[Cite as State v. Gray, 2018-Ohio-4936.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           BUTLER COUNTY




STATE OF OHIO,                                   :

        Appellee,                                :       CASE NO. CA2018-04-066

                                                 :              OPINION
    - vs -                                                      12/10/2018
                                                 :

LARRY A. GRAY II,                                :

        Appellant.                               :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2018-01-0176



Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Steven R. Adams, 8 West Ninth Street, Cincinnati, Ohio 45202, for appellant



        PIPER, J.

        {¶ 1} Defendant-Appellant, Larry Gray, appeals his sentence in the Butler County

Court of Common Pleas after pleading guilty to aggravated vehicular homicide.

        {¶ 2} Gray, who was under the influence of drugs at the time, struck head-on a

vehicle driven by Laura Cheek. Cheek was thrown from the vehicle and died as a result of

her injuries. Gray pled guilty to a single count of aggravated vehicular homicide, and the trial

court ordered a presentence investigation.
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      {¶ 3} During the sentencing hearing, the trial court considered mitigation information

and allocution from Gray and heard impact statements from Cheek's family. The trial court

then sentenced Gray to eight years in prison. Gray now appeals his sentence, raising the

following assignments of error. Because Gray's assignments of error are interrelated, we will

address them together.

      {¶ 4} Assignment of Error No. 1:

      {¶ 5} THE SENTENCE IS CONTRARY TO LAW WHERE THE TRIAL COURT

CONSIDERED THE "SERIOUSNESS OF THE OFFENSE" IN A MANNER NOT IN

ACCORDANCE WITH THE SENTENCING STATUTES.

      {¶ 6} Assignment of Error No. 2:

      {¶ 7} THE SENTENCE IS NOT SUPPORTED BY THE RECORD OR IS CONTRARY

TO LAW WHERE THE TRIAL COURT IMPROPERLY CONSIDERED ELEMENTS OF THE

OFFENSE AS "SERIOUSNESS" FACTORS, AND NO LEGITIMATE FACTORS SUPPORT

THE CONCLUSION THAT THE OFFENDER'S CONDUCT WAS MORE SERIOUS THAN

CONDUCT NORMALLY CONSTITUTING THE OFFENSE.

      {¶ 8} Assignment of Error No. 3:

      {¶ 9} THE SENTENCE IS NOT SUPPORTED BY THE RECORD OR IS CONTRARY

TO LAW WHERE THE TRIAL COURT DID NOT GENUINELY AND PROPERLY CONSIDER

RECIDIVISM FACTORS R.C. 2929.12.

      {¶ 10} Assignment of Error No. 4:

      {¶ 11} THE SENTENCE IS NOT SUPPORTED BY THE RECORD OR IS

CONTRARY TO LAW WHERE THE SENTENCE IS NOT CONSISTENT WITH

SENTENCES IMPOSED FOR SIMILAR CRIMES COMMITTED BY SIMILAR OFFENDERS

AS MANDATED BY R.C. 2929.11(B).

      {¶ 12} Gray argues in his four assignments of error that the trial court erred in
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sentencing him.

       {¶ 13} An appellate court reviews the imposed sentence according to R.C.

2953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, ¶ 1. Pursuant to that statute, an appellate court does not review the

sentencing court's decision for an abuse of discretion.             Id. at ¶ 10.     Rather, R.C.

2953.08(G)(2) provides that an appellate court can modify or vacate a sentence only if the

appellate court finds by clear and convincing evidence that the record does not support the

trial court's findings under relevant statutes or that the sentence is otherwise contrary to law.

       {¶ 14} A sentence is not clearly and convincingly contrary to law where the trial court

"considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C.

2929.12, properly imposes postrelease control, and sentences the defendant within the

permissible statutory range." State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-

Ohio-2890, ¶ 8. Thus, this court may increase, reduce, or otherwise modify a sentence only

when it clearly and convincingly finds that the sentence is either contrary to law or

unsupported by the record. Marcum at ¶ 7.

       {¶ 15} After reviewing the record, we find that Gray's sentence is not contrary to law.

Gray was convicted of a second-degree felony, which according to R.C. 2929.14(A)(2), is

subject to a sentencing range of two to eight years. The trial court's eight-year sentence was

therefore within the statutory range. The trial court also informed Gray of the pertinent

postrelease control sanctions.

