[Cite as State v. Demirci, 2013-Ohio-2399.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


STATE OF OHIO,                                    :      OPINION

                 Plaintiff-Appellee,              :
                                                         CASE NO. 2011-L-142
        - vs -                                    :

VOLKAN DEMIRCI,                                   :

                 Defendant-Appellant.             :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 10 CR
000573.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-
Appellee).

Timothy J. Fitzgerald, Gallagher, Sharp, Fulton & Norman, Sixth Floor, Bulkley
Building, 1501 Euclid Avenue, Cleveland, OH 44115-2108 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Defendant-appellant, Volkan Demirci, appeals his convictions and

sentence for Aggravated Vehicular Assault and Operating a Vehicle Under the Influence

of Alcohol, following the entry of a written guilty plea in the Lake County Court of

Common Pleas. Demirci was sentenced to an aggregate prison term of four years. The

issues before this court are: whether a sentencing court exercises sound, reasonable,

and legal decision-making in sentencing an offender to four years’ imprisonment and
imposing a nine-year license suspension in the absence of factors enhancing the

seriousness of the crime and given a low probability of recidivism; whether a trial court

abuses its discretion by ordering restitution based on an erroneous estimation of the

offender’s ability to pay; and whether the failure to merge convictions for Aggravated

Vehicular Assault and Operating a Vehicle Under the Influence of Alcohol as allied

offenses of similar import constitutes plain error. For the following reasons, we affirm

the trial court.

       {¶2}    On September 21, 2010, the Lake County Grand Jury indicted Demirci for

Aggravated Vehicular Assault (Count One), a felony of the third degree, in violation of

R.C. 2903.08(A)(1), for serious physical harm caused to Joseph P. Jukiewicz, as the

result of committing an OVI offense; Aggravated Vehicular Assault (Count Two), a

felony of the third degree, in violation of R.C. 2903.08(A)(1), for serious physical harm

caused to Melissa A. Fife, as the result of committing an OVI offense; Vehicular Assault

(Count Three), a felony of the fourth degree, in violation of R.C. 2903.08(A)(2), for

serious physical harm caused to Joseph P. Jukiewicz; Vehicular Assault (Count Four), a

felony of the fourth degree in violation of R.C. 2903.08(A)(2), for serious physical harm

caused to Melissa A. Fife; and Operating a Vehicle Under the Influence of Alcohol

(Count Five), a misdemeanor of the first degree, in violation of R.C. 4511.19(A)(1)(b),

for operating a vehicle with a concentration of eight-hundredths of one percent or more

by weight per unit volume of alcohol in his whole blood.

       {¶3}    On September 23, 2010, Demirci entered a plea of not guilty.

       {¶4}    On December 17, 2010, Demirci entered a Written Plea of Guilty to

Aggravated Vehicular Assault (Count One), amended to include the names of both




                                            2
Joseph P. Jukiewicz and Melissa A. Fife, and Operating a Vehicle Under the Influence

of Alcohol (Count Five).

       {¶5}   On December 21, 2010, the trial court entered a Judgment Entry

accepting Demirci’s plea and, upon the State’s motion, nolling the remaining counts of

the Indictment.

       {¶6}   On February 2, 2011, a Sentencing Memorandum was filed on Demirci’s

behalf. The Memorandum detailed Demirci’s background: his birth in Germany in 1976

to Turkish parents; his emigration to the United States in 2001 on a student visa; his

marriage to a woman from Lake County; the birth of his son in 2007; an injury to his left

hand while cutting granite on a 10” table saw in 2008; his subsequent depression and

anxiety; and the breakdown of his marriage.

       {¶7}   The Memorandum detailed the following factors affecting the seriousness

of his crimes: he “did not expect to cause harm to the victims”; his conduct was the

result “of his own stupidity”; and “the victims suffered significant and severe injuries.”

The Memorandum detailed the following factors affecting the likelihood of recidivism:

“he was never delinquent as a child”; he has never “been convicted of or pled guilty to a

criminal offense” (although he was charged with OVI in 2005, the charge was reduced

to reckless operation - a “traffic offense”); he “received his United States Citizenship in

January of 2010”; and he has voluntarily begun attending AA meetings and sought

treatment with a therapist.

