[Cite as State v. Howard , 2020-Ohio-3229.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, Appellee,

- vs -

ANTHONY DWUAN HOWARD, Appellant. :

:

:

:

:

: CASE NO. CA2019-09-165

O P I N I O N 6/8/2020

CRIMINAL APPEAL FROM BUTLER CO UNTY COURT OF COMMON PLEAS Case No. CR2018-11-2027

Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45 011, for appellee Michele Temmel, 6 South Second Street, #305, Hamilton, Ohio 450 11, for appellant

HENDRICKSON, P.J. {¶1} Appellant, Anthony Dwuan Howard, appeals the sentence he receiv ed in the Butler County Court of Common Pleas after pleading guilty to ag gravated vehicular homicide and operating a vehicle while under the influence of a lcohol. For the reasons discussed below, we affirm appellant's sentence. {¶2} On February 13, 2019, appellant was indicted on one count of ag gravated vehicular homicide in violation of R.C. 2903.06(A)(1)(a), a fel ony of the second degree, andButler CA2019-09-165

- 2 - one count of operating a vehicle while under the influence (OVI ) in violation of R.C. 4511.19(A)(1)(a), a misdemeanor of the first degree. The charg es arose out of allegations that on October 22, 2018, appellant caused the death of another motorist in Butler County, Ohio when he struck the motorist while operating a vehicle whil e under the influence of

alcohol. {¶3} On July 16, 2019, following plea negotiations, appellant pled g uilty to aggravated vehicular homicide, as amended from a second-degree felony to a third-degree felony, and to OVI, as indicted. Pursuant to the plea agreemen t, appellant agreed to pay restitution to the victim's family, attend a driver's intervent ion program, and satisfactorily complete a drug and alcohol addiction program. The trial court engaged in a full Crim.R. 11 plea colloquy, during which it advised appellant of the maxi mum penalties he faced as well as the rights he was waiving by pleading guilty. Appellan t pled guilty following the state's recitation of the facts. The trial court accepted appe llant's guilty pleas and found him guilty of the offenses. The court set the matter for sente ncing on August 29, 2019 and ordered that a presentence-investigative report ("PSI") be prep ared. {¶4} At the sentencing hearing, defense counsel requested that the t rial court find appellant amenable to community control sanctions and spoke of appellant's work ethic, work history, relationship with his family members and communit y, and genuine remorse. Appellant then apologized to the victim's family for his crimin al wrongdoing. After hearing from members of appellant's family and members of the victim's family, the trial court announced appellant's sentence, stating in relevant part, as fo llows: The Court has considered the purposes and principles of sentencing in Revised Code Section 2929.11 [and] the seriousness and recidivism factors in Revised Code Section 2929.12, as well as the record, the charges, the statements made at this hearing, the victim impact statements, the letters on behalf of Mr. Howard, and the presentence investigation report.Butler CA2019-09-165

- 3 - I will state that this is – these are devastating circumstances which bring us here today. The Court knows that Mr. Howard has a tremendous amount of support, and the Court finds that he does express genuine remorse. This Court's job is not to determine whether or not Mr. Howard is a good person. This Court is here today because of actions that Mr. Howard made, and choices that he made. Mr. Howard made the choice to drink alcohol and drive. And [the victim] h ad the unfortunate circumstances of being a person going to work and being on the road at the same time as he and lost his life. And there have to be consequences for the actions. The Court does note that Mr. Howard was previously convicted of a felony of trafficking in cocaine in 2007. He was then pla ced on community control with that offense and violated the community control. The Court also notes in 2011, that he was convicted of driving under suspension. The Court notes that he admitted to the PSI writer that during the pendency of this case he had used marijuana. {¶5} The court found appellant was not amenable to community control sanctions and sentenced him to 48 months in prison for aggravated vehicul ar homicide. For his OVI conviction, appellant was ordered to serve 180 days in jail and to complete a driver's intervention program and a drug and alcohol addiction program. The sentences were run concurrently. Appellant's driver's license was suspended for h is lifetime, and he was further ordered to pay a $375 mandatory fine, court costs, and $11,357. 01 in restitution. {¶6} Appellant appealed, raising the following as his only assignmen t of error: {¶7} THE TRIAL COURT'S SENTENCE DEFIES THE PURPOSES AND

PRINCIPLES OF SENTENCING. {¶8} In his sole assignment of error, appellant argues the trial cou rt erred in imposing a lifetime driver's license suspension as the suspensi on "was not reasonably calculated to achieve the overriding purposes of felony sentenc ing under R.C. 2929.11, andButler CA2019-09-165

