[Cite as State v. Parrish, 2012-Ohio-3153.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97482
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
GLENN A. PARRISH
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-553107
BEFORE: Kilbane, J., Boyle, P.J., and Cooney, J.
RELEASED AND JOURNALIZED: July 12, 2012
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Chief Public Defender
Erika B. Cunliffe
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Aaron Brockler
Mary H. McGrath
Assistant County Prosecutors
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} In this appeal, defendant-appellant, Glenn Parrish, challenges his sentence
for two counts of aggravated vehicular homicide; driving under the influence of alcohol,
Ohio’s “OVI” statute; and aggravated vehicular assault. Defendant asserts that the trial
court failed to apply the requirements of the new sentencing law, Amended Substitute
House Bill 86, which went into effect on the day he was sentenced. For the reasons set
forth below, we affirm.
{¶2} On June 25, 2011, defendant was operating a 1994 Dodge Caravan with
passengers Daniel Snead (“Snead”), Brandon Smith (“Smith”), Justin Fort (“Fort”), Louis
Fitzpatrick (“Fitzpatrick”), and Justin Merritt (“Merritt”). Defendant’s vehicle collided
with a van operated by Donald Laster (“Laster”). Snead and Smith died as a result of
their injuries, and defendant’s other passengers were injured. Laster and his passenger,
Charles O. Hill (“Hill”), were also injured.
{¶3} On August 11, 2011, defendant was indicted pursuant to a 16-count
indictment. In Counts 1 and 2, he was charged with aggravated vehicular homicide, in
violation of R.C. 2903.06(A)(1)(a). These counts also contained furthermore
specifications alleging that defendant’s license was suspended at the time of the offense
and elevating the offense to a first degree felony. In Counts 10 and 11, he was charged
with aggravated vehicular homicide, in violation of R.C. 2903.06(A)(2)(a), with
furthermore clauses alleging a prior license suspension. In Counts 3 through 7,
defendant was charged with aggravated vehicular assault, in violation of R.C.
2903.08(A)(1), all with furthermore specifications alleging that defendant’s license was
suspended at the time of the offenses. In Counts 12 through 16, the State charged
defendant with aggravated vehicular assault, in violation of R.C. 2903.08(A)(2). These
counts all contained furthermore specifications alleging that defendant’s license was
suspended at the time of the offenses, alleging third degree felony offenses. In Counts 8
and 9, he was charged with OVI, in violation of R.C. 4511.19(A)(1).
{¶4} Defendant subsequently entered into a plea agreement with the State.
Under the terms of the plea, the furthermore specifications were deleted from Counts 1
and 2, reducing them to second degree felonies. The court advised defendant that these
offenses carried mandatory prison terms of two to eight years. The furthermore
specification was also deleted from Count 12, reducing this count to a fourth degree
felony, and it was also amended to add the names of defendant’s passengers, in addition
to Laster and Hill, who were in the other vehicle. On September 1, 2011, defendant pled
guilty to these charges and one of the charges of OVI. Defendant was then referred to
the county probation department for a presentence investigation.
{¶5} In a sentencing memorandum, defendant stated that Snead and Smith were
two of his closest friends and he has extreme remorse for his conduct. He accepted full
responsibility for his actions and has no previous criminal record other than traffic
offenses. Various individuals provided letters in support of defendant, attesting to his
character and good conduct prior to the accident.
{¶6} The trial court held a lengthy sentencing hearing on September 30, 2011,
the effective date of newly enacted R.C. 2929.14( C). See Am.Sub.H.B. 86. During
these proceedings, the trial court noted that defendant lived with his aunt, and that his
father’s whereabouts were unknown. Defendant is receiving mental health counseling to
cope with the aftermath of his actions, and he is attending Alcoholics Anonymous
meetings. The court additionally noted that the driver of the other vehicle involved in the
collision expressed his desire that defendant receive probation and substance abuse
treatment.
{¶7} The court heard testimony from Cleveland Police Detective Richard Cerny
(“Detective Cerny”) regarding the crash. Detective Cerny explained that defendant went
through a red light on Buckeye Road at Martin Luther King, Jr. Drive, and Laster’s
vehicle struck defendant’s vehicle broadside on the passenger side. Defendant was
traveling at about 50 miles per hour, and there was no evidence that he attempted to brake
prior to the crash. Defendant immediately took responsibility for his actions and
expressed remorse. Detective Cerny went on to say how unusual it was for someone to
immediately take responsibility for their actions and be remorseful.
{¶8} Various individuals provided letters in support of defendant, attesting to his
character and lifestyle prior to the accident. Merritt informed the court that all of
defendant’s passengers were drunk and all were at fault. He hoped that defendant could
receive probation. Fort stated that defendant is suffering emotionally from the accident
and that any one of the passengers could have been driving. Fitzpatrick explained that
the group had been throwing eggs at cars. He stated that the defendant’s entire group
made a bad mistake, and he asked the court for leniency for defendant.
{¶9} Kristen Hendon, Snead’s sister, stated that her brother had just gotten a new
job and was excited about his future. His family is struggling with the pain of his loss
but asked the court for “as much leniency as possible.”