       {¶8}   The Memorandum asserted that Demirci is “utterly remorseful” for his

actions:




                                            3
      {¶9}   He asserts there is not a day goes by that he does not think of the

             couple he has injured. He truly understands what kind of deep,

             undesirable situation and the pain he has caused them. He knows

             that they are hurting and in turn he feels their pain, and he explains

             it [i]s an “irony a very strange irony … I myself have these difficult

             times due to some other person’s mistake now I am the one who is

             mistaken. I feel very sad and angry, and I don’t know if I can ever

             forgive myself … The accident with my hand had a huge negative

             impact in my life. Feeling of being disabled or loss of functions is

             indescribably   awful.     I   was   always   having   a   hard   time

             understanding those who say that they are half person [sic]. But

             now I realize how it feels to be not complete.”

      {¶10} On February 3, 2011, the sentencing hearing was held. At the hearing,

Demirci’s attorney reiterated the points made in the Sentencing Memorandum.

Demirci’s mother spoke on his behalf, stating that she was very sorry for the victims and

that Demirci tried to make a decent life for himself in this country. Demirci’s wife (they

were in the process of divorcing) spoke on his behalf, stating that Demirci has a close

relationship with their son and has taken him to counseling to prepare him for his

impending imprisonment. Demirci spoke on his own behalf, apologizing to the victims

and his own family. Demirci’s AA sponsor spoke on his behalf.

      {¶11} The prosecutor addressed the court and described how Demirci struck the

victims, who were riding on a motorcycle, with his Ford F-150 “full go.” The prosecutor

described the victims’ injuries as having “repercussions for years and years to come,




                                            4
and that will continue to affect these people’s lives.” Melissa Fife addressed the court,

describing the pain she has suffered as the result of her injuries (fractured sternum,

pelvis, and vertebrae; rods in her leg and back; knee surgery); medical bills in the

amount of $135,000; and losing her job and her home as a result of the accident.

Joseph Jukiewicz submitted a written victim impact statement. Jukiewicz continued to

suffer the effects of his injuries and had uncovered medical expenses in the amount of

$5,000. The prosecutor stated that Demirci had insurance, but that it would not cover

the costs of the victims’ injuries.   The prosecutor was unaware of how much the

insurance would be able to cover.

      {¶12} At the close of the hearing, the trial court stated: “Certainly the Court

understands that the Defendant is genuinely remorseful and has very little criminal

record.     However, the Court also recognizes the extreme amount of physical,

psychological, and economic harm done to the victims in this case.” For Aggravated

Vehicular Assault (Count One), the court sentenced Demirci to serve a four-year prison

term and suspended his license for nine years. For Operating a Vehicle Under the

Influence of Alcohol (Count Five), the court sentenced Demirci to serve 180 days in jail

(concurrent with the four-year sentence imposed for Count One), imposed a fine of

$375, and suspended his license for two years. Additionally, the court ordered Demirci

to pay restitution in the amount of $5,000 to Jukiewicz and $134,928.69 to Fife.

      {¶13} On February 14, 2011, the trial court issued a Judgment Entry of

Sentence.

      {¶14} On November 1, 2011, Demirci filed a Motion for Delayed Appeal, which

this court granted on April 16, 2012. On December 3, 2012, this court released its




                                            5
opinion in State v. Demirci, 11th Dist. No. 2011-L-142, 2012-Ohio-5593, affirming the

court’s judgment in part, reversing in part, and remanding the matter. The state of Ohio

later filed a timely application of reconsideration pursuant to App.R. 26(A) pertaining to

the issue of whether appellant’s convictions for aggravated vehicular assault and

operating a vehicle while intoxicated should have been merged. This court granted the

application and vacated its December 3, 2012 opinion and judgment. We now proceed

in light of the judgment granting reconsideration.

       {¶15} On appeal, Demirci raises the following assignments of error:

       {¶16} “[1.] The trial court committed prejudicial and reversible error in sentencing

Appellant to a four-year prison term and a nine-year driver’s license suspension for one

count of aggravated assault which near-maximum sentence frustrates the purposes and

principles of felony sentencing in Ohio Rev. Code § 2929.11 and reflects the absence of

sound, reasonable, and legal decision-making when considering the sentencing factors

listed in Ohio Rev. Code § 2929.12.”

