[Cite as State v. Kinney, 2019-Ohio-2726.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT 

MONROE COUNTY

STATE OF OHIO, 

Plaintiff-Appellee, 

v. 

RICHARD LEE KINNEY, 

Defendant-Appellant.

 

OPINION AND JUDGMENT ENTRY 

Case No. 18 MO 0013 

 

Criminal Appeal from the 

Court of Common Pleas of Monroe County, Ohio 

Case No. 2016-118 

BEFORE: 

Cheryl L. Waite, Carol Ann Robb, David A. D’Apolito, Judges. 

JUDGMENT: 

Affirmed in part. Limited Remand. 

Atty. James L. Peters, Monroe County Prosecutor, 101 North Main Street, Room 15, 

P.O. Box 430, Woodsfield, Ohio 43793-0430, for Plaintiff-Appellee, No Brief Filed. 

Atty. Sidney N. Freeman, McNamara, Demczyk Co., L.P.A., 12370 Cleveland Avenue, 

N.W., P.O. Box 867, Uniontown, Ohio 44685, for Defendant-Appellant. 

Atty. Matt Fortado, 1700 W. Market Street, #177, Akron, Ohio 44313, for DefendantAppellant. 

 

Dated: June 28, 2019 
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Case No. 18 MO 0013

 

WAITE, P.J. 

{¶1} Appellant Richard Lee Kinney challenges the sentences ordered by the 

Monroe County Court of Common Pleas following a resentencing hearing on his 

convictions for aggravated vehicular homicide and two counts of operating a vehicle while 

intoxicated (“OVI”). Appellant presents two arguments on appeal: (1) the sentences 

imposed by the trial court are not supported by the record; and (2) the trial court erred in 

imposing sentences that are not consistent with and proportional to sentences of similar 

offenders. A review of the record reflects that Appellant’s sentences are supported by 

the record and are not contrary to law. 

{¶2} Accordingly, Appellant’s assignments of error are without merit and are 

overruled. The judgment of the trial court is affirmed. However, because the record 

reveals that Appellant was not completely advised at the sentencing hearing or in his 

sentencing entry as to postrelease control, the matter is again remanded to the trial court, 

solely to advise Appellant on postrelease control. 

Factual and Procedural History 

{¶3} On March 30, 2016, Appellant was helping a friend excavate. He had his 

own excavator, towed on a trailer behind his pickup truck. After working, Appellant 

consumed twelve beers and then elected to drive home in his truck, hauling the excavator. 

According to the record, although Appellant consumed twelve beers, he felt he was able 

to drive. The victim, Mary Lu Riley (“Riley”), was driving her vehicle in the opposite 

direction, toward Appellant, on a two-lane road in Monroe County. Appellant’s rig went 

left of center hitting Riley’s car head-on. It is undisputed that Riley subsequently died as 
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a result of the injuries caused by the collision. Appellant was not immediately aware that 

he actually hit Riley and initially told police that he “nearly hit an oncoming vehicle.” 

(8/14/18 J.E., p. 3.) Appellant was under the impression that a part of his truck broke off, 

causing him to lose control of the vehicle. It is not clear from the record how far from the 

collision Appellant’s rig came to a stop or whether he was truly aware he had collided with 

Riley’s vehicle. Riley was pinned in her car and conscious for approximately an hour 

before help arrived and she was extricated from her vehicle. She died at the hospital 

some time later. Police performed a field sobriety test on Appellant and then a 

breathalyzer test. He tested at three times over the legal limit. 

{¶4} On April 22, 2016, Appellant was indicted on one count of aggravated 

vehicular homicide in violation of R.C. 2903.06(A)(1)(a), a felony of the second degree; 

OVI in violation of R.C. 4511.19(A)(1)(a), a first degree misdemeanor; one count of OVI 

in violation of R.C. 4511.19(A)(1)(h), a first degree misdemeanor; and one count of failure 

to control in violation of R.C. 4511.202, a minor misdemeanor. Appellant appeared for 

arraignment on April 25, 2016 and entered a plea of not guilty. Bond was set and the 

matter was scheduled for a jury trial. 

{¶5} On May 1, 2017, a change of plea hearing was held where Appellant 

pleaded no contest to one count of aggravated vehicular homicide and two counts of OVI. 

