[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Earley, Slip Opinion No. 2015-Ohio-4615.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2015-OHIO-4615
THE STATE OF OHIO, APPELLEE, v. EARLEY, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Earley, Slip Opinion No. 2015-Ohio-4615.]
Criminal law—A trial court may impose cumulative sentences for both aggravated
vehicular assault in violation of R.C. 2903.08(A)(1)(a) and operating a
motor vehicle under the influence of alcohol or drugs in violation of R.C.
4511.19(A)(1)(a) when the offense of operating a vehicle while under the
influence is the predicate conduct for aggravated vehicular assault.
(Nos. 2014-1278 and 2014-1454—Submitted June 10, 2015—Decided November
10, 2015.)
APPEAL from and CERTIFIED by the Court of Appeals for Cuyahoga County,
No. 100482, 2014-Ohio-2643.
____________________
SYLLABUS OF THE COURT
A trial court may impose cumulative sentences for both aggravated vehicular
assault in violation of R.C. 2903.08(A)(1)(a) and operating a motor vehicle
SUPREME COURT OF OHIO
under the influence of alcohol or drugs in violation of R.C.
4511.19(A)(1)(a) when the offense of operating a vehicle while under the
influence is the predicate conduct for aggravated vehicular assault. (State
v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, applied.)
__________________
LANZINGER, J.
{¶ 1} In this case we are asked to determine whether a trial court may
impose cumulative sentences for both aggravated vehicular assault in violation of
R.C. 2903.08(A)(1)(a) and operating a motor vehicle under the influence of alcohol
or drugs (“OVI”) in violation of R.C. 4511.19(A)(1)(a) when the offense of
operating a vehicle while under the influence is the predicate conduct for
aggravated vehicular assault. We hold that it may.
I. Case Background
{¶ 2} A Cuyahoga County grand jury indicted appellant, Antonia Earley, on
two counts of aggravated vehicular assault, one count of endangering children, two
counts of OVI, and one count of using weapons while intoxicated, all with forfeiture
specifications. Earley pleaded guilty to one count of aggravated vehicular assault,
a felony of the third degree, in violation of R.C. 2903.08(A)(1)(a); one count of
endangering children, a felony of the third degree, in violation of R.C. 2919.22(A);
one count of OVI, a misdemeanor of the first degree, in violation of R.C.
4511.19(A)(1)(a); and the accompanying forfeiture specifications. The state
requested a nolle prosequi on the remaining counts, and those were dismissed. The
trial court sentenced Earley to a term of three years for aggravated vehicular assault,
36 months for endangering children, and six months for OVI, all concurrently
imposed.
{¶ 3} Earley appealed her sentences, claiming that aggravated vehicular
assault is an allied offense of OVI and that they should have merged. The court of
appeals affirmed the judgment of the trial court and held that even assuming that
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aggravated vehicular assault and OVI are allied offenses, R.C. 2929.41(B)(3)
creates an exception that permits a trial court to impose a sentence for both. 2014-
Ohio-2643, 15 N.E.3d 357, ¶ 20-21 (8th Dist.).
{¶ 4} The appellate court certified that its decision conflicted with State v.
West, 2d Dist. Montgomery No. 23547, 2010-Ohio-1786; State v. Mendoza, 6th
Dist. Wood No. WD-10-008, 2012-Ohio-5988; and State v. Phelps, 12th Dist.
Butler No. CA2009-09-243, 2010-Ohio-3257. In those cases, without addressing
the possible impact of R.C. 2929.41(B)(3), the appellate courts either held that an
aggravated-vehicular-assault offense and an OVI offense merged or remanded the
case to the trial court for further proceedings to determine whether the offenses
should merge pursuant to R.C. 2941.25. West at ¶ 45; Mendoza at ¶ 10-11; Phelps
at ¶ 30-32.
{¶ 5} We accepted the conflict certified to us by the Eighth District Court
of Appeals:
When the offense of operating a motor vehicle while under
the influence in violation of R.C. 4511.19(A)(1) is the predicate
conduct for aggravated vehicular assault in violation [of] R.C.
2903.08(A)(1), are the two offenses allied, and if so, does R.C.
