the harm committed was so great or unusual that no single prison
       term for the offenses as a whole should be imposed by the court
       consistent with the seriousness of the defendant’s conduct bringing
       about the results of this criminal activity.

Id. at p. 22. Billenstein was also sentenced to six months in jail for operating a

vehicle while under the influence of alcohol and/or drugs. This sentence was to

run concurrently with his 13 year sentence. Finally, the trial court imposed a

lifetime suspension of Billenstein’s driver’s license.

       {¶33} Billenstein filed this timely appeal, presenting the following

assignments of error for our review.

                             Assignment of Error No. I

       THE TRIAL COURT ERRED BY FAILING TO SUPPRESS
       IN-CUSTODY STATEMENTS OF APPELLANT MADE TO
       OFFICER SPECKMAN IN THE EMERGENCY ROOM.

                            Assignment of Error No. II

       THE TRIAL COURT ERRED BY FAILING TO ADVISE THE
       APPELLANT THAT COUNTS ONE, TWO, AND FIVE OF
       THE INDICTMENT REQUIRED A MANDATORY TERM OF
       INCARCERATION.

                            Assignment of Error No. III

       THE TRIAL COURT ERRED BY FAILING TO ORALLY
       ADVISE THE APPELLANT HE WOULD BE INELIGIBLE
       FOR COMMUNITY CONTROL AND JUDICIAL RELEASE.


                                         -22-
Case No. 10-13-10


                           Assignment of Error No. IV

       THE TRIAL COURT ERRED BY FAILING TO ADVISE THE
       APPELLANT REGARDING THE ELEMENTS OF POST
       RELEASE CONTROL.

                            Assignment of Error No. V

       THE TRIAL COURT ERRED BY FAILING TO ADVISE THE
       APPELLANT     REGARDING     THE    MANDATORY
       OPERATOR’S LICENSE SUSPENSIONS.

                           Assignment of Error No. VI

       THE   TRIAL   COURT    ERRED  BY    IMPOSING
       CONSECUTIVE SENTENCES CONTRARY TO LAW.

                           Assignment of Error No. VII

       THE APPELLENT [SIC] RECEIVED INEFFECTIVE
       ASSITANCE [SIC] OF COUNSEL AT THE TRIAL COURT
       BECAUSE HIS COUNSEL FAILED TO INCLUDE IN THE
       MOTION TO SUPPREESS [SIC] A BRANCH RELATING TO
       THE VIOLATION OF APPELLANT’S MIRANDA RIGHTS
       AND THE INVALIDITY OF APPELLANT’S SUBSEQUENT
       CONSENT FOR A BLOOD AND URINE SAMPLE[.]

       {¶34} Due to the nature of the assignments of error, we elect to address

Billenstein’s second, third, and fourth assignments of error together.

                            Assignment of Error No. I

       {¶35} In his first assignment of error, Billenstein argues that the trial court

erred when it overruled his motion to suppress the statements he made to Officer

Speckman at the hospital after the accident. Specifically, Billenstein maintains

that he was in a custodial interrogation at the time he made the statements and that

                                        -23-
Case No. 10-13-10


he should have been given his Miranda warnings. Thus, Billenstein asserts that

these statements should have been deemed inadmissible. We disagree.

                                Standard of Review

       {¶36} “Appellate review of a decision on a motion to suppress presents a

mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-

Ohio-5372, ¶ 8. The trial court serves as the trier of fact and is the primary judge

of the credibility of the witnesses and the weight to be given to the evidence

presented.   State v. Johnson, 137 Ohio App.3d 847, 850 (12th Dist. 2000).

Therefore, when an appellate court reviews a trial court’s ruling on a motion to

suppress, it must accept the trial court’s findings of facts so long as they are

supported by competent, credible evidence. State v. Roberts, 110 Ohio St.3d 71,

2006-Ohio-3665, ¶ 100. The appellate court must then review the application of

the law to the facts de novo. Burnside at ¶ 8.

                                 Miranda Standard

       {¶37} A suspect in police custody “          must be warned prior to any

questioning that he has the right to remain silent, that anything he says can be used

against him in a court of law, that he has the right to the presence of an attorney,

and that if he cannot afford an attorney, one will be appointed for him prior to any

questioning if he so desires. Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct.

