State v. Lambert

[Cite as State v. Lambert, 2019-Ohio-2837.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-28
:
v. : Trial Court Case No. 2018-CR-35
:
DYLAN W.G. LAMBERT : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 12th day of July, 2019.

...........

JANE A. NAPIER, Atty. Reg. No. 0061426, Champaign County Prosecutor’s Office,
Appellate Division, 200 North Main Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee

APRIL F. CAMPBELL, Atty. Reg. No. 0089541, 545 Metro Place South, Suite 100, Dublin,
Ohio 43017, and BRADLEY KOFFEL, Atty. Reg. No. 0062184, 1801 Watermark Drive,
Suite 350, Columbus Ohio 43215
Attorneys for Defendant-Appellant

.............

FROELICH, J.
 -2-

{¶ 1} Dylan W.G. Lambert appeals from a judgment convicting him of aggravated

vehicular homicide and aggravated vehicular assault and sentencing him to maximum

and consecutive prison terms totaling 120 months. The judgment of the trial court will be

affirmed.

Factual and Procedural Background

{¶ 2} A Champaign County grand jury indicted Lambert on two first-degree

misdemeanor counts of operating a vehicle under the influence of alcohol, a drug of

abuse, or a combination of them; one second-degree felony count of aggravated vehicular

homicide; one third-degree felony count of aggravated vehicular homicide; three third-

degree felony counts of aggravated vehicular assault; and three fourth-degree felony

counts of vehicular assault. The charges stemmed from a November 3, 2017 collision in

which Lambert, then 27 years old, was driving a car that struck another vehicle while

attempting to pass that vehicle by crossing a double-yellow line. The collision caused the

other car to roll over in a ditch, seriously injuring the minor driver and killing the 15-year-

old passenger. 1 Testing after the collision showed Lambert to have a blood alcohol

content of .232 grams per milliliter.

{¶ 3} Lambert was released on an own-recognizance bond, subject to conditions

including that he comply with orders of the pretrial services department and that he not

consume alcohol or drive a motor vehicle while the case remained pending. (Doc. #8, pp.

1, 3). On June 6, 2018, Lambert entered guilty pleas to the Count Four third-degree felony

1
Injuries to a passenger in Lambert’s own car led to the additional assault counts. (See
Sentencing Hearing Tr., p. 53).
 -3-

charge of aggravated vehicular homicide (for the death of the passenger in the other car)

and the Count Six third-degree felony charge of aggravated vehicular assault (for the

injuries to the driver of the other car), in exchange for dismissal of the other eight counts.

(See Plea Hearing Tr., pp. 7-27). At the outset of that hearing, the trial court found

Lambert “guilty” of a bond violation for failure to appear for or call to reschedule a pretrial

services appointment. (Id., pp. 2-5). On that issue, the court further advised Lambert as

follows:

The court would encourage you very strongly not to miss another Pretrial

Services’s [sic] appointment. A person’s conduct while on bond * * * is

something that the Court considers as a sentencing factor. It doesn’t mean

it dominates. And it doesn’t mean that it is a minimal factor. Just a tool that

the Court uses. * * *

(Id., pp. 5-6).

{¶ 4} Before accepting Lambert’s guilty pleas, the trial court conducted a plea

colloquy to assure that Lambert understood the rights that he was waiving and the

consequences of his pleas. The court informed Lambert that the Court Four offense of

aggravated vehicular homicide carried “a maximum [term of] imprisonment of 60 months

and a maximum fine of $10,000,” plus “a mandatory driver’s license suspension of not

less than three years up to life suspension.” (Id., p. 12). As to the Count Six offense of

aggravated vehicular assault, the court advised Lambert of the “maximum [sentence of]

60 months in prison,” the “maximum fine of $10,000,” and the “mandatory driver’s license

suspension of not less than two years and no more than ten years,” but clarified that

“[u]nlike the aggravated vehicular homicide, the aggravated vehicular assault carries with
 -4-

it mandatory imprisonment.” (Id., pp. 12-13). “That means that the Court must select a

definite sentence on Count Six of 12 months, 18 months, 24 months, 30 months, 36

months, 42 months, 48 months, 54 months, or 60 months.” (Id., p. 13).

