[Cite as State v. Ward, 2017-Ohio-13.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 104012



                                         STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                               DERICK ALLEN WARD
                                                       DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-598195-A

               BEFORE:          Blackmon, J., E.A. Gallagher, P.J., and S. Gallagher, J.

              RELEASED AND JOURNALIZED:                     January 5, 2017
ATTORNEY FOR APPELLANT

Dale M. Hartman
1295 Green Road
South Euclid, Ohio 44121


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Nathalie E. Naso
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

       {¶1} Appellant Derick Allen Ward (“Ward”) appeals convictions for aggravated

vehicular homicide, failure to stop after an accident, and failure to comply and assigns six

errors for our review.1

       {¶2} Having reviewed the record and pertinent law, we affirm Ward’s

convictions. The apposite facts follow.

       {¶3} Ward entered a guilty plea to aggravated vehicular homicide, failure to stop

after an accident, and failure to comply with the signal of a police officer. The facts

underlying the plea were that on January 24, 2015, at approximately 5:32 p.m., while

fleeing officers, Ward, who had a suspended driver’s license, fled from University

Heights police officers at a high rate of speed. He eventually crashed into the victim

who was jogging on South Park Boulevard. Ward fled the scene of the accident.

       {¶4} It took police several weeks to determine who was driving the vehicle

because Ward told the officers that someone had stolen his vehicle. Eventually, officers

recovered a hat belonging to Ward containing shards of glass from the vehicle’s

windshield, which linked Ward to the incident. Ward was thereafter arrested by police.

       {¶5} After hearing from the victim’s wife, other family members, work

colleagues, and Ward, the trial court sentenced Ward to eight years for the aggravated

vehicular homicide and imposed 36 months on the counts for failure to comply and


       See appendix.
       1
failure to stop to be served concurrent with each other but consecutive with the

aggravated vehicular homicide count for a total of 11 years in prison.

                                Failure to Explain Rights

       {¶6} We will address Ward’s first and second assigned errors together. He

argues in these assigned errors that the trial court failed to explain and determine if he

understood the rights he was waiving by pleading guilty.

       {¶7}    In order for a plea to be given knowingly and voluntarily, the trial court

must follow the mandates of Crim.R. 11(C). If a defendant’s guilty plea is not voluntary

and knowing, it has been obtained in violation of due process and is void. Boykin v.

Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

       {¶8} A trial court must strictly comply with Crim.R. 11 as it pertains to the

waiver of federal constitutional rights. These include the right to a jury trial, the right of

confrontation, and the privilege against self-incrimination. Id. at 243-44. Under the

more stringent standard for constitutionally protected rights, a trial court’s acceptance of a

guilty plea will be affirmed only if the trial court engaged in meaningful dialogue with the

defendant which, in substance, explained the pertinent constitutional rights “in a manner

reasonably intelligible to that defendant.” State v. Ballard, 51 Ohio St.2d 86, 364 N.E.2d

1163 (1977), paragraph two of the syllabus.

       {¶9} Substantial compliance with Crim.R. 11(C) is sufficient when waiving

nonconstitutional rights. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).

The nonconstitutional rights that a defendant must be informed of are the nature of the

charges with an understanding of the law in relation to the facts, the maximum penalty,
and that after entering a guilty plea or a no contest plea, the court may proceed to

judgment and sentence. Crim.R. 11(C)(2)(a) and (b). Substantial compliance means

that under the totality of the circumstances, the defendant subjectively understands the

implications of hisplea and the rights he is waiving. Nero at 108.

       {¶10} A review of the plea hearing shows that under the totality of the

circumstances, Ward understood both his constitutional and nonconstitutional rights that

he was waiving by entering a plea. Prior to explaining the rights that Ward was waiving,

the trial court stated: “It is important that you interrupt me should there be any one of the

rights we go over that you fail to understand?” Thereafter, prior to explaining each right,

the court inquired, “do you understand?” Each time, Ward stated that he understood.

Because Ward told the court that he understood the rights that he was waiving, the trial

court had no reason to provide further explanation. Moreover, our review shows that the

trial court explained each constitutional right in a reasonably intelligible manner and more

than substantially complied in explaining each nonconstitutional right. Accordingly,

Ward’s first and second assigned errors are overruled.

