[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.
Butler CA2018-04-066
{¶ 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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