{¶ 5} The trial court told Lambert that he could receive maximum consecutive

sentences totaling 120 months of prison time and a $20,000 fine (id., p. 14), and that

because the court would “be required to impose a prison term on Count Six,” it would “be

unlikely that the Court would give you anything else but prison on Count Four.” (Id., pp.

15-16). Lambert indicated his understanding of each of the court’s advisory statements.

He also signed a written plea agreement that repeated the same information. (Doc. #35).

The court continued the matter for sentencing memoranda from the parties and a

presentence investigation (“PSI”).

{¶ 6} On July 23, 2018, the trial court sentenced Lambert to the maximum

sentences of 60 months for both aggravated vehicular assault and aggravated vehicular

homicide, to be served consecutively for a total prison term of 120 months; a lifetime

driver’s license suspension for the aggravated vehicle homicide; fines of $1,000 for each

offense, for a total of $2,000; plus costs. Before doing so, the court reviewed the PSI, the

sentencing memoranda, and written statements from Lambert’s and the victims’ families,

and also heard oral statements from the injured driver of the other car and the family of

the victim killed in the accident. Both orally at the sentencing hearing and in its written

judgment entry, the trial court set forth its reasoning for imposing maximum consecutive

sentences.

{¶ 7} Lambert appeals, asserting two assignments of error:2

2
Although Lambert places these two arguments under a single “Assignment of Error”
 -5-

1) The trial court’s decision to impose consecutive sentences should be

vacated; and

2) There is clear and convincing evidence that the record does not support

the trial court’s imposition of the maximum sentence, and [Lambert’s]

sentences are also contrary to law.

Standard of Review

{¶ 8} In reviewing felony sentences, appellate courts must apply the standard of

review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under R.C.

2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it may

vacate the sentence and remand for resentencing, only if it “clearly and convincingly”

finds either (1) that the record does not support certain specified findings or (2) that the

sentence imposed is contrary to law.

{¶ 9} In determining the sentence for an individual offense, the trial court has full

discretion to impose any sentence within the authorized statutory range, and the court is

not required to make any findings or give its reasons for imposing a maximum or more

than minimum sentence. State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.).

However, in exercising its discretion, a trial court must consider the statutory criteria that

apply to every felony offense, including those set out in R.C. 2929.11 and R.C. 2929.12.

State v. Leopard, 194 Ohio App.3d 500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.),

citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.

asserting that his sentences “should be reversed” (see Appellant’s Brief, p. v), they raise
distinct issues that we will address separately.
 -6-

{¶ 10} R.C. 2929.11 requires trial courts to be guided by the overriding purposes

of felony sentencing. Those purposes are “to protect the public from future crime by the

offender and others and to punish the offender using the minimum sanctions that the court

determines accomplish those purposes without imposing an unnecessary burden on state

or local government resources.” R.C. 2929.11(A). The court must “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.” Id. R.C. 2929.11(B) further provides that “[a] sentence imposed for a felony shall

be reasonably calculated to achieve the two overriding purposes of felony sentencing

* * *, commensurate with and not demeaning to the seriousness of the offender’s conduct

and its impact upon the victim, and consistent with sentences imposed for similar crimes

committed by similar offenders.”

{¶ 11} In general, it is presumed that prison terms will be served concurrently. R.C.

2929.41(A); State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 16,

23 (“judicial fact-finding is once again required to overcome the statutory presumption in

favor of concurrent sentences”). However, after determining the sentence for a particular

crime, a sentencing judge has discretion to order an offender to serve individual counts

of a sentence consecutively to each other or to sentences imposed by other courts. R.C.

2929.14(C)(4) permits a trial court to impose consecutive sentences if it finds that (1)

consecutive sentencing is necessary to protect the public from future crime or to punish

the offender, (2) consecutive sentences are not disproportionate to the seriousness of the

offender’s conduct and to the danger the offender poses to the public, and (3) any of the

following applies:
 -7-

(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 crime by the

offender.

