[Cite as State v. Petrovich, 2019-Ohio-3547.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

LAKE COUNTY, OHIO 

STATE OF OHIO, : O P I N I O N 

 Plaintiff-Appellee, : 

 CASE NO. 2019-L-007

 - vs - : 

RICHARD PETROVICH, III, : 

 Defendant-Appellant. : 

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2017 CR 

000862. 

Judgment: Affirmed. 

Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant 

Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, 

Painesville, OH 44077 (For Plaintiff-Appellee). 

Cory R. Hinton, Hanahan & Hinton, LLC, 8570 Mentor Ave., Mentor, OH 44060 (For 

Defendant-Appellant). 

MATT LYNCH, J. 

{¶1} Defendant-appellant, Richard Petrovich, appeals from his five-year 

sentence for Aggravated Vehicular Assault and Operating a Vehicle Under the Influence 

of Alcohol in the Lake County Court of Common Pleas. The issues to be determined in 

this case are whether a trial court errs in sentencing a defendant when it finds a lack of 

factors making the offenses less serious without discussing each factor and whether 

separate counts of Aggravated Vehicular Assault arising from a single car accident must 
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merge as allied offenses when there are multiple victims. For the following reasons, we 

affirm the judgment of the lower court. 

{¶2} On April 10, 2018, Petrovich was indicted by the Lake County Grand Jury 

for nine counts of Aggravated Vehicular Assault, felonies of the second degree, in 

violation of R.C. 2903.08(A)(1)(a); nine counts of Operating a Vehicle Under the 

Influence of Alcohol, misdemeanors of the first degree, in violation of R.C. 

4511.19(A)(1)(a), (b), and (e); one count of Endangering Children, a felony of the fifth 

degree, in violation of R.C. 2919.22(C)(1); one count of Driving Under Financial 

Responsibility Law Suspension or Cancellation, an unclassified misdemeanor, in 

violation of R.C. 4510.16(A); one count of Operating a Motor Vehicle without a Valid 

License, a minor misdemeanor, in violation of R.C. 4510.12(A); an Occupant 

Restraining Devices violation, a minor misdemeanor, in violation of R.C. 

4513.263(B)(1); and a Child Restraint System violation, a misdemeanor of the fourth 

degree, in violation of R.C. 4511.81(C). 

{¶3} On October 29, 2018, a plea hearing was held at which Petrovich pled 

guilty to three counts of Aggravated Vehicular Assault and one count of Operating a 

Vehicle Under the Influence of Alcohol, in violation of R.C. 4511.19(A)(1)(a), which 

charges arose from a car accident that occurred when Petrovich was driving a vehicle 

with five children and one adult passenger while under the influence of alcohol. A Nolle 

Prosequi was entered on the remaining counts. The guilty plea was accepted by the 

trial court and a Written Plea of Guilty was filed. 

{¶4} A sentencing hearing was held on December 11, 2018. Defense counsel 

requested a two-year prison sentence and argued that the counts of Aggravated 
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Vehicular Assault should merge. Counsel argued as mitigating evidence that 

Petrovich’s blood alcohol level was not over the legal limit by a “tremendous amount,” 

he “did decent on his sobriety test results,” and there was a “gray area” regarding the 

cause of the accident. Counsel emphasized that this was Petrovich’s first felony case. 

Petrovich expressed remorse and several family members spoke favorably about him 

and his relationship with his children. 

{¶5} The State emphasized the severity of the accident, which caused physical 

and psychological injuries to the victims, including broken bones, concussions, and a 

severed artery, and the lack of functional safety restraints in the vehicle. The State 

noted Petrovich’s past traffic violations, including an OVI. The State requested a prison 

term of six years and argued merger should not occur since there were multiple victims. 

{¶6} The court stated its consideration of the R.C. 2929.12 factors, 

emphasizing the serious physical and psychological harm to the victims, as well as the 

ages of the child victims and their relationship with Petrovich, their father. It found no 

factors making the crime less serious. The court also noted these were his first felonies 

but he had prior misdemeanor offenses and took into account Petrovich’s showing of 

remorse and acceptance of responsibility. The court found that the offenses should not 

merge and ordered a sentence of five years for each count of Aggravated Vehicular 

Assault and a 60-day sentence for OVI, to run concurrently for a total term of five years. 

The sentence was memorialized in a December 18, 2018 Judgment Entry of Sentence. 

{¶7} Petrovich timely appeals and raises the following assignments of error: 

{¶8} “[1.] The trial court erred on December 18, 2018 because its sentence 

was contrary to law and an abuse of discretion. 
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{¶9} “[2.] The trial court erred on December 18, 2018 because it failed to 

merge the sentences for counts 1, 7, and 13.” 