- 4 - the recidivism factors in R.C. 2929.12 were not properly consid ered." Appellant does not challenge any other aspect of his sentence. {¶9} Like most aspects of a felony sentence, the imposition of a dri ver's license suspension is subject to review pursuant to R.C. 2953.08(G)(2). See State v. Frazier , 2d Dist. Montgomery No. 26229, 2015-Ohio-344, ¶ 8; State v. Heidelberg , 6th Dist. Erie No. E17-046, 2019-Ohio-2257, ¶ 7. Pursuant to R.C. 2953.08(G)(2), a n appellate court does not review the sentencing court's decision for an abuse of discreti on. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 10. Rather, R.C. 2953.08(G)( 2) compels an appellate court to modify or vacate a sentence only if the appellate cour t finds by clear and convincing evidence that "the record does not support the trial court's fi ndings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 292 9.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant," o r that "the sentence is otherwise contrary to law." R.C. 2953.08(G)(2)(a) and (b); Marcum at ¶ 1. {¶10} A sentence is not clearly and convincingly contrary to law wher e the trial court "considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly imposes postrelease control, and sentences th e defendant within the permissible statutory range." State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016- Ohio-2890, ¶ 8; State v. Julious , 12th Dist. Butler No. CA2015-12-224, 2016-Ohio-4822, ¶ 8. Thus, this court may "increase, reduce, or otherwise modify a sentence only when it clearly and convincingly finds that the sentence is (1) contrar y to law or (2) unsupported by

the record." State v. Brandenburg, 146 Ohio St.3d 221, 2016-Ohio-2970, ¶ 1, citing Marcum at ¶ 7. {¶11} The purposes of felony sentencing are to protect the public fro m future crime by the offender, to punish the offender, and to promote the eff ective rehabilitation of the offender using the minimum sanctions that the court determines accomplish those purposesButler CA2019-09-165

- 5 - without imposing an unnecessary burden on state or local govern ment resources. R.C. 2929.11(A). A felony sentence must be reaso nably calculated to achieve the purposes set forth in R.C. 2929.11(A) "commensurate with and not demeaning t o the seriousness of the offender's conduct and its impact on the victim, and consistent with sentences imposed for similar crimes committed by similar offenders." R.C. 2929.11(B ). In sentencing a defendant, a trial court is not required to consider each sente ncing factor, but rather to exercise its discretion in determining whether the sentence sat isfies the overriding purpose of Ohio's sentencing structure. State v. Littleton , 12th Dist. Butler No. CA2016-03-060, 2016-Ohio-7544, ¶ 12. The factors set forth in R.C. 2929.12 ar e nonexclusive, and R.C. 2929.12 explicitly allows a trial court to consider any relevan t factors in imposing a

sentence. State v. Birt, 12th Dist. Butler No. CA2012-02-031, 2013-Ohio-1379, ¶ 64. {¶12} After reviewing the record, we find that the trial court's impo sition of a lifetime driver's license suspension is not clearly and convincingly con trary to law as the trial court considered the R.C. 2929.11 principles and purposes of sentenci ng, as well as the seriousness and recidivism factors of R.C. 2929.12, and imposed a driver's license suspension that fell within the permissible statutory range for a class two suspension under R.C. 4510.02. As appellant was convicted of aggravated vehicul ar homicide in violation of R.C. 2903.06(A)(2)(a), the trial court was required to "impose upon the offender a class two suspension of the offender's driver's license * * * from the ra nge specified in division (A)(2) of section 4510.02 of the Revised Code." R.C. 2903.06(B)(3). A class two driver's license suspension is in the range of "three years to life." R.C. 4151 0.02(A)(2). The trial court's imposition of a lifetime suspension was therefore within the ra nge permitted by statute. {¶13} Furthermore, the imposition of a lifetime suspension was also s upported by the record and is consistent with the purposes and principles o f sentencing. Appellant killed another person while operating his motor vehicle while under th e influence of alcohol.Butler CA2019-09-165

- 6 - Appellant has a history of substance abuse issues, as indicated by his 2006 misdemeanor conviction for possession of drugs, his 2007 felony conviction for trafficking in cocaine, and his admitted use of marijuana during the pendency of this case. Appellant has also demonstrated an unwillingness to abide by prior sanctions or co urt-ordered limitations, as demonstrated by his community control violations and his convic tion for driving under suspension. Imposing a lifetime suspension of appellant's driv er's license both protects the public and punishes appellant without imposing an unnecessary b urden on state or local government resources. {¶14} Appellant argues the trial court, in determining the duration o f his driver's license suspension, should have given additional consideration and weight to the fact that he was remorseful, had engaged in counseling and alcohol abuse classes during the pendency of the case, had a limited criminal history, had a con sistent work history, and needed to continue to work to support his children. However, a s we have previously recognized, it is "[t]he trial court [that], in imposing a sent ence, determines the weight afforded to any particular statutory factors, mitigating ground s, or other relevant

circumstances." State v Steger , 12th Dist. Butler No. CA2006-03-059, 2016-Ohio-7908, ¶ 18, citing State v. Stubbs , 10th Dist. Franklin No 13AP-810, 2014-Ohio-3696, ¶ 16. The trial court was entitled to weigh the need to protect the publi c, which includes pedestrians and motorists alike, from appellant's reckless operation of a m otor vehicle. {¶15} Accordingly, for the reasons stated above, we conclude that the lifetime suspension of appellant's driver's license was not contrary to law and is supported by the record. Appellant's sole assignment of error is overruled. {¶16} Judgment affirmed.

PIPER and M. POWELL, JJ., concur.