       {¶17} “[2.] The trial court erred by ordering restitution as part of Appellant’s

sentence in the amount of $139,928.69 where the record does not support the trial

court’s declaration of the Appellant’s ability to pay and/or his future ability to pay the

restitution ordered as required by Ohio Rev. Code § 2929.19(B)([5]).”

       {¶18} “[3.] The trial court erred by convicting and separately sentencing

Appellant for the crimes of aggravated vehicular assault pursuant to Ohio Rev. Code

§2903.08(A)(1)(a) and operating a vehicle under the influence of alcohol pursuant to

Ohio Rev. Code § 4511.19(A)(1)(a) where those crimes should have been merged as

allied offenses of similar import pursuant to Ohio Rev. Code § 2941.25.”




                                             6
       {¶19} “[A]ppellate courts must apply a two-step approach when reviewing felony

sentences.    First, they must examine the sentencing court’s compliance with all

applicable rules and statutes in imposing the sentence to determine whether the

sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the

trial court’s decision in imposing the term of imprisonment is reviewed under the abuse-

of-discretion standard.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 26.

       {¶20} The overriding purposes of felony sentencing in Ohio “are to protect the

public from future crime by the offender * * * and to punish the offender.”           R.C.

2929.11(A). “A sentence imposed for a felony shall be reasonably calculated to achieve

the two overriding purposes of felony sentencing set forth in division (A) of this section,

commensurate with and not demeaning to the seriousness of the offender’s conduct

and its impact upon the victim, and consistent with sentences imposed for similar crimes

committed by similar offenders.” R.C. 2929.11(B).

       {¶21} It is well-recognized that a sentencing court “has discretion to determine

the most effective way to comply with the purposes and principles of sentencing.” R.C.

2929.12(A). The Ohio Supreme Court has described a sentencing court’s discretion as

“full discretion to impose a prison sentence within the statutory range.” State v. Mathis,

109 Ohio St.3d 54, 2006-Ohio-855, paragraph three of the syllabus; State v. Ries, 11th

Dist. No. 2008-P-0064, 2009-Ohio-1316, ¶13 (“[s]uch discretion is plenary”). “[T]he trial

court is not obligated, in the exercise of its discretion, to give any particular weight or

consideration to any sentencing factor.” State v. Holin, 174 Ohio App.3d 1, 2007-Ohio-

6255, ¶34 (11th Dist.).




                                            7
       {¶22} Demirci does not contend that his sentence is contrary to law. Rather,

Demirci argues his sentence reflects an absence of “sound, reasonable, and legal

decision-making” given the lack of factors enhancing the seriousness of his crimes

and/or indicating a likelihood of recidivism. Demirci notes that the maximum possible

sentence for third-degree felony Aggravated Vehicular Homicide was five years.

Former R.C. 2929.14(A)(3). “Had the accident here involved an offender who would be

considered one of the worst of the worst - one with an extensive prior felony criminal

record, who had been incarcerated previously, and who showed no genuine remorse for

the serious harm inflicted on his two victims, the most prison time he could have

received would have been one-year longer than the four-year sentence imposed on

Demirci.”

       {¶23} Similarly, Demirci argues that his nine-year license suspension, one year

less than the maximum potential license suspension of ten years, fails to promote his

rehabilitation or ability to make restitution.    R.C. 2903.08(B)(2) and 4510.02(A)(3).

“Demirci’s inability to drive for a total of nine-years (at this point, five more years beyond

his release from prison) will make it virtually impossible for him to find gainful

employment to satisfy whatever financial obligations he might have.”

       {¶24} The trial court’s imposition of a four-year term of imprisonment and nine-

year license suspension was a valid exercise of its discretion, discretion which the Ohio

Supreme Court has repeatedly described as “full.” State v. Elmore, 122 Ohio St.3d 472,

2009-Ohio-3478, ¶8; Mathis, supra, paragraph three of the syllabus; State v. Foster,

109 Ohio St.3d 1, 2006-Ohio-856, paragraph seven of the syllabus. Within the context

of felony sentencing, the Ohio Supreme Court has characterized an abuse of the




                                              8
sentencing court’s discretion as “more than an error of law or judgment; it implies that

the court’s attitude is unreasonable, arbitrary or unconscionable.” (Citation omitted.)