1602 (1966). Absent such a warning, a suspect’s statements during a custodial


                                        -24-
Case No. 10-13-10


interrogation are subject to suppression. State v. Kirk, 3d Dist. Crawford No. 3-

12-09, 2013-Ohio-1941, ¶ 24.

      {¶38} “In order to determine whether a person is in custody for purposes of

receiving Miranda warnings, courts must first inquire into the circumstances

surrounding the questioning and, second, given those circumstances, determine

whether a reasonable person would have felt that he or she was not at liberty to

terminate the interview and leave.” State v. Hoffner, 102 Ohio St.3d 358, 2004-

Ohio-3430, ¶ 27, citing Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457

(1995). The first inquiry is distinctly factual. Keohane at 112. “Once the factual

circumstances surrounding the interrogation are reconstructed, the court must

apply an objective test to resolve ‘the ultimate inquiry’ of whether there was a

‘formal arrest or restraint on freedom of movement’ of the degree associated with

a formal arrest.” Hoffner at ¶ 27, citing California v. Beheler, 463 U.S. 1121,

1125, 103 S.Ct. 3517 (1983), quoting Oregon v. Mathiason, 492 U.S. 492, 495, 97

S.Ct. 711 (1977).   The subjective views harbored by either the interrogating

officers or the person being questioned are of no consequence in the Miranda

analysis. Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526 (1994). In

resolving the ultimate inquiry, courts must consider the totality of the

circumstances surrounding the questioning. State v. Gumm, 73 Ohio St.3d 413,

429 (1995); Beheler at 1125.


                                      -25-
Case No. 10-13-10


       {¶39} The trial court denied Billenstein’s motion to suppress on the basis

that Billenstein was not in custody at the time he made his two statements to

Officer Speckman. The trial court found that Billenstein was never placed under

arrest and never detained by the police the morning he made his incriminating

statements.

       {¶40} The record contains competent, credible evidence in support of the

trial court’s factual findings. At the suppression hearing, Deputy Etgen testified

that he was instructed not to read the BM 2255 form because it was not suspected

that Billenstein was under the influence of alcohol. Deputy Etgen also testified

Billenstein was never placed under arrest. Further, Officer Speckman confirmed

that Billenstein was never placed under arrest. Officer Speckman testified that

Billenstein made the statements while he was lying on a gurney and shouting for

everybody in the room to hear. Both officers testified that after they received

Billenstein’s blood and urine sample, they left the hospital without Billenstein.

       {¶41} Further, both officers testified that Billenstein was not under arrest

the morning of July 14, 2012. There was no evidence presented that Billenstein

was somehow restrained by the officers.        No testimony was offered that either

officer had handcuffed Billenstein, closed his hospital room door, or had guards

watch over Billenstein in their absence. To the contrary, both officers testified

that they left the hospital immediately after obtaining the blood and urine samples.


                                        -26-
Case No. 10-13-10


       {¶42} Since the record supports the trial court’s factual findings, the only

remaining issue is whether the trial court reached the correct legal conclusions

based on those findings.

       {¶43} Billenstein argues that he was in custody merely because he was

involved in a serious accident and knew at least one person had died. Billenstein

also argues that “officers from the Coldwater Police Department walked into the

hospital with appellant. The Coldwater Police officers were at his side at the time

Appellant was questioned.”       Appellant’s Br., p. 10-11.     First, we note that

Billenstein’s contention is unsupported by the record. It is undisputed that Officer

Speckman did not walk into the hospital with Billenstein.           Instead, Officer

Speckman testified he arrived at the hospital before Billenstein. Further, the mere

presence of a police officer at a hospital does not automatically render any

discussion that police officer has with a person a custodial interrogation for

Miranda purposes.

       {¶44} Relevant factors to consider in determining whether a custodial

interrogation took place are: (1) the location of the questioning; (2) duration of the

questioning; (3) statements made during the interview; (4) the presence or absence

of physical restraints; and (5) whether the interviewee was released at the end of

the interview. Howes v. Fields, 132 S.Ct. 1181, 1189 (2012). Here, Officer

Speckman’s interview with Billenstein was short in duration, as he only asked


                                        -27-
Case No. 10-13-10


Billenstein two questions. Further, the interview took place in a hospital, and

Billenstein was unrestrained the entire time. Lastly, Billenstein was released at the

end of the interview as both Officer Speckman and Deputy Etgen left Billenstein

alone at the hospital after they collected blood and urine specimens.

