On Jan. 3, 2013, Antonia Earley – a 29-year-old Cuyahoga County woman – was driving more than 70 mph on side streets when she crashed into a utility pole. Earley’s 1-year-old son was next to her in the front passenger seat, restrained only by a seat belt.
The accident was catastrophic for the little boy – he suffered multiple fractures to both legs, head and brain trauma, as well as vertebrae fractures, leaving him paralyzed from the neck down.
Police determined that Earley had been drinking and her blood-alcohol content was two-and-a-half times the legal limit. They also found an unloaded handgun in the car.
As a result of the accident, Earley was indicted on two counts of aggravated vehicular assault, one count of endangering children, two counts of OVI, and one count of using weapons while intoxicated. Earley pleaded guilty to one count of aggravated vehicular assault, a felony of the third degree; one count of endangering children, a felony of the third degree; and one count of OVI, a misdemeanor of the first degree.
The trial court subsequently sentenced Earley to a term of three years for aggravated vehicular assault, 36 months for endangering children, and six months for the OVI, all to run concurrently.
When the trial court issued its judgment, Earley appealed her sentences, claiming that aggravated vehicular assault is an allied offense of OVI and that the sentences should have been merged. But the court of appeals affirmed the judgment of the trial court and held that – even assuming that aggravated vehicular assault and OVI are allied offenses – Ohio law creates an exception that permits a trial court to impose a sentence for both.
After that, her case came before us – the Ohio Supreme Court. In essence, her appeal boiled down to this question: May a trial court impose separate sentences on a defendant convicted of aggravated vehicular assault and of OVI when the OVI offense is the underlying conduct that led to the vehicular assault?
We have a state law that sets forth when a defendant may be convicted of multiple offenses. That law states that where the same conduct by a defendant can be construed to constitute two or more allied offenses of similar import, the indictment may contain counts for all such offenses, but the defendant may be convicted of only one.
The law then states that 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 may contain counts for all such offenses, and the defendant may be convicted of all of them.
While that law focuses on multiple convictions, there is a separate law that addresses sentencing and provides instruction to the trial court on whether prison terms shall be served consecutively or concurrently. In general, that law states that a sentence of imprisonment for a misdemeanor shall be served concurrently with a sentence for a felony. There are, however, certain exceptions to that, and one of those exceptions involves operation of a motor vehicle by the offender.
Earley argued that the trial court committed plain error when it sentenced her for both aggravated vehicular assault and OVI, which she argued were allied offenses of similar import. The state maintained that the trial court properly sentenced her for both.
Our court concluded that the trial court did not err in sentencing Earley for both because we determined that the two offenses are not allied offenses of similar import. In past cases we have applied a three-part test – in conjunction with the law dealing with multiple convictions – to determine whether a defendant can be convicted of multiple offenses: (1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation?
An affirmative answer to any of the questions will permit separate convictions. The conduct, the animus, and the import must all be considered.
The two offenses at issue in Earley’s case – felony aggravated vehicular assault and misdemeanor OVI – are offenses of dissimilar import and significance. The vehicular assault law states that no person, while operating a motor vehicle, shall cause serious physical harm to another person or another’s unborn in any of several enumerated ways. The OVI law states that no person shall operate any vehicle if the person is under the influence of alcohol, a drug of abuse, or a combination of them.
By criminalizing aggravated vehicular assault and classifying it as a third-degree felony with a mandatory prison term, the Ohio legislature emphasized the necessity of a strong punishment for – and deterrent against – individuals causing serious physical harm while driving under the influence.
As Justice Judith Ann Lanzinger noted in writing our majority opinion, the felony for aggravated vehicular assault “has a different import and significance than merely driving under the influence, for aggravated vehicular assault necessarily involves causing serious physical harm to another person.
“A first-degree-misdemeanor violation” of the OVI law, on the other hand, “occurs any time an individual drives under the influence of alcohol or drugs, and one who does so commits this offense regardless of any subsequent consequences that occur due to the impaired driver’s actions.” OVI does not necessarily involve serious physical harm to another person.
Thus, there is a legitimate justification for criminalizing each of these offenses separately, and the law permits separate convictions for both of them in accordance with the aforementioned three part test.
Because the affirmative answer to the first question of that test allows Earley to be separately convicted of each offense, we concluded that the trial court did not commit plain error – and did not err at all – in not merging the convictions.
Therefore – by a seven-to-zero vote – we held that a trial court may impose cumulative sentences for aggravated vehicular assault and OVI when the OVI is the underlying conduct that led to the aggravated vehicular assault.
Paul Pfeifer is an associate justice of the Supreme Court of Ohio.