[Cite as State v. Costello, 2017-Ohio-294.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 104456 

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

PAUL M. COSTELLO

DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case Nos. CR-15-599718-A and CR-15-600737-B 

BEFORE: Boyle, J., E.A. Gallagher, P.J., and Jones, J. 

RELEASED AND JOURNALIZED: January 26, 2017 
ATTORNEY FOR APPELLANT 

James E. Valentine 

P.O. Box 21266 

South Euclid, Ohio 44121

ATTORNEYS FOR APPELLEE

Michael C. O’Malley 

Cuyahoga County Prosecutor 

BY: Anna Woods 

Assistant County Prosecutor 

Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
MARY J. BOYLE, J.: 

{¶1} Defendant-appellant, Paul Costello, appeals his sentence. He raises one 

assignment of error for our review, arguing that “[t]he trial court erred in imposing a 

maximum sentence.” Finding no merit to his appeal, we affirm. 

I. Procedural History

{¶2} In November 2015, Costello and a codefendant were indicted on 93 counts 

in Cuyahoga C.P. No. CR-15-599718-A, and three counts in Cuyahoga C.P. No. 

CR-15-600737-B. In March 2016, Costello pleaded guilty to an amended indictment in 

both cases as part of a “packaged plea deal.” 

{¶3} In Case No. CR-15-599718-A, Costello pleaded guilty to eight counts of 

tampering with records in violation of R.C. 2913.42(A)(1) and (2), third-degree felonies, 

one count of grand theft in violation of R.C. 2913.02(A)(3), a fourth-degree felony, three 

counts of aggravated theft in violation of R.C. 2913.02(A)(3), fifth-degree felonies, three 

counts of petty theft in violation of R.C. 2913.02(A)(3), first-degree misdemeanors, and 

six counts of “title offenses” in violation of R.C. 4505.19(A)(4), which were unclassified 

felonies.1

 The remaining counts were nolled. 

{¶4} In Case No. CR-15-600737-B, Costello pleaded guilty to one count of 

receiving stolen property in violation of R.C. 2913.51(A), a fourth-degree felony, and one 

 1

R.C. 4505.19(A)(4) provides that no person shall “[k]nowingly obtain goods, services, credit, 

or money by means of an invalid, fictitious, forged, counterfeit, stolen, or unlawfully obtained original 

or duplicate certificate of title, registration, bill of sale, or other instrument of ownership of a motor 

vehicle[.]” 
count of failure to comply with an order or signal of a police officer in violation of R.C. 

2921.331(B), a third-degree felony. 

{¶5} The trial court held a sentencing hearing on both cases, sentencing Costello 

to an aggregate of 60 months in prison. In Case No. CR-15-599718-A, the trial court 

imposed a total sentence of 12 months in prison; 12 months each for tampering with 

evidence, 5 months for grand theft, 12 months each for the title offenses, 11 months each 

for theft, and time served on the petty theft offenses, all to be served concurrent to each 

other but consecutive to the sentence imposed in Case No. CR-15-600737-B. The trial 

court further ordered that Costello pay $3,600 in restitution to two victims, for a total of 

$7,200. 

{¶6} In Case No. CR-15-600737-B, the trial court sentenced Costello to 12 

months for receiving stolen property and 36 months for failure to comply with an order or 

signal of a police officer, to be served consecutive to each other, for a total sentence of 48 

months in prison. The trial court further ordered that the sentence be served consecutive 

to the sentence imposed in Case No. CR-15-599718-A, for an aggregate sentence of 60 

months in prison. The court also ordered Costello to pay the $1,174 to the city of 

Westlake, added six points to his driver’s license, and suspended his driver’s licence for 

30 years, until April 8, 2046. 

{¶7} Costello appeals from the judgments in both cases. 

II. Standard of Review

{¶8} In reviewing felony sentences under R.C. 2953.08(G)(2), this court must 
“review the record, including the findings underlying the sentence or modification given 

by the sentencing court.” In doing so, if we clearly and convincingly find “[t]hat the 

record does not support the sentencing court’s findings” under R.C. 2929.13(B) (limits on 

prison for certain F-4s and F-5s) or (D) (prison for F-1 and F-2 drug offenses), R.C. 

2929.14(B)(2)(e) (repeat violent offender) or (C)(4) (consecutive sentences), or R.C. 

2929.20(I) (judicial release), or that the sentence is otherwise contrary to law, we may 

“increase, reduce, or otherwise modify a sentence * * * or may vacate the sentence and 

remand the matter to the sentencing court for resentencing.” R.C. 2953.08(G)(2). 