       {¶ 16} Moreover, the trial court properly addressed the purposes and principles of

sentencing according to R.C. 2929.11 and 2929.12 at both the sentencing hearing and within

the trial court's sentencing entry. We have reviewed the trial court's consideration of the

statutory factors and find that the trial court did not err in considering the seriousness and

recidivism factors as it did, including the trial court's consideration of the victim's tragic death
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and the horrific injuries she suffered. The trial court also properly considered Gray's own

actions, including his ingesting a large quantity of fentanyl before driving that day which

caused his erratic and perilous driving.      As such, and given the trial court's proper

consideration of the statutory factors, Gray's sentence was not contrary to law.

       {¶ 17} The record also supports the eight-year sentence. The trial court considered

the information contained in the presentence investigation report, sentencing memoranda,

statements from the victim's family, Gray's allocution, and statements from defense counsel

and Gray's supporters in mitigation. Through these sources, the court considered that on the

day of the crash, Gray was under the influence of "lethal or toxic" levels of fentanyl and was

driving 79 m.p.h., which was 24 miles over the legal speed limit. Gray, after sideswiping

another car, crossed the center line and hit the victim's car head-on, causing Cheek to be

ejected from the car, suffering severe and fatal injuries.

       {¶ 18} The court also considered that Gray showed little remorse for his actions.

There was a suggestion at the sentencing hearing that the victim contributed to her own

death by possibly not wearing a seatbelt at the time of the crash. Gray also never apologized

to the victim's family at any point prior to the sentencing hearing.

       {¶ 19} Gray also continued to use drugs after the accident, and the victim's death did

not end his drug use. Furthermore, Gray lied to the trial court at a previous proceeding about

his drug use, and he tested positive for marijuana and methamphetamine. Gray refused to

admit that he was under the influence at the time of the crash. Despite Gray's claims that he

took drugs the day before, but not on the day of the crash, evidence indicates an extremely

high level of drugs in Gray's system at the time of the crash. During the presentence

investigation, Gray would not give information freely to the officer, admitting only to an

"accident" that caused a death. Gray, however, maintained that drugs or alcohol did not play

any part in the "accident."
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       {¶ 20} Gray also admitted that he had a history of heavy drug use, had completed a

rehabilitation program for opioid addiction just prior to the crash, and further admitted to using

fentanyl and heroin before the crash occurred. Gray also admitted that since the time of the

crash, he was ticketed on the same road where the crash occurred for passing other

vehicles, including a police officer, despite the road having a double yellow line. The trial

court indicated its specific consideration of all these relevant facts and circumstances, and its

sentence is fully supported by the record.

       {¶ 21} We also find no merit in Gray's argument that his sentence was inconsistent

with other sentences. R. C. 2929.11(B) provides in relevant part that "a sentence imposed

for a felony shall be * * * consistent with sentences imposed for similar crimes committed by

similar offenders."    However, "consistency in sentencing, however, does not mean

uniformity." State v. Micomonaco, 12th Dist. Butler No. CA2011-07-139, 2012-Ohio-5239, ¶

49. Instead, consistency in sentencing is achieved when a trial court properly applies the

sentencing guidelines. Id. "In other words, a defendant claiming inconsistent sentencing

must demonstrate that the trial court failed to properly consider the statutory sentencing

factors and guidelines found in R.C. 2929.11 and 2929.12." State v. Lang, 12th Dist. Brown

No. CA2011-03-007, 2011-Ohio-5742, ¶ 25.

       {¶ 22} Given our analysis above, the trial court properly applied the statutory

requirements for sentencing in that it sentenced Gray within the statutory range for his

second-degree felony after considering the purposes and principles of sentencing as well as

the seriousness and recidivism factors. As such, Gray's sentence was not inconsistent with

other instances of aggravated vehicular manslaughter.

       {¶ 23} After reviewing the record, we find that the trial court's sentence was not

contrary to law and was otherwise supported by the record. As such, Gray's assignments of

error are overruled.
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{¶ 24} Judgment affirmed.


HENDRICKSON, P.J., and RINGLAND, J., concur.




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