Appellant was placed under electronically monitored house arrest while awaiting 

sentencing. A presentence investigation was ordered. On June 26, 2017, a sentencing 

hearing was held and Appellant was sentenced to a seven-year term of imprisonment for 

aggravated vehicular homicide and 180 days on each of the OVI counts. These were to 

run concurrently, however, with the sentence for aggravated vehicular homicide. The 
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Case No. 18 MO 0013

court also ordered a lifetime driving suspension and two days of jail-time credit. Appellant 

filed a motion for resentencing with the trial court on July 25, 2017, but filed an appeal on 

July 26, 2017. The trial court denied Appellant’s motion on August 3, 2017. Realizing 

the trial court lacked jurisdiction to issue that judgment, Appellant filed a motion with this 

Court seeking a partial remand to allow the trial court to consider his motion for 

resentencing and permit an oral hearing to present evidence. In a judgment entry dated 

November 3, 2017, we denied Appellant’s motion. On November 8, 2017, the state filed 

a notice that it did not intend to file an appellate brief because as part of the plea 

agreement it had agreed to remain silent regarding sentencing. 

{¶6} On June 29, 2018, we concluded that the record did not reflect that the trial 

court considered the requisite statutory factors before imposing sentence. Moreover, the 

trial court cited the incorrect statute at both the sentencing hearing and in the written 

judgment entry. State v. Kinney, 7th Dist. Monroe No. 17 MO 0016, 2018-Ohio-2785. 

The matter was remanded for a limited resentencing to review the appropriate sentencing 

statutes. Id. at ¶ 14. 

{¶7} A resentencing hearing was held on August 14, 2018. The state reiterated 

at the hearing that it had agreed to remain silent. The prosecutor noted that the victim’s 

family was present and referred the trial court to the victim impact statements from 

Appellant’s first sentencing hearing. Appellant’s counsel contended that none of the 

aggravating factors listed in R.C. 2929.12(B) were present, with the exception of death of 

the victim, which is an element of the offense of aggravated vehicular homicide. (8/14/18 

Tr., p. 8.) Counsel for Appellant also said that there was no evidence in the record that 

there was a delay in obtaining medical treatment for the victim because of Appellant’s 
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action and that Appellant had remained at the scene. Counsel admitted that the only 

mitigating factor was that Appellant did not intend to cause the victim’s death. (8/14/18 

Tr., p. 10.) Counsel stated that none of the recidivism factors listed in R.C. 2929.12(D) 

applied to Appellant, and that Appellant had no prior criminal record, had shown remorse, 

and had stopped drinking and maintained his sobriety. (8/14/18 Tr., p. 10.) Counsel then 

raised the issue of consistency and proportionality in sentencing and referred to 

computerized research he had undertaken using Summit County statistics. This research 

indicated that there were only four cases where the offender received a greater sentence 

than Appellant, and those offenders had prior criminal records. (8/14/18 Tr., p. 11.) 

Appellant’s counsel requested a two-year sentence. Appellant elected not to make a 

statement at sentencing. 

{¶8} The trial court stated at the hearing that it considered the purposes and 

principles of sentencing set forth in R.C. 2929.11 and R.C. 2929.12: 

Additionally, under 2929.12 of the Revised Code, the Court does 

have discretion to impose said felony sentence and to determine the most 

effective way to comply with the purposes and principles set forth in 2929.11 

of the Revised Code. 

The Court is to consider the seriousness and recidivism factors that 

are set forth in 2929.12(B) (C) (D) and (E), and factors in (F) that would 

pertain to the offender’s service in the U. S. Armed Forces, if any, as well 

as any other factors that the Court deems relevant to achieve the noted 

purposes and principles of sentencing set forth in 2929.11. 
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Case No. 18 MO 0013

The Court makes the following findings against this Defendant, as it 

pertains to the facts of this particular case, and is prepared to order a 

sentence accordingly. 

The Court does find that the physical injuries suffered by Mrs. Riley 

in this case, who was eighty-five years of age, at the time, was death. She 

was killed as a result of the crash. 

The victim in this case, did nothing to induce or facilitate that offense. 

The offender did not act under any provocation. 

The Defendant eventually admitted to law enforcement that he did 

consume twelve beers prior to crashing his motor vehicle, and the trailer he 

was hauling, head-on into the victim, ultimately killing her. 

The Defendant failed field sobriety tests. 

His Breathalyzer test revealed a prohibited alcohol content well in 

excess of the legal limit. 