Assignment of Error Regarding Maximum Sentences

{¶ 12} Lambert maintains that the trial court erred in multiple respects as to the

reasons it gave for imposing maximum sentences in his case. First, he argues that his

failure to appear for a pretrial services appointment was not “a bond violation” and

therefore should not have been considered as a sentencing factor. Next, he argues that

the trial court improperly relied on Lambert’s family’s history with alcohol as a factor that

supported a longer sentence. Lambert also contends that the trial court failed to consider

its responsibility “to promote Lambert’s rehabilitation,” despite rehabilitation’s being a

required sentencing consideration. Finally, he suggests that as “a first-time offender” who

“led a law-abiding life,” he should not have been given maximum sentences.

a. Bond Violation
 -8-

{¶ 13} Lambert’s arguments do not demonstrate that the maximum sentences

imposed by the trial court clearly and convincingly were not supported by the record or

were contrary to law. Regardless of whether Lambert’s failure to appear for an April 5,

2018 pretrial services appointment constituted “a bond violation,”3 nothing suggests that

the missed appointment significantly influenced the trial court’s sentencing decision. With

respect to Lambert’s conduct while free on bond, the trial court expressed far greater

concern that Lambert, by his own admission, had consumed alcohol on at least two

occasions, despite being ordered not to do so.

{¶ 14} As a preliminary matter at the time of sentencing, the trial court remarked

on the State’s having “allege[d] that [Lambert] violated bond by consuming alcoholic

beverages.” (Sentencing Hearing Tr., p. 5). Through both counsel and his own oral

affirmation, Lambert admitted those allegations. (Id., p. 6). The court found Lambert “guilty

of violating bond” and indicated that it would consider such violations “as a sentencing

factor.” (Id.).

{¶ 15} Later, when reviewing the statutory sentencing factors, the trial court

referred to two exhibits submitted in conjunction with the State’s sentencing

memorandum. The court noted that one photograph, dated April 27, 2018,4 depicted

3
Lambert cites our decision in State v. Springer, 2015-Ohio-1941, 34 N.E.3d 441 (2d
Dist.) in support of his bond violation argument. There, we stated that, “[u]nless otherwise
expressed by the trial court, the only condition of an own-recognizance bond is that the
defendant appear on the date specified by the court.” (Citation omitted.) Id. at ¶ 19. The
trial court in that case had not informed the defendant that she would be subject to random
drug screenings. Here, however, the bond issued by the court does expressly order
Lambert to “comply with orders given by” the pretrial services department. (Doc. #8, p.
1). Accordingly, the applicability of that case to these facts is tenuous.
4
Lambert was indicted on February 1, 2018 for the November 3, 2017 collision; his bond
entry dated February 14, 2018 ordered Lambert not to consume alcohol. (Doc. #8, p. 3).
 -9-

Lambert playing a video game and drinking a Coors Light beer while seated next to an

infant. (See Doc. #38, Exh. 2). The court continued:

[Trial Court]: And Coors Light was the same beer can found in your vehicle

at the time of the accident; is that accurate?

[Lambert]: Yes, Your Honor.

[Trial Court]: And in State’s Exhibit 1 at the Wapakoneta Tug Fest, which

was held on May 18 and 19 of [2018], it looks like you are drinking a Coors

Light; is that accurate?

[Lambert]: Yes, Your Honor.

[Trial Court]: And, again, Coors Light was the same beer can found in your

vehicle at the time of the accident; is that right?

[Lambert]: Yes, Your Honor.

(Sentencing Hearing Tr., p. 34).

{¶ 16} The court thereafter engaged in a continuing dialogue with Lambert about

Lambert’s denial he had an alcohol problem and the court’s concern that he did. (Id., pp.

39-41, 43-44). Further, the court explored whether Lambert had been impaired at the time

of the accident by some substance other than alcohol:

[Trial Court]: Is it accurate that from time-to-time you take non-prescribed

opiates because of back pain?