Kalish, supra, at ¶19.

       {¶25} Demirci’s sentence is neither unreasonable nor unconscionable. The trial

court recognized “the extreme amount of physical, psychological, and economic harm

done to the victims in this case.” Demirci contends that such harm is inherent in all

Aggravated Vehicular Assaults as part of the element of “serious physical harm” and,

therefore, an invalid consideration on which to base a sentence. We disagree.

       {¶26} A sentencing court is expressly authorized to consider the “serious

physical, psychological, or economic harm [suffered] as a result of the offense.” R.C.

2929.12(B)(2). Some degree of harm is suffered by all victims of crime; the fact that

serious physical harm is an element of the crime should not preclude a court from

considering the actual injuries suffered in the exercise of its discretion to sentence.

State v. Teets, 5th Dist No. 09 CAA 37, 2009-Ohio-6083, ¶ 27.

       {¶27} In the present case, the harm suffered by the victims was not merely

serious in the sense that the physical injuries were severe, but also serious in how the

injuries affected their lives.   Both victims lost their jobs and their ability to live

independently; both victims continue to suffer physical incapacity; one victim has been

forced to accept public assistance; the other victim explained that, “most importantly,”

the injuries have hindered his/her efforts to maintain their own sobriety. Consideration

of these injuries constitutes a rational and reasonable basis for the sentence imposed,

regardless of whether there were other factors that would have justified a lesser

sentence.




                                           9
       {¶28} We further note that, although Demirci only pled guilty to one count of

Aggravated Vehicular Assault, there were two victims who had their lives marred by his

crime and that his sentence may reflect the harm caused to both victims.

       {¶29} Finally, Demirci contends that his sentence is inconsistent and

disproportionate with other similarly situated offenders. We disagree.

       {¶30} This court has often held that “sentencing consistency is not derived from

the trial court’s comparison of the current case to prior sentences for similar offenders

and similar offenses.” (Citation omitted.) State v. Rhodes, 11th Dist. No. 2011-L-072,

2012-Ohio-1269, ¶48. “Rather, it is the trial court’s proper application of the statutory

sentencing guidelines that ensures consistency in sentencing. * * * Thus, in order to

show a sentence is inconsistent, a defendant must show the trial court failed to properly

consider the statutory factors and guidelines.” (Citation omitted.) Id. In this case, the

trial court properly considered the relevant factors of R.C. 2929.11 and 2929.12.

       {¶31} The first assignment of error is without merit.

       {¶32} In the second assignment of error, Demirci contends that the order to pay

$139,928.69 in restitution was based on an “erroneous and flawed” assessment of his

ability to pay.

       {¶33} A “court imposing a sentence upon an offender for a felony may sentence

the offender to any financial sanction or combination of financial sanctions,” including

“[r]estitution by the offender to the victim of the offender’s crime * * *, in an amount

based on the victim’s economic loss.” R.C. 2929.18(A)(1). “Before imposing a financial

sanction under section 2929.18 of the Revised Code * * *, the court shall consider the




                                            10
offender’s present and future ability to pay the amount of the sanction * * *.” R.C.

2929.19(B)(5).

       {¶34} An order of restitution is reviewed under an abuse of discretion standard.

State v. McNaughton, 11th Dist. No. 2011-L-083, 2012-Ohio-1271, ¶28 (cases cited).

       {¶35} Demirci asserts that the trial court abused its discretion in ordering him to

pay restitution in the amount of $139.928.69 in light of the following: he has not worked

since 2010; in 2008, he suffered a serious work-related injury; at his most recent

employment he was earning $15.00/hour or $2,400/month; he owes $25,000 in credit

card bills and $10,000 in attorney fees; he has child support obligations; and his license

will remain suspended for five years following his release from prison.

