[Cite as State v. Pickett, 2015-Ohio-4814.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              BUTLER COUNTY




STATE OF OHIO,                                      :

        Plaintiff-Appellee,                         :     CASE NO. CA2015-03-051

                                                    :           OPINION
    - vs -                                                      11/23/2015
                                                    :

GEORGE K. PICKETT,                                  :

        Defendant-Appellant.                        :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2014-10-1638



Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Scott N. Blauvelt, 246 High Street, Hamilton, Ohio 45011, for defendant-appellant



        RINGLAND, J.

        {¶ 1} Defendant-appellant, George K. Pickett, appeals from his sentence in the Butler

County Court of Common Pleas for aggravated vehicular homicide and operating a vehicle

under the influence (OVI). For the reasons stated below, we affirm.

        {¶ 2} On the night of October 19, 2014, appellant was involved in an automobile

accident with Gregory Philpot. Appellant, after having consumed alcohol, was driving back to

his motel and collided with a motorcycle driven by Philpot. Philpot died as a result of the
                                                                     Butler CA2015-03-051

injuries he sustained in the accident. The matter proceeded to a three-day jury trial.

Appellant was found guilty of aggravated vehicular homicide in violation of R.C.

2903.06(A)(1), a second-degree felony, and three counts of OVI in violation of R.C.

4511.19(A)(1)(a), 4511.19(A)(1)(h), and 4511.19(A)(1)(i). The three OVI counts were first-

degree misdemeanors.

      {¶ 3} A sentencing hearing was held on February 15, 2015. At the hearing, the trial

court found the OVI counts were allied offenses of similar import and merged the first and

third OVI counts into the second OVI count. The trial court then sentenced appellant to an

eight-year mandatory prison term for aggravated vehicular homicide and 180 days, 177 days

of which were suspended, for OVI, to be served concurrently, for an aggregate prison term of

eight years.

      {¶ 4} Appellant now appeals, asserting a sole assignment of error for review:

      {¶ 5} THE TRIAL COURT COMMITTED PLAIN ERROR IN IMPOSING

SENTENCE[S] FOR BOTH AGGRAVATED VEHICULAR HOMICIDE AND OPERATING A

VEHICLE UNDER THE INFLUENCE AS THESE OFFENSES CONSTITUTE ALLIED

OFFENSES OF SIMILAR IMPORT.

      {¶ 6} Appellant argues that pursuant to Ohio's multiple-count statute, R.C. 2941.25,

his aggravated vehicular homicide and OVI counts are allied offenses of similar import and

should have merged for sentencing. Specifically, appellant argues the offenses are allied

because the OVI count served as the predicate conduct for the aggravated vehicular

homicide count. The state responds by asserting that the two offenses should not have

merged because R.C. 2929.41 authorizes a trial court to impose separate sentences.

      {¶ 7} Appellant concedes that he failed to raise the issue of allied offenses at

sentencing, and therefore, has forfeited all but plain error. State v. Rogers, 143 Ohio St.3d

385, 2015-Ohio-2459, ¶ 3. A forfeited error is reversible when it affects "the outcome of the

                                             -2-
                                                                      Butler CA2015-03-051

proceeding and reversal is necessary to correct a manifest miscarriage of justice." Id.

       {¶ 8} The Double Jeopardy Clauses of the United States Constitution and the Ohio

Constitution prohibit multiple punishments for the same offense. Brown v. Ohio, 432 U.S.

161, 165, 97 S.Ct. 2221 (1977); State v. Miranda, 138 Ohio St.3d 184, 2014-Ohio-451, ¶ 6.

In regards to cumulative sentences imposed in 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, 103 S.Ct. 673 (1983).

Therefore, the question becomes "whether the General Assembly intended to permit multiple

punishments for the offenses at issue." State v. Childs, 88 Ohio St.3d 558, 561 (2000).

       {¶ 9} R.C. 2941.25 is the primary legislative statement regarding the General

Assembly's intent to prohibit or allow multiple punishments for offenses arising from the same

conduct. Childs at 561. Specifically, R.C. 2941.25 states,

              (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.

              (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.

       {¶ 10} The Ohio Supreme Court has recently clarified that in determining whether

offenses are allied offenses of similar import within the meaning of R.C. 2941.25, "courts

must evaluate three separate factors—the conduct, the animus, and the import." State v.

Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, paragraph one of the syllabus. If any of the

following is true, the offenses do not merge and the defendant may be convicted and

sentenced for multiple offenses: "(1) the offenses are dissimilar in import or significance—in

other words, each offense caused separate, identifiable harm, (2) the offenses were

                                             -3-
                                                                                Butler CA2015-03-051

committed separately, or (3) the offenses were committed with separate animus or

motivation." Id. at ¶ 25.

        {¶ 11} R.C. 2929.41 addresses sentencing. In 1999, the General Assembly amended

R.C. 2929.41 "to establish stricter penalties" for OVIs and, "in certain circumstances[,] to

eliminate for [OVIs] * * * the prohibition against imposing a term of imprisonment imposed for

a misdemeanor consecutively to a prison term imposed for a felony * * *." Am.Sub.H.B. No.