The Court also finds that this Defendant was so intoxicated that he 

was not certain that he had collided with the victim’s vehicle, which led to a 

critical and ultimately fatal delay in the arrival of assistance. 
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Case No. 18 MO 0013

This Court finds that this Defendant fails to fully accept responsibility 

for the death of Mrs. Riley as he stated that he was intoxicated but he felt 

he was okay to drive. 

Further, the Defendant made a statement to the Pre-Sentence 

Report investigator that something broke off his truck causing him to go left 

of center, ultimately crashing and killing Mrs. Riley. 

* * * 

This is completely contrary to the Ohio State Highway Patrol’s report 

which indicated that he collided head-on with Mrs. Riley’s motor vehicle, 

killing her. 

(8/14/18 Tr., pp. 15-18.) 

{¶9} The trial court sentenced Appellant to a term of incarceration of seven years 

for the aggravated vehicular homicide conviction and 180 days each for the two counts 

of OVI, both to run concurrently to each other and to the aggravated vehicular homicide 

sentence, for a total stated prison term of seven years. The Court gave Appellant 416 

days of credit for time served. The court again imposed the lifetime driver’s license 

suspension. 

{¶10} Appellant filed this timely appeal. 

ASSIGNMENT OF ERROR NO. 1 
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Case No. 18 MO 0013

THE TRIAL COURT ERRED, TO THE PREJUDICE OF DEFENDANT, BY 

IMPOSING A SENTENCE THAT BY CLEAR AND CONVINCING 

EVIDENCE IS NOT SUPPORTED BY THE RECORD. 

{¶11} Appellant contends that the sentence imposed by the trial court is not 

supported by the record and is therefore contrary to law. Appellant takes issue with nine 

findings he claims the trial court made in support of the imposition of the seven year 

sentence: (1) that the victim died; (2) that the victim did nothing to induce or facilitate the 

offense; (3) there was no provocation; (4) that he admitted to law enforcement he 

consumed twelve beers prior to causing the accident; (5) his failed sobriety tests and that 

his Breathalyzer result revealed he was well in excess of the legal limit; (6) that he was 

so intoxicated he was not certain that he had collided with the victim, which led to a delay 

in the arrival of assistance; (7) his failure to accept full responsibility for the death of Riley 

based on his statement that he was not too impaired to drive; (8) his excuse that a portion 

of his truck broke, which caused him to crash his truck into Riley’s vehicle; and (9) that 

he minimized his conduct, saying that he “nearly collided” with an oncoming vehicle when 

the evidence demonstrated he hit Riley head-on, causing her death. 

{¶12} Pursuant to the Ohio Supreme Court’s holding in State v. Marcum, 146 Ohio 

St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, “an appellate court may vacate or 

modify a felony sentence on appeal only if it determines by clear and convincing evidence 

that the record does not support the trial court’s findings under relevant statutes or that 

the sentence is otherwise contrary to law.” Id.

{¶13} “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 
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Case No. 18 MO 0013

as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in 

the mind of the trier of facts a firm belief or conviction as to the facts sought to be 

established.” Id at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 

(1954), paragraph one of the syllabus. 

{¶14} Moreover, a sentence is considered to be contrary to law if: (1) it falls 

outside of the statutory range for the particular degree of offense; (2) if the trial court failed 

to properly consider the purposes and principles of felony sentencing as enumerated in 

R.C. 2929.11 and the seriousness and recidivism factors set forth in R.C. 2929.12; or (3) 

if the trial court orders consecutive sentences and does not make the necessary 

consecutive sentencing findings. See State v. Collins, 7th Dist. Noble No. 15 NO 0429, 

2017-Ohio-1264, ¶ 9; State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 

659, ¶ 30. 

{¶15} Pursuant to R.C. 2929.11, when sentencing a defendant for a felony the 

trial court should be guided by the overall sentencing principles and purposes including 

protecting the public from future crime by the offender and punishing the offender using 

the minimum sanctions deemed necessary to accomplish those purposes without placing 

an unnecessary burden on state or local government resources. R.C. 2929.11(A). A 

felony sentence should also be commensurate with, and not demeaning to, the 

seriousness of the conduct and the impact on any victim, and consistent with sentences 

imposed for similar crimes by similar offenders. R.C. 2929.11(B). 

