[Cite as State v. Presley, 2013-Ohio-3762.]




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

STATE OF OHIO                                     :      Appellate Case No. 25511
                                                  :
        Plaintiff-Appellant                       :      Trial Court Case No. 2011-CR-3324
                                                  :
v.                                                :      (Criminal Appeal from
                                                  :      Common Pleas Court
JAS N. PRESLEY                                    :
                                                  :
        Defendant-Appellee                        :

                                              ...........

                                               OPINION

                             Rendered on the 30th day of August, 2013.


                                              ...........




MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. #0061560, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45222
      Attorney for Plaintiff-Appellant


ANDREW ANASTASI, Atty Reg. #0088440, McClain Anastasi, L.L.C., 70 Birch Alley,
Suite 240, Beavercreek, Ohio 45440
       Attorney for Defendant-Appellee
[Cite as State v. Presley, 2013-Ohio-3762.]
                                              ...........

CELEBREZZE, JR., J. (By Assignment):

        {¶1} Pursuant to R.C. 2945.67(A), the state of Ohio seeks review of the sentence

imposed on appellee, Jas N. Presley, after being found guilty of leaving the scene of an

accident. The state argues the trial court erred in finding that convicting Presley of a

third-degree felony would constitute cruel and unusual punishment in violation of the Eighth

Amendment to the U.S. Constitution. After a thorough review of the record and law, we

agree with the state, but recognize that this court may not change Presley’s conviction

because to do so would violate principles of Double Jeopardy.

                                I. Factual and Procedural History

        {¶2} On July 4, 2011, Presley was driving a car in a residential area. Tragically, a

seven-year-old girl ran into the street in front of Presley’s vehicle. He attempted to stop but

was unable to stop in time and struck the girl, killing her. Presley’s stop lasted only briefly.

 Mere moments after hitting the girl, Presley sped from the scene of the accident.

Approximately thirty minutes after the accident, after talking with his mother, he turned

himself in to the police. Presley was not intoxicated and was otherwise driving lawfully at

the time of the accident. In statements made to the police, Presley admitted hitting the girl

and leaving because he was shocked and scared. However, at trial he testified he was

scared that he would be harmed by people who witnessed the accident and were rushing

toward the car.

        {¶3} Presley was indicted on one count of third-degree felony leaving the scene of an

accident in violation of R.C. 4549.02. He waived a jury trial, and a bench trial commenced

on August 27, 2012. Throughout trial, the court’s unease with the case was apparent and,
                                                                                           3


after closing arguments, the court sua sponte asked the parties for briefs regarding the

constitutionality of R.C. 4549.02. After receiving briefs, the trial court issued a written

decision finding that R.C. 4549.02(B) violated the Eighth Amendment because the elevation

of the crime from a first-degree misdemeanor to a third-degree felony based solely on the

fact that someone died as a result of the accident and not as a result of an individual’s

decision to leave the scene was impermissible. The trial court found Presley guilty of

misdemeanor leaving the scene of an accident, but not the enhancing portion that made it a

third-degree felony. The court then sentenced him to community control.

       {¶4} The state sought leave to appeal the decision, which was granted by this court.

The state seeks review of the following assigned error:

       The trial court erred by ruling that R.C. 4549.02(B) violates the Eight

       Amendment’s prohibition against cruel and unusual punishment.


                                   II. Law and Analysis

                           A. Cruel and Unusual Punishment

       {¶5} R.C. 4549.02(A) provides,

               In case of accident to or collision with persons or property upon any

       of the public roads or highways, due to the driving or operation thereon of

       any motor vehicle, the person driving or operating the motor vehicle, having

       knowledge of the accident or collision, immediately shall stop the driver's or

       operator's motor vehicle at the scene of the accident or collision and shall

       remain at the scene of the accident or collision until the driver or operator has

       given the driver's or operator's name and address and, if the driver or operator
                                                                                         4


       is not the owner, the name and address of the owner of that motor vehicle,

       together with the registered number of that motor vehicle, to any person

       injured in the accident or collision or to the operator, occupant, owner, or

       attendant of any motor vehicle damaged in the accident or collision, or to any

       police officer at the scene of the accident or collision.


