IN THE SUPREME COURT OF OHIO

STATE OF OHIO,

Appellant,

-vs-

ROBBIE MOORE,

Appellee.

08-1470) ON APPEAL FROM THE

CUYAHOGA COUNTY COURT) OF APPEALS, EIGHTH) APPELLATE DISTRICT) COURT OF APPEALS) CASE NO. 452989

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT ROBBIE MOORE

JAMES L. HARDIMAN, ESQ. (0031043) WILLIAM D. MASON75 Public Square-Suite 1111 Cuyahoga County ProsecutorCleveland, Ohio 44113 CAROL SKUTNIK (0059704)(216) 502-0800 Assistant Prosecuting Attorney

The Justice Center Towers-9th FloorCounsel for Appellant Cleveland, Ohio 44113

(216) 443-7800

Counsel for Appellee

F ^L^^DJUL 7 'S Zoae

CLERKaFcOURTSUPREME OO RT OF QNIO

TABLE OF CONTENTS

EXPLANATION OF WHY THIS CASES IS OF PUBLICOR GREAT GENERAL INTEREST AND INVOLVES ASUBSTANTIAL QUESTIONS .......................................................................................................1

STATEMENT OF THE CASE AND FACTS ................................................................................4

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW ..........................................................8

Proposition of Law No. I: Imposition of a Sixteen-year sentence is Neither, Reasonable,Proportional or Consistent with Similar Sentences Imposed for the Commission of SimilarCrimes and Creates and Intra-District Conflict ...............................................................................8

Proposition of Law No. II. The Court of Appeals Failed to Adequately Address Appellant'sContention that Institutional Racism Tainted her Sentence ...........................................................1 l

CONCLUSION ..............................................................................................................................12

PROOF OF SERVICE ........................................ ........................................................................... 14

APPENDIX:

JOURNAL ENTRY AND OPINION OF THE CUYAHOGA COUNTY COURT OF APPEALS

(June 13, 2008)

i

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLICOR GREAT GENERAL INTEREST AND INVOLVES A

SUBSTANTIAL CONSTITUTIONAL OUESTION

This case presents critical issues relative to the imposition and proper interpretation of

Senate Bil12, Ohio's felony sentencing statute. The decision of the court of appeals, in affirming a

sixteen-year sentence for the crimes of Aggravated Vehicular Homicide, if permitted to stand, has

the potential to affect every sentence imposed throughout the state for the commission of felonies

and create an environment in which totally inconsistent sentences could be imposed for the

commission of similar offenses. The decision by the court of appeals in this case would permit the

judicial branch to ignore the legislative intent behind Ohio's felony sentencing statute by imposing

a standard for felony sentencing that was never intended and has not heretofore been utilized. The

practical effect of the decision by the court of appeals would be to set a precedent that would

eliminate all semblances of reasonableness, proportionality or consistency aind, conceivably,

permit a sanction of community control in one instance and imposition of a maximum sentence in

another for the commission of "similar" offenses by similarly situated defendants.

Senate Bill 2 had, as an underlying objective, the attempt to create "faimess" in felony

sentencing and all felony sentences are now subject to the guidance of R.C. 2929.11 to ascertain

how a particular offense and offender fares within the broad overriding purposes that the General

Assembly intended a felony sentence to accomplish. R.C. 2929.11 specifically provides, as its

broad overriding purpose, the prevention of future crime and punishment for the offender. Ohio's

felony sentencing statute, 2929.11(B) mandates three fundamental principles for felony

sentencing: (1) reasonableness, (2) proportionality and (3) consistency. Reasonableness requires

that a"sentence...shall be reasonably calculated to achieve the two overriding purposes of felony

1

sentencing." Proportionality requires that the sentence be "commensurate with and not demeaning

to the seriousness of the offend"er's conduct and its impact upon the victim." Consistency requires

that the sentence be "consistent with sentences imposed for similar crimes conunitted by similar

offenders." Although a wealth of cases exist to insure that felony sentences are, in fact,

reasonable, proportional and consistent the decision of the court of appeals ignored the 2929.11(B)

requirements and, instead, created a "new" standard for determining reasonableness,

proportionality and consistency which was inconsistent with the spirit or intent of Senate Bill 2.

According to the court of appeals to be reasonable, proportional or consistent "identical" as

opposed to "similar" cases were the only cases that could be used for purposes of comparison.

This was never the purpose of Ohio's felony sentencing statute and, if followed, would establish a

precedent that would, effectively, nullify R. C. 2929(B).

In affirming Appellant's sixteen-year sentence for the crimes of Aggravated Vehicular

Homicide the court of appeals erroneously ruled that imposing any sentence that was within the

statutory guidelines for that particular degree of felony was pennissible, regardless of whether

similar sentences had previously been imposed for the commission of similar crimes. However, it

was never the intention of the legislature in passing Senate Bill 2 to condone gross sentencing

disparities for the commission of similar crimes. The court of appeals, however, chose to ignore

the proportionality and consistency provision of the statute and unless this Court accepts

jurisdiction any sentence could be imposed within the permissible range for that particular felony

without consideration as to whether that sentence was, actually, reasonable, consistent or

proportional.