{¶10} In his first assignment of error, Petrovich argues that the trial court’s 

sentence was contrary to law and an abuse of discretion since it erred in finding there 

were no factors to make the crimes less serious under R.C. 2929.12(C). He also 

argues that the sentence was disproportionate to those ordered in similar cases. 

{¶11} “The court hearing an appeal [of a felony sentence] shall review the 

record, including the findings underlying the sentence or modification given by 

the sentencing court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce, 

or otherwise modify a sentence that is appealed under this section or may vacate the 

sentence and remand the matter to the sentencing court for resentencing * * * if it 

clearly and convincingly finds either * * * (a) [t]hat the record does not support 

the sentencing court’s findings under division (B) or (D) of section 2929.13 * * * [or] (b) 

[t]hat the sentence is otherwise contrary to law.” Id. “‘A sentence is contrary to law if 

(1) the sentence falls outside the statutory range for the particular degree of offense, or 

(2) the trial court failed to consider the purposes and principles of felony sentencing set 

forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12.’” (Citation omitted). 

State v. Wilson, 11th Dist. Lake No. 2017-L-028, 2017-Ohio-7127, ¶ 18. “[A]n 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-Ohio1002, 59 N.E.3d 1231, ¶ 23. 

{¶12} A court imposing a felony sentence is required to consider the statutory 
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sentencing factors in R.C. 2929.11 and .12, but “there is no requirement to make 

specific findings or use specific language during the sentencing hearing.” State v. 

Crandall, 11th Dist. Ashtabula No. 2016-A-0030, 2016-Ohio-7920, ¶ 36, citing State v. 

Jackson, 11th Dist. Lake No. 2014-L-124, 2015-Ohio-2608, ¶ 21. 

{¶13} Here, it is evident that the court stated it considered the statutory factors 

under R.C. 2929.12. Petrovich contends, however, that the court did not actually 

consider the R.C. 2929.12(C) factors and/or erred in not finding those factors 

applicable. 

{¶14} Pursuant to R.C. 2929.12(C), the trial court shall consider, inter alia, the 

following “as indicating that the offender’s conduct is less serious than conduct normally 

constituting the offense”: “In committing the offense, the offender did not cause or 

expect to cause physical harm to any person or property” and “[t]here are substantial 

grounds to mitigate the offender’s conduct, although the grounds are not enough to 

constitute a defense.” 

{¶15} This court has held that, “[s]imply because the trial court did not find the 

factors identified by appellant to militate in favor of a less severe sentence does not 

imply the sentence is contrary to law,” and found sentences were not contrary to law 

when they “were within the statutory range and there is nothing in the record to suggest 

the trial court ignored the factors appellant identifies on appeal.” State v. Miller, 11th 

Dist. Lake No. 2018-L-133, 2019-Ohio-2290, ¶ 25. Here, the court stated both at 

sentencing and in the sentencing entry that it considered the R.C. 2929.12 factors, 

which is sufficient to demonstrate it did so. Petrovich’s sentence was within the 

statutory range and he does not point to anything in the record showing the court 
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ignored the sentencing factors. 

{¶16} Moreover, the grounds Petrovich argues should have rendered his 

sentence less serious were reasonably rejected by the trial court. Petrovich claims as 

“substantial grounds to mitigate [his] conduct” pursuant to R.C. 2929.12(C)(4) that his 

blood alcohol level was not “over [the .08 limit] by a tremendous amount,” as it was a 

.108, and that he had not overdosed, was not unconscious, and “seemed to still have 

his composure about him,” performing well on field sobriety tests. The fact that his 

blood alcohol level was .108 demonstrates only that he committed the offense of OVI, 

and does not show that his conduct was less serious than that typically constituting the 

offenses. While he may have performed well on sobriety tests, Petrovich does not 

demonstrate how this renders less serious his conduct of driving while his blood alcohol 

level was over the legal limit with children lacking proper restraints and without a valid 

driver’s license. 

{¶17} Petrovich also argues that the court should have found he did not expect 

to cause harm pursuant to R.C. 2929.12(C)(3), which requires the court to consider 

whether the offender “cause[d] or expect[ed] to cause physical harm to any person or 

property.” There is no question that Petrovich did cause serious physical harm to the 

victims. As to his expectation, Petrovich chose to voluntarily drive a vehicle while 

intoxicated, an act which could easily be anticipated to result in physical harm to a 

person or property. 