[Lambert]: I have, yes, Your Honor.

[Trial Court]: And do you receive these from a friend?

[Lambert]: Yes, Your Honor.

[Trial Court]: And the night of the offense you took a non-prescribed opiate
 -10-

because of back pain?

[Lambert]: Yes, Your Honor.

[Trial Court]: So not only did we have the alcohol, but you were also taking

a non-prescription medication which would have been illegal for you to take,

true?

[Lambert]: Yes, Your Honor.

[Trial Court]: Do you understand why the Court believes that your statement

that you don’t need substance abuse treatment is even worse?

[Lambert]: Absolutely, Your Honor.

(Id., pp. 44-45).

{¶ 17} The court noted that Lambert had two prior juvenile adjudications for

underage consumption of alcohol, had one underage consumption of alcohol charge as

an adult dismissed after successfully completing a pretrial probation program, and had

“continu[ed] to drink alcohol in violation of the Court order not to drink alcohol.” (Id., p.

40). Summarizing its findings, the trial court again noted that “on two occasions, and in

violation of bond, [Lambert] continued to drink the same type of alcohol that was found in

his vehicle at the time of the offense.” (Id., pp. 55-56). Only after multiple discussions of

Lambert’s alcohol and drug use did the trial court make its sole mention of the missed

pretrial services appointment, as follows:

[T]he Court finds that [Lambert] violated bond by not only using

alcohol on or about April 2018 and May 18 or 19 of 2018, but that he also

failed to appear when required by the Court. And that was his April 5

appointment with Pretrial Services and his subsequent telephone directive
 -11-

to reschedule.

Defendant’s Ohio Risk Assessment Score initially graded out at 13,

which was low. It was overwritten by the PSI writer to moderate because

the PSI investigator stated that [Lambert] has a criminal history involving

alcohol-related offenses. And [Lambert] refuses to admit that he has an

issue with alcohol and substance abuse treatment [sic].

(Id., pp. 51-52).

{¶ 18} Given the trial court’s extensive focus on Lambert’s history of alcohol and

drug use and continued use of alcohol, the record does not fail to support the trial court’s

sentencing findings due simply to the court’s isolated reference to Lambert’s missed

pretrial services appointment.

b. Family History

{¶ 19} The trial court’s discussion of documented alcohol problems among other

members of Lambert’s family also does not compel a conclusion that the record fails to

support the trial court’s sentencing findings. In response to the court’s questioning about

that family history, Lambert acknowledged that his father “had several OVI charges,” his

mother had a recent OVI charge, and at least one of Lambert’s older brothers also had

an OVI record. (Sentencing Hearing Tr., pp. 28-33). Lambert indicated that another older

brother, when “underage,” had been involved in an accident in which someone was killed;

Lambert said he was not sure if alcohol had been involved or whether his brother had

served time for that incident. (Id., pp. 28-29).

{¶ 20} Later, the court inquired further on that subject:

[Trial Court]: [D]id the prior OVIs that your mother and father and brother
 -12-

have make any impact on you?

[Lambert]: I mean, I’m not really connected with my family all that much

except for my mother out of the people listed. So as far as anybody else on

there, besides my mother, no, it didn’t have no impact on me.

[Trial Court]: Did the fact that your brother was involved in an accident, a

traffic accident where [a] life was taken, did that have any impact on you?

[Lambert]: Yes, Your Honor. It is something you think about. Absolutely,

Your Honor.

(Id., p. 39).

{¶ 21} As to the significance of Lambert’s family history of issues with alcohol, the

trial court later stated:

[T]he Defendant’s family history of having three family members with prior

OVI convictions and one family member who was involved in a prior

accident that claimed human life has not sufficiently made an impact on the

Defendant to cause him to modify his behavior[,] as shown in violating bond.