Secondly, the decision of the court of appeals ignored the R.C. 2929.11(C)prohibition

2

against imposing a sentence based on a defendant's race, ethnic background, gender or religion.

Instead of considering the totality of the circumstances to determine whether impermissible bias

was, actually, a factor, the court of appeals in affirming the trial court's sixteen-year sentence

accepted the trial court's statement that any suggestion of "institutional bias" was "deeply

resented." If the test as to bias is whether a court decides that it is biased, then the prohibition

against any form of bias or racism would have no meaning and would effectively render

R.C.2929.11(C)meaningless and ineffective.

Finally, the decision of the court of appeals has created a intra-court conflict in that this

decision is inconsistent with the decision issued in the prior appeal involving State v. Moore,

Cuyahoga App. No. 85451, 2005-Ohio-4699 (Moore 1) If permitted to stand that conflict would

have the predictable effect of creating confusion and uncertainty in determining whether to apply

the precedent issued in this case or the decision previously issued in Moore 1.

In summary, this case places in issue the fundamental premises on which Ohio's felony

sentencing statute is based and the fate of all criminal defendants sentenced for the commission of

felonies in the State of Ohio. All defendants have the statutory right to have their sentences

imposed in accordance with Senate Bill 2 and courts should be provided with clear precedents and

interpretations of Ohio's felony sentencing statute to avoid unreasonable or inconsistent results. It

is also fundamental that all participants in the criminal justice system are entitled to be reasonably

assured that no sentence has been infected by bias of any sort, institutional or otherwise.

Therefore, it is submitted that unless this Court grants jurisdiction the erroneous decision of

the court of appeals will create undue confusion in Ohio's felony sentencing statute, eliminate the

obligation that sentences be reasonable, consistent, and proportional, permit inconsistent, intra-

3

court precedents to exist and create an unreasonable standard for identifying bias.

STATEMENT OF THE CASE AND FACTS

The incident that gave rise to Appellant's indictment for Aggravated Vehicular Homicide

and Driving Under the Influence of Alcohol occurred on May 20, 2004. Appellant had consumed

alcohol, became inebriated, drove the wrong way on Interstate highways 71/90, entered an

entrance ramp driving the wrong way and struck a motorcycle on which two motorcyclists were

driving, causing the deaths of two innocent persons.

On June 14, 2004 the Cuyahoga County Grand Jury issued a true bill indictment charging

Appellant Robbie Moore with two counts of Aggravated Vehicular Homicide and one count for

Driving Under the Influence of Alcohol. As indicted, the counts for Aggravated Vehicular

Homicide were felonies of the first degree pursuant to R.C. 2903.061 and the count for Driving

'Aggravated Vehicular Homicide though normally, a felony of the second degree, in this

instance is a felony of the first degree. The reason for the elevation is that on the day of the

accident the Defendant's license were under suspension for failing to provide the Bureau of Motor

Vehicles with proof of insurance. Prior to the accident, Robbie Moore had sent her insurance

payment to her insurance carrier and, as such, when the accident occurred she was an "insured"

driver. However, though her insurance carrier acknowledged receipt of her premium, prior to May

20, 2004, the Bureau of Motor Vehicles had not yet received notification from her insurance

carrier that her premium had been paid and, consequently, that her privileges. should be restored.

As a result of the delay, though Robbie Moore's license were, technically, suspended she was an

"insured" driver and, but for the delay in notifying the Bureau of Motor Vehicles, her license

4

under the Influence was a misdemeanor of the first degree, pursuant to R. C. 4511.19.

On August 23, 2004, Appellant admitted her culpability, retracted her former pleas of "Not

Guilty" and entered pleas of "Guilty" to the charges as indicted. Appellant indicated that she had

no recollection of the actual accident but accepted full responsibility for her actions.

Prior to sentencing, Appellant submitted to the trial court her first "Sentencing

Memorandum" which was intended to guide the Court in imposing a sentence that was consistent

with sentences that had been imposed for other similar offenses.

On September 28, 2004 the Court imposed the maximum sentence on each of the two

counts of Aggravated Vehicular Homicide, i.e. a mandatory prison sentence of ten years as to

count one and a mandatory prison sentence of ten years as to count two, with both sentences to run

consecutive for a total of twenty years. The Court also imposed a sentence of six months as to the

third count of the indictment, to run concurrent with counts one and two.

On October 8, 2004, Appellant filed a Motion to Mitigate Sentence citing to a case

involving another defendant by the name of James Skolsky, a Caucasian male, who had been

sentenced one day prior to Appellant's sentence. Appellant apprised the trial court of the fact that

James Skolsky had been involved in a case that was strikingly similar in that James Skotsky also

drove the wrong way on a one-way street while under the influence of alcohol and caused the

deaths of two innocent persons. Significantly, James Skolsky had prior alcohol related offenses

and had more alcohol in his system than did the Appellant. The sentence imposed on James

Skolsky was for two consecutive three-year sentences for a total of six years.