2929.41(B)(3) create an exception that allows a trial court to impose
a sentence for both offenses?
140 Ohio St.3d 1450, 2014-Ohio-4414, 17 N.E.3d 597. We also accepted the
proposition of law raised in Earley’s discretionary appeal:
When the offense of operating a vehicle while under the
influence, R.C. 4511.19(A)(1)(a), is the predicate conduct for
aggravated vehicular assault, R.C. 2903.08(A)(1)(a), Ohio’s allied-
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offense statute, R.C. 2941.25, must be considered before a court
may determine whether concurrent or consecutive sentences will be
imposed under [R.C.] 2929.41(B)(3). Fifth and Fourteenth
Amendments, United States Constitution; Section 10, Article I,
Ohio Constitution; R.C. 2941.25.
140 Ohio St.3d 1451, 2014-Ohio-4414, 17 N.E.3d 598.
II. Analysis
{¶ 6} The specific language found in R.C. 2941.25 and R.C. 2929.41 guides
us in deciding whether R.C. 2929.41(B)(3) creates an exception that allows a trial
court to impose a sentence for both 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) when the OVI
offense is the predicate conduct for aggravated vehicular assault.
Statutory Provisions
{¶ 7} R.C. 2941.25 sets forth when a defendant may be convicted of
multiple offenses. It provides:
(A) Where the same conduct by defendant can be construed
to constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses,
but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in two or
more offenses of the same or similar kind committed separately or
with a separate animus as to each, the indictment or information may
contain counts for all such offenses, and the defendant may be
convicted of all of them.
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January Term, 2015
{¶ 8} While R.C. 2941.25 focuses on multiple convictions, R.C. 2929.41
addresses sentencing, providing instruction to the trial court on whether prison
terms shall be served consecutively or concurrently. R.C. 2929.41(A) provides,
“Except as provided in division (B)(3) of this section, a jail term or sentence of
imprisonment for misdemeanor shall be served concurrently with a prison term or
sentence of imprisonment for felony.” And R.C. 2929.41(B)(3) states:
A jail term or sentence of imprisonment imposed for a
misdemeanor violation of section 4510.11, 4510.14, 4510.16,
4510.21, or 4511.19 of the Revised Code shall be served
consecutively to a prison term that is imposed for a felony violation
of section 2903.06, 2903.07, 2903.08, or 4511.19 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.
The Parties’ Arguments
{¶ 9} Earley argues that her aggravated-vehicular-assault and OVI offenses
are allied offenses of similar import pursuant to State v. Johnson, 128 Ohio St.3d
153, 2010-Ohio-6314, 942 N.E.2d 1061, and that the trial court committed plain
error when it sentenced her for both.
{¶ 10} The state responds that the trial court properly sentenced Earley for
both aggravated vehicular assault and OVI. It argues that the plain language of
R.C. 2929.41(B)(3) demonstrates the General Assembly’s intent to allow
cumulative punishments for those offenses, and it suggests that our analysis for
determining whether offenses merge pursuant to R.C. 2941.25 does not apply.
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The Offenses Are Not Allied Offenses of Similar Import
{¶ 11} We conclude that the trial court did not err in sentencing Earley for
both OVI in violation of R.C. 4511.19(A)(1)(a) and aggravated vehicular assault in
violation of R.C. 2903.08(A)(1)(a), because we hold that the two offenses are not
allied offenses of similar import. In so concluding, we note that Earley’s reliance
upon Johnson is misplaced. The lead opinion in Johnson did not receive the support
of a majority of this court, and more recent decisions of this court have rendered
the analysis of the Johnson lead opinion largely obsolete. See State v. Ruff, 143
Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 16 (recognizing that although
Johnson included a syllabus paragraph, our decision in that case “was incomplete”).
{¶ 12} We have applied a three-part test under R.C. 2941.25 to determine
whether a defendant can be convicted of multiple offenses:
As a practical matter, when determining whether offenses
are allied offenses of similar import within the meaning of R.C.
