[Cite as State v. Earley, 2014-Ohio-2643.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100482




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                    ANTONIA EARLEY
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CR-13-571171

        BEFORE: Keough, J., Celebrezze, P.J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED:                     June 19, 2014
ATTORNEY FOR APPELLANT

Edward F. Borkowski, Jr.
3030 Euclid Avenue, Suite 401
Cleveland, Ohio 44115

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Holly Welsh
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} This cause came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1. The purpose of an accelerated appeal is to allow the

appellate court to render a brief and conclusory opinion. Crawford v. Eastland Shopping

Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th Dist.1983); App.R. 11.1(E).

       {¶2} Defendant-appellant, Antonia Earley, appeals her sentence. For the reasons

that follow, we affirm.

       {¶3} In January 2013, Earley was charged in a six-count indictment — two counts

of aggravated vehicular assault and operating a vehicle while under the influence

(“OVI”), and one count each of endangering children and using weapons while

intoxicated. Each count sought forfeiture of property or weapon. The charges stemmed

from Earley driving her car while intoxicated at a high rate of speed with her one-year-old

son riding in the front passenger seat. Earley crashed the car into a pole and her child

sustained serious permanent injuries as a result.

       {¶4} In June 2013, Earley pleaded guilty to an amended count of aggravated

vehicular assault with forfeiture specifications, an amended count of endangering children

with forfeiture specifications, and one count of OVI.

       {¶5} Earley was sentenced to thirty-six months for aggravated vehicular assault,

thirty-six months for endangering children, and six months for OVI. The sentences were

ordered to run concurrently, for a total sentence of three years in prison.
       {¶6} Earley now appeals, raising three assignments of error.

                                    I. Allied Offenses

       {¶7} In her first assignment of error, Earley contends that the trial court erred by

failing to merge allied offenses of similar import for purposes of sentencing.

Specifically, she contends that aggravated vehicular assault in violation of R.C.

2903.08(A)(1)(a) and OVI in violation of R.C. 4511.19(A)(1)(a) are allied offenses and

should merge for sentencing.

       {¶8} Although Earley did not raise the issue of allied offenses at the time of

sentencing, this court has held that the issue of allied offenses may constitute plain error,

which this court can address on appeal. State v. Rogers, 2013-Ohio-3235, 994 N.E.2d

499 (8th Dist.).

       {¶9} The question as to whether crimes are allied offenses arises from the Double

Jeopardy Clause of the Fifth Amendment, which protects individuals from multiple

punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53

L.Ed.2d 187 (1977). The Ohio legislature has codified this protection in R.C. 2941.25.

In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, the court

held that a defendant’s conduct must be considered when determining whether two

offenses are allied offenses of similar import subject to merger under R.C. 2941.25.

Johnson at ¶ 44. Thus,

       a defendant can be convicted and sentenced on more than one offense if the
       evidence shows that the defendant’s conduct satisfies the elements of two or
       more disparate offenses. But if the conduct satisfies elements of offenses
       of similar import, then a defendant can be convicted and sentenced on only
       one, unless they were committed with separate intent.

State v. Williams, 124 Ohio St.3d 381, 2010-Ohio-147, 922 N.E.2d 937, ¶ 36 (Lanzinger,

J., concurring in part and dissenting in part).

       {¶10} In other words,

       [i]f the multiple offenses can be committed by the same conduct, then the
       court must determine whether the offenses were committed by the same
       conduct, i.e., “a single act, committed with a single state of mind.” If the
       answer to both questions is yes, then the offenses are allied offenses of
       similar import and will be merged.

Johnson at ¶ 49-50, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895

N.E.2d 149, ¶ 50 (Lanzinger, J., dissenting).

       {¶11} In this case, Earley pleaded guilty to aggravated vehicular assault in

violation of R.C. 2903.08(A)(1)(a), which provides

       No person, while operating or participating in the operation of a motor

       vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft, shall

       cause serious physical harm to another person * * * [a]s the proximate

       result of committing a violation of division (A) of section 4511.19 of the

       Revised Code or of a substantially equivalent municipal ordinance[.]