(Id., p. 55). The trial court’s inquiry into Lambert’s relatives’ experiences with alcohol-

related offenses provides no basis for us to clearly and convincingly conclude that the

record does not support that court’s sentencing findings. The record contains no

suggestion that the trial court was punishing Lambert for the conduct of others; the trial

court plainly articulated its reasoning that Lambert’s failure to learn from the past mistakes

of others close to him was part of a pattern reflecting a likelihood that Lambert would

reoffend. The record does not demonstrate that the court erred in that regard.

c. Rehabilitation
 -13-

{¶ 22} The record also does not support Lambert’s contention that the trial court,

in imposing maximum sentences, erroneously failed to consider his rehabilitation. The

trial court acknowledged that Lambert had “successfully completed a pretrial probation

program” for a municipal court charge of underage consumption of alcohol. Nevertheless,

the court observed that Lambert had “continu[ed] to drink alcohol,” despite the court’s

order that he refrain from doing so. Furthermore, the record indicates that Lambert

resisted the notion that he might benefit from substance abuse treatment.

{¶ 23} We have found that a sentencing court is justified “in giving greater weight

to the protection of the public from future offenses that [the defendant] is likely to commit”

when the defendant’s record “does not demonstrate his amenability to rehabilitation.”

State v. Bailey, 2d Dist. Clark No. 2009-CA-51, 2010-Ohio-2632, *3. The record does not

clearly and convincingly fail to support the trial court’s findings that Lambert “ha[d] not

been rehabilitated to a satisfactory degree after being adjudicated a delinquent child”; had

“refuse[d] to acknowledge that he ha[d] demonstrated” a “pattern of alcohol abuse that is

related to the offense”; and that he “show[ed] no genuine remorse for the offense.”

(Sentencing Hearing Tr., p. 54).

d. First Time Offender

{¶ 24} We are not persuaded that the trial court’s imposition of maximum

sentences was unwarranted simply because Lambert was a “first-time offender.” We

previously have rejected the suggestion that a defendant’s status as a first-time offender

provides a proper basis for comparison of sentences imposed in different cases. See

State v. Armstrong, 2d Dist. Champaign No. 2015-CA-31, 2016-Ohio-5263, ¶ 42. “Many

factors enter into a sentencing determination in each case, and sentences cannot
 -14-

reasonably be compared to one another in this manner.” (Citations omitted.) Id.

{¶ 25} In this instance, the trial court appropriately detailed many factors that it

found to demonstrate that Lambert’s conduct constituted a more serious form of the two

offenses to which he had pled guilty. The court enumerated those factors as follows:

[N]umber one, * * * Defendant had a blood alcohol concentration of

.232 grams per milliliter in his blood plasma serum.

Secondly, that his blood alcohol concentration [wa]s nearly two and

a half times the legal limit of .096 grams per milliliter.

Number three, Defendant has two prior adjudications for underage

consumption of alcohol. And as an adult, one prior pretrial probation

successful dismissal of a charge for underage consumption of alcohol.

Four, that during the operation of the motor vehicle[,] the Defendant

attempted to pass the car containing the two victims on a double yellow line.

Five, that the physical or mental injuries suffered by the victim[s] of

the offense, due to the conduct of the Defendant, w[ere] exacerbated

because of the age of the victim[s]. Specifically, the deceased passenger

victim in the secondary vehicle was 15 years of age. And the severely

injured driver victim in the secondary vehicle was 17 years of age.

Six, that the victims in the secondary v[ehicle] suffered death and

serious physical harm as a result of the offense.

Seven, the Defendant not only caused injury and death to the two

victims in the secondary vehicle, but also caused physical injury to his own

passenger.
 -15-

Eight, the Defendant’s intoxication aside, had the Defendant obeyed

traffic lane requirements[,] the accident and resulting loss of life and serious

injuries to others would never have occurred.

And, nine, the Defendant operated the motor vehicle without being

insured to drive a motor vehicle.

(Sentencing Hearing Tr., pp. 52-54).

{¶ 26} The trial court considered the appropriate sentencing criteria under R.C.

