State v. Collins , 2021 Ohio 1663 ( 2021 )

[Cite as State v. Collins, 2021-Ohio-1663.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 20AP-119
v. : (C.P.C. No. 19CR-1617)
Everette D. Collins, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on May 13, 2021
On brief: [G. Gary Tyack], Prosecuting Attorney, and
Sarah V. Edwards, for appellee.
On brief: Yeura Venters, Public Defender, and Robert D.
Essex, for appellant.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
Defendant-appellant, Everette D. Collins, appeals from a judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas pursuant
to no contest pleas entered by appellant on charges of aggravated vehicular homicide and
failure to stop after an accident. For the following reasons, we affirm that judgment.
Just after 1:00 a.m. on January 19, 2019, appellant was driving a Chevy Blazer
westbound on Greenlawn Avenue at a very high rate of speed. Appellant lost control of the
vehicle, which then careened off the roadway and collided with a mobile home. The impact
pushed the mobile home several feet off its foundation. The vehicle came to rest inside the
wreckage of the mobile home. Judith Wade and her five-year-old granddaughter were
No. 20AP-119 2
asleep inside the mobile home. The collision severely injured Ms. Wade, who later died
from her injuries.
Following the collision, appellant did not offer aid to the victims; rather, he
attempted to remove his vehicle from the wreckage of the mobile home. When those efforts
were unsuccessful, he fled the scene on foot. DNA analysis of blood collected from the
vehicle's airbag led to appellant's arrest in March 2019. During an interview with police
subsequent to his arrest, appellant admitted that he had been drinking and using cocaine
prior to the accident.
On April 2, 2019, plaintiff-appellee, State of Ohio, indicted appellant on one
count of aggravated vehicular homicide in violation of R.C. 2903.06, a second-degree
felony, and one count of failure to stop after an accident in violation of R.C. 4549.02, a
third-degree felony.
On December 12, 2019, appellant entered no contest pleas to the charges as
set forth in the indictment. At the plea hearing, the trial court orally advised appellant of
the potential maximum sentence for each offense and that the sentences could be served
consecutively. The entry of no contest plea signed by appellant included the same
information. Appellant indicated in both the entry of no contest plea and at the plea hearing
that he understood the potential maximum sentence. The trial court accepted appellant's
pleas, found him guilty of both offenses, ordered a presentence investigation ("PSI"), and
set sentencing for a later date.
On January 23, 2020, the trial court held a sentencing hearing. With the
court's permission and without objection from appellant, the prosecution played a portion
of a video taken from a security camera located across the street from the mobile home
park. (State's Ex. A.) The video depicts appellant's vehicle colliding with Ms. Wade's mobile
home at a high rate of speed.
Prior to imposing sentence, the court averred that it had reviewed the security
footage of the collision, the PSI report, appellant's sentencing memorandum, and
numerous letters recently tendered by Ms. Wade's family members. The court also heard
statements from Ms. Wade's husband, daughter, and son recounting the severity of the
injuries suffered by Ms. Wade which ultimately led to her death 12 days after the accident.
Further, noting that the five-year-old survivor is autistic and nonverbal, the family
No. 20AP-119 3
expressed concerns about her ability to process the collision and its aftermath. The court
also heard statements from appellant, who expressed remorse for his actions.
The trial court imposed maximum sentences of 8 years and 3 years,
respectively, on the aggravated vehicular homicide and failure to stop after an accident
convictions. The court ordered the sentences to be served consecutively, resulting in an
aggregate prison term of 11 years. Appellant did not object to the sentence. The trial court
memorialized appellant's conviction and sentence in a judgment entry filed January 24,
2020.
In a timely appeal, appellant advances one assignment of error for our
review:
The trial court erred when it imposed maximum and
consecutive sentences on Mr. Collins when the record did not
clearly and convincingly support the imposition of such
sentences and such sentences were contrary to law.