                                         Probation

       {¶11} In his third assigned error, Ward argues that the trial court erred by failing to

inform him that he was ineligible for probation. He claims if had he known this, he

would not have entered a guilty plea.

       {¶12} Our review of the record from the plea hearing shows that the trial court

informed Ward that the sentence for aggravated vehicular homicide carried a “mandatory

prison term of anywhere from two to eight years in yearly increments.” When the trial
court asked Ward if he understood, he indicated that he did. Therefore, he was well

aware that he was not going to receive probation. Accordingly, Ward’s third assigned

error is overruled.

                                  Nature of the Crime

       {¶13} In his fourth assigned error, Ward argues that the trial court erred by not

determining that Ward understood the nature of the charges to which Ward entered a

guilty plea.

       {¶14} “Crim.R. 11(C)(2)(a) requires the court to determine whether a defendant

has an ‘understanding of the nature of the charges,’ but that requirement does not require

the court to inform the accused of the actual elements of the charged offense during the

plea colloquy.”       State v. Woodard, 8th Dist. Cuyahoga Nos. 94672 and 94673,

2011-Ohio-104, ¶ 4. Instead, the court must look to the circumstances of the case to

determine whether the defendant understands the charges to which he is pleading. See

State v. Esner, 8th Dist. Cuyahoga No. 90740, 2008-Ohio-6654, ¶ 3; State v. Jones, 8th

Dist. Cuyahoga No. 99703, 2014-Ohio-1634, ¶ 11.

       {¶15} In the instant case, the totality of the circumstances indicates that Ward

understood the nature of the charges. At the start of the plea hearing, the prosecutor

identified the terms of the plea agreement and Ward’s trial counsel also informed the

trial court that he had discussed the plea with Ward and that he was in “accord with the

recommendation.”

       {¶16} The trial court asked Ward, “Do you fully understand what you are going to

be pleading guilty to?” Ward responded, “Yes, ma’am.” The trial court then proceeded
to state each offense he was pleading to, the degree of felony, and the possible prison

term. After explaining each count, the trial court asked whether Ward understood, to

which he responded that he did. When the court was done stating the charges and

possible sentences, the trial court asked, “Do you have any questions that you would like

to ask of me regarding your plea and the potential consequences?” Ward responded, “No

ma’am.” We conclude that Ward was aware of the nature of the charges to which he

knowingly, intelligently, and voluntarily pleaded guilty. Accordingly, Ward’s fourth

assigned error is overruled.

                                    Allied Offenses

       {¶17} In his fifth assigned error, Ward contends that the charges should have

merged because the crimes were the result of the same conduct; therefore, they are allied

offenses.

       {¶18} At the sentencing hearing, the trial court heard arguments as to whether the

charges were allied offenses. The state argued that they were separate and distinct

offenses and played a dash-board video cam from the police cruiser as proof. The state

argued that the first offense was committed when Ward chose not to stop when signaled

by the police siren; the second act was committed when he hit and killed the victim; and

the third was committed when he chose to flee the scene of the accident. In response,

defense counsel simply stated, “these are allied offenses and should merge.”

       {¶19} 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, 34 N.E.3d 892, 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
        committed separately, or (3) the offenses were committed with separate
        animus or motivation.
Id. at ¶ 25.

       {¶20} We conclude that while Ward’s actions were interconnected, they were

independent acts committed with a separate animus. Ward failed to stop when the

officers activated their sirens. He drove recklessly at a high rate of speed which caused

the aggravated vehicular homicide. Finally, he fled the scene of the accident after hitting

the victim.   Thus, these three incidents were not all one transaction as Ward alleges, but

consisted of three separately committed offenses that each had a separate animus. See

State v. Mullins, 4th Dist. Scioto No. 15CA3716, 2016-Ohio-5486 (court concluded that

failure to comply, failure to stop after an accident, and aggravated vehicular assault were

not allied offenses because they were committed with a separate animus). Accordingly,

Ward’s fifth assigned error is overruled.

                      Inconsistent and Disproportionate Sentence

       {¶21} In his sixth assigned error, Ward argues that his combined sentence of 11

years in prison was disproportionate to his crimes given his genuine remorse and the fact

he had never before caused a loss of life and the sentence was inconsistent with sentences

given for similar offenders.
       {¶22} R.C. 2953.08 precludes our review of a sentence unless the appellant

advances a claim that the sentence is contrary to law. R.C. 2953.08(A)(4); State v.

