State v. Thadur , 2016 Ohio 417 ( 2016 )

[Cite as State v. Thadur, 2016-Ohio-417.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. 15 COA 018SRILATHA THADUR
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court,
Case No. 14 TRD 7577
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 4, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RICHARD P. WOLFE, II CHARLES A. KOENIG
DIRECTOR OF LAW TODD A. LONG
ANDREW N. BUSH KOENIG & LONG
ASSISTANT DIRECTOR OF LAW 5354 North High Street
1213 East Main Street Columbus, Ohio 43214
Ashland, Ohio 44805
Ashland County, Case No. 15 COA 018 2
Wise, J.
{¶1} Appellant Srilatha Thadur appeals from her conviction, in the Ashland
Municipal Court, on two misdemeanor counts of vehicular manslaughter. Appellee is the
State of Ohio. The relevant facts leading to this appeal are as follows.
{¶2} On August 19, 2014, while it was still daylight, appellant was operating a
Mercedes-Benz automobile eastbound on State Route 302 in Ashland County, Ohio,
when she completely failed to stop at a stop sign at the intersection of 302 and U.S. Route
42. Her automobile thereupon struck a Chrysler van that was travelling southbound on
Route 42. The collision resulted in the deaths of two passengers in the van, Loretta
Meacham and Autumn Meacham. The driver of the van, Joshua Morr, and a three-year-
old passenger survived the crash.
{¶3} Appellant was subsequently charged with two counts of vehicular homicide,
both misdemeanors of the first degree, and failure to yield at a stop sign, a minor
misdemeanor.
{¶4} On February 20, 2015, appellant, with the assistance of counsel, entered
pleas of no contest to two amended charges of vehicular manslaughter (R.C.
2903.06(A)(4)), both misdemeanors of the second degree, with the stop sign charge
dismissed.
{¶5} On April 17, 2015, the matter proceeded to sentencing. The court was inter
alia provided with a PSI report, an accident reconstruction report, and several character
reference letters regarding appellant. Following said hearing, the trial court imposed
consecutive ninety-day terms for each count, for a total sentence of one-hundred and
eighty days in jail.
Ashland County, Case No. 15 COA 018 3
{¶6} On May 15, 2015, appellant filed a notice of appeal. She herein raises the
following three Assignments of Error:
{¶7} “I. THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO
MAXIMUM CONSECUTIVE TERMS OF INCARCERATION WHICH WERE
INCONSISTENT WITH THE OVERRIDING PURPOSES OF THE MISDEMEANOR
SENTENCING REQUIREMENTS SET FORTH IN OHIO REVISED CODE SECTION
2929.21.
{¶8} “II. THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO
MAXIMUM CONSECUTIVE TERMS OF INCARCERATION WITHOUT CONSIDERING
THE FACTORS REQUIRED BY OHIO REVISED CODE SECTION 2929.22.
{¶9} “III. THE TRIAL COURT ERRED WHEN IT IMPOSED UPON APPELLANT
THE LONGEST JAIL TERMS AUTHORIZED BY LAW, IN CONTRAVENTION OF THE
SENTENCING LIMITATIONS REQUIRED BY ORC 2929.22(C).”
I.
{¶10} In her First Assignment of Error, appellant contends the trial court erred in
sentencing her to maximum consecutive sentences on the two vehicular manslaughter
counts, in light of the sentencing requirements of R.C. 2929.21. We disagree.
{¶11} Generally, misdemeanor sentencing is within the sound discretion of the
trial court and will not be disturbed upon review if the sentence is within the limits of the
applicable statute. State v. Smith, 9th Dist. Wayne No. 05CA0006, 2006-Ohio-1558, ¶ 21,
citing State v. Pass, 6th Dist. Lucas No. L-92-017, 1992 WL 386011. See, also, State v.