{¶10} Tia Lewis, mother of Smith, testified that she has been devastated since her
son’s death. She stated that defendant made a bad choice but was remorseful.
{¶11} Laster informed the court that a passenger in defendant’s vehicle had thrown
an egg at a driver and that the driver proceeded to chase after defendant’s van.
Following the collision, this driver was still screaming at defendant’s group. Laster did
not believe that a prison term would be beneficial. Instead, he hoped that defendant
would participate in a program to teach others about the dangers of drinking and driving.
{¶12} Darnell Hill, the individual whose vehicle was hit with an egg, submitted a
letter to the prosecuting attorney in which he apologized for reacting the way that he did.
Darnell Hill indicated that he is praying for the defendant and the others, and he
expressed hope for defendant’s future.
{¶13} Dwayne Reese, a lifelong friend of defendant, stated that defendant has been
like a son to him, and he asked the court to give defendant an opportunity to give back to
society in memory of his friends rather than spend time in prison.
{¶14} Defendant stated that the deceased were like brothers to him, and that he did
not have words to express his sorrow and remorse for his actions.
{¶15} The trial court then sentenced defendant to two consecutive two-year terms
on Count 1 (aggravated vehicular homicide) and Count 2 (aggravated vehicular
homicide), to be served concurrently with a one-year term on Count 12 (aggravated
vehicular assault), and a six-month term on Count 8 (driving while under the influence).
The trial court also imposed a mandatory lifetime license suspension, three years of
postrelease control, and a $1,000 fine.
{¶16} Defendant now appeals, assigning two errors for our review.
ASSIGNMENT OF ERROR ONE
The trial court imposed consecutive sentences without making the required
findings under R.C. 2929.12(C)(4) and thus violated Mr. Parrish’s statutory
and constitutional rights to a sentence consistent with applicable law.
{¶17} In reviewing a felony sentence, we take note of R.C. 2953.08(G), which
provides:
(2) The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the
sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence
that is appealed under this section or may vacate the sentence and remand
the matter to the sentencing court for resentencing. The appellate court’s
standard for review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶18} With regard to the applicable law, R.C. 2929.11(A) provides that:
[A] court that sentences an offender for a felony shall be guided by the
overriding purposes of felony sentencing[,] * * * to protect the public from
future crime by the offender and others and to punish the offender. To
achieve those purposes, the sentencing court shall consider the need for
incapacitating the offender, deterring the offender and others from future
crime, rehabilitating the offender, and making restitution to the victim of
the offense, the public, or both.
{¶19} R.C. 2929.12 provides a nonexhaustive list of factors a trial court must
consider when determining the seriousness of the offense and the likelihood that the
offender will commit future offenses.
{¶20} In this matter, defendant pled guilty to one count of aggravated vehicular
homicide, in violation of R.C. 2903.06(A)(1)(a), in connection with the death of Snead,
and one count of aggravated vehicular homicide, in violation of R.C. 2903.06(A)(1)(a), in
connection with the death of Smith. These offenses carry a mandatory prison term of
between two to eight years, in addition to a lifetime driver’s license suspension. See
R.C. 2903.06(B). Defendant also pled guilty to aggravated vehicular assault, in violation
of R.C. 2903.08(A)(2)(b), a felony of the fourth degree. See R.C. 2903.08(C). This
offense carried a possible term of six to 18 months of imprisonment. He also pled guilty
to a misdemeanor charge of driving while under the influence of alcohol, in violation of
R.C. 4511.19(A)(1)(a), a misdemeanor of the first degree, punishable by not more than
six months in jail. Therefore, defendant faced a possible term of imprisonment of up to
eight years for Count 1, eight years for Count 2, 18 months for Count 12, and six months
on Count 8. If the court had ordered all of the time to be served consecutively, defendant
faced a maximum term of 18 years of imprisonment. The four-year term that defendant
received is well within the statutory range for the offenses and is substantially less than
the total possible maximum term and substantially less than the possible maximum for a
single charge of aggravated vehicular homicide.
{¶21} As to the imposition of consecutive terms, we note that in accordance with
Am.Sub.H.B. No. 86, which became effective on September 30, 2011, fact-finding is
required prior to the imposition of consecutive sentences.1 State v. Calliens, 8th Dist.
No. 97034, 2012-Ohio-703, ¶ 28. Pursuant to newly enacted R.C. 2929.14(C)(4):
1Under prior case law, construing the pre-Foster version of R.C. 2929.14(C),
and R.C. 2929.19(B), the trial court was also required to “make a finding that gives
its reasons for selecting a consecutive sentence.” See State v. Comer, 99 Ohio St.3d
463, 2003-Ohio-4165, 793 N.E.2d 473. The present version of R.C. 2929.14(C)
simply requires findings from the court but does not include the requirement that
the court state on the record the findings that give reasons for the sentence.
Compare current versions of R.C. 2929.14(C)(4) with the current version of R.C.
2929.14(B)(2)(e) and the current version of R.C. 2929.19.
(4) If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness of
the offender’s conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crimes
by the offender.