       {¶36} Despite the difficulties identified by Demirci, the imposition of $139.928.69

does not constitute an abuse of discretion. Demirci will be thirty-eight-years-old upon

his release from prison; he is in good physical health; he has a bachelor’s degree in

international relations; and he has worked as a foreman and a stone-cutter earning as

much as $31.00/hour. The record before the trial court demonstrates that Demirci has

education, the ability to work, and over twenty-five years until the age of retirement.

       {¶37} We further note that payments made by Demirci’s insurance company

through the Adult Parole Authority would be credited against the balance of restitution

ordered. As this court has observed in another case, “[i]f the remorse he expressed at

the sentencing hearing, and his determination to fight his alcoholism, are genuine, he

should be able to lead a productive life upon release, and make the requisite

payments.” State v. Anderson, 172 Ohio App.3d 603, 2007-Ohio-3849, ¶26 (11th Dist.).

       {¶38} The second assignment of error is without merit.




                                            11
      {¶39} In the third assignment of error, Demirci contends the trial court erred by

failing to merge the convictions for Aggravated Vehicular Assault and Operating a

Vehicle Under the Influence of Alcohol as allied offenses of similar import.

      {¶40} “The concept of merger originates in the prohibition against cumulative

punishments as established by the Double Jeopardy clauses of the Fifth Amendment to

the United States Constitution and Section 10, Article I of the Ohio Constitution.” State

v. Miller, 11th Dist. No. 2009-P-0090, 2011-Ohio-1161, ¶35, citing State v. Williams, 124

Ohio St.3d 381, 2010-Ohio-147, ¶12. The United States Supreme Court has noted,

however, “[w]ith respect to cumulative sentences imposed at a single trial, the Double

Jeopardy Clause does no more than prevent the sentencing court from prescribing

greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359,

366 (1983); accord State v. Johnson, 128 Ohio St.3d153, 2010-Ohio-6314, ¶25.

      {¶41} Ohio’s merger statute, R.C. 2941.25, provides, in relevant part:

      {¶42} “Where the same conduct by defendant can be construed to constitute two

or more allied offenses of similar import, the indictment or information may contain

counts for all such offenses, but the defendant may be convicted of only one.”

      {¶43} In order to commit the crime of Aggravated Vehicular Assault, one must,

while operating a motor vehicle, cause serious physical harm “[a]s the proximate result

of committing a violation of division (A) of section 4511.19 of the Revised Code,” i.e.,

Operating a Vehicle Under the Influence of Alcohol. R.C. 2903.08(A)(1)(a).

      {¶44} Furthermore, R.C. 2929.41(B)(3) provides, in relevant part:

      {¶45} A jail term or sentence of imprisonment imposed for a

             misdemeanor violation of section 4510.11, 4510.14, 4510.16,




                                            12
              4510.21, or 4511.19 of the Revised Code shall be served

              consecutively to a prison term that is imposed for a felony violation

              of section 2903.06, 2903.07, 2903.08, or 4511.19 of the revised

              code or a felony violation of section 2903.04 of the Revised Code

              involving the operation of a motor vehicle by the offender and that

              is served in a state correctional institution when the trial court

              specifies that it is to be served consecutively. (Emphasis added.)

      {¶46} In State v. Bayer, 10th Dist. No. 11AP-733, 2012-Ohio-5469, the Tenth

Appellate District addressed the issue of whether merger is required, in light of R.C.

2929.41(B)(3), when a defendant is convicted of aggravated vehicular assault, in

violation of R.C. 2903.08, and operating a vehicle under the influence of alcohol, in

violation of R.C. 4511.19.       The court in Bayer concluded, pursuant to R.C.

2929.41(B)(3), a trial court possesses the discretion to sentence a defendant for both of

these crimes. The Bayer court noted that the statutory language evinces a legislative

intent to permit cumulative punishments where a defendant is found guilty of both

aggravated vehicular assault and operating a vehicle under the influence. Id. at ¶19-22.

Thus, the court found, the language of R.C. 2929.41(B)(3) demonstrates that these

potentially allied offenses are outside the gamut of R.C. 2941.25.. Id. The Bayer court

summarized:

      {¶47} [W]here a defendant is found guilty of operating a motor vehicle

              while intoxicated and is also found guilty of aggravated vehicular

              assault, that defendant may be found guilty and sentenced on both.

