[Cite as State v. Carson, 2015-Ohio-4183.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 102424



                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                        ELLA CARSON
                                                       DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-588651-A

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

        RELEASED AND JOURNALIZED: October 8, 2015
ATTORNEY FOR APPELLANT

Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

Gregory Paul
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, P.J.:

       {¶1} The court ordered defendant-appellant Ella Carson to serve maximum

eight-year sentences on two counts of aggravated vehicular assault and then ordered her

to serve those sentences consecutively (there were other counts for felonious assault and

driving while intoxicated, but they are not implicated in this appeal). Conceding that the

court meticulously adhered to R.C. 2929.14(C)(4) when ordering consecutive service,

Carson’s sole argument on appeal is that the record does not support consecutive service.

       {¶2} R.C. 2953.08(G)(2) makes it clear that if the court has properly made the

required findings in order to impose consecutive sentences, we must affirm those

sentences unless we “clearly and convincingly” find “[t]hat the record does not support

the court’s findings[.]” In State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453 (8th Dist.),

we noted:

       It is also important to understand that the clear and convincing standard
       used by R.C. 2953.08(G)(2) is written in the negative. It does not say that
       the trial judge must have clear and convincing evidence to support its
       findings. Instead, it is the court of appeals that must clearly and
       convincingly find that the record does not support the court’s findings. In
       other words, the restriction is on the appellate court, not the trial judge. This
       is an extremely deferential standard of review.

Id. at ¶ 20.

       {¶3} Carson challenges a single R.C. 2929.14(C)(4) finding that the court made

before ordering consecutive service: that consecutive sentences were not disproportionate

to her conduct and to the danger she poses to the public.
       {¶4} There is no dispute about the events underlying the counts of aggravated

vehicular assault: an intoxicated Carson drove her vehicle left of center into a group

riding motorcycles, striking three of them. One suffered a crushed foot and another had

her leg severed (the third rider was not seriously harmed). Carson did not stop her

vehicle after striking the riders, so some of the members of the group followed her. One

of the riders alighted from her motorcycle and had to stand in the road so as to physically

block Carson. Carson stopped her vehicle, exited, and ran though an apartment complex

in an attempt to avoid apprehension. After being apprehended, she refused to take a

breath test.

       {¶5} We cannot clearly and convincingly find that the record does not support the

court’s finding that consecutive sentences were not disproportionate to Carson’s conduct.

  Driving while intoxicated is an innately serious offense because of the potential harm

that can result when a driver loses control of a vehicle. This case went beyond mere

potential harm — Carson’s actions left two victims with permanent, life-altering injuries.

The harm Carson caused was not only manifest from the type of injuries sustained, but by

statements two victims gave to the court describing how their lives had been irreparably

changed as a result of Carson’s conduct. In addition to the injuries Carson caused, her

behavior after striking the bikers was particularly callous — she not only refused to stop

and take responsibility for her actions, she actively avoided apprehension.
       {¶6} Carson argues that this case is similar to State v. Moore, 8th Dist. Cuyahoga

No. 85451, 2005-Ohio-4699, where we reversed consecutive sentences for vehicular

homicide. Our decision in Moore was not premised on the record failing to justify the

court’s findings in support of consecutive sentences, but rather on the court not making

those findings in the first instance. We stated:

       Accordingly, we find that the trial court did not adequately satisfy the R.C.
       2929.14(E)(4) [now R.C. 2929.14(C)(4)] requirements on the record.
       Specifically, the court did not address how the sentences related to the fact
       that at least two of the multiple offenses were committed as part of one or
       more course of conduct, and the harm caused by two or more of the
       multiple offenses so committed was so great or unusual that a single prison
       term does not adequately reflect the seriousness of the offender’s conduct.

Id. at ¶ 13.
      {¶7} Moore did offer an alternative holding that the consecutive sentences ordered

in that case were “inconsistent with sentences of similar defendants in similar cases.” Id.

at ¶ 15.   Not only was this statement obvious dicta in light of the court’s prior

determination that the required findings had not been made, it arguably conflated the

consistency requirement of R.C. 2929.11(B) (a felony sentence shall be “consistent with

sentences imposed for similar crimes committed by similar offenders”) with the

disproportionality requirement of former R.C. 2929.14(E)(4) [now R.C. 2929.14(C)(4)]

(requiring sentencing judge to find that consecutive sentences “are not disproportionate to

the seriousness of the offender’s conduct”). See, e.g., State v. Moore, 2014-Ohio-5135,

24 N.E.3d 1197, ¶ 20, 24 (8th Dist.); State v. Dennison, 10th Dist. Franklin No.

14AP-486, 2015-Ohio-1135, ¶ 20. We have previously noted that appellate decisions

show that the courts have routinely conflated the distinct concepts of consistency and

proportionality. Moore, 2014-Ohio-5135 at ¶ 20. So apart from being dicta, this court’s

statements in the 2005 Moore aggravated vehicular homicide case were inaccurate and

are unpersuasive authority for the proposition advanced by Carson. We cannot clearly

and convincingly find that the record does not support the court’s conclusion that

consecutive sentences were not disproportionate to Carson’s conduct and the harm she

caused.
       {¶8} We likewise have no basis for clearly and convincingly finding that the

record does not support the court’s finding that consecutive sentences were required to

protect the public from the danger that Carson poses. Carson has an extensive criminal

history, heavy on offenses relating to alcohol: driving while under the influence, public

intoxication, open container violations, and disorderly conduct. In addition to offenses

relating to alcohol, Carson had prior court cases charging her with possession of a

weapon, felonious assault, drug possession, burglary, and prostitution.      Finally, Carson

acknowledged that at the time she committed the offenses in this case, she was driving

while under a license suspension, an indication that she had no regard for past criminal

sanctions. At sentencing, the court noted that Carson showed remorse for her actions,

but that remorse went only so far in light of her criminal history and the chances she had

been given in other cases “to be on community control and correct [her] behavior.” Tr.

57. In fact, Carson claimed at sentencing to have been so intoxicated at the time she

committed her offenses that she did not even know that she struck three different

motorcyclists. That assertion was difficult to sustain given that she actively avoided

apprehension by the other riders and the police.

       {¶9} Judgment affirmed.

       It is ordered that appellee recover of said appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

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

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

the Rules of Appellate Procedure.



______________________________________________
MELODY J. STEWART, PRESIDING JUDGE

MARY J. BOYLE, J., and
SEAN C. GALLAGHER, J., CONCUR