Appellant's single assignment of error challenges the trial court's imposition
of maximum and consecutive sentences on his convictions for aggravated vehicular
homicide and failure to stop after an accident. Appellant maintains that the record does
not support the sentences and that the sentences are contrary to law. We disagree.
At the outset, we note that appellant's failure to object to his sentence limits
our review to plain error. State v. Frederick, 10th Dist. No. 13AP-630, 2014-Ohio-1960,
¶ 19, citing State v. Worth, 10th Dist. No. 10AP-1125, 2012-Ohio-666, ¶ 84; State v. J.L.H.,
10th Dist. No. 19AP-369, 2019-Ohio-4999, ¶ 11, citing State v. Jackson, 92 Ohio St.3d 436,
444 (2001). A reviewing court recognizes plain error with the utmost caution, under
exceptional circumstances, and only to prevent a miscarriage of justice. J.L.H. at ¶ 11, citing
State v. Pilgrim, 184 Ohio App.3d 675, 2009-Ohio-5357, ¶ 58 (10th Dist.), citing State v.
Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 139. "For an error to be a 'plain error' under
Crim.R. 52(B), it must satisfy three prongs: (1) there must be an error, meaning a deviation
from a legal rule, (2) the error must be 'plain,' meaning an 'obvious' defect in the trial
proceedings, and (3) the error must have affected 'substantial rights,' meaning the error
must have affected the outcome of the trial." Id., citing State v. Barnes, 94 Ohio St.3d 21,
27, 2002-Ohio-68.
No. 20AP-119 4
In State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, the Supreme Court
of Ohio held that "an appellate court may vacate or modify any sentence that is not clearly
and convincingly contrary to law only if the appellate court finds by clear and convincing
evidence that the record does not support the sentence." Id. at ¶ 23. Accordingly, an
appellate court must consider whether (1) the sentence is clearly and convincingly contrary
to law, or (2) the record does not support the sentence by clear and convincing evidence.
State v. Haddad, 10th Dist. No. 16AP-459, 2017-Ohio-1290, ¶ 18, citing State v. Johnson,
10th Dist. No. 15AP-946, 2016-Ohio-8494, ¶ 24, citing State v. D.S., 10th Dist. No. 15AP-
790, 2016-Ohio-2856, ¶ 9. "Clear and convincing evidence is that measure or degree of
proof which is more than a mere 'preponderance of the evidence,' but not to the extent of
such certainty as is required 'beyond a reasonable doubt' in criminal cases, and will produce
in the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established." Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
This court has consistently held that "a sentence is not clearly and
convincingly contrary to law when a trial court considers the principles and purposes of
sentencing contained in R.C. 2929.11 and the factors listed in R.C. 2929.12, properly
imposes postrelease control, and sentences the defendant within the permissible statutory
range."1 Haddad at ¶ 19, citing Johnson at ¶ 24, citing State v. Gore, 10th Dist. No. 15AP-
686, 2016-Ohio-7667, ¶ 8.
Under Ohio law, the purposes of felony sentencing are " 'to protect the public
from future crime by the offender and others, to punish the offender, and to promote the
effective rehabilitation of the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden on state
and local government.' " State v. Noriega, 10th Dist. No. 18AP-979, 2020-Ohio-4201, ¶ 44,
quoting R.C. 2929.11(A). In deciding how best to achieve the purposes of felony sentencing,
the trial 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.' " Id. at ¶ 44, quoting R.C. 2929.11(A). The
court has discretion to choose the most effective means of complying with the purposes and
1Appellant does not allege that post-release control was not properly imposed or that the sentences were
outside the permissible statutory range.
No. 20AP-119 5
principles of sentencing; however, in exercising that discretion, it must consider the factors
set forth in R.C. 2929.12(B) and (C) relating to the seriousness of the offender's conduct, as
well as the factors set forth in R.C. 2929.12(D) and (E) relating to the likelihood of
recidivism, along with any other relevant factors. Id.; Haddad at ¶ 20, citing State v.
Anderson, 10th Dist. No. 15AP-1082, 2016-Ohio-5946, ¶ 8 (further citations omitted).