       {¶45} Therefore, we find that Billenstein was not subject to a custodial

interrogation when he answered Officer Speckman’s questions.

       {¶46} Accordingly, we overrule Billenstein’s first assignment of error.

                     Assignments of Error No. II, III, & IV

       {¶47} In his second, third, and fourth assignments of error, Billenstein

argues that the trial court erred by failing to orally advise him: that he faced a

mandatory term of incarceration; that he would be ineligible for community

control and judicial release; and of the elements of post release control. Because

of these deficiencies, Billenstein argues his plea was not knowingly, intelligently,

and voluntarily made. We disagree.

       {¶48} According to Crim.R. 11(C) all guilty and no contest pleas must be

entered knowingly, voluntarily, and intelligently. State v. Engle, 74 Ohio St.3d

525, 527, 1996-Ohio-179. Crim.R. 11(C) requires the trial judge, before accepting

a guilty or no contest plea in a felony case, to inform the defendant of several

rights enumerated under the rule, making sure the defendant understands the

nature of those rights. State v. Stewart, 51 Ohio St.2d 86, 88 (1977). Specifically,


                                        -28-
Case No. 10-13-10


the trial court must determine that the defendant is making the plea voluntarily;

that he understands the nature of the charges and the maximum punishment; if

applicable, that he understands he is not eligible for probation or community

control; that he understands the effect of a no contest plea; and, that he

understands by pleading no contest, he is waiving the right to a jury trial, to

confront witnesses, to have compulsory process in obtaining witnesses, and to

have the State prove his guilt beyond a reasonable doubt at a trial where he is not

required to testify against himself. Crim.R. 11(C); State v. Howard, 3d Dist.

Hardin No. 6-09-16, 2010-Ohio-4828, ¶ 10. A trial court’s failure to ensure that a

plea has been entered knowingly, voluntarily, and intelligently renders the plea

unconstitutional. Engle, 74 Ohio St.3d at 527 citing Kercheval v. United States,

274 U.S. 220, 223, 47 S.Ct. 582 (1927); Crim.R. 11(C).

      {¶49} In determining whether the trial court has properly followed the

nonconstitutional requirements of Crim.R. 11(C), the reviewing court must find

substantial compliance. Stewart, 51 Ohio St.2d at 92. “Substantial compliance

means that under the totality of the circumstances the defendant subjectively

understands the implications of his plea and the rights he is waiving.” State v.

Nero, 56 Ohio St.3d 106, 108 (1990), citing State v. Carter, 60 Ohio St.2d 34, 38

(1979). Additionally, the Supreme Court of Ohio has held that “a defendant must

show prejudice before a plea will be vacated for a trial court’s error involving


                                       -29-
Case No. 10-13-10


Crim.R. 11(C) procedure when nonconstitutional aspects of the colloquy are at

issue.” State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 17. In order to

demonstrate prejudice, the defendant must show that the plea would not have been

otherwise made. Steward, 51 Ohio St.2d at 93.

      {¶50} Here, the trial court properly informed Billenstein of the maximum

sentence for each charge to which he was pleading no contest. Further, the written

plea agreement, which Billenstein signed, stated that a prison term was mandatory.

Moreover, at the change of plea hearing, Billenstein stated that he understood the

terms of the plea agreement and had no questions regarding the plea agreement.

Thus, Billenstein had notice that his prison term was mandatory. See State v.

Lane, 3d Dist. Allen No. 1-10-10, 2010-Ohio-4819 (substantial compliance with

Crim.R. 11 when appellant was not advised at the sentencing hearing he would be

subject to post-release control but such requirement was found in the written plea

agreement).

      {¶51} Since Billenstein was aware of the mandatory nature of his prison

sentence, he would have also been aware that he was ineligible for community

control. See State v. Brown, 11th Dist. Geauga No. 2003-G-2504, 2004-Ohio-

1843, ¶ 12 (“[A] defendant who understands that actual incarceration is mandatory

necessarily understands that he is ineligible for probation or community control




                                      -30-
Case No. 10-13-10


sanctions and, therefore, cannot demonstrate prejudice as a result of the court’s

failure to comply literally with the rule.”).