Appellant timely appealed the imposition of the initial twenty-year sentence arguing that

such a sentence was inconsistent and disproportional with sentences imposed for other similarly

would not have been suspended on May 20, 20045at the time of the accident.

situated defendants, particularly James Skolsky and, consequently, her sentence was tainted with

institutional racism. -

On September 19, 2005, the Court of Appeals issued its opinion vacating and remanding

the case for re-sentencing for two basic reasons. Initially, the Court of Appeals concluded that the

trial court failed to make the requisite findings prior to imposing consecutive sentences pursuant to

R.C.2929.14(E)(4)(a)-©. Secondly, The court of appeals in Moore I concluded that even had the

trial court satisfied R.C. 2929.14(E), the sentence was still contrary to law in that the sentence was

inconsistent and disproportional to similar sentences imposed for similar offenses.z The appellate

court in Moore I specifically noted that it is the task of the appellate courts to review the

consideration given by the trial judge to assure that the sentence is: (1) consistent with the

purposes and principles applicable to all sentences, (2) determine if appropriate findings were

made by the trial court for not imposing the minimum sentence within the sentencing range where

the defendant has not previously served a prison term, and (3) review the trial court's

determination and reasons for imposing the maximum prison term. The State attempted to appeal

the decision in Moore I to this Court but on March 6, 2006, this Court denied jurisdiction and

dismissed the State's appeal.

Following remand, on August 16, 2006 Appellant filed with the trial court a "Sentencing

Memorandum" providing additional support for the proposition that whatever sentence that the

trial court imposed should be consistent and proportional to sentences that had been imposed for

ZSubsequent to the decision in Moore I this Court issued its

decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856 which

eliminated the requirement for the trial court to make specific

findings on the record to justify its sentence. Of course, even

had the trial court in Moore I complied with the pre-Foster

requirement of R.C. 2929.14(E), the sentence was still contrary to

law in that the sentence was "incrbnsistent and disproportional to

similar offenses. Subsequently, on September 11, 2006, Appellant filed with the trial court her

"Second Supplemental Sentencing Memorandum" again providing the trial court with additional

documentation relative to sentences that had been imposed for the commission of similar crimes.

On March 26, 2007, the state filed a belated Brief in Opposition to Defendant's Supplemental

Sentencing Memoranda contending that other courts had imposed maximum, consecutive

sentences. Significantly, the State's brief contained blatant misrepresentations and misstatements

of the law in that none of the cases cited by the State contained situations in which a maximum

sentence was imposed for a first-time offender and, in those instances in which more than the

minimum sentence was imposed, without exception, the defendant an extensive criminal record.

On March 29,2007 the trial court re-sentenced Appellant to the Ohio Reformatory for

Women for a term of eight years on each of the felony counts for Aggravated Vehicular Homicide

to run consecutive to each other for a total of sixteen years and a re-sentence of six months for the

misdemeanor countof Driving Under the Influence of Alcohol to run concurrent with the felonies.

In imposing the sixteen-year sentence, the trial court specifically referenced the cases of State v.

Roupe, Cuyahoga Case No. 429668/425569, State v. Koller, Cuyahoga County Case No. CR

483464 and State v. Gist, Cuyahoga County Case No. 444448 for the proposition that more than

the minimum sentence had previously been imposed for the crimes of Aggravated Vehicular

Homicide. However, in each of the cases cited by the trial court, more than the minimum sentence

was only justified based on that defendant's extensive criminal record.

Appellant timely appealed the imposition of the sixteen year sentence. However, by order

journalized on June 13, 2008 the court of appeals affirmed the trial court's sixteen year sentence,

concluding that (1) the most significant factor was the degree of the offenses to which Moore had

7similar sentences imposed for similar offenses."

been sentenced, (2) that the circumstances surrounding Moore's offenses were particularly

egregious, (3) that trial courts have full discretion to impose a prison sentence within the statutory

range, and (4) that Appellant's sentence had not been tainted with institutional bias.

Appellant now contends that the court of appeals erred in affirming her sixteen-year

sentence and, in support of this position, submits the following arguments.

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW

Proposition of Law No. I: Imposition of a Sixteen-year sentence is Neither, Reasonable,Proportional or Consistent with Similar Sentences hnposed for the Commission of Similar Crimesand Creates an Intra-District Conflict

The gravamen of the decision of the court of appeals is that there is no basis for disturbing

Appellant's sixteen year sentence since the record does not support a finding by "clear and

convincing" evidence that the sentence was contrary to law, that the sentence was within the

statutory range of R.C. 2929.14(A), that the circumstances of defendant's offenses were

particularly egregious and that there is no indication of institutional racism. However, this finding

is in direct conflict with the finding by the court of appeals in Moore I in that the court in Moore I

specifically found that Appellant's twenty-year sentence was "[c]ontrary to law

and***inconsistent with sentences of similar defendants in similar cases." In citing to State v.

Short, Lucas App. No. L-03-1117, 2004-Ohio-2050, the Moore I court noted that an appellant can,

in fact, show that his sentence is inconsistent with sentences of similar defendants in similar cases.