{¶9} The Ohio Supreme Court has further explained: 

We note that some sentences do not require the findings that R.C. 

2953.08(G) specifically addresses. Nevertheless, it is fully consistent for 

appellate courts to review those sentences that are imposed solely after 

consideration of the factors in R.C. 2929.11 and 2929.12 under a standard 

that is equally deferential to the sentencing court. That is, 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. 

 

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23. 

III. Maximum Sentence

{¶10} In his sole assignment of error, Costello argues that maximum sentence that 

the trial court imposed for failure to comply is not supported by the record pursuant to 

R.C. 2921.331. We disagree. 

{¶11} Costello pleaded guilty to a third-degree failure to comply under R.C. 

2921.331(B). This provision states that “[n]o person shall operate a motor vehicle so as 

willfully to elude or flee a police officer after receiving a visible or audible signal from a 
police officer to bring the person’s motor vehicle to a stop.” A violation of R.C. 

2921.331(B) rises to the level of a third-degree felony if a jury or judge finds proof 

beyond a reasonable doubt that either: 

(i) The operation of the motor vehicle by the offender was a proximate 

cause of serious physical harm to persons or property. 

(ii) The operation of the motor vehicle by the offender caused a 

substantial risk of serious physical harm to persons or property. 

R.C. 2921.331(C)(5)(a)(i)-(ii). In this case, Costello pleaded guilty to a third-degree 

failure to comply. Because there is no evidence that he caused serious physical harm to 

any person or property, Costello admitted that by fleeing police, he caused a substantial 

risk of serious physical harm to people or property. 

{¶12} Further, R.C. 2921.331(C)(5)(b) sets forth additional factors a trial court 

must consider when sentencing an offender for failure to comply if a police officer 

pursued the offender when the offender failed to comply and R.C. 2921.331(C)(5)(a) 

applies (i.e., the offender caused a substantial risk of serious physical harm to people or 

property). Under this provision, trial courts must not only consider the factors set forth 

in sections 2929.12 and 2929.13 of the Revised Code when determining the seriousness 

of an offender’s conduct in committing failure to comply, they must also consider 

additional factors set forth in R.C. 2921.331(C)(5)(b) to determine the seriousness of the 

offender’s conduct. 

{¶13} We note that both of the circumstances in R.C. 2921.331(C)(5)(b) are 

present in this case. Thus, the trial court was required to consider the following factors 
when determining what sentence to impose on Costello’s failure to comply offense: 

(i) The duration of the pursuit; 

(ii) The distance of the pursuit; 

(iii) The rate of speed at which the offender operated the motor vehicle 

during the pursuit; 

(iv) Whether the offender failed to stop for traffic lights or stop signs 

during the pursuit; 

(v) The number of traffic lights or stop signs for which the offender failed 

to stop during the pursuit; 

(vi) Whether the offender operated the motor vehicle during the pursuit 

without lighted lights during a time when lighted lights are required; 

(vii) Whether the offender committed a moving violation during the 

pursuit; 

(viii) The number of moving violations the offender committed during the 

pursuit; 

(ix) Any other relevant factors indicating that the offender’s conduct is 

more serious than conduct normally constituting the offense. 

R.C. 2921.331(C)(5)(b)(i)-(ix). 

{¶14} R.C. 2921.331(D) further provides that “[i]f an offender is sentenced 

pursuant to division (C)(4) or (5) of this section for a violation of division (B) of this 

section, and if the offender is sentenced to a prison term for that violation, the offender 

shall serve the prison term consecutively to any other prison term or mandatory prison 

term imposed upon the offender.” And R.C. 2921.331(E) states that “[i]n addition to 

any other sanction imposed for a felony violation of division (B) of this section, the court 

shall impose a class two suspension from the range specified in division (A)(2) of section 
4510.02 of the Revised Code.” Under R.C. 4510.02(A): 

When a court elects or is required to suspend the driver’s license, 

commercial driver’s license, temporary instruction permit, probationary 

license, or nonresident operating privilege of any offender from a specified 

suspension class, for each of the following suspension classes, the court 

shall impose a definite period of suspension from the range specified for the 

suspension class: 

* * * 

(2) For a class two suspension, a definite period of three years to life[.] 

{¶15} According to the presentence investigation report regarding Costello’s 

failure to comply conviction, police officers approached Costello and a woman in a Super 

8 motel parking lot on October 31, 2015. The officers believed that Costello was 

assaulting the woman. The officers exited their cars and approached Costello’s vehicle. 