{¶22} In State v. Wilson, 8th Dist. No. 85598, 2005-Ohio-4285, this court
determined that the trial court satisfied all of the requirements of R.C. 2929.14 prior to
imposing consecutive sentences, where:
The judge informed the defendant he would impose a sentence
“commensurate with the crimes and [defendant’s] record, and [defendant’s]
background, [and] the harm [he] caused to the [victims].” The judge noted
a need to impose a sentence that would “protect the public from future
crime” of the defendant. The judge discussed the severity of defendant’s
crimes and went into lengthy detail and analysis of why defendant’s crimes
reflected a greater dangerousness to the community compared to crimes of
other offenders. The judge noted defendant’s failure on parole. The judge
found and reasoned “you were out on parole, you have an unenviable
history of convictions and crimes of violence, the remorse is minimal, and it
would appear to me that you’re a highly dangerous individual, highly
dangerous to yourself and to society, and that incarceration is necessary to
deter you and incapacitate you from future crime.”
Wilson at ¶ 12.
{¶23} Likewise, in this matter, the trial court held a lengthy hearing in which it
heard a considerable amount of evidence and made thoughtful and extensive findings.
The court discussed the severity of defendant’s crimes and went into lengthy detailed
analysis about the need to impose a sentence that would protect the public. The court
then informed defendant that it would impose a sentence commensurate with the crimes
and defendant’s background, and the harm defendant caused to the victims. Specifically,
the trial court stated that two people had died and that many people had been injured as
the result of defendant’s actions. Punishment was deserved and had to be fashioned to
reflect that two lives were lost because of defendant’s actions. The court also stated that
society had been shocked and harmed by the reckless behavior of the defendant. The
court found that defendant had admittedly driven while drunk and caused extreme harm,
and that the law has set forth consequences for such conduct.
{¶24} In short, the court fully met the requirements of the applicable law,
including the requirements of newly enacted R.C. 2929.14(C)(4). The trial court
properly concluded that the consecutive sentence is necessary to protect the public from
future crime or to punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public. The trial court additionally concluded that the course of
conduct through which defendant committed the offenses produced a harm that resulted
in two deaths and multiple injuries, and the harm from the multiple offenses was so
significant that no single prison term for any of the offenses committed as part of any of
the courses of conduct adequately reflects the seriousness of the offender’s conduct. The
trial court therefore articulated the appropriate findings consistent with the directives of
R.C. 2929.14(C)(4).
{¶25} The first assignment of error is without merit.
ASSIGNMENT OF ERROR TWO
Mr. Parrish’s counsel was ineffective for failing to argue that R.C.
2929.14(C)(4) required specific findings at the September 30, 2011,
sentencing hearing.
{¶26} For his second assignment of error, defendant argues that his trial counsel
was ineffective for failing to argue that specific findings were required before
consecutive sentences could be imposed.
{¶27} To establish a claim of ineffective assistance of counsel, a defendant must
show that counsel’s performance was deficient and that the deficient performance
prejudiced the defense so as to deprive the defendant of a fair trial. Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶28} To show error, the defendant must overcome the strong presumption that
licensed attorneys are competent and that the challenged action is the product of sound
trial strategy and falls within the wide range of reasonable professional assistance.
Strickland at 690-691. Because judicial scrutiny of counsel’s performance is highly
deferential, reviewing courts must refrain from second-guessing the strategic decisions of
trial counsel. Id. To show resulting prejudice, the defendant must establish a
reasonable probability that, but for counsel’s unprofessional conduct, the result of the
proceedings would have been different. Id.
{¶29} Here, the record indicates that defendant’s attorney informed the trial court
as follows:
[A]s I understand the [new] statute, it has a preference towards minimum
sentence for someone who has no previous prison sentence or any prior
record, a preference away from consecutive sentence. But I don’t have a
good handle on how much discretion there is or how much of a fact finding
is required. * * *.
* * * In this particular case, because of the unique nature of it and the fact
that even the victims’ famil[ies] and all the people involved are sympathetic
to the situation and don’t want him to do any time in some instances and a
little in others, a situation we rarely see, I would ask you to consider
granting him the minimum two year sentence and letting the rest of the
sentence be concurrent.
{¶30} In this matter, the record clearly indicates that the court and the attorneys
were well aware that the new statute took effect on the date of sentencing and that
fact-finding was required in order for consecutive sentences to be imposed. (Tr. 89.)
{¶31} Further, the trial counsel filed a detailed sentencing memorandum that
included numerous letters and emails from 11 individuals reiterating that defendant was
23 years old, a graduate of Shaker Heights High School, had no criminal history, was
employed, and had attended Cuyahoga Community College. From this, and from the
remarks of defense counsel, we conclude that counsel strategically determined to
emphasize his argument for a minimum sentence, rather than to outline what the court
should do in order to impose consecutive terms. Therefore, we conclude that trial
counsel did not err. In any event, we have concluded that the trial court complied with
the requirements of the newly enacted statute, so defendant incurred no prejudice in this
matter.
{¶32} The second assignment of error is without merit.
{¶33} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
MARY J. BOYLE, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR