         [Cite as State v. Roberts, 2016-Ohio-903.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                        :   APPEAL NO. C-140331
                                                          TRIAL NO. B-1205235
        Plaintiff-Appellee,                           :

  vs.                                                 :
                                                                  O P I N I O N.
RANDY ROBERTS,                                        :

    Defendant-Appellant.                              :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: March 9, 2016


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Scott A. Rubenstein and John D. Hill, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




D E W INE , Judge.

       {¶1}     Randy Roberts was convicted of drunk driving following a hit-skip

accident. Because he had seven prior drunk-driving convictions, he was also convicted

of a repeat-OVI-offender specification. The trial court sentenced him to consecutive

prison terms of five years on the specification and five years on the underlying OVI

offense, a third-degree felony. He now appeals, arguing that his OVI conviction was

against the manifest weight of the evidence, that his attorney was ineffective, and that

his sentence was contrary to law. We find no merit in his challenges to his convictions.

The sentence is a different matter. A recent Ohio Supreme Court decision makes clear

that the felony-three charge for which he was convicted carries a maximum penalty of

three years in prison rather than the five years to which he was sentenced. As a

consequence, we vacate the sentence and remand for resentencing.

                                   I. Background

       {¶2}     Susan Jacobson was waiting to turn left at a traffic light at the corner of

Knowlton Street and Hamilton Avenue when she spotted in the rear-view mirror a

vehicle speeding towards her. The vehicle struck her car, forcing it across two lanes of

traffic and onto the sidewalk facing the opposite direction. She looked up to see a black

SUV fishtailing away. Emergency personnel had to cut Ms. Jacobson from her vehicle.

The car was totaled. Its rear and side windows were gone, the back end was destroyed,

and the top was crushed in. She suffered neck injuries, required months of physical

therapy, and has chronic pain as a result of her injuries.

       {¶3}     A UPS driver, Dorian Stone, arrived at the accident scene as the black

SUV was pulling away. After confirming that Ms. Jacobson’s injuries were not life-

threatening, he resumed his delivery route. A few minutes later, he noticed a black SUV




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with front-end damage. A man, later identified as Mr. Roberts, was surveying the

damage. Mr. Stone called the police. While Mr. Stone was on the phone, Mr. Roberts

walked up to him, asked if he was calling the police, and said that he had just been in an

accident.

       {¶4}     The police took Mr. Roberts into custody. Because Mr. Roberts had

seven prior OVIs within the previous 20 years, he was charged with two, third-degree

felony OVIs with the repeat-offender specification, leaving the scene of an accident, and

driving while under an OVI suspension. After a jury trial, he was convicted of leaving

the scene of an accident, driving while under an OVI suspension, and one OVI with the

accompanying repeat-offender specification. The court sentenced Mr. Roberts to five

years of incarceration on the repeat-offender specification to be served consecutively to

five years of incarceration on the underlying felony OVI. He received 180 days each on

the remaining two counts. Mr. Roberts now appeals.

                               II. Manifest Weight

       {¶5}     In his first assignment of error, Mr. Roberts claims his OVI conviction

was against the manifest weight of the evidence. Mr. Roberts does not dispute that he

was intoxicated, nor does he dispute that the Ford SUV was the vehicle that struck Ms.

Jacobson’s car. The only issue Mr. Roberts disputes is whether he was the person

driving the Ford SUV.

       {¶6}     Mr. Stone testified that he found Mr. Roberts surveying the damage to

the black, Ford SUV immediately after the accident, and that Mr. Roberts admitted that

he had just been in an accident. Mr. Roberts argues that Mr. Stone’s account was

unreliable because Mr. Stone lacked credibility. But the fact-finder is in the best position

to determine the credibility of evidence, particularly with regard to witness testimony.

State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 116; State v.



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Williams, 1st Dist. Hamilton Nos. C-060631 and C-060668, 2007-Ohio-5577, ¶ 45.

Based upon our review of the record—including a weighing of the evidence and all

reasonable inferences, and consideration of the credibility of the witnesses—we

cannot conclude that the jury so clearly lost its way as to create a manifest

miscarriage of justice. See State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d

541 (1997).

                         III.   Ineffective Assistance

       {¶7}     In his second assignment of error, Mr. Roberts asserts he was deprived

of his constitutional right to effective assistance of counsel.       To succeed on his

ineffective-assistance claim, Mr. Roberts must establish that his trial counsel was

deficient, and that, absent his counsel’s errors, the result of the proceedings would have

been different. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); see also State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25

N.E.3d 1023, ¶ 199.

       {¶8}     Most of Mr. Roberts’s complaints about his trial attorneys are premised

on assertions that are not demonstrated by the record in this case. We are unable to

determine on appeal whether ineffective assistance of counsel occurred where the

allegations of ineffectiveness are based on facts dehors the record. State v. Cooperrider,

4 Ohio St.3d 226, 228, 448 N.E.2d 452 (1983).

       {¶9}     The only conduct Mr. Roberts complains of that appears in the record is

his trial counsel’s failure to object to a statement by the prosecutor in closing argument.

During closing argument, the prosecutor stated that Officer Matthew Latzy had testified

that Mr. Roberts matched the description of the driver of the black SUV that had been

provided to him by witnesses to the accident. This characterization of Officer Latzy’s

testimony was incorrect; indeed, the court had refused to allow the officer to provide



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hearsay testimony about the description of the driver. Thus, the prosecutor’s statement

was improper. But in light of the isolated nature of the comment, and the overwhelming

other evidence in the record, we cannot conclude that the result of the proceedings

would have been different but for defense counsel’s failure to object. The second

assignment of error is overruled.

                               IV.    Sentencing

       {¶10}   In his third assignment of error, Mr. Roberts argues the trial court

imposed a sentence that is contrary to law. We agree.

       {¶11}   While this case was pending, the Ohio Supreme Court decided State v.

South, 144 Ohio St.3d 295, 2015-Ohio-3930, 42 N.E.3d 734. In South, the court clarified

that offenders convicted of a third-degree-felony OVI and a repeat-offender specification

under R.C. 2941.1413, as Mr. Roberts was here, are subject to two different sentencing

ranges. See id. at ¶ 19.   First, offenders are subject to a mandatory one-to-five year

sentence for the repeat-offender specification, which must be served prior to and

consecutive to any additional prison term for the underlying OVI conviction.          Id.

Second, the court may impose a discretionary term of nine to 36 months for the

underlying third-degree-felony OVI itself. Id. Because Mr. Roberts was sentenced to

five years on the underlying OVI conviction, his sentence is contrary to law. The state

concedes this was in error, and we remand for resentencing in accordance with South.

The third assignment of error is sustained.

                                V.    Conclusion

       {¶12}   We reverse Mr. Robert’s sentence as contrary to law and remand for

resentencing. We affirm in all other aspects.



                      Judgment affirmed in part, reversed in part, and cause remanded.



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H ENDON , P.J., and C UNNINGHAM , J., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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