In the current case the Appellant provided to both the trial court and the court of appeals a plethora

of authorities, citations articles, dockets and transcripts detailing what constitutes a "reasonable,

proportional and consistent" sentence. Therefore, if the decision issued by the court of appeals in

this case is permitted to stand, an unavoidable conflict will exist between decisions issued by the

8

Eighth District Court of Appeals. If left undisturbed, this type of conflict would create

unnecessary confusion and deny to litigants the right to have clear precedents upon which they can

rely in determining their potential sentence and future conduct.

In any event, of the numerous examples of "similar" cases cited by the Appellant in which

alcohol and driving were involved and death resulted, none resulted in the imposition of more than

the minimum or consecutive sentences for a first-time offender and the only instances in which

more than the minimum sentence was imposed occurred in instances in which the Defendant had a

prior history of DUI convictions or in which there were other extenuating or aggravating

circumstances 3 What is clear from a consideration of similar Aggravated Vehicular Homicide

3In the case of State of Ohio v. Patrick Cleary, Case No. CR 03-443272, Cuyahoga CountyJudge Richard McMonagle imposed a sentence of one year at the Lorain Correctional Institutionand suspended the defendant's license for two years for Aggravated Vehicular Homicide andDriving Under the hifluence of Alcohol. The six month sentence for the driving under theinfluence charge was suspended by the court and, subsequently, the defendant Patrick Cleary wasgranted judicial release on the condition that he serve three years community control, obtain acollege degree and full-time employment.

In the case of State of Ohio vs. Lisa Pribula, Case No. CR 03-435845, Cuyahoga CountyJudge Christoher Boyko sentenced Lisa Pribula to serve four years in prison for AggravatedVehicular Homicide, Aggravated Vehicular Assault and Driving Under the Influence of Alcohol.

hi the case of State of Ohio v. Nicholas Ulvila, Case No. CR 02-431286 Judge John Sutulasentenced Nicholas Ulvila to serve five years in prison for the crimes of Aggravated VehicularHomicide, Driving Under the Influence of Alcohol, and Failure to Stop After Accident. The Courtapparently exceeded the minimum sentence due to the fact that following the fatal crash,Defendant Ulvila failed to give the decedent any assistance and left the scene of the accident.

In the case of State of Ohio v. Leah Kravochuck, Case No. CR 04-448737 CuyahogaCounty Judge Judith Kilbane Koch sentenced Defendant-Kravochuck to serve eight years inprison for Aggravated Vehicular Homicide and Driving Under the Influence of Alcohol-her fifth

DUI arrest since 1995.

In the case of State of Ohio v. Michael Yakubics Yakubics, Case No. CR 02-427919Cuyahoga County Judge Timothy McGinty sentenced Defendant Michael Yakubics to serve fiveyears for aggravated vehicular homicide and rev6iced his driving privileges for life as part of a

cases that have been decided in the State of Ohio is that Judges generally give "minimum"

sentences unless there is are "aggravating" factors that would "demean" the seriousness of the

offense. In this case, imposition of two consecutive eight-year sentences for a first time offender

who had previously led an exemplary life did not constitute an "aggravating factor and was totally

"inconsistent" with "similar" sentences imposed for similar offenses.4

Unfortunately, the trial court chose to ignore the consistency requirement when sentencing

Appellant and erroneously relied on the cases of State v. Roupe, Supra, State v. Koller, Supra and

State v. Gist, Supra to justify imposition of a sixteen-year sentence. Significantly, none of the

precedents on which the trial court relied provided support for imposition of a sixteen-year

sentence and constituted a gross misapplication of the felony sentencing law. Furthermore, the

court of appeals compounded the problem by turning the consistency requirement on its head in

ruling that consistency was achieved by imposing any sentence within the permissible parameters

of a specific felony. This reasoning ignores the specific language of 2929.14(B) and would

actually condone inconsistent and disproportional sentences.

Indeed, in noting that it is the trial court's responsibility to insure consistency among the

sentences it imposes, the court of appeals in reversing and remanding the trial court's sentence in

plea agreement.

In the case of State of Ohio v. Nicholas Ulvia Cuyahoga County Judge Patricia Clearyimposed a five-year sentence since the defendant had a prior DUI arrest and had been fired from ajob for drinking

In the case of State of Ohio v. James Ivinskus, an eight year sentence was imposed becausethe defendant had five prior DUI arrests.

4Except for the very serious nature of the physical injuries sustained by the victims, none ofthe R.C. 2929.12 "more serious" factors apply. The presentence report, the Psychiatric Report andthe Appellant's Sentencing Memoranda all indicated that there was little, if any, likelihood that anincident of this nature would ever again occur. Pilkhermore, there was nothing in Appellant'sbackground to overcome the presumption in favor of a minimum sentence since she was a "first-

Moore I cited to the case of State v. Lyons, Cuyahoga App. No. 80220 and observed that:

"With the resources available to it, a trial court will, andindeed it must, make these sentencing decision in compliancewith this statute"

On remand, the trial court did state that it had conducted its own review and that the caseswere, "[a]ll over the board." hi fact, the cases were not "all over the board" and had the trial courtconducted the kind of analysis mandated by the court of appeals in Moore I it would haveconcluded that a sixteen-year sentence for a first-time offender was totally inconsistent with thetypes of sentences regularly imposed for similar offenses.