 Costello “pulled away” and “accelerated at a high rate of speed.” Costello eventually 

entered I-90 west, but was driving the wrong way, “against traffic at a high rate of speed.” 

 Costello “nearly struck a police vehicle that had entered the highway in the correct 

direction.” Costello then exited the highway “by driving the wrong way up the I-90 

ramp from Detroit Road into Rocky River.” Costello and the woman eventually stopped 

at an intersection and fled on foot. They were caught by police and arrested. The 

vehicle that Costello was driving had been reported stolen from Enterprise Rental Car on 

October 9, 2015. 

{¶16} At Costello’s sentencing hearing, Officer Steve Krebs testified regarding 

Costello’s failure to comply. He stated that the offense occurred approximately 5:30 

p.m. on Halloween night, which was approximately 30 minutes before trick-or-treat 
began. Officer Krebs indicated that Costello was traveling the wrong way at “high 

speeds” down “one of [Westlake’s] busier streets,” into Rocky River. Officer Krebs 

further stated that Costello was traveling “through residential areas, in both Rocky River 

and Bay [Village], at very high speeds, recklessly.” The state played Officer Krebs’s 

“dash cam” for the court. Officer Krebs stated that he was traveling approximately 80 

m.p.h. in a 25 m.p.h. zone when he was pursuing Costello. 

{¶17} The state further explained to the court that the police chased Costello for 

approximately five miles, which lasted about four to four and one-half minutes long. 

The state also informed the court that during the chase, Costello failed to stop at “at least 

five different lights or stop signs, ignored police lights and sirens, and that he committed 

several moving violations, including driving the wrong way on I-90.” 

{¶18} According to the state, while Costello was in the hospital, he attempted to 

escape two times. The state also played a portion of Costello’s jailhouse calls, which the 

state claimed established that Costello showed no remorse because he was laughing when 

he talked about fleeing from police. The state further informed the court that Costello 

was on probation when he committed the offenses; Costello was in the diversion program 

with the same judge. The state further told the court that Costello also had a “history of 

convictions” and “shows a pattern of drug abuse.” 

{¶19} Costello’s counsel informed the court that Costello had an opiate addiction 

that began when he was “blown up serving our country as a soldier in the Middle East.” 

Costello’s counsel further stated that except for the three cases before the court, 
Costello’s criminal history was negligible. Further, Costello has “some lasting mental 

health issues from his injuries,” some “brain function issues.” Costello’s counsel 

disagreed that the jailhouse tape established that Costello was not remorseful. Counsel 

said that on the jailhouse tapes, Costello was asked, “you ran from the cops. Why?” 

He responded that he was high. Costello’s counsel further stated that Costello pleaded 

guilty, so he was accepting responsibility. Costello’s counsel argued that the failure to 

comply was not the worst form of the offense because there were not “hoards of 

pedestrians.” 

{¶20} Costello told the court that he became addicted to heroin after being injured 

in Afghanistan. He said that he was shot two times, hit with a shrapnel in his head, had 

seven broken ribs, and was not able to walk from an IED. He was also diagnosed with 

PTSD. He started taking pain medication and became addicted. Costello stated that 

this was the first time he had been sober in four years. He asked the court to send him to 

a treatment center, rather than to prison. 

{¶21} The trial court acknowledged how difficult it is for “veterans returning from 

service.” But the trial court stated that based on the facts of this case, it could not “offer 

a pass here.” 

{¶22} The trial court reviewed the recidivism and seriousness factors under R.C. 

2929.12. The trial court found that Costello caused “serious economic harm” to the 

victims in Case No. CR-15-599718-A. The trial court further found that Costello has a 

“history,” stating that he “was on diversion when this took place.” The trial court then 
stated the following: 

The car chase by itself in the 737 case, that militates a prison 

sentence all by itself. 

We have a situation where the defendant not only went at very, very 

high speeds, but he went the wrong way on Interstate 90. And God knows 

what could have happened if he had collided with anybody on the interstate 

going the wrong way at a high rate of speed. 

And the Court will take issue with the fact that, you know, there 

were no trick-or-treaters on the street. This was 5:30 on Halloween. 

Almost every suburb in Cuyahoga County on Halloween trick-or-treating 

starts at 6:00 o’clock. 

The video will show that this chase took place through residential 

neighborhoods on relatively narrow streets. And, you know, regardless, 

there could have been kids out playing in the street or kids walking on the 

sidewalk. 