{¶18} Finally, Petrovich argues that the Aggravated Vehicular Assault charges 

were elevated from a third to a second degree felony as a result of a license 

suspension, which arose from failure to pay child support “rather than a traffic related 
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incident.” It is unclear why this would mitigate his conduct. R.C. 2903.08(B)(1)(a) 

allows for Aggravated Vehicular Assault to be charged as a second degree felony as a 

result of a license suspension and having a suspension is the exact conduct an offender 

would commit to be charged in that manner. Having a license suspended for child 

support “rather than a traffic related incident” does not make less serious Petrovich’s 

conduct of driving without a license, while intoxicated, with child passengers in improper 

restraints. 

{¶19} Petrovich also argues that the sentence ordered by the court was 

disproportionate to similarly situated defendants that had been brought to the court’s 

attention at sentencing. 

{¶20} In addressing arguments regarding the proportionality of sentences 

among similarly situated defendants, this court has repeatedly emphasized that “[a] 

consistent sentence is not derived from a case-by-case comparison[.]” (Emphasis sic.) 

State v. Sari, 11th Dist. Lake No. 2016-L-109, 2017-Ohio-2933, ¶ 52, citing State v. 

Swiderski, 11th Dist. Lake No. 2004-L-112, 2005-Ohio-6705, ¶ 58. Instead, consistent 

sentencing is achieved when the trial court applies the statutory sentencing guidelines. 

State v. Simpson, 11th Dist. Lake No. 2016-L-014, 2016-Ohio-7746, ¶ 28. This 

rationale recognizes that “the goal of felony sentencing pursuant to R.C. 2929.11(B) is 

to achieve ‘consistency’ not ‘uniformity.’” (Citation omitted.) Id., citing State v. 

Palicka, 8th Dist. Cuyahoga No. 93766, 2010-Ohio-3726, 2010 WL 3169626, *2. “[I]n 

order to show a sentence is inconsistent with sentences imposed on other offenders, a 

defendant must show the trial court failed to properly consider the statutory purposes 

and factors of felony sentencing.” Sari at ¶ 52. 
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{¶21} It is not necessary to compare whether the sentence in the present matter 

is the same or similar to the cases cited by Petrovich but only to determine whether the 

trial court properly performed its duty to apply the required sentencing factors. In 

relation to the felony sentences, the court stated that it considered the factors under 

R.C. 2929.11 and .12 and nothing in the record shows otherwise. Furthermore, 

Petrovich also fails to point to anything in the record demonstrating a lack of 

consideration of the misdemeanor sentencing factors, as will be addressed further 

below. 

{¶22} Finally, the State addresses in its brief the trial court’s failure to state its 

consideration of R.C 2929.22(B) misdemeanor sentencing factors for the OVI offense. 

Petrovich does not discuss misdemeanor sentencing law nor does he set forth an 

argument that the trial court erred in its application of R.C. 2929.22(B). Rather, his 

arguments relate to the court’s failure to make a finding that the crimes were “less 

serious” under R.C. 2929.12(C) and that the sentence was disproportionate. To the 

extent that he generally argues there was an abuse of discretion in sentencing, the 

applicable standard for misdemeanor sentences, we will briefly address his OVI 

sentence. 

{¶23} Misdemeanor sentencing is evaluated under an abuse of discretion 

standard of review. State v. Corbissero, 11th Dist. Ashtabula No. 2011-A-0028, 2012-

Ohio-1449, ¶ 53. In sentencing a defendant for a misdemeanor, the trial court must 

consider the factors set forth under R.C. 2929.22(B), which include, inter alia, the nature 

of the offense, the offender’s criminal history, risk of recidivism, and the vulnerability of 

the victim. R.C. 2929.22(B)(1)(a)-(g). In the case of misdemeanors, if the sentence is 
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within the statutory limit, even if there is a silent record, there is a presumption that the 

trial judge followed the statutory standards, since “there is no requirement that the court 

state on the record it considered the statutory sentencing criteria.” (Citations omitted.) 

State v. O’Keefe, 11th Dist. Lake No. 2018-L-088, 2019-Ohio-841, ¶ 26. 

{¶24} Here, the sentence for OVI was within the statutory limits and although the 

court did not reference R.C. 2929.22 at sentencing, Petrovich has not demonstrated an 

affirmative indication on the record that the court did not properly consider the 

misdemeanor sentencing factors or that it abused its discretion. State v. McDonald, 

11th Dist. Ashtabula No. 2018-A-0008, 2018-Ohio-3845, ¶ 23. 

{¶25} The first assignment of error is without merit. 

{¶26} In his second assignment of error, Petrovich argues the trial court erred in 

failing to find the three counts of Aggravated Vehicular Assault were allied offenses 

since they resulted from the same conduct. 

{¶27} Ohio’s multiple counts or allied offenses of similar import statute provides: 

(A) Where the same conduct by defendant can be construed to 

constitute two or more allied offenses of similar import, the 

indictment or information may contain counts for all such offenses, 

but the defendant may be convicted of only one. 