Chadwick, 5th Dist. Knox No. 08CA15, 2009-Ohio-2472, ¶ 30. An abuse of discretion
implies the court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams
Ashland County, Case No. 15 COA 018 4
(1980), 62 Ohio St.2d 151, 404 N.E.2d 144. Furthermore, there is no requirement that a
trial court, in sentencing on misdemeanor offenses, specifically state its reasons on the
record. State v. Harpster, 5th Dist. Ashland No. 04COA061, 2005–Ohio–1046, ¶ 20.
{¶12} We first note there is no requirement of mandatory jail time for a violation of
R.C. 2903.06(A)(4), vehicular manslaughter. However, the sentences ordered in the case
sub judice were within the statutory ranges for these two second-degree misdemeanors.
See R.C. 2929.24(A)(2).
{¶13} R.C. 2929.21(A) first states that “[a] court that sentences an offender for a
misdemeanor *** shall be guided by the overriding purposes of misdemeanor sentencing.
***.” The overriding purposes of misdemeanor sentencing are to protect the public from
future crime by the offender and others and to punish the offender. R.C. 2929.21(A). In
order to achieve those purposes, a sentencing court must consider “the impact of the
offense upon the victim and the need for changing the offender's behavior, rehabilitating
the offender, and making restitution to the victim of the offense, the public, or the victim
and the public.” Id.; State v. Coleman, 4th Dist. Scioto No. 05CA3037, 2006-Ohio-3200, ¶
21.
{¶14} In addition, R.C. 2929.21(B) states in pertinent part as follows: “A sentence
imposed for a misdemeanor *** shall be reasonably calculated to achieve the two
overriding purposes of misdemeanor sentencing set forth in division (A) of this section,
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 offenses
committed by similar offenders.”
Ashland County, Case No. 15 COA 018 5
{¶15} Thus, under R.C. 2929.21(A) and (B), as appellant properly summarizes in
her brief, in order to achieve the purposes of protecting the public from future crime and
punishing the offender, the sentencing court is to inter alia consider the offender’s
conduct, the impact of the offender’s conduct on the victims, and the consistency of the
sentence with sentences for similar offenses.
{¶16} In regard to the aforesaid statutory “overriding purposes” of misdemeanor
sentencing, the record before us indicates appellant, who is a medical doctor pursuing
her residency requirements, has no prior criminal record, no prior convictions involving
operation of a motor vehicle, and no demonstrated substance abuse issues. There was
no allegation via the plea that appellant at the time in question was driving recklessly or
operating under the influence of drugs or alcohol. The trial judge, in his colloquy with
appellant at sentencing, seemed convinced that the deadly collision was basically “the
fault of you not paying attention as you approached that intersection.” Tr., April 17, 2015,
at 12. The judge also noted that “ *** I get that this is a dangerous intersection” and that
“there are quite a few accidents in that area.” Sentencing Tr. at 8.
{¶17} However, the trial court observed that appellant, despite her medical
training, had done very little on the day in question to assist the crash victims from the
van. See Sentencing Tr. at 13-14. In addition to Loretta Meacham and Autumn Meacham,
who were ejected and fatally injured, a three-year-old child in the van was having
breathing difficulties and had turned blue. Appellant mostly stayed in her car after the
crash, although she told the court at sentencing that she had suffered a concussion at the
scene and felt as if she were in a dreamlike state. See Tr. at 17. It was then up to some
passing motorists, including an off-duty nurse, to assist the victims before first responders
Ashland County, Case No. 15 COA 018 6
arrived. The court also observed that Autumn had been a twenty-five year-old mother,
and that Loretta, age seventy-seven, had acted as a “spiritual leader” to her family. See
Tr. at 27.
{¶18} Accordingly, we find the trial court, at sentencing, adequately considered
the offender’s conduct and the impact of the offender’s conduct per the statute.
{¶19} In regard to the consistency in sentencing argument, appellant bears a
significant burden and must provide us with the detail necessary to establish that the
sentence is inconsistent with other relevant sentences. See State v. Friesen, 3rd Dist.