The most "glaring" example of an inconsistent sentence involved the sentence imposed for

the crime of Aggravated Vehicular Homicide by defendant James Skolslcy. The Skolsky case

constituted the most direct comparison since both drank alcohol to excess, drove the wrong way on

a public thoroughfares and caused the deaths of two innocent people. Indeed, the striking

similarities between the cases of James Skolsky and Appellant was noted in Moore I and should

have constituted a "benchmark" for the imposition of a consistent sentence. The use of

benchmarks to insure consistency was previously proposed by Judge Burt Griffin and Professor

Lewis Katz in their July/August article in the Ohio Bar Association Magazine: SentencinQ

Consistency: The linchpin of Ohio's sentencing reform where they noted that: "In the absence of a

statewide database***Using benchmark cases is one solution offered." (Emphasis added) Judge

Griffin and Professor Katz went on to note that:

"One way is for appellate courts, in reviewing consistency challenges, torecognize that they have power-as they have long exercised in reviewingcivil issues as negligence, unconscionability and unreasonable restraint oftrade-to issue benchmark opinions. Through benchmark opinions, standardsfor reasonableness, proportionality and consistency can be established."

Proposition of Law No. II. The Court of Appeals Failed to Adequately Address Appellant'sContention that Institutional Racism Tainted her Sentence

Finally, the court of appeals ignored Appellant's suggestion that institutional racismimpermissibly infected her sentence. Instead of seriously considering the possibility that a six-

time" offender".

year sentence for a Caucasian male and a sixteen-year sentence for an African American womanwas tainted with institutional bias, the court of appeals accepted the trial court's statement thatshe was not biased as proof thatbias did not exist. Such a position is insulting to victims oflegitimate bias and fails to acknowledge the reality that, by all accounts, our criminal-justicesystem is not free of the same problems that affect society as a whole. Minimally, the court ofappeals could have determined whether institutional bias existed by comparing all of the relevantfacts as opposed to accepting the statement that the trial court "resented" such a suggestion asproof that bias did not exist. It cannot be seriously disputed that all participants in the criminaljustice system are entitled to have their cases considered in a fair manner consistent with othersimilar cases. Robbie Moore was denied that opportunity and, to the extent that James Skolskyas a Caucasian male was deserving of minimum sentences for driving the wrong way whileunder the influence of alcohol and causing the deaths of two persons, this African Americanfemale is deserving of no less.

CONCLUSION

In Griffin and Katz, Felony Sentencing, it is noted that:

"The Ohio plan attempts to assure proportionality in felony sentencing throughconsistency. R.C. 2929.11(B). Consistency, however, does not necessarily meanuniformity. Instead, consistency aims at similar sentences. Accordingly, consistencyaccepts divergency within a range of sentences and takes into consideration the trialcourt's discretion to weigh relevant statutory factors. The task of the appellate court is toexamine the available data not to determine if the trial court has imposed a sentence thatis in lockstep with others, but whether the sentence is so unusual as to be outside themainstream of local judicial practices. Although offense may be similar, distinguishingfactors may justify dissimilar sentences."

Consistency does not require uniformity and there may be justification or valid reasons

for the discrepancy between sentences imposed for different defendants. However, a

consideration of the record in this case clearly indicates that the trial court, for the second time,

relied on cases which actually supported Appellant's position in that an extended prison sentence

is only justified where extenuating circumstances exist. The cases of State v. Roupe, Cuyahoga,

Supra, State v. Koller, Supra and State v. Gist, Supra were all cases on which the trial court relied

and although it was specifically noted to the court of appeals that such reliance was misplaced

the court of appeals accepted the trial court's interpretation and thereby denied to Appellant her

12

right to have her sentence be reasonable, proportional or consistent with similar crimes

committed by similarly situated-defendants.

Finally, this court should accept jurisdiction to clarify and reaffirm the fact that

reasonableness, proportionality and consistency is required in all felony sentences and require, as

Griffin and Katz suggested, that the State's appellate courts "...examine the available data not to

determine if the trial court has imposed a sentence that is in lockstep with others but whether the

sentence is *** so unusual as to be outside the mainstream of local judicial practices."

James L. Hardiman,Attorney for Appellant

13

CERTIFICATE OF SERVICE

A copy of the foregoing Memorandum in Support of Jurisdiction was sent by United States

Mail and/or personally delivered to the Offices of William Mason, Prosecuting Attorney,

Cuyahoga County Prosecuting Attorney, Justice Center Towers, Cleveland, Ohio on the 25"' day

of July, 2008.