               In the event the injured person is unable to comprehend and record the

       information required to be given by this section, the other driver involved in

       the accident or collision forthwith shall notify the nearest police authority

       concerning the location of the accident or collision, and the driver's name,

       address, and the registered number of the motor vehicle the driver was

       operating, and then remain at the scene of the accident or collision until a

       police officer arrives, unless removed from the scene by an emergency

       vehicle operated by a political subdivision or an ambulance.


       {¶6} R.C. 4549.02(B) makes one’s failure to stop a third-degree felony where the

accident results in the death of another. The trial court found “this enhancement to a felony

of the third degree when, as here, the death was in no way caused by the offense charged, is

disproportionate to the fault committed by the Defendant, and thus violative of the Eighth

Amendment to the United States Constitution.” The trial court erred in declaring R.C.

4549.02(B) unconstitutional. The state, pursuant to R.C. 2945.67, sought and was granted

leave to appeal this determination.
                                                                                            5


       {¶7} The Eighth Amendment states, “[e]xcessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.” What constitutes

cruel and unusual punishment has been the subject of much debate in recent years. The

recent Supreme Court jurisprudence in this area has mainly focused on capital punishment,

mandatory life sentences, and life sentences for juvenile defendants.         For non-capital,

non-life-sentence punishments, the Eighth Amendment offers very little in the way of a

check on the legislature’s ability to affix penalties to crimes. Justice Scalia even went so far

as to assert that there is no proportionality aspect to the Eighth Amendment. Harmelin v.

Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). While his view is not

the predominant one on the Court, the view held by Justice Kennedy is not much more

favorable of the proposition. In Harmelin, Justice Kennedy’s concurring opinion, joined by

Justices O’Connor and Souter, indicates that there exists a very narrow proportionality

element within the Eighth Amendment that only applies to grossly disproportionate

penalties. However,

       the fixing of prison terms for specific crimes involves a substantive

       penological judgment that, as a general matter, is “properly within the

       province of legislatures, not courts.” [Rummel v. Estelle, 445 U.S. 263,

       275-276, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980)]. Determinations about the

       nature and purposes of punishment for criminal acts implicate difficult and

       enduring questions respecting the sanctity of the individual, the nature of law,

       and the relation between law and the social order. “As a moral or political

       issue [the punishment of offenders] provokes intemperate emotions, deeply
                                                                                       6


       conflicting interests, and intractable disagreements.” D. Garland, Punishment

       and Modern Society 1 (1990). The efficacy of any sentencing system cannot

       be assessed absent agreement on the purposes and objectives of the penal

       system. And the responsibility for making these fundamental choices and

       implementing them lies with the legislature. See Gore v. United States, 357

       U.S. 386, 393, 2 L.Ed.2d 1405, 78 S.Ct. 1280 (1958) (“Whatever views may

       be entertained regarding severity of punishment, whether one believes in its

       efficacy or its futility, * * * these are peculiarly questions of legislative

       policy”). Thus, “reviewing courts * * * should grant substantial deference to

       the broad authority that legislatures necessarily possess in determining the

       types and limits of punishments for crimes.” [Solem v. Helm, 463 U.S. 277,

       290, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)]. See also Rummel, supra, at 274

       (acknowledging “reluctance to review legislatively mandated terms of

       imprisonment”); [Weems v. United States, 217 U.S. 349, 379, 30 S.Ct. 544,

       54 L.Ed. 793 (1910)] (“The function of the legislature is primary, its

       exercises fortified by presumptions of right and legality, and is not to be

       interfered with lightly, nor by any judicial conception of their wisdom or

       propriety”).


Id. at 998-999 (Kennedy, J., concurring in part and concurring in judgment).