Crawford No. 3-05-06, 2005-Ohio-5760, ¶ 16 - ¶ 19. Ohio courts have recognized that
consistency in sentencing does not necessarily mean uniformity. See State v. Ryan, 1st
Dist. Hamilton No. C–020283, 2003–Ohio–1188, ¶ 10 (addressing felony sentencing). As
an appellate court, we may decline to compare a particular defendant's sentences with
similar crimes in this or other jurisdictions unless there is an inference of gross
disproportionality. State v. King, 5th Dist. Muskingum No. CT06–0020, 2006-Ohio-6566,
¶ 26 (addressing felony sentencing). Appellant herein does not refer us to any cases
from the Ashland Municipal Court, but she cites a vehicular homicide case and a vehicular
manslaughter case from two other appellate districts and three vehicular manslaughter
cases from the Fifth District.1 Of the latter three cases, none of the sentences were more
than thirty unsuspended jail days.
1 See State v. Johnson, 2nd Dist. Greene No. 04-CA-126, 164 Ohio App.3d 792, 2005-
Ohio-6826; State v. Friesen, supra; State v. McDonald, 5th Dist. Licking No. 2006-CA-80,
2007-Ohio-4384; State v. Simpson, 5th Dist. Knox No. 2007CA00022, 2008-Ohio-1165;
State v. Reid, 5th Dist. Licking No. 13-CA-68, 2014-Ohio-1591.
Ashland County, Case No. 15 COA 018 7
{¶20} Having considered the foregoing, we find appellant’s inconsistency claim to
be insufficient to warrant reversal of her sentences.
{¶21} Accordingly, upon review, we find the trial court properly considered the
aforementioned facts as part of its R.C. 2929.21 analysis, and the trial court did not abuse
its discretion in this instance in ordering maximum consecutive jail sentences for the two
second-degree misdemeanors.
{¶22} Appellant's First Assignment of Error is therefore overruled.
II.
{¶23} In her Second Assignment of Error, appellant argues the trial court
erroneously failed to consider the factors for misdemeanor sentencing under R.C.
2929.22 in ordering maximum consecutive jail terms. We disagree.
{¶24} R.C. 2929.22 states in pertinent part as follows:
(A) Unless a mandatory jail term is required to be imposed *** a court
that imposes a sentence under this chapter upon an offender for a
misdemeanor or minor misdemeanor has discretion to determine the most
effective way to achieve the purposes and principles of sentencing set forth
in section 2929.21 of the Revised Code.
Unless a specific sanction is required to be imposed or is precluded
from being imposed by the section setting forth an offense or the penalty for
an offense or by any provision of sections 2929.23 to 2929.28 of the
Revised Code, a court that imposes a sentence upon an offender for a
misdemeanor may impose on the offender any sanction or combination of
sanctions under sections 2929.24 to 2929.28 of the Revised Code. The
Ashland County, Case No. 15 COA 018 8
court shall not impose a sentence that imposes an unnecessary burden on
local government resources.
(B)(1) In determining the appropriate sentence for a misdemeanor,
the court shall consider all of the following factors:
(a) The nature and circumstances of the offense or offenses;
(b) Whether the circumstances regarding the offender and the
offense or offenses indicate that the offender has a history of persistent
criminal activity and that the offender's character and condition reveal a
substantial risk that the offender will commit another offense;
(c) Whether the circumstances regarding the offender and the
offense or offenses indicate that the offender's history, character, and
condition reveal a substantial risk that the offender will be a danger to others
and that the offender's conduct has been characterized by a pattern of
repetitive, compulsive, or aggressive behavior with heedless indifference to
the consequences;
(d) Whether the victim's youth, age, disability, or other factor made
the victim particularly vulnerable to the offense or made the impact of the
offense more serious;
(e) Whether the offender is likely to commit future crimes in general,
in addition to the circumstances described in divisions (B)(1)(b) and (c) of
this section;
(f) Whether the offender has an emotional, mental, or physical
condition that is traceable to the offender's service in the armed forces of
Ashland County, Case No. 15 COA 018 9
the United States and that was a contributing factor in the offender's
commission of the offense or offenses;
(g) The offender's military service record.