{¶16} R.C. 2929.12(B) provides: 

(B) The sentencing court shall consider all of the following that apply 

regarding the offender, the offense, or the victim, and any other relevant 
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Case No. 18 MO 0013

factors, as indicating that the offender's conduct is more serious than 

conduct normally constituting the offense: 

(1) The physical or mental injury suffered by the victim of the offense due 

to the conduct of the offender was exacerbated because of the physical or 

mental condition or age of the victim. 

(2) The victim of the offense suffered serious physical, psychological, or 

economic harm as a result of the offense. 

(3) The offender held a public office or position of trust in the community, 

and the offense related to that office or position. 

(4) The offender's occupation, elected office, or profession obliged the 

offender to prevent the offense or bring others committing it to justice. 

(5) The offender's professional reputation or occupation, elected office, or 

profession was used to facilitate the offense or is likely to influence the 

future conduct of others. 

(6) The offender's relationship with the victim facilitated the offense. 

(7) The offender committed the offense for hire or as a part of an organized 

criminal activity. 

(8) In committing the offense, the offender was motivated by prejudice 

based on race, ethnic background, gender, sexual orientation, or religion. 
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(9) If the offense is a violation of section 2919.25 or a violation of section 

2903.11, 2903.12, or 2903.13 of the Revised Code involving a person who 

was a family or household member at the time of the violation, the offender 

committed the offense in the vicinity of one or more children who are not 

victims of the offense, and the offender or the victim of the offense is a 

parent, guardian, custodian, or person in loco parentis of one or more of 

those children. 

{¶17} The sentencing court has discretion in determining the most effective 

method to comply with the purposes and principles of sentencing. State v. Rahab, 150 

Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431, ¶ 10. In so doing, the court shall 

consider the statutory factors regarding seriousness and recidivism enumerated in R.C. 

2929.12(B), (C), (D), and (E) as well as any other relevant factor. 

{¶18} “The trial court has full discretion to impose any sentence within the 

authorized statutory range, and the court is not required to make any findings or give its 

reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-

Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). “In exercising that discretion a trial court 

must consider the statutory principles that apply in felony cases, including R.C. 2929.11 

and R.C. 2929.12.” State v. McCourt, 7th Dist. Mahoning No. 16 MA 0144, 2017-Ohio9371, ¶ 9 citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 845 N.E.2d 1, ¶ 38. 

Moreover, although the trial court must consider the recidivism and seriousness factors 

set forth in R.C. 2929.11 and R.C. 2929.12, it is not required to discuss the statutory 

factors on the record. McCourt at ¶ 9. 
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Case No. 18 MO 0013

{¶19} Appellant was sentenced for aggravated vehicular homicide, in violation of 

R.C. 2903.06(A)(1)(a), a felony of the second degree, as follows in pertinent part: 

(A) No person, while operating or participating in the operation of a motor 

vehicle * * * shall cause the death of another * * * in any of the following 

ways: 

(1)(a) As the proximate result of committing a violation of division (A) of 

section 4511.19 of the Revised Code or of a substantially equivalent 

municipal ordinance[.] 

{¶20} Being mindful of the trial court’s discretion to impose any sentence within 

the statutory range without any requirement to make specific findings on the record, we 

conclude the trial court’s imposition of a seven-year sentence for aggravated vehicular 

homicide is supported by the record. Appellant complains of the trial court’s findings for 

a number of reasons: the findings allegedly cannot be gleaned from the record; the court 

appears to use a mitigating factor as an aggravating factor; the court otherwise improperly 

utilizes the factors; and the court relies on an element of the offense itself as an 

aggravating factor. Findings number 1, 4, and 5 are elements of the offense according 

to Appellant, and should not have been considered by the court in sentencing. These 

involve the court’s discussion that Appellant caused physical injury to the victim that was 

so substantial the victim died, and that the death was caused by Appellant’s intoxication 

when operating his vehicle. We note that Appellant is correct that causing the death of 

another while operating a motor vehicle when intoxicated are elements of his offense. 

Mere mention of these facts does not reflect that the trial court considered them as 
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Case No. 18 MO 0013

“factors” in sentencing. The record clearly indicates that the trial court considered all of 

the surrounding facts and circumstances of the case, including Appellant’s initial 

indication that he was not too impaired to drive despite imbibing twelve beers, and his 

original assertion that it was some malfunction of his vehicle (and not his decision to drive 

while impaired) that ultimately caused Riley’s death. That the trial court discussed the 

fact that Riley died from her injuries does not, in itself, render the other pertinent findings 

moot. 