2929.11 and R.C. 2929.12, and we cannot say that the record clearly and convincingly

fails to support the court’s conclusion that the “factors establishing [Lambert]’s conduct

[a]s more serious outweigh [the] factors establishing [Lambert]’s conduct [a]s less

serious.” Neither can we conclude that the record does not support the trial court’s

findings as to the recidivism factors and Lambert’s likelihood to commit future crimes.

{¶ 27} Lambert’s assignment of error based on the trial court’s imposition of

maximum sentences as to both of his offenses is overruled.

Assignment of Error Regarding Consecutive Sentences

{¶ 28} Lambert contends that the trial court erred by considering as a basis for

imposing consecutive sentences Lambert’s “general course of conduct” rather than just

the conduct to which he pled guilty. He also suggests that the court improperly engaged

in “sentence packaging” by considering his offenses collectively rather than individually.

Further, Lambert again observes that he was “a first-time offender,” and argues that he

“was not one of the worst offenders for wh[om] consecutive sentences normally are

reserved.” Based on our review of the record, Lambert’s contentions are not well taken.

{¶ 29} In making Lambert’s sentences consecutive, the trial court in its written
 -16-

judgment entry stated as follows:

Consecutive sentencing is necessary to protect the public from future

crime and to punish the Defendant[,] and consecutive sentences are not

disproportionate to the seriousness of the Defendant’s conduct and to the

danger the Defendant poses to the public. AND

At least two (2) 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 the courses of

conduct adequately reflects the seriousness of the Defendant’s conduct.

(Citations omitted.) (Emphasis sic). (Doc. #40, p. 9).

{¶ 30} That conclusion tracks the language of R.C. 2929.14(C)(4)(b). As the trial

court made the requisite findings before imposing consecutive sentences, our review

turns to whether the record clearly and convincingly fails to support those findings.

a. Course of Conduct

{¶ 31} The record does not demonstrate that the trial court improperly relied on

Lambert’s “general course of conduct” as “the sole basis for imposing consecutive

sentences.”5 (See Appellant’s Brief, p. 6). Lambert’s brief implies that by “general course

5
Notably, the only authority Lambert cites as support for this argument comes from a
dissenting opinion in a decision of a different court. See State v. Hale, 2014-Ohio-262, 7
N.E.3d 643, ¶ 37-43 (3d Dist.) (Rogers, J., concurring in part and dissenting in part). Even
to the extent that opinion may be persuasive on the question of whether criminal history
is irrelevant to the statute’s requirement that the offenses created a “course of conduct,”
it is inapposite here, where evidence in the record would support a finding that Lambert’s
conduct in committing the separate offenses of aggravated vehicular homicide and
aggravated vehicular assault while under the influence of alcohol did create “a course of
conduct that resulted in great or unusual harm” to both the deceased passenger and the
 -17-

of conduct,” he means his own and his family’s overall history involving alcohol use, as

distinguished from Lambert’s actions that led directly to the fatal collision. (See id.).

{¶ 32} The trial court’s consecutive sentence findings as to Lambert’s “courses of

conduct” made no mention of Lambert’s past conduct, or that of his family, with respect

to alcohol. (See Doc. #40, p. 9; see also Sentencing Hearing Tr., p. 58). As discussed

above, in the context of imposing maximum sentences, the trial court did determine that

Lambert’s failure to moderate his behavior in response to his family’s history of OVI

offenses, Lambert’s own continuing use of alcohol, and his denial of an alcohol problem

all suggested that Lambert lacked genuine remorse and posed a continuing danger to the

public. (See Sentencing Hearing Tr., pp. 55-56). However, the trial court never expressly

invoked those same particularized concerns as a basis for imposing consecutive

sentences under R.C. 2929.14(C)(4)(b). (See id., p. 58). We nevertheless have examined

the record to determine whether we can clearly and convincingly conclude that it fails to

support the trial court’s R.C. 2929.14(C)(4)(b) findings.

{¶ 33} In order to find that two offenses were part of a single course of conduct, a

trial court “must * * * discern some connection, common scheme, or some pattern or

psychological thread that ties [the offenses] together.” (Brackets sic.) (Citation omitted.)