Here, the trial court noted in its sentencing entry that it considered the
purposes and principles of sentencing as set forth in R.C. 2929.11 and the factors set forth
in R.C. 2929.12. Such language in a sentencing entry defeats a claim that the trial court
failed to consider the statutory guidelines. State v. Davidek, 10th Dist. No. 12AP-1009,
2013-Ohio-3831, ¶ 7, citing State v. Vaughn, 10th Dist. No. 09AP-73, 2009-Ohio-4970,
¶ 21; Haddad at ¶ 21 (further citations omitted).
The trial court also made the statutory findings required to impose
consecutive sentences. Before imposing consecutive sentences, a court must make certain
findings. R.C. 2929.14(C) provides:
(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 crime by the offender.
No. 20AP-119 6
Thus, pursuant to R.C. 2929.14(C)(4), in order to impose consecutive
sentences, a trial court must make at least three distinct findings: (1) that the consecutive
sentences are necessary to protect the public from future crime or to punish the offender,
(2) 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 (3) that one of subsections
(a), (b), or (c) applies. State v. Harris, 10th Dist. No. 15AP-683, 2016-Ohio-3424, ¶ 52,
citing State v. Price, 10th Dist. No. 13AP-1088, 2014-Ohio-4696, ¶ 31, citing State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177.
In imposing consecutive sentences, a trial court must make the findings
required by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate such findings
into its sentencing entry. Harris at ¶ 53, citing Bonnell at ¶ 37. The trial court need not
state the reasons to support its findings, nor is the court required to provide " 'a talismanic
incantation of the words of the statute, provided that the necessary findings can be found
in the record and are incorporated into the sentencing entry.' " Id., quoting Bonnell. A
word-for-word recitation of the statutory language is not required, but where " 'the
reviewing court can discern that the trial court engaged in the correct analysis and can
determine that the record contains evidence to support the findings, consecutive sentences
should be upheld.' " Id., quoting Bonnell at ¶ 29.
Here, in imposing consecutive sentences, the trial court stated, "I'm doing
this because I think it's necessary to protect the public from future crime and to fairly
punish you. I think consecutive sentences under the extremely bad facts that you caused
here are not disproportionate to the seriousness of your misconduct and the danger you
pose to the public. The multiple offenses I think were a harm that was so great and unusual
that no single prison sentence will adequately reflect the seriousness of your misconduct.
In addition, the history of your criminal conduct and drug use and other problems
demonstrates to me that consecutive sentences are necessary to protect the public from
future crime for at least the next roughly 10 years." (Jan. 23, 2020 Sentencing Hearing at
21-22.)
Additionally, although not required to do so, the trial court discussed its
reasons for imposing consecutive sentences. The court described the incident as "one of
the worst [tragedies] I've seen in 15 years." Id. at 20. Specifically, the court noted that
No. 20AP-119 7
appellant was traveling at a high rate of speed when his vehicle collided with the mobile
home, and that he fled on foot following the accident. The court further noted that the
collision caused a gas line leak that endangered the victims as well as others in the
neighborhood. The court also noted that the PSI revealed that appellant had an extensive
juvenile record, including a commitment to the department of youth services, a lengthy
history of substance abuse problems for which he had never received treatment, and
admitted to drinking alcohol and using cocaine prior to the accident. Further, referencing
the statements made by Ms. Wade's family members, the court found that "[t]he enormous
victim impact that we have to deal with as a community is now clear in the record, but over
and above that, there was the lingering death of Ms. Wade; the fact that we have a child who
is going to carry this in an unusual way for the rest of the child's life; and is nonverbal, so
there's no ability to really reach the child as easily with counseling or other things that might
work in a normal case." Id. at 21.
Appellant does not allege that the trial court did not make the findings
required by R.C. 2929.14(C)(4). The transcript of the sentencing hearing reflects that the
court adequately articulated the necessary statutory findings in order to impose consecutive
sentences. Although we conclude that the trial court made the necessary findings at the
sentencing hearing to impose consecutive sentences, we note that the trial court did not
include its R.C. 2929.14(C)(4) findings in the judgment entry as required by Bonnell, 140
Ohio St.3d 209, 2014-Ohio-3177. A trial court's failure to journalize the required R.C.