{¶21} Appellant further contends that findings 2 and 3, that Riley did nothing to 

facilitate the offense and that Appellant did not act under provocation, are listed under 

R.C. 2929.12(C), which relates to factors that indicate the offender’s conduct was less 

serious than conduct normally constituting the offense. This is an accurate statement, 

however, the trial court is charged with considering all factors under R.C. 2929.11 and 

R.C. 2929.12. These factors, which would lessen the seriousness of Appellant’s conduct, 

are present. Logically, the trial court’s mention of them appears to support the court’s 

determination that the maximum sentence was not warranted. 

{¶22} Findings 7, 8 and 9 cited by Appellant indicate the trial court concluded that 

Appellant did not show remorse for his conduct. The statements relied on by the trial 

court were included in the presentence investigation report. Appellant told a probation 

officer that, while he was intoxicated, he believed he was able to drive. Appellant 

contends that this statement does not reflect he was not remorseful, and asserts that a 

better indicator of remorse is the fact that he has been sober since the offense occurred. 

The trial court noted that Appellant blamed his faulty vehicle for the incident rather than 

his own conduct, which demonstrated a lack of remorse. Appellant contends this belief 
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Case No. 18 MO 0013

on his part does not mean he was not remorseful. During discovery, photographs were 

produced showing that the opposite side of his truck from the side that collided with Riley 

suffered a broken wheel assembly. Hence, he maintains that while this actually caused 

his truck to strike Riley’s car, this contention also does not reflect lack of remorse for her 

death. As an aside, there is no evidence in the record to show when this malfunction 

occurred, whether before the accident or as a result of it. The accident report cited by the 

trial court concluded that Riley’s vehicle was struck head-on by Appellant’s truck, leading 

to her death. Appellant does not disagree that the statement in the presentence report 

that he said he “nearly hit” an oncoming vehicle rather than acknowledging that he hit 

Riley head-on was made by him. Like the other statements of which he complains, 

Appellant does not contend these are false or were not made by him. Instead, he 

contends they were misconstrued by the trial court as a failure to show remorse. 

{¶23} We conclude that the trial court did not err when it found Appellant’s 

statements indicated a lack of remorse. Attempting to blame a malfunction of his vehicle, 

and not the fact that he was driving a large truck with an excavator attached after 

consuming twelve beers, does appear to indicate Appellant refuses to accept 

responsibility for his actions in causing this loss of life. Additionally, Appellant’s comment 

at the scene that he “nearly hit” another vehicle can also be construed as a lack of 

responsibility or remorse for his conduct. 

{¶24} The final factor which Appellant challenges is that the trial court indicated 

that Appellant was not certain he actually hit another vehicle and, as such, did not respond 

in a timely fashion which led to a delay in obtaining assistance for Riley. Appellant 

contends it was Riley’s granddaughter who discussed a delay in care in her statement 
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Case No. 18 MO 0013

and that she was not a witness to the accident. He argues that the information was 

inaccurate and should not have been relied on by the trial court. A review of the record 

reflects that at the first sentencing hearing, a victim advocate read a statement written by 

Riley’s daughter-in-law. The daughter-in-law was present at the scene and sat in the 

back seat of Riley’s vehicle to attempt to comfort Riley while she was conscious and 

pinned into her vehicle. In this statement, there is a reference to the length of time Riley 

was trapped in her car: 

When we arrived at the accident scene, we all feared the worst due to the 

extent of the accident. She was pinned behind the dash for over an hour. 

But we never lost faith that she might survive. 

I got in the back seat of her car and held her hand and talked to her while 

she was trapped. 

She told me she knew there was a wreck. She wanted someone to get her 

out. Her back was hurting. She was thirsty. 

She was awake and alert the whole time and knew what was going on. 

(6/26/17 Tr., p. 8.) 

{¶25} Riley’s granddaughter also wrote a statement that was read into the record: 

I try not to think about grandma in her little Pontiac Vibe getting hit by that 

huge F-250 truck. 
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I try not to think about grandma pinned in her car for over an hour. 

I try not to think about how [Appellant] didn’t tell anyone about her car down 

the road or didn’t even realize he hit grandma, delaying help getting to her. 

(6/26/17 Tr., p. 14.) 