State v. Sapp, 105 Ohio St.3d 104, 2004-Ohio-7008, 822 N.E.2d 1239, syllabus. 6 A

course of conduct may be established by factual links such as time, location, weapon,

seriously injured driver of the other vehicle.
6 While Short and other decisions cited above discussed “course of conduct” in the

context of a death penalty specification under R.C. 2929.04(A)(5), we nonetheless have
found the analysis there to be instructive as to the meaning of that phrase for purposes
of R.C. 2929.14(C)(4)(b). See State v. Kay, 2d Dist. Montgomery No. 26344, 2015-Ohio-
4403, ¶ 19; State v. Ramey, 2015-Ohio-5389, 55 N.E.3d 542, ¶ 87-88 (2d Dist.).
 -18-

cause of death, or similar motivation. State v. Short, 129 Ohio St.3d 360, 2011-Ohio-

3641, 952 N.E.2d 1121, ¶ 144, citing Sapp at syllabus; see also State v. Ramey, 2d Dist.

Clark No. 2014-CA-127, 55 N.E.3d 542, 2015-Ohio-5389, ¶ 87. In Short, the Supreme

Court found that the victims of two separate offenses died as “part of a single course of

conduct” by the defendant where the victims “were killed within minutes of each other, at

the same address, with the same weapon, and for the same reason.” Id. at ¶ 145.

{¶ 34} More on point, this court previously affirmed that two offenses “were

committed as part of [one] course of conduct” for the purpose of consecutive sentencing

under R.C. 2929.14(C)(4)(b) where the defendant’s convictions for aggravated vehicular

homicide and aggravated vehicular assault stemmed from a two-car collision caused

when, while operating a vehicle with a suspended license and while impaired by

marijuana, the defendant sped through a red light, killing the other driver and paralyzing

a passenger in that vehicle. See State v. Mayberry, 2014-Ohio-4706, 22 N.E.3d 222,

¶ 31-32 (2d Dist.).7 Factually, Lambert’s case is virtually indistinguishable from Mayberry

with regard to the single course of conduct underlying the two offenses, in that one victim

died and another was severely injured as a consequence of Lambert’s actions in

disregarding traffic regulations while operating a vehicle without a valid license and when

under the influence of alcohol.

{¶ 35} In ordering that the maximum sentences for Lambert’s two offenses be

7 Compare Kay at ¶ 19 (implying that the record did not support a finding that defendant
“had engaged in a course of conduct” because her “convictions were based on a single
event,” not “a spree” of offenses). Still, this court’s reversal of the consecutive sentences
imposed by the trial court in Kay appears to have been premised primarily on the lack of
evidence of “great or unusual harm,” not the lack of a “course of conduct.” See id. The
Kay decision therefore bears little weight under the facts of Lambert’s case.
 -19-

served consecutively, the trial court strictly adhered to the language of R.C.

2929.14(C)(4)(b), finding consecutive sentences “necessary to protect the public from

future crime or to punish [Lambert]” and “not disproportionate to the seriousness of

[Lambert]’s conduct and to the danger [he] poses to the public,” and further finding that

the two offenses “were committed as part of one * * * course[ ] of conduct” and the harm

caused thereby “was so great or unusual that no single prison term for [either offense] *

* * adequately reflects the seriousness of [Lambert]’s conduct.” (Sentencing Hearing Tr.,

pp. 57-58). The court “specifically point[ed] to the seriousness and recidivism factors in

support of that as well.” (Id., p. 58). The record gives no indication that the court relied on

Lambert’s prior alcohol offenses to reach that conclusion.8

{¶ 36} Because we are unable to conclude that the record clearly and convincingly

does not support the trial court’s consecutive sentencing findings, we overrule Lambert’s

assignment of error related to the trial court’s “course of conduct” analysis.

b. “Sentencing Packaging”

{¶ 37} As to “sentencing packaging,” we have held that a trial court may consider

whether multiple sentences should be served concurrently or consecutively only after the

court has “consider[ed] each offense individually and impose[d] a separate sentence for

each offense.” State v. Parker, 193 Ohio App.3d 506, 2011-Ohio-1418, 952 N.E.2d 1159,