(B) Where the defendant’s conduct constitutes two or more 

offenses of dissimilar import, or where his conduct results in two or 

more offenses of the same or similar kind committed separately or 

with a separate animus as to each, the indictment or information 

may contain counts for all such offenses, and the defendant may be 

convicted of all of them. 

R.C. 2941.25. 

{¶28} “In determining whether offenses are allied offense of similar import within 

the meaning of R.C. 2941.25, courts must evaluate three separate factors—the 
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conduct, the animus, and the import.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio995, 34 N.E.3d 892, paragraph one of the syllabus. “[T]wo or more offenses may result 

in multiple convictions if any of the following are true: ‘(1) the offenses are dissimilar in 

import or significance – in other words, each offense caused separate, identifiable harm, 

(2) the offenses were committed separately, and (3) the offenses were committed with 

separate animus or motivation.’” State v. Jameson, 11th Dist. Ashtabula No. 2014-A0069, 2015-Ohio-4634, ¶ 11, citing Ruff at ¶ 25. 

{¶29} Appellate courts review a determination on the issue of merger pursuant 

to R.C. 2941.25 under a de novo standard of review. State v. Williams, 134 Ohio St.3d 

482, 2012-Ohio-5699, 983 N.E.2d 245, ¶ 28. 

{¶30} As held in Ruff, “[t]wo or more offenses of dissimilar import exist within the 

meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses 

involving separate victims or if the harm that results from each offense is separate and 

identifiable.” Id. at paragraph two of the syllabus. It is not necessary, then, that the 

offenses be committed by separate actions of the defendant. 

{¶31} Appellate courts addressing cases involving vehicular assault with multiple 

victims have held that, pursuant to Ruff, the offenses do not merge. State v. Glover, 

12th Dist. Fayette No. CA2016-11-016, 2017-Ohio-7360, ¶ 21 (rejecting the argument 

that convictions should merge because they resulted from one collision where there 

were multiple victims who suffered physical injuries); State v. Mullins, 4th Dist. Scioto 

No. 15CA3716, 2016-Ohio-5486, ¶ 19 (convictions for two counts of vehicular assault 

did not merge when the defendant struck one car, injuring two victims). Similar 

arguments that offenses for aggravated vehicular assault and aggravated vehicular 
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homicide should merge when resulting from one incident have also been rejected. 

State v. Rufus, 8th Dist. Cuyahoga No. 105026, 2017-Ohio-5583, ¶ 14. 

{¶32} Petrovich’s conduct caused “separate, identifiable harm” to multiple 

victims. He was convicted for Aggravated Vehicular Assault for three victims, one adult 

and two children. Emily Misch suffered a torn artery in her neck, required 36 stitches, 

14 staples, and multiple surgeries, and suffered a mini stroke. K.P. suffered a broken 

jaw, concussion, and permanent scarring on her face and head and T.P. had a broken 

jaw, ankle, clavicle, tailbone and pelvis. 

{¶33} While recognizing the abundant authority for finding merger inapplicable in 

cases involving separate victims, Petrovich primarily relies on this court’s opinion in 

State v. Long, 11th Dist. Lake No. 2017-L-094, 2018-Ohio-3013, in support of the 

conclusion that merger can be warranted even when there are separate victims. In 

Long, this court held that two Aggravated Burglary counts should have merged because 

although there were multiple occupants in the home that was burglarized, there was 

only one act of trespass. In so holding, this court noted that “the Aggravated Burglary 

statute is meant to enhance the seriousness of a trespass under circumstances where 

the offender raises the risk of harm to occupants of a structure” and “is not meant to 

criminalize an offender’s conduct toward the occupants of the structure; rather, the 

prosecutor may charge the defendant with an assault offense to satisfy that interest.” 

Id. at ¶ 69. In other words, this holding was particular to the offense of Aggravated 

Burglary. This court has found the existence of separate victims does not warrant 

merger in factual scenarios more similar to the present one, where there is a clear 

victim of an assault. See Jameson, 2015-Ohio-4634, at ¶ 18 (holding felonious assault 
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offenses against multiple victims of the defendant’s act of shooting at an automobile 

should not merge). Thus, Long is distinguishable. 

{¶34} The second assignment of error is without merit. 

{¶35} For the foregoing reasons, Petrovich’s sentence for Aggravated Vehicular 

Assault and OVI in the Lake County Court of Common Pleas is affirmed. Costs to be 

taxed against appellant. 

CYNTHIA WESTCOTT RICE, J., 

TIMOTHY P. CANNON, J., 

concur.