2941.25, courts must ask three questions when defendant’s conduct
supports multiple offenses: (1) Were the offenses dissimilar in
import or significance? (2) Were they committed separately? and (3)
Were they committed with separate animus or motivation? An
affirmative answer to any of the above will permit separate
convictions. The conduct, the animus, and the import must all be
considered.
Ruff at ¶ 31; see also id. at paragraphs one, two, and three of the syllabus.
{¶ 13} The two particular offenses at issue here—felony aggravated-
vehicular- assault under R.C. 2903.08(A)(1)(a) and misdemeanor OVI under R.C.
4511.19(A)(1)(a)—are offenses of dissimilar import and significance. R.C.
2903.08 states:
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January Term, 2015
(A) No person, while operating or participating in the
operation of a motor vehicle, * * * shall cause serious physical harm
to another person or another’s unborn in any of the following ways:
(1)(a) As 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.
Aggravated vehicular assault as defined in R.C. 2903.08(A)(1)(a) is a felony of the
third degree unless one of the enumerated exceptions applies to make it a felony of
the second degree, R.C. 2903.08(B)(1), and always carries a mandatory prison term,
R.C. 2903.08(D)(1).
{¶ 14} R.C. 4511.19 provides:
(A)(1) No person shall operate any vehicle * * * within this
state, if, at the time of the operation, any of the following apply:
(a) The person is under the influence of alcohol, a drug of
abuse, or a combination of them.
OVI in violation of R.C. 4511.19(A)(1)(a) is a misdemeanor of the first degree
unless an exception applies. R.C. 4511.19(G)(1)(a).
{¶ 15} By criminalizing aggravated vehicular assault under R.C.
2903.08(A)(1)(a) and classifying it as a third-degree felony with a mandatory
prison term, the General Assembly emphasized the necessity of a strong
punishment for and deterrent against individuals causing serious physical harm
while driving under the influence. This felony offense 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. A
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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. There is a legitimate justification
for criminalizing each of these offenses separately, and R.C. 2941.25 permits
separate convictions for both pursuant to the test set forth in Ruff.
{¶ 16} Thus, because the affirmative answer to the first Ruff question allows
Earley to be separately convicted of each offense, the trial court did not commit
plain error—and did not err at all—in not merging the convictions.
R.C. 2941.25 and 2929.41(B)(3) Have Independent Effect
{¶ 17} We further hold that R.C. 2929.41(B)(3) does not create an
exception to R.C. 2941.25. Instead, the two statutes are independent and work
together.
{¶ 18} The allied-offense statute, R.C. 2941.25, concerns the merger of
convictions. 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.
{¶ 19} R.C. 2929.41 addresses sentencing, providing instruction to the trial
court on whether prison terms shall be served consecutively or concurrently. We
accordingly conclude that because R.C. 2929.41 does not become relevant until
valid convictions have already been obtained, it cannot be said that R.C. 2929.41
creates an exception to R.C. 2941.25.
{¶ 20} By explicitly providing that a sentence for a violation of R.C.
4511.19 can be served either consecutively or concurrently to a sentence for a
violation of R.C. 2903.08, the language of R.C. 2929.41(B)(3) bolsters the view
that a first-degree-misdemeanor OVI and a third-degree-felony aggravated
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January Term, 2015
vehicular assault are offenses of dissimilar import and significance that are to be
punished cumulatively. R.C. 2929.41(B)(3) authorized the trial court to impose
multiple sentences on Earley for those offenses by providing that the requirement
for concurrent sentences stated in R.C. 2929.41(A) does not necessarily apply in
this specific situation. Although this language is fully consistent with our
conclusion that the two offenses at issue in this case are not allied offenses of
similar import, it is not dispositive of that concern because either sentencing option
available to the trial court under R.C. 2929.41 here was based on the presence of
two valid separate convictions.
III. Conclusion
{¶ 21} We accordingly hold that a trial court may impose cumulative
sentences for both aggravated vehicular assault in violation of R.C.
2903.08(A)(1)(a) and operating a motor vehicle under the influence of alcohol or
drugs in violation of R.C. 4511.19(A)(1)(a) when the offense of operating a vehicle
while under the influence is the predicate conduct for aggravated vehicular assault.