Montanez-Roldon, 8th Dist. Cuyahoga No. 103509, 2016-Ohio-3062, ¶ 10, citing State

v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 8. A sentence is

contrary to law if   (1) the sentence falls outside the statutory range for the particular

degree of offense, or (2) the trial court failed to consider the purposes and principles of

felony sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12.

Montanez-Roldon at ¶ 11, citing       State v. Price, 8th Dist. Cuyahoga No. 103023,

2016-Ohio-591, ¶ 12; State v. Hinton, 8th Dist. Cuyahoga No. 102710, 2015-Ohio-4907,

¶ 10, citing State v. Smith, 8th Dist. Cuyahoga No. 100206, 2014-Ohio-1520, ¶ 13.

       {¶23} In this case, the trial court specifically indicated at the sentencing hearing

that it considered the sentencing factors having do with the “seriousness of the offense

and the likelihood of recidivism.” It stated in its sentencing entry that it “considered all

of the required factors of law.” Further, Ward was sentenced to eight years on the

second-degree felony aggravated vehicular homicide count, and 36 months each on a

failure to comply and failure to stop counts, both third-degree felonies. All the sentences

were within the applicable sentencing range.

       {¶24} Moreover, although a purely academic discussion, although Ward indicated

remorse at the sentencing hearing, he denied that he was the driver to police at the time of

the incident. It was not until several weeks later that police were able to prove he was in

fact driving the car by finding glass from the windshield in his hat. As the family stated
at the sentencing hearing, his refusal to admit that he was at fault delayed their healing

process and caused them more pain.

      {¶25} Additionally, as to his inconsistent sentence argument, this court in

Montanez-Roldon explained:

      A consistency-in-sentencing determination, along with all sentencing
      determinations pursuant to R.C. 2929.11 and 2929.12, is a fact-intensive
      inquiry that does not lend itself to being initially reviewed at the appellate
      level. At theleast, any review must begin with the defendant producing a
      record for the trial court’s consideration before the final sentence is
      imposed. As courts have long concluded, a “defendant must raise [the
      consistency-in-sentencing] issue before the trial court and present some
      evidence, however minimal, in order to provide a starting point for analysis
      and to preserve the issue for appeal.” (Emphasis added.) State v. Spock,
      8th Dist. Cuyahoga No. 99950, 2014-Ohio-606, ¶ 37, citing State v. Lang,
      8th Dist. Cuyahoga No. 92099, 2010-Ohio-433; State v. Picha, 8th Dist.
      Cuyahoga No. 102506, 2015-Ohio-4380, ¶ 9.

Montanez-Roldon, 8th Dist. Cuyahoga No. 103509, 2016-Ohio-3062, ¶ 14.

      {¶26} Thus, because Ward did not raise this issue before the trial court, he failed to

preserve the issue for appeal. Accordingly, Ward’s sixth assigned error is overruled.

      {¶27} Judgment affirmed.

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

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to the Cuyahoga County Court of

Common Pleas to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



PATRICIA ANN BLACKMON, JUDGE

EILEEN A. GALLAGHER, P.J., and
SEAN C. GALLAGHER, J., CONCUR
                               APPENDIX

Assignments of Error

      I. The trial court erred in violation of Crim.R. 11(C) by failing to explain
      the rights that defendant was waiving by pleading guilty.

      II. The trial court’s failure to specifically inquire of defendant whether he
      understood the nature of the constitutional rights enumerated in Crim.R.
      11(C) constitutes a violation of due process.

      III. The trial court erred by failing to inform defendant he was ineligible
      for probation thus destroying his ability to make a voluntary, knowing, and
      intelligent choice in violation of Crim.R. 11.

      IV. The proceedings below were defective in that no inquiry was made
      regarding whether defendant understood the nature of the crime and
      consequently the court erred in accepting a plea which was neither
      knowingly, willingly nor intelligently made in violation of Crim.R. 11 and
      defendant’s constitutional rights.

      V. The court erred in failing to merge all or some of the charges.

      VI. The sentence was disproportionate to the charges.