2929.14(C)(4) findings in the judgment entry does not render consecutive sentences
contrary to law when the trial court makes those findings at the sentencing hearing. Harris,
10th Dist. No. 15AP-683, 2016-Ohio-3424, at ¶ 56, citing Bonnell at ¶ 30. However, because
the trial court did not journalize its findings in the judgment entry, we must remand this
matter to the trial court to journalize its findings under R.C. 2929.14(C)(4) in a nunc pro
tunc judgment entry correcting the clerical error in omission. Id. at ¶ 56, citing Bonnell and
State v. Rivera, 10th Dist. No. 14AP-460, 2015-Ohio-1731, ¶ 6. This administrative
correction does not necessitate a new sentencing hearing. Id., citing Rivera at ¶ 6.
Having found that the trial court considered the purposes and principles of
sentencing under R.C. 2929.11 and the statutory factors under R.C. 2929.12 and made the
findings required by R.C. 2929.14(C)(4) at the sentencing hearing, and having determined
No. 20AP-119 8
that the trial court's failure to journalize its R.C. 2929.14(C)(4) findings in its judgment
entry does not render the consecutive sentences contrary to law, we conclude that appellant
has failed to establish that his sentence was clearly and convincingly contrary to law.
Appellant also contends that the trial court's imposition of maximum,
consecutive sentences was not supported by the record. Appellant concedes that "[w]ithout
a doubt, this was a serious offense." (Appellant's Brief at 9.) Indeed, appellant
acknowledges the undisputed facts of the case, that he "got behind the wheel of a car and
crashed into a house causing the death of a victim who was sleeping. He then compounded
matters by leaving the scene." Id. Despite these facts, appellant contends that nothing in
the record warranted the imposition of maximum, consecutive sentences. Appellant argues
that his conduct did not constitute the "worst form of the respective offenses" and that "the
seriousness of [his] conduct was already reflected in the charges he was indicted for and
pled no contest to." Id. Appellant maintains that "this court must determine what sets this
case apart from other forms of the offense." Id. Appellant does not direct this court to any
case law where a trial court imposed less than the maximum sentence, concurrent
sentences, or both, for similar offenses based on similar facts.
Ultimately, we agree with the state that what sets this case apart from other
aggravated vehicular homicide cases is clear: as a result of excessive alcohol and cocaine
use, appellant drove his vehicle off the roadway in the middle of the night, collided with a
mobile home with enough force and speed to dislodge it from its foundation by several feet,
and fatally struck Ms. Wade as she lay sleeping inside. This is not a case where the victim
was in a vehicle or walking on a roadway where there is at least some inherent risk of being
struck by a motor vehicle; rather, Ms. Wade was inside her home, asleep in her bed.
Further, appellant's attempt to remove his vehicle from the wreckage of the mobile home
sets this case apart from a typical failure to stop after an accident case. Appellant did not
simply fail to stop after the collision; rather, his vehicle was lodged in the wreckage of the
mobile home due to the force of the crash. After unsuccessful attempts to remove his
vehicle from the wreckage, he fled the scene on foot. Based on the particular facts and
circumstances of this case, we find that appellant has failed to establish by clear and
convincing evidence that the record does not support the imposition of maximum,
No. 20AP-119 9
consecutive sentences for his aggravated vehicular homicide and failure to stop after an
accident convictions.
Accordingly, the trial court's sentence was in accordance with law. We
overrule appellant's single assignment of error, and affirm the judgment of the Franklin
County Court of Common Pleas, but we remand this matter for the trial court to file a nunc
pro tunc entry to correct the clerical error relating to its R.C. 2929.14(C)(4) findings.
Judgment affirmed; case remanded with instructions.
BROWN and MENTEL, JJ., concur.