       {¶8} The Ohio Supreme Court has recognized that this conflicting and often debated

area of law is applicable only to the very rare case where the penalty imposed would be

“‘considered shocking to any reasonable person.’” State v. Weitbrecht, 86 Ohio St.3d 368,
                                                                                           7


371, 1999-Ohio-113, 715 N.E.2d 167, quoting McDougle v. Maxwell, 1 Ohio St. 2d 68, 70,

203 N.E.2d 334 (1964). Further, “[a]s a general rule, a sentence that falls within the terms

of a valid statute cannot amount to a cruel and unusual punishment.” McDougle at 69.

       {¶9} Our decision is guided by the Ohio Supreme Court’s treatment of a similar case

involving Ohio’s former involuntary manslaughter statute, R.C. 2903.04, which could

enhance the criminal penalties associated with a misdemeanor traffic violation by allowing

the state to additionally charge a third-degree felony where the misdemeanor resulted in the

death of another.      Weitbrecht at 370.     Similarly, appellee’s conviction under R.C.

4549.02(B) elevates the misdemeanor conviction of leaving the scene of an accident to a

third-degree felony where the accident results in the death of another.

       {¶10} In Weitbrecht, “[w]hile driving on Highway 62 on April 27, 1997, Nancy

Weitbrecht apparently suffered a cardiac event, lost consciousness, crossed left of center,

and collided with the Carroll vehicle. She lost her husband and a friend in the accident, and

must live with the fact that she also caused the death of Vera Carroll.” Id. at 374 (Pfeifer,

J., dissenting).   The trial court granted a motion to dismiss the charge of involuntary

manslaughter finding it violated the Eighth Amendment. The decision was affirmed by the

court of appeals, but was reversed by the Ohio Supreme Court.

       {¶11} The Weitbrecht court analyzed the United States Supreme Court’s

jurisprudence and recognized that “‘[t]he Eighth Amendment does not require strict

proportionality between crime and sentence. Rather, it forbids only extreme sentences that

are “grossly disproportionate” to the crime.’” Id. at 371-372, quoting Harmelin at 1001.
                                                                                          8


       {¶12} The Ohio Supreme Court found that the enhanced punishment is not cruel and

unusual because “[w]here human lives are lost, the gravity of the crime is serious and is not

lessened by the fact that the underlying crime consists of a minor misdemeanor.” Id at 373.

 Further, the court went on to note that the trial court could have imposed community

control or, if a prison sentence was imposed, granted judicial release. Id. It concluded,

“[u]nder these circumstances, we cannot say that the potential penalty for violating R.C.

2903.04(B) is ‘so greatly disproportionate to the offense as to shock the sense of justice of

the community.’” Id., quoting McDougle, 1 Ohio St.2d 68, 70, 203 N.E.2d 334 (1964).

       {¶13} Weitbrecht is precisely on point with the present situation. Here, the trial

court found that the culpability for enhanced punishment must be coupled with the cause of

the death of the victim. But this ignores the legitimate governmental interest in punishing

more severely those who flee the scene of a grave and serious accident versus those who

may flee from striking a parked, unoccupied car. Elevating the penalty to a third-degree

felony does not “shock the sense of justice of the community” where the crime itself is

elevated by the seriousness of the injuries involved. That is especially true here, as in

Weitbrecht, where the trial court could have imposed a lenient penalty, but chose instead to

take the drastic measure of declaring a statute unconstitutional. That decision was neither

warranted nor required to impose a proportionate sanction in this case. The Amendment

prohibits cruel and unusual punishment, but the trial court could have imposed the same

five-year community control sanction for a third-degree felony based on a downward

departure, as stated in R.C. 2929.13.

                                   B. Double Jeopardy
                                                                                             9


       {¶14} This determination offers little solace for the state because Presley’s finding of

guilt on a misdemeanor precludes this court from granting the relief which it seeks.

       {¶15} The state seeks to impose a penalty commensurate with a third-degree felony

conviction; Presley was found guilty of a first-degree misdemeanor. Imposing a felony

sentence for such a conviction would be contrary to law because this court cannot disturb the

conviction, and the trial court is only authorized by law to impose a sentence consistent with

the misdemeanor conviction.