You know, the chase ended with the car up in somebody’s front 

lawn. The defendant after that still had issues with the officers following 

that. There is absolutely no excuse whatsoever for that behavior. 

This Court is well aware of the heroin problem. And I’ve spoken to 

over 21,000 citizens of this county in my forums regarding heroin. And I 

sort of turn a deaf ear to the arguments in this case, because usually when I 

have people addicted to heroin they’re breaking into cars, breaking into 

houses, they’re scrapping, they’re committing property offenses, they’re not 

putting together an extensive scheme like we have here. 

Multiple counts to commit title fraud. You know, this is a crime 

that took a lot of thinking, took a lot of planning, took a lot of action. This 

is not something typical of somebody addicted to heroin. 

So I’m not going to buy that excuse that this was — if he was 

smashing out car windows, stealing purses, shoplifting, that I would buy. 

This, no. This was an extensive scheme that he had to defraud these 

individuals. 

And, frankly, I am borderline insulted by the argument that these 

victims had it coming. Don’t — no more, [defense counsel]. I’m not 
going to hear anything else. 

Frankly, I’m insulted by that argument, that these victims had it 

coming because they charge high interest rates. They have to in their line 

of work because of individuals like Mr. Costello they have to deal with. 

And so, it is what it is with regard to that. I’m not going to hear any 

arguments with regard to those things. 

And I have reviewed the factors with regard to 2921.331(C)(5) for 

the failure to [comply], and I adopt as part of my opinion the statements 

placed on the record by [the state] with regard to the factors there and the 

defendant’s [breach] of those factors. 

Everything she said I agree with after reviewing the video, with 

regard to the rate of speed, the duration, the distance. You know, the fact 

it was Halloween, it was 5:30, it was a — regardless, it was a Saturday 

night. 

I believe that the behavior in this case — especially considering the 

wrong way on Interstate 90. The interstate, as you can see from the video, 

was very crowded, too. It was a high volume of traffic that day. I 

believe that this does constitute the worst form of the offense based upon 

that. 

{¶23} The trial court then imposed Costello’s sentence, stating that it considered 

all of the factors it was required to consider in sentencing Costello, as well as the fact that 

the failure-to-comply statute mandates consecutive sentences. And although the trial 

court stated that it did not have to make consecutive sentence findings because it was 

mandatory, it made them anyway. 

{¶24} In sentencing Costello to 36 months for failure to comply, which is the 

maximum, the trial court stated that “based upon the factors that I must consider based 

upon the video that I watched, and based upon the totality of the circumstances here, 36 

months, which is the maximum sentence. The Court does believe that this does 
constitute the worst form of the offense.” The trial court further suspended Costello’s 

driver’s license for 30 years pursuant to R.C. 2921.331(E). 

{¶25} After reviewing the entire record, we find that the record supports the trial 

court’s maximum sentence of 36 months on the failure-to-comply offense. The duration 

of the pursuit was almost five minutes, and the distance was nearly five miles. The 

officer explained that he was traveling at 80 m.p.h., through residential neighborhoods, 

while pursuing Costello. Costello ran numerous traffic lights and stop signs. Costello 

committed numerous moving violations during the pursuit, including running many traffic 

lights and stop signs — with the most serious moving violation being that he traveled the 

wrong way at high speeds on Interstate 90 and on a busy road in Westlake. Regarding 

any other factor that indicates the offender’s conduct is more serious than conduct 

normally constituting the offense, the court found that the case occurred on Halloween 

night, around 5:30 p.m., when children were about to start trick-or-treating. 

{¶26} Costello argues that although he could have caused serious damage during 

the pursuit, he did not. Thus, he claims that his failure to comply was not the worst form 

of the offense. We disagree. The failure-to-comply statute makes the offense a 

third-degree felony if either of two conditions are found — that the offender caused 

serious physical harm to persons or property, or that the offender caused a substantial risk 

of serious physical harm to persons or property. R.C. 2921.331(C)(5)(a)(i)-(ii). Based 

on the factors found by the trial court that Costello caused a substantial risk of serious 

physical harm to people or property, we find that the record supports a maximum sentence 
of 36 months on the failure-to-comply charge. 

{¶27} Accordingly, Costello’s sole assignment of error is overruled. 

{¶28} Judgment affirmed. 

It is ordered that appellee recover from appellant the costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. The defendant’s conviction having 

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court 

for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

 

MARY J. BOYLE, JUDGE 

EILEEN A. GALLAGHER, P.J., and 

LARRY A. JONES, SR., J., CONCUR