        {¶52} Billenstein also contends that he was never advised that a violation of

any post-release control rule or condition can result in a more restrictive sanction

and be considered a new felony conviction. We find this argument without merit.

        {¶53} First, at his change of plea hearing, Billenstein was advised by the

trial court, that:

        Trial Court: -- or five – excuse me – the aggravated vehicular
        homicides and the aggravated vehicular assault charge, there is a
        provision in the law that provides when you complete those
        sentences, you are subject to a mandatory period of supervision by
        the Adult Parole Authority called post-release control. And without
        going into the terms of that post-release control that they’re in
        charge of, or that agency is in charge of, if you violate the terms of
        post-release control during that mandatory period of three years for
        any of those offenses, you can be returned to prison for up to one-
        half of the prison term imposed for that offense. Do you understand
        that?

(Emphasis added.) Change of Plea Hearing Tr., p. 10-11.

        {¶54} Further, Billenstein signed a plea agreement, which stated the terms

of post release control. Specifically, it stated:

        I understand that if I am now on felony probation, parole, under a
        community control sanction, or under post release control from
        prison, this plea may result in revocation proceedings and any new
        sentence could be imposed consecutively. I know any prison term
        stated will be served without good time credit.

        POST RELEASE CONTROL. In addition, a period of supervision
        by the Adult Parole Authority after release from prison may be

                                          -31-
Case No. 10-13-10


         mandatory in this case. * * * If I violate conditions of supervision
         while under post release control, the Parole Board could return me to
         prison for up to nine months for each violation, for a total of ½ of
         my originally stated prison term. If the violation is a new felony, I
         could receive a prison term of the greater of one year or the time
         remaining of post release control, in addition to any other prison
         term imposed for the offense.

(Emphasis added.) (Docket No. 49, p. 3).

         {¶55} Thus, Billenstein was advised that if he were to violate the terms of

his post release control, it could result in a new felony conviction and he could be

returned to prison for up to one half of the prison term imposed for the offense.

         {¶56} Assuming, arguendo, that the trial court did not substantially comply

with Crim.R. 11(C), Billenstein does not make any argument that he was

prejudiced in any way. Since Billenstein does not even set forth the argument that

he would not have pleaded no contest had the trial court more fully complied with

Crim.R. 11(C), his second, third, and fourth assignments of error are not well-

taken.

         {¶57} Accordingly, we overrule Billenstein’s second, third, and fourth

assignments of error.

                             Assignment of Error No. V

         {¶58} In his fifth assignment of error, Billenstein contends that the trial

court erred by failing to advise him of a mandatory lifetime driver’s license

suspension. We disagree.


                                         -32-
Case No. 10-13-10


       {¶59} Billenstein again argues that the trial court violated Crim.R. 11(C)

because it failed to inform him that he was subject to a mandatory lifetime driver’s

license suspension if he was found guilty of aggravated vehicular homicide. At

the change of plea hearing the trial court stated, in regard to counts one and two,

that it “could revoke [Billenstein’s] right to drive a motor vehicle in the State of

Ohio for life.” (Emphasis added.) Change of Plea Hearing Tr., p. 8. However,

when advising Billenstein of the maximum sentence for count five, the trial court

correctly stated “the court must suspend your operator’s license to drive a motor

vehicle in the State of Ohio for two years and can do so for up to ten.” Id.

       {¶60} Further, the written plea agreement failed to clarify the trial court’s

misstatement of the law and actually made the issue of whether a lifetime

suspension of Billenstein’s operator’s license was mandatory more ambiguous.

The plea agreement stated:

       Maximum Fine: Ct. 1 and 2 - $15,000, Ct. 5 – $10,000, Ct. 7 -
       $1,075.

       Mandatory Fine: $375

       Maximum O.L. Sanctions: Life

(Docket No. 49, p. 3).




                                        -33-
Case No. 10-13-10


      {¶61} Thus, while the written plea agreement correctly sets out both the

maximum and the mandatory fines in Billenstein’s case, it only states the

maximum but not mandatory suspension of Billenstein’s operator’s license. Thus,

reading these three lines together, it appears as though Billenstein does not have a

mandatory operator’s license suspension.

