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Separate Sentences Permitted for OVI and Aggravated Vehicular Assault

Image of a car that has crashed into a pole (Thinkstock)

When OVI leads to aggravated vehicular assault, a trial court may impose separate sentences for the convictions.

Image of a car that has crashed into a pole (Thinkstock)

When OVI leads to aggravated vehicular assault, a trial court may impose separate sentences for the convictions.

A trial court may impose separate sentences on a defendant convicted of aggravated vehicular assault and of operating a vehicle while under the influence (OVI) when the OVI offense is the underlying conduct that led to the vehicular assault, the Ohio Supreme Court held today.

Writing for the Court, Justice Judith Ann Lanzinger concluded that the two crimes are not allied offenses, so a defendant can be convicted of and sentenced for each offense.

The decision resolved a conflict on this issue among the state’s appellate courts and affirmed the judgment of the Eighth District Court of Appeals.

Case History
Following a 2013 car accident in Cleveland, Antonia Earley pled guilty to aggravated vehicular assault, child endangering, and OVI. The trial court sentenced her to three years for the vehicular assault, three years for child endangerment, and six months for OVI. The sentences were ordered to run concurrently.

On appeal to the Eighth District, Earley argued that the sentences for OVI and aggravated vehicular assault should have been merged and only one sentence issued for both offenses. The appeals court, however, agreed with the trial court. Earley appealed, and the Eighth District also notified the Supreme Court that its ruling conflicted with decisions from three other appellate courts in the state.

Court’s Conclusions
Justice Lanzinger explained that R.C. 2941.25 governs when a defendant may be convicted of multiple offenses. A separate statute, R.C. 2929.41, addresses when prison terms must be served concurrently or consecutively, and division (B)(3) of the law states in part that an OVI sentence must be served consecutively to a sentence for aggravated vehicular assault. The Court concluded that R.C. 2929.41(B)(3) is not an exception to the allied-offense statute, but instead the two laws work together.

“The allied-offense statute, R.C. 2941.25, concerns the merger of convictions,” Justice Lanzinger wrote. “By applying R.C. 2941.25, courts determine whether a defendant can be convicted of multiple offenses. If a court concludes that particular multiple offenses are not allied offenses of similar import pursuant to R.C. 2941.25, the defendant may be convicted of all of them. And if that occurs, the court then proceeds to sentence the defendant on all the offenses.”

Applying a test set forth by the Court in State v. Ruff (2015), Justice Lanzinger determined that Earley’s offenses are not allied.

“This felony offense [of aggravated vehicular assault] has a different import and significance than merely driving under the influence, for aggravated vehicular assault necessarily involves causing serious physical harm to another person,” she reasoned. “A first-degree misdemeanor violation of R.C. 4511.19(A)(1)(a), on the other hand, occurs any time an individual drives under the influence of alcohol or drugs, and one who does so commits this offense regardless of any subsequent consequences that occur due to the impaired driver’s actions.”

When an OVI offense is the underlying conduct for aggravated vehicular assault, a trial court may impose either consecutive or concurrent sentences for the two convictions, the Court concluded.

Justices’ Votes
Justice Lanzinger’s opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer and William M. O’Neill.

Justices Terrence O’Donnell, Sharon L. Kennedy, and Judith L. French concurred only with the Court’s judgment in an opinion written by Justice O’Donnell.

Concurring Justices
In the concurring opinion, Justice O’Donnell stated that the allied-offense statute is not relevant to this case because R.C. 2929.41(B)(3) creates an exception to that law by specifically authorizing a court to exercise its discretion to impose consecutive sentences for OVI and aggravated vehicular assault.

Interpreting the language of R.C. 2929.41(B)(3), which states that “[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 … when the trial court specifies that it is to be served consecutively,” Justice O’Donnell explained that  “regardless of whether the felony offense of aggravated vehicular assault and the misdemeanor offense of OVI qualify as allied offenses of similar import for purposes of R.C. 2941.25, the specific directory language of R.C. 2929.41(B)(3) permits a trial court to impose cumulative sentences for those offenses independent of and without regard to the allied offense statute.”

2014-1278 and 2014-1454. State v. Earley, Slip Opinion No. 2015-Ohio-4615.

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