              Assuming, arguendo, that OVI and AVA are allied offenses, R.C.




                                           13
              2929.41(B)(3) creates an exception to the general rule provided in

              R.C. 2941.25 that allied offenses must be merged so that a

              defendant may be convicted, i.e., found guilty and sentenced, on

              either the OVI or the AVA, but not both.

      {¶48} We agree with the Tenth District’s interpretation of R.C. 2929.41(B)(3).

      {¶49} In this case, the trial judge entered convictions for both aggravated

vehicular assault and operating a vehicle under the influence of alcohol and ordered

them to be served concurrently, an act, in this court’s view, that is authorized by the

discretion afforded the court under R.C. 2929.41(B)(3). We therefore conclude the trial

court did not err when it did not merge Demirci’s convictions for aggravated vehicular

assault and operating a vehicle under the influence of alcohol for purposes of

sentencing.

      {¶50} The third assignment of error is without merit.

      {¶51} For the foregoing reasons, the judgment of the Lake County Court of

Common Pleas is affirmed.



THOMAS R. WRIGHT, J., concurs,

DIANE V. GRENDELL, J., concurs in part, and dissents in part, with a Dissenting

Opinion.

                                  ________________


DIANE V. GRENDELL, J., concurs in part, and dissents in part, with a Dissenting

Opinion.




                                           14
       {¶52} I concur in the judgment and opinion of this court with respect to the first

two assignments of error. With respect to the third assignment of error, I dissent and

would reverse the judgment of the trial court so as to require the merger of the

convictions for Aggravated Vehicular Assault and Operating a Vehicle Under the

Influence of Alcohol.

       {¶53} In the third assignment of error, Demirci argued the trial court erred by

failing to merge the convictions for Aggravated Vehicular Assault and Operating a

Vehicle Under the Influence of Alcohol, under Ohio’s multiple counts/allied offenses of

similar import statute, R.C. 2941.25.

       {¶54} The Ohio General Assembly’s intent on the subject of cumulative

punishments for the same conduct is expressed by R.C. 2941.25, the multiple counts or

allied offenses of similar import statute, which “manifests the General Assembly’s intent

to permit, in appropriate cases, cumulative punishments for the same conduct.” State v.

Rance, 85 Ohio St.3d 632, 710 N.E.2d 699 (1999), paragraph three of the syllabus,

overruled in part on other grounds by State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-

6314, 942 N.E.2d 1061.1 The allied offenses statute addresses the issue of “whether

cumulative punishments imposed within a single trial for more than one offense

resulting from the same criminal conduct violate the federal and state constitutional

provisions against double jeopardy.” Id. at 639. “The sole question, then, is one of

state statutory construction: are the offenses at issue those certain offenses for which




1. The Ohio Supreme Court in Johnson overruled Rance “to the extent that it calls for a comparison of
statutory elements solely in the abstract under R.C. 2941.25.” 2010-Ohio-6314, at ¶ 44. The third
paragraph of the syllabus in Rance, therefore, remains unaffected, including the proposition that “R.C.
2941.25’s two-step test answers the constitutional and state statutory inquiries.” 85 Ohio St.3d 632, at
paragraph three of the syllabus.


                                                  15
the General Assembly has approved multiple convictions pursuant to R.C. 2941.25?”

Id.

      {¶55} Ohio’s multiple counts statute provides:

      {¶56} (A)     Where the same conduct by defendant can be construed to

             constitute two or more allied offenses of similar import, the

             indictment or information may contain counts for all such offenses,

             but the defendant may be convicted of only one.

      {¶57} (B)     Where the defendant’s conduct constitutes two or more

             offenses of dissimilar import, or where his conduct results in two or

             more offenses of the same or similar kind committed separately or

             with a separate animus as to each, the indictment or information

             may contain counts for all such offenses, and the defendant may be

             convicted of all of them.

R.C. 2941.25.

      {¶58} Demirci      pled      guilty   to    Aggravated   Vehicular   Assault,   R.C.