{¶26} Victims are entitled to testify about the impact an offense has had on them 

or their family. State v. DuBose, 7th Dist. Mahoning No. 00 C.A. 60, 2002-Ohio-3020, 

¶ 97 citing State v. Treesh, 90 Ohio St.3d 460, 487, 739 N.E.2d 749 (2001). This evidence 

may be presented by means of a prepared statement by the victim that includes a 

description of any physical injury resulting from the offense as well as the degree of 

permanence of the suffering which resulted from the offense. R.C. 2947.051(B). The 

trial court was certainly permitted to consider the victim impact statements in this matter 

when taking into consideration the purposes and principles of sentencing. While perhaps 

not artfully discussed, it appears the trial court was referring to the length of time the victim 

was trapped in her car when discussing a delay in medical treatment. This is certainly a 

relevant consideration, and is directly attributable to the actions of Appellant when he 

struck the victim’s automobile as they relate to the strength and manner of impact. 

{¶27} In sentencing Appellant, the trial court did note some of the statements from 

the victims, particularly the level of suffering of the victim for an extended period of time. 

The trial court also relied on other relevant evidence, including Appellant’s own 

statements regarding the amount of alcohol he imbibed while insisting he was able to 

drive and that he “nearly hit” the victim’s vehicle rather than acknowledging that he hit the 

victim head-on causing her death. Moreover, at the sentencing hearing and in the 
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Case No. 18 MO 0013

judgment entry the trial court specifically stated that R.C. 2929.11 and R.C. 2929.12 as 

well as the overriding purposes, principles and factors of sentencing were considered in 

determining the appropriate sentence. (8/14/18 Tr., p. 14.); (8/14/18 J.E.) As noted, 

these statutes set forth the purposes and principles of sentencing as well as a 

nonexhaustive list of recidivism and seriousness factors. This record reflects that the trial 

court appropriately considered several factors, relating to both mitigation and 

seriousness, in determining Appellant’s sentence, and that the trial court’s sentence is 

supported by the evidence in the record and is not contrary to law. 

{¶28} Appellant’s first assignment of error is without merit and is overruled. 

ASSIGNMENT OF ERROR NO. 2 

THE TRIAL COURT ERRED, TO THE PREJUDICE OF DEFENDANT, IN 

IMPOSING A SENTENCE THAT WAS NOT PROPORTIONAL TO THE 

SENTENCES OF SIMILAR OFFENDERS AS REQUIRED BY R.C. 

SECTION 2929.11. 

{¶29} Appellant concedes in his brief that arguments relating to proportionality and 

consistency must first be raised in the trial court. In State v. Williams, 7th Dist. Mahoning 

No. 11 MA 131, 2012-Ohio-6277, ¶ 77, we held, “a disproportionality argument must be 

raised in the trial court and the defendant must present some evidence to the trial court 

for analysis in order to preserve the issue for appeal.” Appellant did not raise this issue 

to the trial court before filing his direct appeal. Instead, Appellant attempted to evade 

waiver of this issue by filing a motion with this Court seeking a limited remand to belatedly 

present those arguments to the trial court. As we stated in our judgment entry overruling 
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this motion, “Appellant essentially asks us to peremptorily rule in his favor in this appeal 

and allow the trial court to change the sentence based on arguments that have not yet 

been presented on appeal.” (11/6/17 J.E.) We concluded that Appellant could not 

properly avail himself of a second opportunity at an argument that he failed to raise at 

trial. Thus, on direct appeal we did not address Appellant’s consistency and 

proportionality arguments presented to us for the first time. 

{¶30} This matter is currently before us following limited remand for resentencing 

solely to allow a meaningful consideration of the requisite sentencing statutes. 

Appellant’s counsel made lengthy arguments relative to consistency and proportionality 

at the resentencing hearing. Appellant was once again sentenced to a total term of seven 

years. Appellant’s arguments regarding consistency and proportionality should have 

been presented to the trial court at his original sentencing. To the extent Appellant’s 

argument in this regard relates to the factors found in the sentencing statutes, a review 

of this record, as discussed in our analysis of Appellant’s first assignment of error, 

demonstrates that the trial court appropriately weighed the purposes and principles of 

R.C. 2929.11 and the seriousness and recidivism factors found in R.C. 2929.12. 

Appellant was subject to a maximum term of eight years for aggravated vehicular 

homicide. The state made no sentencing recommendation and the trial court noted 

Appellant’s lack of a criminal record when it imposed the seven year prison sentence. 

