[Cite as State v. O'Keefe, 2019-Ohio-841.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                             LAKE COUNTY, OHIO


 STATE OF OHIO,                                        :        OPINION

                  Plaintiff-Appellee,                  :
                                                                CASE NO. 2018-L-088
         - vs -                                        :

 JOSHUA T. O’KEEFE,                                    :

                  Defendant-Appellant.                 :


 Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2017 CR
 000810.

 Judgment: Affirmed.


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

 Hector G. Martinez, and Leslie S. Johns, The Martinez Firm, 4230 State Route 306,
 Suite 240, Willoughby, OH 44094 (For Defendant-Appellant).



MARY JANE TRAPP, J.

        {¶1}      Joshua T. O’Keefe appeals the nine-year sentence imposed by the Lake

County Court of Common Pleas.                  At issue is whether the sentence for aggravated

vehicular homicide is disproportionate and inconsistent with other similar cases and

whether the trial court erred in imposing the 180-day maximum term of imprisonment for

operating a vehicle under the influence of alcohol (“OVI”). After a careful review of the
record and pertinent law, we find Mr. O’Keefe’s assignments of error without merit and

affirm the trial court’s judgment.

                       Substantive History and Procedural Background

       {¶2}   Mr. O’Keefe’s convictions stem from the devastating consequences of

driving under the influence of alcohol. Mr. O’Keefe and his friend, Taylor Castilyn, had

been drinking at a local bar despite the fact that Ms. Castilyn was underage. When they

left the bar in Mr. O’Keefe’s father’s car, Mr. O’Keefe was driving under suspension and

over the legal blood alcohol limit, so when he failed to yield at a stop sign and was being

pursued by the police, he made the decision to flee. In an attempt to elude the officer,

Mr. O’Keefe turned into an unlighted private driveway, turned off the lights to the vehicle,

but continued driving at a high rate of speed. His car left the driveway, crashed through

one section of fence, turned, and crashed through another section of fence. A cross bar

from the fence smashed through the passenger side window into Ms. Castilyn’s face and

head, causing catastrophic injuries to her face, skull and brain. She later succumbed to

those injuries at the hospital.

       {¶3}   Mr. O’Keefe voluntarily entered a written plea of “guilty” to the charge of

aggravated vehicular homicide, a second degree felony in violation of R.C.

2903.01(A)(1)(a); failure to comply with an order or signal of a police officer, a third degree

felony in violation of R.C. 2921.331(B); and operating a vehicle under the influence of

alcohol, a drug of abuse, or a combination of them (“OVI”), a first degree misdemeanor in

violation of R.C. 4511.19(A)(1)(a).

       {¶4}   The court accepted Mr. O’Keefe’s guilty plea, finding that he waived his right

to have the case presented to the grand jury and agreed to proceed by way of information.

The court then deferred the sentencing hearing until May 21, 2018. A pre-sentence

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investigation and report, a victim impact statement, and a drug and alcohol evaluation

were ordered.

       {¶5}     At the sentencing hearing, four members from Mr. O’Keefe’s family and the

community gave oral statements and Mr. O’Keefe’s counsel presented an extensive

sentencing memorandum together with 91 letters of support. In turn, the state presented

victim impact statements, both written and oral, including four members of Ms. Castilyn’s

family describing the loss of her love and their recommendation for a maximum prison

term. The state advocated the maximum term of 11 and a half years.

       {¶6}     In imposing its sentence, the court stated that in addition to the record, oral

statements, the victim impact statements, the pre-sentence reports, and the drug and

alcohol evaluation, it considered the purposes and principles of felony sentencing as set

forth in R.C. 2929.11, as well as those of misdemeanor sentencing as set forth in R.C.

2929.21, including those related to the seriousness of the crime and the likelihood that

Mr. O’Keefe will commit crimes in the future.

       {¶7}     The court found the crimes to be more serious than normal because the

victim suffered “very serious, severe, physical harm” and “suffering” that resulted in the

loss of Ms. Castilyn’s life. The court also considered the suffering of her family. The court

then determined that Mr. O’Keefe’s relationship with his victim facilitated the commission

of the crime.

       {¶8}     In reviewing factors making recidivism more likely, the court noted that Mr.

O’Keefe had been driving intoxicated that night while under suspension, and moreover,

his conviction record included eight misdemeanor traffic offenses within four years, which

was indicative of “disrespect and disregard of law.” The court also reviewed factors that

would indicate recidivism less likely: Mr. O’Keefe voluntarily entered a guilty plea by way

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of information, accepted responsibility, and showed genuine remorse for the criminal

conduct and the consequences of his conduct. In addition, the trial court considered that

Mr. O’Keefe has no prior delinquency other than the traffic offenses and no history of

criminal convictions.

         {¶9}   Finally, the trial court observed there were mistakes and lapses in judgment,

but also “a conscious effort,” noting “[i]t wasn’t a mistake to attempt to flee and elude the

police.” While the trial court accepted the fact that Mr. O’Keefe was not likely to reoffend,

it noted the court also has the responsibility to deter others from future crimes.