James L. Hardiman,Attorney for Appellant

14

1 3'2008JUN

(fmcrt nf AppEttls uf M4uaEIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 89779

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

ROBBIE MOORE

DEFENDANT-APPELLANT

JUDGMENT:AFFTR.MED

Criminal Appeal from theCuyahoga County Court of Common Pleas

Case No.. CR-452989

BEFORE: Rocco, J., Gallagher, P.J., and Celebrezze, J.

RELEASED: May 15, 2008

JOURNALIZED: juN I a .2008

CA07089779 52085036

1I^III 11111 IIIII IIIU I^^ II^I IIIII IUII I^I IIN`Vfll@659W0iE 0 2

-i-

ATTORNEY FOR APPELLANT

James L. Hardiman, Esq.75 Public Square-Suite 333Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE

William D. MasonCuyahoga County Prosecutor

BY: Carol SkutnikAssistant Prosecuting AttorneyThe Justice Center1200 Ontario StreetCleveland, Ohio 44113

FILEPER APP.1t^22(E) 2BD

JUN`"1.;*4 2008

CA07089779 51552243

G@RALD E. PUERSrLY.£RK OR C U 1T. QF APPFALSBY D£P.

--WOiiNCEMEff-QF DECISION ._..PER APP. R. 3^^, 22^ AD%12

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I

ItE IV

MAY 1 r^) 2008

lllll!lllllllllllllllllllDiilil^Illlllll ^llllll I FFR;L° Iua; ®^ ppoER

N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D)and 26(A); I.oc.App.R_ 22. This decision will be journalized and will become thejudgment and order of the court pursuant to App.R. 22(E) unless a motion forreconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days ofthe announcement of the court's decision. The time period for review by the SupremeCourt of Ohio shall begin to run upon the journalization of this court's announcementof decision by the clerk per App.R. 22(E). See, also, S.Ct. Prac.R. II, Section 2(A)(1).

'V^^^0b59 100403

-1-

KENNETH A. ROCCO, J.:

Defendant-appellant Robbie Moore appeals from the sixteen-year sentence

the trial court imposed for her convictions at her resentencing hearing, following

this court's decision in State v. Moore, Cuyahoga App. No. 85451, 2005-Ohio-

4699 (`29oore I'), which vacated, for two reasons, the original sentence of twenty

years.

Nearly identically to the assertion she presented in Moore I, in the instant

case Moore argues in her assignment of error that the length of the total

sentence imposed for her convictions, viz., two counts of first-degree aggravated

vehicular homicide and one count of first-degree misdemeanor driving under the

influence of alcohol ("DUI"), remains improper. Moore contends that such a

lengthy term for a first offender is "manifestly unjust," disproportionate to terms

imposed upon similar offenders for similar crimes, and, essentially, amounts to_______

an abuse of discretion.

Upon a review of the record in light of State v. Mathis, 109 Ohio St. 3d 54,

2006-Ohio-855 and the analysis set forth in Moore I, her argument lacks merit.

Her sentence, consequently, is affirmed.

The facts that underlie Moore's convictions were described, in a highly

abbreviated fashion, in Moore I. At the resentencing hearing, the state

presented several witnesses who supplemented those facts.

'V910659 00404

-2-

Thus, the evidence established that in the early morning of May 20, 2004,

after several hours of drinking at a bar in Elyria, Ohio, Moore, whose driver's

license had been suspended, got into her sedan and proceeded to drive. She

intended to return to her Warrensville Heights home, so she took Interstate 480

eastbound.

In her inebriated coridition, Moore not only failed to follow her intended

route on 1-480, instead eventually traveling northbound on 1-71, but she also

managed somehow to enter the southbound lanes of the latter freeway as she

did so. Other drivers began reporting her wrong-way progress to the police.

These calls initially placed Moore near Cleveland Hopkins Airport.

Moore drove at night, oblivious to her location and to the number of

vehicles' headlights coming directly toward her. The Cleveland Police

Department Accident Investigation Unit supervisor conservatively estimated the

number of vehicles she encountered along her route as "close to a hundred."

While narrowly missing cars that were proceeding in the proper direction,

Moore continued on her way at speeds estimated between seventy and eighty

miles per hour until she struck a motorcycle. The collision occurred in downtown

Cleveland, in the westbound lanes of 1-90, known as the "Innerbelt." The two

people riding the motorcycle were killed by the impact. One of the officers

YKA 6 59 N04 05

-3-

involved in the investigation testified that the distance from the airport to that

location was approximately fifteen miles.

As a result of the incident, Moore was indicted. on two first-degree felony

counts of aggravated vehicular homicide, since she was driving while under a

license suspension, and one first-degree misdemeanor count of driving under the

influence of alcohol ("DUI"). Moore subsequently entered guilty pleas to the

charges. The trial court ordered both a presentence investigation and a

psychological assessment before imposing a sentence that totaled twenty years.

Moore appealed her sentence, and in Moore Z, this court sustained her

assignment of error and vacated the sentence for two reasons. First, "the trial

court did not adequately satisfy the R.C. 2929.14(E)(4) requirements on the

record" in imposing sentence. Id., at ¶ 13. Second, "[a] ssuming arguendo that

the trial court did***satisfy***R.C. 2929.14(E)," Moore's sentence was "contrary

to law," in that it was "inconsistent with sentences of similar defendants in

similar cases." 114.