Furthermore, R.C. 2941.25 and 2929.41(B)(3) have independent effect, and it
cannot be said that R.C. 2929.41(B)(3) provides an exception to the allied-offense
statute.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER and O’NEILL, JJ., concur.
O’DONNELL, KENNEDY, and FRENCH, JJ., concur in judgment.
_________________
O’DONNELL, J., separately concurring.
{¶ 22} R.C. 2929.41(B)(3) carves out an exception to the allied offense
statute and permits a court to impose consecutive sentences for felony aggravated
vehicular assault in violation of R.C. 2903.08(A)(1)(a) and its predicate
misdemeanor offense of operating a motor vehicle under the influence of alcohol
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or drugs (“OVI”) in violation of R.C. 4511.19(A)(1)(a), regardless of whether they
are allied offenses of similar import.
{¶ 23} We have considered the allied offense statute, R.C. 2941.25, on
many occasions and have recognized it as a legislative prohibition against multiple
punishments for two or more offenses resulting from the same conduct. See State
v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 11.
{¶ 24} It provides:
(A) Where the same conduct by defendant can be construed
to constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses,
but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in two or
more offenses of the same or similar kind committed separately or
with a separate animus as to each, the indictment or information may
contain counts for all such offenses, and the defendant may be
convicted of all of them.
{¶ 25} R.C. 2929.41(B)(3) specifically authorizes a trial court to exercise
its discretion to impose consecutive sentences for misdemeanor OVI violations:
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.
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January Term, 2015
(Emphasis added.)
{¶ 26} By using this language, the General Assembly expressed its intent to
vest a sentencing court with discretion to impose consecutive sentences for the
felony of aggravated vehicular assault and a misdemeanor OVI offense whenever
the court exercises its discretion to impose sentence in that fashion. In State v.
Kreischer, 109 Ohio St.3d 391, 2006-Ohio-2706, 848 N.E.2d 496, this court stated:
“[W]hen the General Assembly has plainly and unambiguously conveyed its
legislative intent, there is nothing for a court to interpret or construe, and therefore,
the court applies the law as written.” Id. at syllabus.
{¶ 27} The majority concludes that R.C. 2941.25 is independent from R.C.
2929.41(B)(3) because R.C. 2941.25 focuses on multiple convictions while R.C.
2929.41 addresses sentencing. According to the majority, “R.C. 2929.41 does not
become relevant until valid convictions have already been obtained.” (Emphasis
sic.) Majority opinion at ¶ 19. However, we recently concluded that “ ‘for purposes
of R.C. 2941.25(A), a conviction is a determination of guilt and the ensuing
sentence,’ ” thus, a defendant “ ‘is not “convicted” for purposes of R.C. 2941.25(A)
until the sentence is imposed.’ ” (Emphasis added.) State v. Rogers, 143 Ohio
St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 18, quoting State v. Whitfield, 124
Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 13, 24. Therefore, “merger of
allied offenses occurs at sentencing.” Id., citing Whitfield at ¶ 18.
{¶ 28} The allied offense statute provides general rules on whether multiple
sentences may be imposed, whereas R.C. 2929.41(B)(3) expressly refers to the two
offenses at issue in this case and permits a trial court to exercise its discretion to
impose consecutive sentences if it chooses to do so.
{¶ 29} Accordingly, 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.
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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.
{¶ 30} For this reason, I concur with the judgment entered in this case.
KENNEDY and FRENCH, JJ., concur in the foregoing opinion.
_________________
Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Brett
Hammond and T. Allan Regas, Assistant Prosecuting Attorneys, for appellee.
Timothy Young, Ohio Public Defender, and Nikki Trautman Baszynski,
Assistant Public Defender, for appellant.
Kitrick, Lewis & Harris Co., L.P.A., Mark Kitrick, and Elizabeth Mote,
urging affirmance for amicus curiae Mothers Against Drunk Driving.
Ron O’Brien, Franklin County Prosecuting Attorney, and Michael P.
Walton, Assistant Prosecuting Attorney, urging affirmance for amicus curiae
Franklin County Prosecuting Attorney Ron O’Brien.
_________________
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