         {¶10} Ultimately, the trial court sentenced Mr. O’Keefe to a mandatory, definite

term of 7 years with respect to the aggravated vehicular homicide, a definite term of 18

months with respect to fleeing from an order or signal of a police officer, and 6 months

with respect to the OVI, all to run consecutively to one another, for a total term of

imprisonment of 9 years due to the serious nature of Mr. O’Keefe’s conduct.

         {¶11} Mr. O’Keefe timely appealed, and now brings the following assignments of

error:

         {¶12} “[1.]   The trial court erred when it sentenced Appellant in a manner

inconsistent and disproportionate with other, similar Ohio Cases.

         {¶13} “[2.] The trial court erred when it sentenced Appellant to a maximum jail

term of 180 days for one (1) count of Operating a Vehicle Under the Influence of Alcohol.”

                                        Felony Sentencing

         {¶14} In his first assignment of error, Mr. O’Keefe contends the trial court erred

when it sentenced Mr. O’Keefe to a nine-year term of imprisonment in that the sentence

is inconsistent and disproportionate to similar crimes.

                                        Standard of Review

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       {¶15} “The Supreme Court of Ohio in State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, held that appellate courts must apply the standard of review set forth in R.C.

2953.08(G)(2) when reviewing felony sentences.” State v. Talley, 11th Dist. Lake Nos.

2017-L-143 & 2017-L-144, 2018-Ohio-5065, ¶45, quoting Marcum at ¶1. “Thus, applying

the plain language of that statute, the Supreme Court held that ‘an appellate court may

vacate or modify a felony sentence on appeal only if it determines by clear and convincing

evidence that the record does not support the trial court’s findings under relevant statutes

or that the sentence is otherwise contrary to law.’” Id. “The clear and convincing standard

in R.C. 2953.08(G)(2) is highly deferential.”      Id., quoting State v. Venes, 8th Dist.

Cuyahoga No. 98682, 2013-Ohio-1891, ¶21.

       {¶16} Moreover, the Supreme Court of Ohio in State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, held that R.C. 2929.11 and R.C. 2929.12 do not “mandate judicial fact-

finding; rather in exercising its discretion, a court is merely required to ‘consider’ the

purposes of sentencing in R.C. 2929.11 and the statutory guidelines and factors set forth

in R.C. 2929.12.” State v. Lloyd, 11th Dist. Lake No. 2006-L-185, 2007-Ohio-3013, ¶44,

citing Foster at ¶36-42.

       {¶17} Further, “sentencing consistency is not derived from the trial court’s

comparison of the current case to prior sentences for similar offenders and similar

offenses.” Id. at ¶51, citing State v. Spellman, 160 Ohio App.3d 718, 2005-Ohio-2065,

¶12 (11th Dist.).   “Instead, ‘it is the trial court’s proper application of the statutory

sentencing guidelines that ensures consistency.’” Id., quoting State v. Swiderski, 11th

Dist. Lake No. 2004-L-112, 2005-Ohio-6705, ¶58. “Thus, in order to show a sentence is

inconsistent, a defendant must show the trial court failed to properly consider the statutory

guidelines and factors.” Id.

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                          Consistency and Proportionality in Sentencing

          {¶18} Mr. O’Keefe contends that his nine-year term of imprisonment is

inconsistent and disproportionate with similar, other crimes because the trial court failed

to properly consider the “more serious” and “less serious” factors found in R.C.

2929.12(B) and (C).

          {¶19} A review of the sentencing hearing transcript and the trial court’s judgment

entry reveals this argument is without merit. As noted above, the trial court expressly

addressed the factors that indicated recidivism more and less likely as well as the

seriousness of the crime. This includes those factors Mr. O’Keefe argues should have

been given more weight, such as the oral and written statements in his support, the

voluntariness of his plea, and the Ohio Risk Assessment System Analysis that indicated

Mr. O’Keefe is less likely to reoffend in the future. Indeed, the court thoroughly and

conscientiously weighed each factor, specifically discussing each of these during the

hearing, more than satisfying its statutory obligation.

          {¶20} Quite simply, the trial court satisfies its obligation to consider the

seriousness and recidivism factors by stating that it considered them. Lloyd at ¶44.

“‘[T]he trial court is not obligated * * * to give any particular weight or consideration to any

* * * sentencing factor.’” State v. Spencer, 11th Dist. Trumbull No. 2017-T-0117, 2018-

Ohio-4276, ¶46, quoting State v. Pishner, 11th Dist. Portage No. 2017-P-0004, 2017-

Ohio-8689, ¶20, quoting State v. Holin, 174 Ohio App.3d 1, 2007-Ohio-6255, ¶34 (11th

Dist.).

          {¶21} There is nothing in this record indicating that the nine-year sentence in this

case, less than the maximum possible sentence of 11 and a half years, is contrary to law.

          {¶22} Mr. O’Keefe’s first assignment of error is without merit.

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                                   Misdemeanor Sentencing

       {¶23} Mr. O’Keefe next argues that the trial court erred in sentencing him to the

maximum term of 180 days imprisonment for one count of OVI.

                                      Standard of Review

       {¶24} “Misdemeanor sentencing is within the discretion of the trial court and a

sentence will not be disturbed absent an abuse of discretion.” State v. Corbissero, 11th

Dist. Ashtabula No. 2011-A-0028, 2012-Ohio-1449, ¶53, quoting Conneaut v.

Peaspanen, 11th Dist. Ashtabula No. 2004-A-053, 2005-Ohio-4658, ¶18, citing State v.

Wagner, 80 Ohio App.3d 88, 95-96 (12th Dist.1992). “* * * [T]he term ‘abuse of discretion’

is one of art, ‘connoting judgment exercised by a court, which does not comport with

reason or the record.’” Id., citing State v. Underwood, 11th Dist. Lake No. 2008-L-113,

2009-Ohio-2089, ¶30, citing State v. Ferranto, 112 Ohio St. 667, 676-678 (1925). Stated

differently, an “abuse of discretion,” is the trial court’s “failure to exercise sound,

reasonable, and legal decision-making.” Id., citing State v. Beechler, 2d Dist. Clarke No.

09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary 11 (8th Ed.2004).

       {¶25} “In fashioning an appropriate sentence in a misdemeanor case, the trial

court must consider the factors set forth under R.C. 2929.22. Those factors include: the

nature and circumstances of the offense; whether the offender has a history of criminal

behavior and the likelihood of recidivism; whether there is a substantial risk the offender

will be a danger to others; whether the offender’s conduct has been characterized by a

pattern of ‘repetitive, compulsive, or aggressive behavior with heedless indifference to the

consequences;’ and whether the victim’s age, disability or other factor made him or her

more vulnerable. R.C. 2929.22(B)(1)(a)-(e).” Id. at ¶54, quoting City of Conneaut v.

Coleman, 11th Dist. Ashtabula No. 2010-A-0062, 2011-Ohio-5099, ¶22.

                                             7
       {¶26} “A trial court’s failure to consider the R.C. 2929.22 factors amounts to an

abuse of discretion.” Id. at ¶55, See State v. Rogers, 11th Dist. Trumbull Nos. 2009-T-

0051 & 2009-T-0052, 2010-Ohio-197, ¶11. “Absent a showing otherwise, however, if the

sentence lies within the statutory limit, a reviewing court will presume that the trial judge

followed the standards required by the statute.” Id., citing State v. Peppeard, 11th Dist.

Portage No. 2008-P-0058, 2009-Ohio-1648, ¶75. “A silent record raises the presumption

that the trial court considered all of the factors.” Id. “Further, there is no requirement that

the court state on the record it considered the statutory sentencing criteria.” Id., citing

State v. Kish, 11th Dist. Lake No. 2010-L-138, 2011-Ohio-4172, ¶8, citing Peaspanen at

¶29.

       {¶27} No evidence in the record suggests that the trial court failed to consider the

required statutory factors, nor does Mr. O’Keefe point to anything in the record that would

lead this court to believe the trial court abused its discretion. As noted in the first

assignment of error, the trial court amply reviewed all relevant factors in imposing Mr.

O’Keefe’s sentence.

       {¶28} Mr. O’Keefe specifically takes issue with the modification of his sentence

during the hearing due to a misstatement on the state’s part during a pre-sentence

conference in chambers, regarding whether the sentence on the OVI charge must run

consecutive to the aggravated vehicular homicide sentence.

       {¶29} The court initially stated during the hearing “[A]nd I specifically find that

consecutive sentences were not disproportionate to the seriousness of the Defendant’s

conduct and to the danger he poses to the public. And again as matter of law because

of the nature of the failure to comply, Count 1 and 2 will be served consecutive to each

other; Count 3 [the OVI charge] will be serv[ed] [sic] concurrent with the other two. The

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total prison term effectively will be 9 years in prison, 7 years of which are mandatory as a

matter of law. * * *.”

       {¶30} After being informed of the requirement, the court stated, “All right. Well,

no, if it’s go[t] [sic] to be sentenced that way, I will make the modification. And what we’ll

do is we’re still going to do the 9 years. So, we will make Count 2, 18 months instead of

24, and we’ll make the OVI 6 months, and it will all be run consecutive. But the end result

is still going to be the same, 9 years.”

       {¶31} Clearly, correcting the sentence without altering the term imposed to

accurately reflect the change of plea agreement is not an abuse of discretion. Upon

notification of the error, the court merely amended the sentence to comply with the

statutory requirements without affecting the total time to be served.

       {¶32} Mr. O’Keefe’s second assignment of error is without merit.

       {¶33} For the foregoing reasons, we affirm the judgment and sentence of the Lake

County Court of Common Pleas.



THOMAS R. WRIGHT, P.J.,

MATT LYNCH, J.,

concur.




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