       {¶12} Earley also pleaded guilty to OVI, in violation of R.C. 4511.19(A)(1)(a),

which provides that “[n]o person shall operate any vehicle, streetcar, or trackless trolley

within this state, if, at the time of the operation, * * * [t]he person is under the influence

of alcohol, a drug of abuse, or a combination of them.”
       {¶13} In support of her argument that aggravated vehicular assault and OVI are

allied and should merge for sentencing, Earley cites to this court’s decision in State v.

Kelley, 8th Dist. Cuyahoga No. 98928, 2013-Ohio-1899.            In Kelley, the defendant

assigned as error that the trial court erred in failing to merge the offenses of aggravated

vehicular assault and OVI because the two offenses were allied. The state conceded the

error, therefore, no independent analysis was conducted by this court as to whether the

offenses were actually allied and merged for sentencing; rather, this court reversed the

sentence and remanded the case for resentencing.

       {¶14} In this case, however, the state does not concede that the offenses of

aggravated vehicular assault and OVI are allied offenses. Instead, the state directs this

court to consider the holdings of the Fifth, Tenth, and Eleventh Districts for the

proposition that even assuming arguendo that OVI and aggravated vehicular assault are

allied offenses, 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 so that a defendant may be convicted on

either the offenses, but not both. See State v. Kraft, 5th Dist. Delaware No. 13 CAA 03

0013, 2013-Ohio-4658, appeal not accepted, 138 Ohio St.3d 1451, 2014-Ohio-1182, 5

N.E.3d 668; State v. Bayer, 10th Dist. Franklin No. 11AP-733, 2012-Ohio-5469, appeal

not accepted, 136 Ohio St.3d 1453, 2013-Ohio-3210, 991 N.E.2d 258, State v. Demirci,

11th Dist. Lake No. 2011-L-142, 2013-Ohio-2399 (Grendell, J., dissenting).              The

exception being that a trial court possesses the discretion to sentence a defendant for both

of these crimes pursuant to R.C. 2929.41(B)(3).
       {¶15} Specifically, R.C. 2929.41(B)(3) provides,

       A jail term or sentence of imprisonment imposed for a misdemeanor

       violation of section * * * 4511.19 of the Revised Code shall be served

       consecutively to a prison term that is imposed for a felony violation of

       section * * * 2903.08 * * * of the Revised Code or a felony violation of

       section 2903.04 of the Revised Code involving the operation of a motor

       vehicle by the offender and that is served in a state correctional institution

       when the trial court specifies that it is to be served consecutively.

       {¶16} The state maintains that this section evidences the legislature’s intent that a

trial court may, in its discretion, sentence a defendant for both OVI and aggravated

vehicular assault. The state concedes this intent conflicts with the legislature’s intent in

R.C. 2941.25 against multiple punishments.

       {¶17} This conflict has also been recognized in the Second, Sixth, and Twelfth

Districts; however, these district have taken an opposing view that Ohio’s General

Assembly cannot abrogate the double-jeopardy prohibition of multiple punishments for

the same offense, and because R.C. 2929.41(B)(3) does not explicitly trump R.C.

2941.25, aggravated vehicular assault and OVI can be allied offenses that merge for

sentencing. See State v. West, 2d Dist. Montgomery No. 23547, 2010-Ohio-1786, State

v. Mendoza, 6th Dist. Wood No. WD-10-008, 2012-Ohio-5988, appeal not accepted, 129

Ohio St.3d 1489, 2011-Ohio-5129, 954 N.E.2d 662; State v. Phelps, 12th Dist. Butler No.

CA2009-09-243, 2010-Ohio-3257.
      {¶18} The Double Jeopardy Clause prohibits cumulative punishments for the same

offense. State v. Moss, 69 Ohio St.2d 515, 518, 433 N.E.2d 181 (1982). However, a

legislature may proscribe the imposition of cumulative punishments for crimes that

constitute the same offense without violating federal or state protections against double

jeopardy. Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 67 L.Ed.2d 275

(1981); State v. Bickerstaff, 10 Ohio St.3d 62, 65, 461 N.E.2d 892 (1984). Thus, “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, 74 L.Ed.2d 535 (1983); Moss at paragraph one of the syllabus. “When a

legislature signals its intent to either prohibit or permit cumulative punishments for

conduct that may qualify as two crimes, * * * the legislatures’s expressed intent is

dispositive.” State v. Rance, 85 Ohio St.3d 632, 635, 1999-Ohio-291, 710 N.E.2d 699,

citing Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984).