      {¶62} This case is distinguishable from State v. Schultz, 5th Dist. Fairfield

No. 12 CA 24, 2013-Ohio-2218, and State v. Green, 10th Dist. Franklin No.

10AP-934, 2011-Ohio-6451, where substantial compliance was found where the

trial court, at the change of plea hearing, failed to inform the defendants of the

mandatory nature of the lifetime operator’s license suspension, yet the plea

agreements, which the defendants signed, informed them of the mandatory

suspension.

      {¶63} Since the trial court never advised Billenstein he was subject to a

mandatory suspension of his driver’s license, we find that the trial court did not

substantially comply with the requirements set forth in Crim.R. 11(C). However,

Billenstein has not argued prejudice. He never asserts that had he been aware of

the mandatory lifetime operator’s license suspension he would not have accepted

the plea agreement, nor is that assertion reasonable from the record. The record

demonstrates that the State offered to nolle prosequi five counts of the indictment

in exchange for no contest pleas on the remaining four counts. Further, although


                                       -34-
Case No. 10-13-10


the trial court failed to advise Billenstein that the lifetime operator’s license

suspension was mandatory, he was well aware it was a possibility and certainly

must have contemplated receiving such a sentence before accepting the State’s

plea agreement. Thus, it is not reasonable that this alone prejudiced Billenstein

and that he would not have made his plea agreement had he known of the

mandatory suspension.

        {¶64} Therefore, while we find that the trial court did not substantially

comply with Crim.R. 11(C), Billenstein has failed to demonstrate that he was

prejudiced by the trial court’s deficiencies.2

         {¶65} Accordingly, we overrule Billenstein’s fifth assignment of error.

                                   Assignment of Error No. VI

        {¶66} In his sixth assignment of error, Billenstein argues that the trial court

erred in imposing consecutive sentences. We agree.

        {¶67} The revisions to the felony sentencing statutes under H.B. 86 now

require a trial court to make specific findings on the record, as set forth in R.C.

2929.14(C)(4), when imposing consecutive sentences. State v. Hites, 3d Dist. No.

6-11-07, 2012-Ohio-1892, ¶ 11. Specifically, the trial court must find that (1)

consecutive sentences are necessary to either protect the public or punish the

offender; (2) the sentences would not be disproportionate to the offense

2
 We note that while Billenstein was sentenced to a lifetime suspension of his driver’s license, nothing will
prevent him from petitioning the trial court in 15 years to reconsider the suspension and grant him limited
driving privileges pursuant to R.C. 4510.54.

                                                   -35-
Case No. 10-13-10


committed; and (3) one of the factors set forth in R.C. 2929.14(C)(4)(a, b, or c)

applies. Id. R.C. 2929.14(C)(4)(b) states, “[a]t 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.”

      {¶68} Billenstein argues that because his alcohol and marijuana levels were

“only marginally” over the legal limit and because he has a lifetime operator’s

license suspension he no longer poses a threat to the public, the imposition of

consecutive sentences was unsupported by the record. Whether enough evidence

is in the record to support consecutive sentences is not necessary for us to

determine here since the trial court did not make the required findings under R.C.

2929.14(C) at the sentencing hearing.

      {¶69} In regard to consecutive sentences the trial court stated:

      These, the court finds, are ordered to be served consecutively as a
      result of these crimes being ones that are multiple in nature, and the
      harm committed was so great or unusual that no single prison term
      for the offenses as a whole should be imposed by the court
      consistent with the seriousness of the defendant’s conduct bringing
      about the results of this criminal activity.




                                        -36-
Case No. 10-13-10


Sentencing Hearing Tr., p. 22. While, the trial court made the appropriate finding

under R.C. 2929.14(C)(4)(b), it did not make the other two necessary findings.3

         {¶70} As such, we reverse the trial court’s imposition of consecutive

sentences and remand this matter so that the trial court can make the proper

findings, if they so exist, for the imposition of consecutive sentences.

         {¶71} Accordingly, Billenstein’s sixth assignment of error is sustained.