8
Furthermore, some authority suggests that a trial court properly may consider a
defendant’s prior conduct involving the use of alcohol when imposing consecutive
sentences for offenses that arise from a single accident during which the defendant was
driving while impaired by alcohol. See State v. Spock, 8th Dist. Cuyahoga No. 99950,
2014-Ohio-606, ¶ 3-4, 28-30 (affirming consecutive sentences for aggravated vehicular
homicide and aggravated vehicular assault under R.C. 2929.14(C)(4)(b) where the court
cited defendant’s prior “DUI” convictions as part of course of conduct). As the record does
not demonstrate that the trial court in Lambert’s case relied on such evidence to justify
the consecutive sentences it imposed, however, we need not reach that issue.
 -20-

¶ 86 (2d Dist.), citing R.C. 2929.11 through 2929.19; see also State v. Foster, 109 Ohio

St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the syllabus; State v.

Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, paragraph three of the syllabus.

Here, the record does not support a conclusion that the trial court imposed “only an

omnibus sentence” for Lambert’s aggravated vehicular homicide and aggravated

vehicular assault convictions, and thus violated the principle against sentencing

packaging. See id.

{¶ 38} In sentencing Lambert, the trial court separately stated the sentence

imposed for each of his individual offenses before pronouncing that such sentences would

be served consecutively to one another. (See Sentencing Tr., p. 57). Unlike the

circumstances in Parker, the court did not put forth an improper reason for the length of

Lambert’s combined sentences. See Parker at ¶ 96; see also State v. Cameron, 2d Dist.

Clark No. 2013-Ohio-4397, ¶ 18 (distinguishing Parker because the trial court in Cameron

“did not express an improper reason for the sentence it imposed”). While the court did

suggest that “no amount of time in prison will sufficiently punish” Lambert for the

consequences of his vehicular collision (Sentencing Tr., pp. 41-42), the statutory

sentencing factors required the court to consider the appropriate length of each sentence

before imposing maximum sentences for each offense. See R.C. 2929.11(A) (sentencing

court to consider purposes of “protect[ing] the public * * * and * * * punish[ing] the offender”

and “the need for incapacitating the offender [and] deterring the offender and others from

future crime”); R.C. 2929.11(B) (court to consider “the seriousness of the offender’s

conduct and its impact upon the victim”). The mere fact that the court’s sentencing

analysis employed language similar to that of R.C. 2929.14(C)(4)(b), the statute
 -21-

governing consecutive sentences, does not mean that the court improperly imposed an

“omnibus” sentence, especially given the similarities between the language of R.C.

2929.11(A) and (B) and that of R.C. 2929.14(C)(4)(b). See State v. Fields, 10th Dist.

Franklin No. 16AP-417, 2017-Ohio-661, ¶ 20 (commenting on “high degree of overlap”

between sections of sentencing statutes and concluding that trial court made necessary

findings regardless of specific statutory language used).

c. First-Time Offender

{¶ 39} Finally, the record does not compel a conclusion that Lambert’s status as a

“first-time offender” offset the seriousness of his offenses, which resulted in the death of

a 15-year-old and serious injury to a 17-year-old. Compare State v. Watkins, 2d Dist.

Clark No. 10CA0088, 2011-Ohio-2979, ¶ 14 (where this court set aside maximum,

consecutive sentences imposed against first-time offender whose kidnapping victim “was

subjected to degrading behavior, but suffered no physical harm”).

{¶ 40} Based on the record, the trial court’s consecutive sentence findings are not

clearly and convincingly unsupported by the record or contrary to law. Lambert’s

assignment of error challenging the consecutive sentences imposed by the trial court is

overruled.

Conclusion

The judgment of the trial court will be affirmed.

.............

DONOVAN, J. and TUCKER, J., concur.
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Copies sent to:

Jane A. Napier
April F. Campbell
Bradley Koffel
Hon. Nick A. Selvaggio