22, 148 Ohio Laws, Part IV, 8353, 8390. Specifically, R.C. 2929.41(A) provides that a jail

term for a misdemeanor shall be served concurrently with a prison term for a felony.

However, a jail term imposed for a misdemeanor violation of R.C. 4511.19, OVI, shall be

served consecutively to a prison term that is imposed for a felony violation of R.C. 2903.06,

aggravated vehicular homicide, "when the trial court specifies that it is to be served

consecutively." R.C. 2929.41(B)(3).

        {¶ 12} Several appellate districts have discussed the interaction between R.C.

2941.25 and R.C. 2929.41 and have concluded that even if a defendant's aggravated

vehicular homicide and OVI counts were allied offenses of similar import, "R.C. 2929.41(B)(3)

creates an exception to the general rule provided in R.C. 2941.25 that allied offenses must

be merged." State v. Bayer, 10th Dist. Franklin No. 11AP-733, 2012-Ohio-5469, ¶ 22. While

R.C. 2941.25 is the primary statute regarding merger, R.C. 2929.41(B)(3) reflects the

General Assembly's more specific legislative intent regarding the merger of OVI offenses. Id.

at ¶ 21. Specifically, R.C. 2929.41(B)(3) demonstrates the legislature's intent to allow a trial

court, in its discretion, to enter convictions and sentence a defendant for both OVI and

aggravated vehicular homicide or assault.1 Id. at ¶ 22. See State v. Demirci, 11th Dist. Lake




1. While the present case involves aggravated vehicular homicide under R.C. 2903.06 instead of aggravated
vehicular assault under R.C. 2903.08, both statutes receive identical treatment under the multiple sentences
statute. See R.C. 2929.41(B)(3).

                                                    -4-
                                                                                     Butler CA2015-03-051

No. 2011-L-142, 2013-Ohio-2399, ¶ 48-49; State v. Dunham, 5th Dist. Richland No. 13CA26,

2014-Ohio-1042, ¶ 76-77; State v. Earley, 8th Dist. Cuyahoga No. 100482, 2014-Ohio-2643,

¶ 19-20. This issue was certified as a conflict by the Eighth District and accepted by the Ohio

Supreme Court for review. See State v. Earley, 140 Ohio St.3d 1450, 2014-Ohio-4414.2

        {¶ 13} The Ohio Supreme Court addressed the certified conflict and has held that a

trial court may impose cumulative sentences for both aggravated vehicular assault and OVI

when the OVI is the predicate conduct for the aggravated vehicular assault. State v. Earley,

Slip Opinion No. 2015-Ohio-4615, syllabus. In so holding, the court reasoned that felony

aggravated vehicular assault under R.C. 2903.08(A)(1)(a) and misdemeanor OVI under R.C.

4511.19(A)(1)(a) are not allied pursuant to R.C. 2941.25 because the offenses are "of

dissimilar import and significance." Id. at ¶ 13. Aggravated vehicular assault is of dissimilar

import and significance because it is a third-degree felony with a mandatory prison term and,

unlike OVI, necessarily involves causing serious physical harm to another person. Id. at ¶

15. On the other hand, OVI is a first-degree misdemeanor and occurs any time an individual

drives under the influence, regardless of the ensuing subsequent consequences. Id. The

Ohio Supreme Court also rejected the approach taken by our sister districts and discussed

above, that R.C. 2929.41(B)(3) creates an exception to R.C. 2941.25 and allows for a

defendant to be sentenced for both aggravated vehicular assault and OVI even if the

offenses were allied. Id. at ¶ 17. Instead, R.C. 2941.25 and R.C. 2929.41(B)(3) are

independent and affect different aspects of criminal proceedings. Id. at ¶ 17-20.




2. The Eighth District certified a conflict between its decision in Earley, 2014-Ohio-2643 and a decision from this
court in State v. Phelps, 12th Dist. Butler No. CA2009-09-243, 2010-Ohio-3257 and other similar decisions from
the Second and Sixth Districts. In its decision certifying a conflict, the Eighth District characterizes Phelps as
holding that OVI and aggravated vehicular assault are allied offenses because the General Assembly cannot
abrogate the double-jeopardy prohibition of multiple punishments and R.C. 2929.41(B)(3) does not explicitly
trump R.C. 2941.25. Earley, 2014-Ohio-2643 at ¶ 17. However, in Phelps we were not presented with an
argument nor did we address the impact of R.C. 2929.41(B)(3) or the General Assembly's ability to abrogate the
prohibition against multiple punishment.

                                                       -5-
                                                                       Butler CA2015-03-051

       {¶ 14} Consequently, the trial court did not err in failing to merge the OVI and

aggravated vehicular homicide offenses. Pursuant to the Ohio Supreme Court's decision in

Earley, a trial court may impose cumulative sentences for both aggravated vehicular

homicide and OVI when OVI is the predicate conduct for aggravated vehicular homicide.

Aggravated vehicular homicide is of dissimilar import and significance than OVI and,

therefore, the two offenses are not allied. Accordingly, appellant's sole assignment of error is

overruled.

       {¶ 15} Judgment affirmed.


       S. POWELL, P.J., and HENDRICKSON, J., concur.




                                              -6-