(2) In determining the appropriate sentence for a misdemeanor, in
addition to complying with division (B)(1) of this section, the court may
consider any other factors that are relevant to achieving the purposes and
principles of sentencing set forth in section 2929.21 of the Revised Code.
{¶25} “***.”
{¶26} Even where a record is silent, we must presume the trial court considered
the proper factors enumerated in R.C. 2929.22. State v. Kandel, 5th Dist. Ashland No.
04COA011, 2004-Ohio-6987, ¶ 25.
{¶27} Appellant essentially maintains that of the (B)(1)(a) through (g) factors set
forth above, only (B)(1)(a) is applicable to her. We disagree, and find (B)(1)(d) (the impact
of victim's youth, age, disability, or other factor on the seriousness of the offense) and
(B)(1)(e) (likelihood of future crimes in general) would apply as well. At the sentencing
hearing, despite having earlier stated that the intersection was dangerous (Tr. at 8), the
trial court noted that although there is a gradual curve on Route 302 eastbound ending
more than one-thousand feet before the intersection on U.S. Route 42, the curve had
nothing to do with the accident. Tr. at 9. The court also recognized that a sign is posted
on 302 more than 1,700 feet from the intersection warning drivers of an upcoming stop
sign. Id. The court also referenced the daylight and dry pavement at the time of the
accident, and observed that appellant had been driving a “very capable automobile.” Id.Ashland County, Case No. 15 COA 018 10
{¶28} The court also noted that appellant, on the morning of the sentencing
hearing, had initially sent a family member to tell the court she would not attend the
sentencing hearing due to a sleep disorder test. See Tr. at 15. Although appellant did
show up for the sentencing hearing with her counsel, the court indicated “there is that
sense I get from you that your concern is about you and not [the victims’ family members].”
Id. However, after interacting with appellant at the hearing, the judge later stated: “*** I do
believe that you feel remorse for what happened out there and that you did accept
responsibility for it.” Tr. at 26. The judge also recognized that appellant is “involved in a
profession that contributes a lot to our society.” Id.{¶29} Nonetheless, based on our review of the record, we find the trial court
properly considered the factors of R.C. 2929.22 in its analysis, and the trial court did not
abuse its discretion in this regard in ordering maximum consecutive jail sentences.
{¶30} Appellant's Second Assignment of Error is overruled.
III.
{¶31} In her Third Assignment of Error, appellant contends the imposition of
maximum sentences was in contravention of the misdemeanor sentencing limitations set
forth in R.C. 2929.22(C). We disagree.
{¶32} R.C. 2929.22(C) states: “Before imposing a jail term as a sentence for a
misdemeanor, a court shall consider the appropriateness of imposing a community
control sanction or a combination of community control sanctions under sections 2929.25,
2929.26, 2929.27, and 2929.28 of the Revised Code. A court may impose the longest jail
term authorized under section 2929.24 of the Revised Code only upon offenders who
commit the worst forms of the offense or upon offenders whose conduct and response to
Ashland County, Case No. 15 COA 018 11
prior sanctions for prior offenses demonstrate that the imposition of the longest jail term
is necessary to deter the offender from committing a future crime.”
{¶33} Because appellant has no known prior criminal history, the “conduct and
response to prior sanctions for prior offenses” criterion of R.C. 2929.22(C) appears to be
inapplicable herein. But in regard to the “worst forms of the offense” criterion, appellant
concedes there is limited case law guidance as to what constitutes the “worst form” of a
misdemeanor offense. Appellant’s Brief at 25. She contrasts the facts of this matter with
those of State v. Rexroad, 3rd Dist. Wyandot No. 16-08-21, 2009-Ohio-1657, which
entailed concurrent maximum sentences on two counts of vehicular homicide (R.C.