In making the foregoing pronouncement, this court found it relevant that

Moore provided the trial court with case law that seemed to support the second

rationale. In any event, since the sentence imposed constituted error, it was

vacated and the matter was remanded for resentencing. Id., at 120.

10659 H040s

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This court's opinion in Moore I was decided on September 8, 2005. In

February 2006, the Ohio Supreme Court issued its decisions in State v. Foster,

109 Ohio St.3d 1, 2006-Ohio-854 and State v. Mathis, supra.

Foster determined certain of the sentencing statutes, including R.C.

2929.14(E), were unconstitutional. Mathis provided a framework for appellate

review in light of Foster.

Thus, the supreme court held that a trial court has "discretion to sentence

vVithin the applicable [statutory] range, following R.C. 2929.19 procedures."

Mathis, ¶ 37. The supreme court directed that, at a resentencing hearing after

Foster, a trial court "shall consider the record," along with "any information

presented at the hearing, any presentence investigation report, and any victim

impact statement," and, further, "the statutes that apply to every felony case,"

and must be "guided by statutes that are specific to the case itself." Id., at ¶¶ 37-- ------38. It follows that when the record reflects the trial court complied with its

duties, its decision may be reversed only if the sentence is "contrary to law."

R.C. 2950.08(G)(2)(b). See, also, State v. Johnson, 116 Ohio St.3d 541, 2008-

Ohio-69.

When Moore's case was returned to the trial court, the record reflects the

initial sentencing date of August 17, 2006 was continued. The trial court

1610659 5 0407

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indicated its desire to more thoroughly consider Moore's sentencing

memorandum prior to conducting the proceeding.

Moore's case was called for sentencing on March 29, 2007. The trial court

listened to Moore, heard from several members of the victims' families, and

accepted evidence from some of the police officers who were involved in the

investigation of the incident. Furthermore, the trial court mentioned some of the

cases Moore cited in her sentencing memorandum, but determined the facts of

the instant case were distinguishable. Ultimately, the trial court imposed a

sentence that totaled sixteen years.

Moore appeals from the trial court's decision and presents the following

assignment of error:

Imposition of a sixteen year sentence for the crime of

aggravated vehicular homicide for a first-time offender is inconsistent

------ - -------------with similar sentences imposed for similar offenses and constitutes a

`manifest injustice."'

Moore presents almost the identical assignment of error that she

presented in her previous appeal. Although she supports it with several

arguments, this court finds none of them persuasive.

-06 5 9 ^P;^ 040 8

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First, Moore argues that "similarly situated defendants" received lesser

punishments. A review of the cases she cites, however, reveals little similarity

exists in comparing their situations to her own.

Moore seeks to focus solely on the fact that she was a "first offender."

However, that fact is, only one for the trial court to consider. Of more importance

for purposes of sentencing was the degree of the offenses to which she entered

her guilty pleas. Both counts one and two charged Moore with fisst-degree

felonies.

Such offenses are punishable by terms of incarceration of up to ten years.

R.C. 2929.14(A). Most of the defendants in the cases Moore cites, on the other

hand, were not charged with committing first-degree felony aggravated

vehicular homicide. State v. Kravochuk, Cuyahoga App. No. 89294, 2007-Ohio-

6323; State v. Koller, CuyahogaApp. No. 89606, 2008-Ohio-806. Thosethat were

received sentences similar to Moore's. See, e.g., State v. Edwards, Adams App.

No. 06CA830, 2007-Ohio-1516.

Moreover, the circumstances that surrounded Moore's offenses were

particularly egregious. Although she knew she lacked a valid driver's license

and had been drinking, nevertheless, Moore got into her car at night and tried

to drive from Elyria to Warrensville Heights. While intentionally traveling such

a lengthy distance, she ignored the signs that would have informed her of her

Y1,0659 10409

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wrong-way driving, ignored the posted speed limit, ignored the traffic, and

ignored the warnings of many other drivers proceeding lawfully on the road; in

her hubris, she ultimately killed two innocent people.

Moore additionally implies that the trial court's decision in this case to

impose nearly the maximum term for each offense reflects an `4nstitutional bias"

against her. This implication finds no support in the record. Indeed, when

Moore made this insinuation, the trial court stated it "deeply resented" such a

charge. The trial court declared it had "never decided a case based on race or

ethnic background ever," and that it never would.

"A defendant's sentence will not be disturbed on appeal unless the

reviewing court finds, by clear and convincing evidence, that the record does not

support the sentence or that the sentence is contrary to law." State V. Donahue,

Cuyahaga App. No. 89111, 2007-Ohio-6825, 113.

"***[A]fter the sentencing court imposes a separate prison term for each

conviction, it may exercise its discretion to determine whether consecutive

sentences are appropriate based upon the particular facts and circumstances of

the case." State v. Johnson, supra. "Trial courts have full discretion to impose

a prison sentence within the statutory range***." State v. Foster, supra,

paragraph seven of the syllabus.