       {¶16} Three cases demonstrate that such an outcome must result in this appeal:

State ex rel. Sawyer v. O’Connor, 54 Ohio St.2d 380, 377 N.E.2d 494 (1978); State v.

Pawelski, 178 Ohio App.3d 426, 2008-Ohio-5180, 898 N.E.2d 85 (2d Dist.); State v.

Hamilton, 97 Ohio App.3d 648, 647 N.E.2d 238 (3d Dist.1994).

       {¶17} In O’Connor, the state filed a mandamus action in the court of appeals after a

criminal trial court sua sponte found the defendant guilty of reckless operation of a motor

vehicle after the defendant pled no contest to driving under the influence. Id. at 381-382.

The state sought mandamus relief, arguing that the trial court’s actions constituted a gross

abuse of discretion and its limited rights to appeal such a decision created a manifest

injustice making mandamus relief appropriate. The Ohio Supreme Court disagreed. It

found that

       [t]he denial of the right to appeal a final judgment of the trial court in favor of

       the defendant in a criminal case is required by federal and Ohio constitutional

       protections against double jeopardy. The constitutional guarantees against
                                                                                            10


        double jeopardy cannot be frustrated by mandamus, even if the trial court

        ignored the law or facts in arriving at its verdict.


Id. at 382.

        {¶18} This appellate district has reached the same conclusion. In Pawelski, the

defendant was found not guilty of carrying a concealed weapon because, according to the

trial court, R.C. 4749.10 permitted a licensed, on-duty security guard to carry a weapon in

such a manner.       Id. at ¶ 1.      However, this court disagreed with the trial court’s

interpretation after the state appealed. The Pawelski court found the statute still required

the defendant to comply with Ohio’s concealed carry statute. However, notwithstanding the

trial court’s erroneous application of the law, this court determined that “the acquittal of this

defendant is affirmed inasmuch as he cannot be twice put in jeopardy.” Id. at ¶ 28, citing

State v. Hensley, 2d Dist. Montgomery No. 18886, 2002-Ohio-1887.

        {¶19} Finally, the Third District found that the court erred in sua sponte ruling that a

search of a defendant’s van was unlawful and then entering a judgment of acquittal.

Hamilton, 97 Ohio App.3d 648, 647 N.E.2d 238. The defendant had pled no contest to the

charge of transporting a loaded firearm in a motor vehicle, but the trial court found that the

officer had no basis to stop the defendant’s vehicle. Id. at 650. That court found that the

trial court violated the state’s rights under R.C. 2945.67 and Crim.R. 12(J). However, it

also determined that double jeopardy provisions precluded a retrial. Id. at 651.

        {¶20} This is so because the state’s right to appeal decisions in criminal cases is

limited to comply with constitutional prohibitions against double jeopardy. As a result, “a

court of appeals has discretionary authority pursuant to R.C. 2945.67(A) to decide whether
                                                                                           11


to review substantive law rulings made in a criminal case which results in a judgment of

acquittal so long as the verdict itself is not appealed.” State v. Bistricky, 51 Ohio St.3d 157,

160, 555 N.E.2d 644 (1990).

       {¶21} Here, the state’s brief challenges the sentence imposed, but, in reality, it is

seeking to have this court overturn the trial court’s acquittal on third-degree felony leaving

the scene of an accident. That is something this court cannot do.



                                      III. Conclusion

       {¶22} The trial court erred in finding R.C. 4549.02(B) unconstitutional. The state’s

assignment of error is sustained.     However this court cannot alter the conviction and

sentence as the state wishes. Therefore, they are affirmed.

       Judgment affirmed.

                                         ...........

DONOVAN and HALL, JJ., concur.

(Hon. Frank D. Celebrezze, Jr., Eighth District Court of Appeals, sitting by assignment of
the Chief Justice of the Supreme Court of Ohio).




Copies mailed to:


Mathias H. Heck, Jr.
R. Lynn Nothstine
Andrew Anastasi
Hon. Gregory F. Singer