2903.06(A)(3)(a)). The defendant in Rexroad was driving an overloaded dump truck,
something for which he had been cited before, and apparently in approaching a stop sign
chose instead to try to speed up to beat another vehicle through the intersection. See id.
at ¶ 2, ¶ 12. While adamantly seeking to avoid demeaning the tragedy to the victims and
their families, appellant urges that the fatal accident in her case resulted from her
inattentiveness to the stop sign at the intersection and was exacerbated by nothing else
on her part, unlike the events in Rexroad.
{¶34} However, upon review, we are unpersuaded the trial court’s implicit
determinations under R.C. 2929.22(C) under the circumstances presented were
unreasonable, arbitrary or unconscionable. Appellant's Third Assignment of Error is
therefore overruled.
Ashland County, Case No. 15 COA 018 12
{¶35} For the reasons stated in the foregoing opinion, the judgment of the
Municipal Court, Ashland County, Ohio, is hereby affirmed.
By: Wise, J.
Farmer, J., concurs.
Gwin, P. J., dissents.
___________________________________
HON. JOHN W. WISE
___________________________________
HON. W. SCOTT GWIN
___________________________________
HON. SHEILA G. FARMER
JWW/d 106
Ashland County, Case No. 15 COA 018 13
Gwin, P.J., dissents
{¶36} I respectfully dissent.
{¶37} The trial court in the case at bar places great emphasis on the appellant’s
failure to use “ordinary care.” (T. at 27).
{¶38} The State of Ohio criminalizes the negligent operation of a motor vehicle
that results in another’s death. R.C. 2903.06(A)(3)(a). The state has further criminalized
the violation of what would otherwise be a minor misdemeanor traffic offense if the
violation results in another’s death. R.C. 2903.06(A)(4). The fact that a death occurred is
what makes the offense punishable as a criminal offense. Thus, every case will by
necessity involve a fatality. Logically, then, the fact that a fatality occurred, standing
alone, can never make the offense the “worst for of the offense.” R.C. 2929.22(C).
Indeed, the state does not mandate jail or prison time for every such offense. Compare,
R.C. 2903.06(B)(2)(a); (b); (c) and (E) [requiring mandatory prison time] with R.C.
2903.06(A)(3); (C) and (D)[not requiring a prison sanction].
{¶39} In the case at bar, the trial court imposed the absolute maximum penalty for
each count, consecutively upon a person who has no history of criminal or traffic offenses.
Appellant’s transgression was the failure to perceive and to stop at a stop sign, a charge
that the state dismissed as part of the plea negotiations. No jury was empaneled. No
witnesses or testimony was produced. The sole evidence in this case is the reconstruction
report, the pre-sentence investigation report and the victims’ statements. The trial court
conceded that this is a dangerous intersection at which many accidents have occurred
and that rumble strips had not been installed at the time of the accident. (T. at 8-9).
{¶40} The overriding purposes of misdemeanor sentencing are “to protect the
public from future crime by the offender and others and to punish the offender. To achieve
Ashland County, Case No. 15 COA 018 14
those purposes, the sentencing court shall consider the impact of the offense upon the
victim and the need for changing the offender’s behavior, rehabilitating the offender, and
making restitution to the victim of the offense, the public, or the victim and the public.”
R.C. 2929.21(A). Further, the sentence must be “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 offenses committed by similar offenders.” R.C.
2929.21(B). In determining the appropriate sentence, the court “shall consider”
(a) The nature and circumstances of the offense or offenses.
{¶41} As previously noted, a fatality is inherent in every case charged under R.C.
2903.06. Appellant’s transgression was failing to perceive and stop for a stop sign. This
transgression tragically resulted in the loss of two lives and the pain, and devastation of
the lives of the survivors and their families.