4@b59 004 { 0

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Sincethe record reflects the trial court considered its statutory duties and

the circumstances that surrounded the incident prior to imposing a sentence

that was within the permissible range, this court cannot conclude Moore's

sentence was "contrary to law." State v. Donahue, at'(t15-16, citing State v.

Murrin, Cuyahoga App. No. 83482, 2004-Ohio-6301. See also, State v. Woody,

Ottawa App. No. OT-06-015, 2007-Ohio-2955; cf., State v. Johnson, supra.

Accordingly, Moore's assignment of error is overruled.

Affirmed.

It is ordered that appellee recover from appellant 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.

KENNETH A. ROCCO, JUDGE

AND FRANK D. CELEBREZZE, JR., J., CONCURSEAN C. GALLAGHER, P.J., CONCURS (SEESEPARATE CONCURRING OPINION ATTACHED)KENNETH A. ROCCO, J., CONCURS WITH CONCURRING OPINION

au 6 5 9 g9 o 41 1

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SEAN C. GALLAGHER, P.J., CONCURRING:

I concur fully in the judgment and analysis of the majority. The sentences

imposed fall within the range of sentences for felony offenses of the first degree,

and the record demonstrates that the trial court considered the statutory

purpose in fashioning the sentences; therefore, they do not constitute a manifest

injustice warranting reversal.

I write separately because the unique facts in this case provide the

opportunity to reflect on Ohio's current sentencing format in light of the release

of both State v. Foster, supra, and State v. Mathis, supra, and the demise of

much of Senate Bill 2.

Like this case, most current challenges to sentences within a statutory

range raise claims involving proportionality and consistency under

R.C. 2929.11(B):

°G§ 2929.11. Purposes of felony sentencing; discriminationprohibited

"(B) A sentence imposed for a felony shall be reasonablycalculated to achieve the two overriding purposes of felonysentencing set forth in division (A) of this section,commensurate with and not demeaning to the seriousness ofthe offender's conduct and its impact upon the victim, andconsistent with sentences ixnposed for similar crimescommitted by similar offenders."

4al 659 ^OO 4 12

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Rather than promoting consistency, Ohio's current scheme invites the

perception of inconsistency. In this instance, Moore was sentenced on two

counts of aggravated vehicular homicide, both felony offenses of the first degree.

The range of sentence on each count was three to ten years. Pursuant to Foster,

trial courts have full discretion to impose a prison sentence within the statutory

range and are no longer required to make findings or give their reasons for

imposing maximum, consecutive, or more than the minimum sentences. State

v. Vance, Franklin App. No. 06AP-1016, 2007-Ohio-4407. Thus, the potential

penalty Moore faced was anywhere from three years (minimum concurrent) to

twenty years (maximum consecutive) under Ohio's sentencing scheme. In my

view, the range for offenses like aggravated vehicular homicide is too broad and

needs to be addressed by the legislature.

Griffin and Katz originally asserted that Ohio's plan under S.B. 2 would

balance judicial discretion and individuality in sentencing.

'The Obio plan attempts to assure proportionality in felony sentencing

through consistency. R.C. 2929.11(B). Consistency, however, does not

necessarily mean uniformity. Instead, consistency aims at similar sentences.

Accordingly, consistency accepts divergence within a range of sentences and

takes into consideration the trial court's discretion to weigh relevant statutory

RG 6 5y V804 13

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factors." Griffin and Katz, Sentencing Consistency: Basic Principles Instead of

Numerical Grids: The Obio Plan (2002), 53 Case W.Res.L.Rev. 1, 12.

Unfortunately, in the real world, this effort has been an abject failure. As

the prosecutor notes in her brief, "sentences for Aggravated Vehicular Homicide

are all over the board." Judges inherently view facts and circumstances

differently. What one judge finds significant, another judge considers marginal.

The variations in viewpoints, whether focused on the individual background of

the offender or the particular facts of a case, contribute to perceived

inconsistencies. It's not difficult for a judge to rationally point to some

circumstances in the record that support that judge's view on imposing either a

"high" or a"low" sentence within the available range.

In essence, you can have either proportionality and consistency or wide-

ranging judicial discretion, but you cannot have both.

Much has been made of the hope that a compilation of a database of

sentences statewide will solve aIl these problems. The mythical belief that

compiling sentences of offenders from across the state in a database will resolve

perceived disparities is just that, a myth. Judges will continue to review facts

and circumstances, both involving the crime and the individual, differently. At

times, this will result in a greater or lesser penalty than the apparent norm

identified in the database.

VgLU 6 5 9R5 0 4 14

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While most scowl at the mere mention of the now discredited federal "grid

format" for sentencing, that method certainly ensured similarly situated

offenders received similar sentences. A workable substitute for the present

system, short of a "grid approach," may be as simple as narrowing the range of

sentences. for similar offenses and statutorily mandating or exempting those

subject to consecutive terms. This would preserve some judicial discretion, but

afford some structural consistency. Any such approach, however, is the province

of the legislature and not the judiciary.

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