Appellant’s sentence was within the range for a felony of the second degree pursuant to 

the version of R.C. 2929.14(A)(2) in effect at the time of sentencing. This record reveals 

no merit in Appellant’s assignment of error regarding consistency and proportionality of 

his sentence. Appellant’s second assignment of error is without merit and is overruled. 
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Postrelease Control 

{¶31} Although not raised by Appellant, we must address the trial court’s 

advisement of postrelease control made at Appellant’s resentencing hearing. A trial court 

“is duty-bound to notify [the] offender at the sentencing hearing about postrelease control 

and to incorporate postrelease control into its sentencing entry.” State v. Grimes, 151 

Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 11, citing State v. Jordan, 104 Ohio 

St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, at ¶ 22. The sentencing court must notify the 

offender that he “will” or “may” “be supervised under section 2967.28 of the Revised Code 

after the offender leaves prison if the offender is being sentenced” for a felony. R.C. 

2929.19(B)(2)(c) and (d). If, as here, the offender has been convicted of a felony subject 

to mandatory postrelease control, the offender “will” be supervised. R.C. 2929.19(B)(2)(c) 

and 2967.28(B). The specific term of supervision for each degree of felony is enumerated 

in R.C. 2967.28(B) and (C). Additionally, at the sentencing hearing the trial court must 

notify the offender that if he “violates that supervision * * *, the parole board may impose 

a prison term, as part of the sentence, of up to one-half of the definite prison term originally 

imposed upon the offender.” R.C. 2929.19(B)(2)(f). 

{¶32} “Statutorily compliant notification” includes “notifying the defendant of the 

details of the postrelease control and the consequences of violating postrelease control.” 

State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 18. This 

includes whether postrelease control is discretionary or mandatory and the term of the 

supervision. State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960, ¶ 12. 

The sentencing court must also incorporate these advisements into the written sentencing 
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Case No. 18 MO 0013

entry. State v. Smith, 7th Dist. Mahoning No. 17 MA 0174, 2018-Ohio-4562, ¶ 4 citing 

Grimes, at ¶ 11. 

{¶33} Along with the two misdemeanor OVI convictions, Appellant was convicted 

of aggravated vehicular homicide in violation of R.C. 2903.06(A)(1)(a), a second degree 

felony. The version of R.C. 2967.28(B)(2) applicable at the time of sentencing provides, 

in pertinent part: 

(B) Each sentence to a prison term for a felony of the first degree, for a 

felony of the second degree, for a felony sex offense, or for a felony of the 

third degree that is an offense of violence and is not a felony sex offense 

shall include a requirement that the offender be subject to a period of postrelease control imposed by the parole board after the offender’s release 

from imprisonment. * * * [A] period of post-release control required by this 

division for an offender shall be one of the following periods: 

(2) For a felony of the second degree that is not a felony sex offense, three 

years[.] 

{¶34} At the sentencing hearing the trial court stated the following: 

You are reminded as you were told at least twice before, Mr. Kinney, 

that this felony two offense carries a mandatory Post Release Control 

period. 
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Case No. 18 MO 0013

When you are released from serving any prison sentence, you will 

be placed by the Parole Board on Post Release Control and they will 

supervise you. 

If you fail to abide by the terms and conditions of your Post Release 

Control, if you violate the terms and conditions of your Post Release 

Control, the Parole Board does have the ability to sentence you to an 

additional prison term for violating, and if you would violate by committing a 

new felony, any sentence that you receive for that new felony could be run 

consecutive to any sentence for the violation of the Post Release Control. 

Again, the felony two offense for which we’re here this afternoon 

does carry a mandatory period of Post Release Control whereby you will be 

supervised. 

(8/14/18 Tr., p. 19.) 

{¶35} The written judgment entry of sentence reads, in pertinent part: 

In open court, Defendant was advised of the Post-Release Control 

requirements pursuant to the following felony sentence: 

For a Felony of the 2nd degree: MANDATORY POST-RELEASE 

CONTROL FOR 3 YEARS 

-If a period of supervision is imposed following Defendant’s release from 

prison, and if Defendant violates that supervision, the Parole Board may 
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Case No. 18 MO 0013

administratively impose a prison term as part of Defendant’s 

sentence, up to one-half of the stated prison term originally imposed upon 

Defendant. 

-In addition, if Defendant commits a felony while under Post-Release 

Control, upon conviction, the Court shall impose a sentence for the new 

felony and the Court may impose a prison term for the violation. (The 

prison term imposed for the violation shall be reduced by any prison term 

that is administratively imposed by the Adult Parole Authority 

-The maximum prison term for the violation shall be either the maximum 

period of Post-Release Control minus the time Defendant spent on PostRelease Control, or twelve (12) months whichever is greater. 