(b) Whether the circumstances regarding the offender and the offense or offenses
indicate that the offender has a history of persistent criminal activity and that the
offender’s character and condition reveal a substantial risk that the offender will
commit another offense.
{¶42} In the case at bar it is undisputed that appellant has no criminal or traffic
violation history to consider. Nothing in the record suggests a “substantial risk” that
appellant will commit any other criminal offense.
(c) Whether the circumstances regarding the offender and the offense or
offenses indicate that the offender’s history, character, and condition reveal a
substantial risk that the offender will be a danger to others and that the offender’s
conduct has been characterized by a pattern of repetitive, compulsive, or
aggressive behavior with heedless indifference to the consequences;
Ashland County, Case No. 15 COA 018 15
{¶43} There is no evidence or suggestion is contained within the record before
this Court that there is a “substantial risk” that appellant will be a danger to others. Nor
has appellant demonstrated any repetitive, compulsive or aggressive behavior with
heedless indifference to the consequences. In the case at bar, the state dismissed the
stop sign violation, which is a strict liability offense.
{¶44} The trial court was concerned about appellant’s actions subsequent to the
collision. However, appellant had suffered a neck injury with whiplash and had been
diagnosed with a concussion and a brain hemorrhage. At the time of sentencing,
appellant was undergoing treatment. (T. at 18).
(d) Whether the victim’s youth, age, disability, or other factor made the victim
particularly vulnerable to the offense or made the impact of the offense more
serious.
{¶45} The victims were not particularly vulnerable as this was a traffic accident.
However, the impact upon the surviving child and the families cannot be understated;
however, we must be mindful that this type of impact will happen in every case brought
under R.C. 2903.06.
(e) Whether the offender is likely to commit future crimes in general, in
addition to the circumstances described in divisions (B)(1)(b) and (c) of this
section.
{¶46} No indication in the record that appellant will commit any future criminal
offenses. The opposite is true in this case as any criminal offenses would have a serious
and negative impact on her ability to practice medicine.
Ashland County, Case No. 15 COA 018 16
(f) Whether the offender has an emotional, mental, or physical condition that
is traceable to the offender’s service in the armed forces of the United States and
that was a contributing factor in the offender’s commission of the offense or
offenses;
(g) The offender’s military service record.
{¶47} Appellant never served in the military.
{¶48} In addition to the above-cited factors, before a trial court can impose any jail
sentence, let alone the maximum jail sentence in a misdemeanor case, the court “shall
consider the appropriateness of imposing a community control sanction or a combination
of community control sanctions under sections 2929.25, 2929.26, 2929.27, and 2929.28
of the Revised Code.” No evidence is contained in the record that the trial court in this
case considered any sanction other than jail.
{¶49} Finally, a “court may impose the longest jail term authorized under section
2929.24 of the Revised Code only upon offenders who commit the worst forms of the
offense or upon offenders whose conduct and response to prior sanctions for prior
offenses demonstrate that the imposition of the longest jail term is necessary to deter the
offender from committing a future crime. R.C. 2929.22(C). (Emphasis added). Appellant
has never been sanctioned before this case. Accordingly, a maximum consecutive jail
term is not necessary deter her from committing a future crime. As previously noted, every
violation of R.C. 2903.06 will result in a fatality. The fact that a fatality occurred does not
make the appellant’s conduct the “worst form of the offense.”
{¶50} While the deference to the families and survivors of the crash cannot be
understated and by no means trivialized, I find the sentence in the case at bar hard to
Ashland County, Case No. 15 COA 018 17
justify for any reason other than retribution. The legislative wisdom and guidance in this
area cannot be ignored. Jail is not mandated in every case in which a fatality has occurred
and the longest jail sentence is reserved to persons who have demonstrated that they will
not learn from past leniency or have committed particularly egregious forms of crime.
{¶51} I do not find that the overriding purposes and principles of misdemeanor
sentencing is promoted or furthered by the maximum consecutive sentencing in the case
at bar. Therefore, I respectfully dissent.