2903.08(A)(1)(a), as charged in Count One of the Indictment: “VOLKAN DEMIRCI did,

while operating a vehicle * * *, cause serious physical harm * * * as the proximate result

of committing a violation of R.C. Section 4511.19(A) * * *: Operating a Vehicle Under the

Influence of Alcohol.”   Demirci also pled guilty to the underlying predicate offense,

Operating a Vehicle Under the Influence of Alcohol, R.C. 4511.19(A)(1)(b), as charged

in Count Five of the Indictment.




                                                 16
      {¶59} As several courts have recognized, Aggravated Vehicular Assault is an

allied offense of similar import, under R.C. 2941.25, to the underlying offense of

Operating a Vehicle Under the Influence of Alcohol.

      {¶60} Conduct that constitutes the offense of aggravated vehicular

             assault, R.C. 2903.08(A)(1)(a), necessarily also constitutes the

             offense of operation of a vehicle while under the influence of

             alcohol * * *, because commission of that predicate offense is a

             necessary component of the resulting aggravated vehicular assault

             offense.   Because the predicate offense is subsumed into the

             resulting offense, the two are allied offenses of similar import for

             purposes of R.C. 2941.25(A). * * * Defendant may be convicted of

             only one, unless the two offenses were committed separately or

             with a separate animus as to each. R.C. 2941.25(B).

State v. West, 2nd Dist. No. 23547, 2010-Ohio-1786, ¶ 43-44; State v. Mendoza, 6th

Dist. No. WD-10-008, 2012-Ohio-5988, ¶ 10; State v. Phelps, 12th Dist. No. CA2009-

09-243, 2010-Ohio-3257, ¶ 32.

      {¶61} The majority concludes that a sentencing court has “discretion” as to

whether the trial court may enter separate convictions for Aggravated Vehicular Assault

and its underlying predicate offense of Operating a Vehicle Under the Influence of

Alcohol. Supra at ¶ 49. I disagree.

      {¶62} The majority’s decision is based solely on the recent Tenth District Court

of Appeals decision, State v. Bayer, 10th Dist. No. 11AP-733, 2012-Ohio-5469.




                                          17
       {¶63} The Tenth District acknowledged that, under the multiple counts statute,

the State may charge a defendant with two or more offenses of similar import, but may

only obtain one conviction. Id. at ¶ 19. The court further noted that, “where other more

specific legislative statements of legislative intent exist, a court may consider those

statements in determining whether the General Assembly intended to allow imposition

of cumulative punishments for allied offenses.” Id. The court found a statement of

“more specific” legislative intent in R.C. 2929.41(B)(3): “A jail term or sentence of

imprisonment imposed for a misdemeanor violation of * * * 4511.19 of the Revised Code

shall be served consecutively to a prison term that is imposed for a felony violation of * *

* 2903.08 * * * of the Revised Code * * * when the trial court specifies that it is to be

served consecutively.”

       {¶64} The Tenth District construed the statutes as follows:

       {¶65} The General Assembly * * * clearly reflected its intent that a trial

              court may, in its discretion, sentence a defendant for both OVI and

              AVA. That intent conflicts with the intent reflected in R.C. 2941.25.

              That is, R.C. 2929.41 evidences the intent of the legislature that

              those two offenses should not merge‒a conclusion that necessarily

              follows from the fact that a trial court could not order sentences to

              be served consecutively unless the court had first imposed more

              than just one sentence.

Id. at ¶ 21. The court of appeals concluded that “the trial court had the discretion,

pursuant to R.C. 2929.41(B)(3), to enter convictions of both OVI and AVA and to

sentence appellant to serve consecutive sentences for those two crimes.” Id. at ¶ 22.




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      {¶66} The Bayer decision is not persuasive.         The statute relied upon, R.C.

2929.41, addresses the issue of whether sentences may be served concurrently or

consecutively, not whether allied offenses must be merged. The idea that trial courts

have discretion as to whether allied offenses should merge is dubious. The General

Assembly established the constitutional parameters for imposing multiple punishments

for the same offense in R.C. 2941.25, not R.C. 2929.41. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, 942 N.E.2d 1061, at ¶ 26 (a “defendant is not placed in jeopardy twice

for the same offense so long as courts properly apply R.C. 2941.25 to determine the

intent of the General Assembly with regard to the merger of offenses”).          A careful

consideration of the Ohio Supreme Court’s jurisprudence demonstrates this point.