-Any prison term imposed for the violation shall be served 

consecutively to any prison term imposed for the new felony. 

-A prison term imposed for the violation, and a prison term imposed for the 

new felony shall not count as, or be credited toward the remaining period of 

Post-Release Control imposed for the earlier felony. (Emphasis in original.) 

(8/14/18 J.E., pp. 5-6.) 

{¶36} With the exception of use of the qualifier “if” at the beginning of the third 

paragraph when discussing imposition of postrelease control, the language in the written 

sentencing entry would comply with R.C. 2967.28 and Grimes, supra. 
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Case No. 18 MO 0013

{¶37} However, the trial court’s advisement at the sentencing hearing is more 

problematic. The Ohio Supreme Court has said that “our main focus in interpreting the 

sentencing statutes regarding postrelease control has always been on the notification 

itself and not on the sentencing entry.” Qualls, at ¶ 19. Further, “we have deemed the 

‘preeminant purpose’ of R.C. 2967.28 to be that ‘offenders subject to postrelease control 

know at sentencing that their liberty could continue to be restrained after serving their 

initial sentences.’ ” (Emphasis in original.) Grimes, at ¶ 14, quoting Watkins v. Collins, 

111 Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78, ¶ 52. While Grimes was released 

contemporaneously with Appellant’s original sentencing, the trial court’s advisement at 

the resentencing hearing does not comply with the notifications now required by Grimes. 

{¶38} While the trial court correctly observed that Appellant was advised “at least 

twice before” regarding the issue, (8/14/18 Tr., p. 19), this matter was before the court for 

resentencing. Although the remand was limited in nature with respect to review the 

appropriate sentencing statutues, this does not obviate the trial court’s requirement to 

fully inform Appellant regarding postrelease control. On resentencing the trial court failed 

to inform Appellant of the three-year duration of the mandatory postrelease control and 

failed to inform Appellant at the hearing that any sentence imposed for violation of 

postrelease control shall not exceed one-half of the stated prison term originally imposed 

on Appellant. Appellant was also not properly advised at the sentencing hearing that his 

“liberty could continue to be restrained” after serving his initial sentence. Watkins, at ¶ 52. 

Therefore, this matter is remanded solely for the limited purpose of properly advising 

Appellant on postrelease control. 

Conclusion 
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Case No. 18 MO 0013

{¶39} Appellant alleges in his first assignment of error that imposition of a less 

than maximum sentence for his conviction was not supported by the record. A review of 

the record shows that the trial court considered the principles and purposes of sentencing, 

including factors relative to seriousness and recidivism, prior to imposing sentence and 

that the sentence is supported by law and by the record. In his second assignment of 

error Appellant contends that the trial court’s sentence is not proportional. This issue was 

not raised in Appellant’s original sentencing. To the extent that it may be a factor in 

resentencing, the record does not support this contention. Accordingly, Appellant’s 

assignments of error are without merit and are overruled. However, a review of the 

transcript reveals that Appellant was not fully advised regarding postrelease control at the 

sentencing hearing. Moreover, the written sentencing entry is not entirely clear that 

postrelease control is mandatory for this offense. Therefore, the matter is remanded for 

the limited purpose of allowing the trial court to properly advise Appellant on postrelease 

control. 

Robb, J., concurs. 

D’Apolito, J., concurs. 
[Cite as State v. Kinney, 2019-Ohio-2726.]

 

 

For the reasons stated in the Opinion rendered herein, the assignments of error 

are overruled and it is the final judgment and order of this Court that the judgment of 

the Court of Common Pleas of Monroe County, Ohio, is affirmed. Because a review of 

the record reveals that Appellant was not properly advised at the sentencing hearing 

as to postrelease control and the written sentencing entry is not entirely clear that 

postrelease control is mandatory for this offense, this matter is remanded for the limited 

purpose of allowing the trial court to properly advise Appellant on postrelease control. 

Costs to be taxed against the Appellee. 

A certified copy of this opinion and judgment entry shall constitute the mandate 

in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that 

a certified copy be sent by the clerk to the trial court to carry this judgment into 

execution. 

 

 

NOTICE TO COUNSEL 

This document constitutes a final judgment entry.