                                   Assignment of Error No. VII

         {¶72} In his seventh assignment of error, Billenstein argues that he was

denied effective assistance of counsel because he did not challenge the validity of

Billenstein’s consent for the blood and urine samples. We disagree.

                                          Standard of Review

         {¶73} An ineffective assistance of counsel claim requires proof that trial

counsel’s performance fell below objective standards of reasonable representation

and that the defendant was prejudiced as a result. State v. Bradley, 42 Ohio St.3d

136 (1989), paragraph two of syllabus. “To show that a defendant has been

prejudiced by counsel’s deficient performance, the defendant must prove that there

3
  We note that the trial court made the proper findings in its sentencing judgment entry. (Docket No. 59, p.
3). However, Crim.R. 32(C) requires that at the time of imposing a sentence, the court shall “[i]n serious
offenses, state its statutory findings and give reasons support those findings, if appropriate.” Therefore, it
was necessary for the trial court to make the appropriate findings under R.C. 2929.14(C) at the sentencing
hearing and in its journal entry. See State v. Brooks, 9th Dist. Summit Nos. 26437, 26352, 2013-Ohio-
2169, ¶ 13 (“[T]his court concludes that [2929.14(C)] findings must be made at the sentencing hearing on
the record. * * * Ideally, those findings would also then be memorialized in the sentencing entry.”); State v.
Davis, 8th Dist. Cuyahoga Nos. 97689, 97691, and 79692, 2012-Ohio-3951, ¶ 8 (“Under R.C.
2929.14(C)(4), the trial court must state its findings in support of consecutives sentences on the record at
the sentencing hearing.”).

                                                    -37-
Case No. 10-13-10


exists a reasonable probability that, but for counsel’s errors, the outcome at trial

would have been different.” Id. at paragraph three of syllabus. “Reasonable

probability” is a probability sufficient to undermine confidence in the outcome of

the trial.   State v. Waddy, 63 Ohio St.3d 424, 433 (1992), superseded by

constitutional amendment on other grounds as recognized by State v. Smith, 80

Ohio St.3d 89, 103, 1997-Ohio-355.

       {¶74} Further, the court must look to the totality of the circumstances and

not isolated instances of an allegedly deficient performance. State v. Barnett, 3d

Dist. Logan No. 8-12-09, 2013-Ohio-2496, ¶ 45. “Ineffective assistance does not

exist merely because counsel failed ‘to recognize the factual or legal basis for a

claim, or failed to raise the claim despite recognizing it.’ ” Id., quoting Smith v.

Murray, 477 U.S. 527, 106 S.Ct. 2661 (1986).

       {¶75} We note that while Billenstein correctly cites to the two-part test that

is necessary to show ineffective assistance of counsel, Billenstein’s brief is

completely devoid of any argument that would show he was prejudiced by his trial

counsel’s performance or that there is a reasonably probability that but for his trial

counsel’s performance the result of Billenstein’s proceeding would have been

different. He merely asserts that, “[a]ny reasonable defense counsel would have

raised the issue of the invalidity of the consent for the urine/blood draw of samples




                                        -38-
Case No. 10-13-10


in light of the prior violation of Appellant’s Miranda [sic] rights.” Appellant’s Br.,

p. 19.

         {¶76} However, Billenstein’s statements to Officer Speckman were not

made in a custodial interrogation, thus there was no Miranda violation. Further,

Officer Etgen did Mirandize Billenstein before obtaining oral consent for the

blood and urine specimens. Thus, it seems unlikely had Billenstein’s trial counsel

raised the issue of valid consent, that it would have been well-taken by the trial

court. Thus, even if Billenstein had argued prejudice in his brief, his assignment

of error would still be meritless.

         {¶77} Accordingly, we overrule Billenstein’s seventh assignment of error.

         {¶78} Having found no error prejudicial to Billenstein in the first, second,

third, fourth, fifth, and seventh assignments of error, but having found error

prejudicial to Billenstein in the sixth assignment of error, we affirm in part and

reverse in part the trial court’s judgment and remand this matter for further

proceedings consistent with this opinion.

                                                        Judgment Affirmed in Part,
                                                             Reversed in Part, and
                                                                 Cause Remanded

PRESTON and SHAW, J.J., concur.

/jlr




                                         -39-