      {¶67} The Ohio Supreme Court has stated that merger, for the purposes of R.C.

2941.25, occurs after a verdict is returned (or plea entered) and before sentencing.

“Allied offenses of similar import do not merge until sentencing, since a conviction

consists of verdict and sentence.” State v. McGuire, 80 Ohio St.3d 390, 399, 686

N.E.2d 1112 (1997); Johnson at ¶ 47 (“[u]nder R.C. 2941.25, the court must determine

prior to sentencing whether the offenses were committed by the same conduct”). If the

trial court must apply R.C. 2941.25 prior to sentencing, it does not “necessarily” follow,

as the Tenth District concluded, that R.C. 2929.41(B)(3) constitutes an exception to the

multiple counts statute, inasmuch as R.C. 2929.41(B)(3) could only apply to allied

offenses where the offenses are committed separately and/or with a separate animus.

      {¶68} In    other   words,   the   situation   addressed   in   R.C.   2929.41(B)(3)

presupposes separate convictions and sentences for Aggravated Vehicular Assault and

Operating a Vehicle Under the Influence of Alcohol. As the Bayer court surmised, “a




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trial court could not order sentences to be served consecutively unless the court had

first imposed more than just one sentence.” 2012-Ohio-5469, at ¶ 21. The multiple

counts statute, as shown above, is applied prior to sentencing and prevents separate

convictions from being entered.

      {¶69} In State v. Green, 11th Dist. No. 2011-L-037, 2012-Ohio-2355, this court

applied such reasoning to reject the State’s argument that R.C. 2929.14(E)(3) mandates

that a conviction for Grand Theft must be served consecutively to any other prison

terms imposed, including those for allied offenses.     We held: “The imposition of a

mandatory consecutive sentence for Grand Theft is conditional upon the offender’s

conviction for Grand Theft. As noted above, the merger of allied offenses occurs at the

time of sentencing, i.e., prior to conviction ‘since a conviction consists of verdict and

sentence.’ McGuire, 80 Ohio St.3d at 399, 686 N.E.2d 1112.” Id. at ¶ 67.

      {¶70} The position that R.C. 2929.41 does not constitute an exception to the

multiple counts statute is further supported by the Ohio Supreme Court’s decision in

State v. Moss, 69 Ohio St.2d 515, 433 N.E.2d 181 (1982).

      {¶71} In Moss, the Supreme Court construed both statutes at issue herein. The

court recognized that “R.C. 2929.41 does empower trial courts, in a single criminal

proceeding, to sentence defendants to serve consecutive terms of imprisonment for the

violation of more than one criminal statute.” Id. at 518. But, rather than finding that

R.C. 2929.41 was an exception to the constitutional limitations expressed in R.C.

2941.25, the court found R.C. 2929.41 was subject to those limitations. “The trial

court’s discretion to order such cumulative sentences is not, however, constitutionally




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unbridled. The General Assembly must have, in effect, authorized the imposition of the

consecutive sentences.” Id. at 518-519.

      {¶72} In considering whether the imposition of consecutive sentences under

R.C. 2929.41 was duly authorized, the Supreme Court looked to the multiple counts

statute. The court concluded: “The General Assembly then has authorized trial courts,

in a single criminal proceeding, to convict and to sentence a defendant for two or more

offenses, having as their genesis the same criminal conduct or transaction, provided

that the offenses (1) were not allied and of similar import, (2) were committed separately

or (3) were committed with a separate animus as to each offense.” Id. at 519.

      {¶73} In the present case, the offenses of Aggravated Vehicular Assault and

Operating a Vehicle Under the Influence of Alcohol offenses were allied offenses and

were not committed separately or with a separate animus. Accordingly, they should

have been merged prior to the imposition of sentence, according to R.C. 2941.25.

Since only one conviction could have been entered, the question of whether the trial

court could exercise its discretion to impose concurrent or consecutive sentences under

R.C. 2929.41 does not arise. Demirci’s convictions should be reversed and this case

remanded for merger and resentencing.

      {¶74} For the foregoing reasons, I respectfully dissent.




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