      {¶19} R.C. 2929.41 was amended through 1999 Am.Sub.S.B. 22, effective May

17, 2000, to amend subsection (B)(3) to allow consecutive sentences for certain

misdemeanors and felony offenses.      When Am.Sub.S.B. 22 was enacted, the Ohio

Legislative Service Commission expressly stated that one of its primary purposes of the

bill was to impose stricter penalties for OVI offenses. While the bill also amended the

overall penalties for OVI under R.C. 4511.19, it also allowed for certain misdemeanor

offenses to run consecutively to certain felony offenses, including OVI and aggravated

vehicular assault. The General Assembly in amending R.C. 2929.41(B)(3), specifically
intended to permit cumulative punishments were a defendant is found guilty of both

aggravated vehicular assault and OVI; thus, the protection against double jeopardy is not

violated in these instances.

       {¶20} Accordingly, we follow the rationale of the Fifth, Tenth, and Eleventh

Districts that, even assuming aggravated vehicular assault and OVI are allied offenses,

R.C. 2929.41(B)(3) creates an exception that allows a trial court to impose a sentence for

both offenses.

       {¶21} In this case, the trial court entered convictions on both aggravated vehicular

assault and OVI and ordered them to be served concurrently, which is authorized by the

discretion afforded to the court under R.C. 2929.41(B)(3). We find no plain error;

Earley’s first assignment of error is overruled.

                         II. Overstatement of Postrelease Control

       {¶22} In her second assignment of error, Earley contends that the trial court erred

when it imposed a mandatory period of postrelease control of three years.

       {¶23} During the plea hearing, the trial court advised Earley that she would be

subject to a period of postrelease control “up to three years.” However, at sentencing,

the trial court advised Earley that she would be subject to “three years” of postrelease

control. The sentencing journal entry correctly stated “postrelease control is part of this

prison sentence for up to 3 years for the above felony(s) under R.C. 2967.28.”

       {¶24} We addressed this issue in a factually similar case in State v. Cromwell, 8th

Dist. Cuyahoga No. 91452, 2010-Ohio-768, wherein we concluded that when a trial court
overstates the penalty for violating postrelease control at the sentencing hearing, but

remedies such overstatement in the journal entry, the error is harmless, and, unless the

defendant can demonstrate prejudice, the sentence will not be rendered void. Id. at ¶

8-11, citing State v. Spears, 9th Dist. Medina No. 07CA0036-M, 2008-Ohio-4045.

       {¶25} Because the overstatement of postrelease control was made during

sentencing and both the plea colloquy and sentencing journal entry accurately reflect both

the discretionary nature and length of term of postrelease control, we find no prejudice to

Earley. The error in the trial court’s pronouncement during sentencing was harmless.

See Crim.R. 52(A); see also Spears.

       {¶26} Accordingly, because Earley cannot demonstrate prejudice, we find no error

and overrule her second assignment of error.

                             III. Sentence — Contrary to Law

       {¶27} In her third assignment of error, Early contends that her sentence is contrary

to law. Specifically, Earley contends that the record is devoid of any indication that the

trial court considered the relevant factors under R.C. 2929.11 and 2929.12.

       {¶28} As for the argument that the court disregarded the applicable statutory

factors, the sentencing entry states that “the court considered all required factors of the

law” and “that prison is consistent with the purpose of R.C. 2929.11.” These statements,

without more, are sufficient to fulfill the court’s obligations under the sentencing statutes.

 State v. Saunders, 8th Dist. Cuyahoga No. 98379, 2013-Ohio-490, citing State v. Payne,
114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 18; State v. Kamleh, 8th Dist.

Cuyahoga No. 97092, 2012-Ohio-2061, ¶ 61.

       {¶29} We also find Earley’s sentence was not contrary to law under R.C.

2953.08(A)(4) because her sentence does not fall outside the statutory limits for the

particular degree of offenses. Earley pleaded guilty to aggravated vehicular assault,

endangering children, and OVI. She faced a mandatory prison term of at least nine

months, with a maximum penalty of six and one-half years. Earley was sentenced to a

three-year sentence, which is well within the statutory range. Accordingly, her sentence

is not contrary to law.

       {¶30} Earley’s third assignment of error is overruled.

       {¶31} Judgment affirmed.

       It is ordered that appellee recover from 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. 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.




KATHLEEN ANN KEOUGH, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR
