ORIGINAL

IN THE SUPREME COURT OF OHIO

State of Ohio,

Appellant,

*

+

On Appeal from the Wood CountyCourt of Appeals, Sixth AppellateDistrict

vS.

Cory Mendoza aka Waltz,

Appellee.

Court of AppealsCase No. WD-10-008

MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANTCORY MENDOZA

Mollie B. Hojnicki (0083535)GRIFFITH & HOJNICKI, LTD27457 Holiday Lane, Suite GPerrysburg, Ohio 43551Ph: 419.873.3739Fax: 419.874.8904ON BEHALF OFAPPELLANT FORLIMITED PURPOSES

Cory Mendoza #625-358TOCI2001 E. Central Ave.Toledo, Ohio 43608

APPELLANT, PRO SE

Ff,uN 0 :j Hil

CLERK OF COURTSUPREME COURT OF OHI

Paul DobsonWood County Prosecutor's OfficeOne Courthouse SquareBowling Green, Ohio 43402Ph: 419.354.9250Fax: 419.353.2904

Gwen Howe GebersWood County Prosecutor's OfficeOne Courthouse SquareBowling Green, Ohio 43402Ph: 419-.354:9250Fax: 419.353.2904

ON BEHALF OF APPELLEE

TABLE OF CONTENTS

Explanation of Why this Case Is of Great Public or General Interest . . . . . . . . . . . . . . . . . . . 2

Statement of Why this Court Should Allow Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of the Case and Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Proposition of Law No.l : ... ................................................. 5

Proposition of Law No.2 : ..................................................:.7

Conclusion ............................................................... 10

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

1

EXPLANATION WHY THIS CASE IS NOT OFPUBLIC OR GREAT GENERAL INTEREST

The instant case present a question of such great public interest as would warrant further

review by this Court.

Appellant, Cory Mendoza, asks this Court to consider whether in light of passing

of Am.Sub.H.B. No. 461, effective April 4, 2007, which enacted R.C. 4511.19(D)(1)(a), is the

State still required to show substantial compliance with Ohio Adm. Code Chapter 3701.53 in

order for laboratory test results to be admissible at trial according to this Court's holding in State

v. Mayl (2005), 106 Ohio St.3d 207. The regulations established in Ohio Adm. Code Chapter

3701.53 were established to ensure the accuracy of bodily substance test results. To allow the

admission of the test results without such methods of ensuring accuracy undermines our system

of justice, by allowing juries to consider evidence which is not reliable.

STATEMENT WHY THIS COURT SHOULD ALLOW APPEAL

This Court should allow this appeal because the Sixth District Court of Appeal's

Decision and Judgment in the instant case, as well as the Twelfth District have determined that

the holding in Mayl is no longer applicable. See, State v. Davenport, Fayette County, App. No.

CA208-01-011, 2009-Ohio-557. However, the First and Ninth District Courts of Appeal have

continued to utilize the substantial compliance test as described in Mavl after the effective date

for Am.Sub.H.B. No. 461. See, State v. Roberts, Hamilton County, App. No. C-080474, 2009-

Ohio-1799, and State v. Hoder, Wayne County, App. No. 08 CA0026, 2009-Ohio-1647. It order

to resolve this conflict among the districts.

2

STATEMENT OF THE CASE AND FACTS

On October 5, 2008 the Appellant was in a Pontiac Bonneville with several others,

including Trinity Jay, Roger Lambert, Alivia Baron, Appellant's son, and Appellant's father.

As the Bonneville was traveling down Sandridge Road, in Wood County, Ohio, it struck a

Pontiac Montana in the rear. The Pontiac Montana was forced into a tree at the side of road.

There were four people in the Pontiac Montana, Bill and Sharon DeWitt, Shelen Stevens and her

son, Shayne Stevens. Bill and Sharon DeWitt died as a result of their injuries. Shelen Stevens

was seriously injured, and Shayne Stevens was injured as a result of the accident.

Appellant's father and Trinity Jay fled the scene of the crash. Appellant suffered various

injuries, and immediately following the accident, he was disoriented and began wondering away

from the scene of the collision. (T.R. Vol. IV, 65-66). He was later discovered, and taken to the

St. Vincent's Mercy Medical Center for treatment. At St. Vincent's Appellant's blood was

drawn by the hospital staff and tested.

On October 15, 2008 the Appellant was indicted by the Wood County Grand Jury on two

counts of Aggravated Vehicular Homicide with specifications, in violation of R.C.

§2903.06(A)(1)(a)(B)(2)(b)(i), felonies of the first degree; two counts of Aggravated Vehicular

Assault with specifications, in violation of R.C. §2903.08(A)(1)(a)(B)(1)(a), felonies of the

second degree; Operation of Motor Vehicle While Under the Influence, in violation of R.C.

§4511.19(A)(1)(a), amisdemeanor ofthe first degree; Endangering Children, inviolation ofR.C.

§2919.22(C)(1), a misdemeanor of the first degree; Failure to Comply with Order or Signal of

Police Officer with specification, in violation of R.C. §2921.33 1 (B)(C)(5)(a)(i), a felony of the

third degree; and Failure to Stop After Accident, a violation of R.C. §4549.02(A)(B), a felony

of the third degree. The case was assigned to Judge Alan Mayberry in the Wood County

Common Pleas Court.

An attorney was appointed to represent the Appellant, and arraignment was hetd.

Appellant entered pleas of not guilty to all charges contained in the Indictment. A Motion to

Suppress Test Results Involving Defendant's Blood Alcohol Content and Memorandum in

Support was filed by Appellant on December 29, 2008. Hearings on the Motion were held on

3

March 12, 2009 and May 4, 2009, and the Motion was ultimately denied by the court. The case

proceeded to a jury trial commencing February 1, 2010. Evidence of the Appellant's

blood/alcohol level was presented to the jury. The jury found the Appellant guilty of all counts

contained in the Indictment.

At the sentencing hearing on February 3, 2010, Appellant was ordered to serve the

maximum mandatory term of ten years in the Ohio Department of Rehabilitations and

Corrections, for each of the two counts of Aggravated Vehicular Homicide. Appellant was

ordered to serve the maximum term of eight years in the Ohio Department of Rehabilitations and

Corrections, for each of the two counts of Aggravated Vehicular Assault. Appellant was ordered

to serve ten days in the Wood County Justice Center, as to the one count of Operation of Motor

Vehicle While Under the Influence. Appellant was ordered to serve the maximum term of six

months in the Wood County Justice Center, as to the one count of Endangering Children.

Appellant was ordered to serve the term of four years in the Ohio Department of Rehabilitations

and Corrections, as to the one count of Failure to Comply with Order or Signal of Police Officer.

Finally, Appellant was ordered to serve three years in the Ohio Department of Rehabilitations

and Corrections, as to the one count of Failure to Stop After Accident. The prison terms

imposed in each felony count were ordered to be served consecutively, and the jail terms

imposed in the two misdemeanor counts were ordered to be served concurrently. The total

sentence Appellant is to serve totals 39 years in the Ohio Department of Rehabilitations and

Corrections. In addition, the court ordered that the warden of the institution where the Appellant

is housed place Appellant in solitary confinement on October 5' of each year. The sentence was

memorialized in the Judgment Entry filed and journalized with the court on February 5, 2010.

Appellant timely filed an appeal with the Sixth District Court of Appeals, and that case

was assigned case No. WD-10-008. The Court of Appeals issued its Decision and Judgment on

Apri122, 2011affirmingand reversing the trial court in part. The Court of Appeals directed the

Wood County Common Pleas Court to delete a specific portion of the judgment entry ordering

solitary confinement. The remainder of the trial court's judgment was affirmed. It is from this

Decision and Judgment that the Appellant seeks appeal.

4

ARGUMENT

PROPOSITION OF LAW NO. I: THE COURT OF APPEALS ERRED WHEN ITHELD THAT R.C. 4511.19(D)(1)(a) AUTHORIZES THE ADMISSION OF APPELLANT'SBLOOD TEST RESULTS CONTRARY TO THE HOLDING IS STATE V. MAYL

The Appellant submits that the Sixth District Court of Appeals erred when it held that

R.C. 4511.19(D)(1)(a) authorized the admission of Appellant's blood test results at trial, and

upheld the trial court's denial of Appellant's Motion to Suppress Test Results.

In this case, Appellant filed a Motion to Suppress Test Results Involving Defendant's

Blood Alcohol Content. In his Motion, Appellant argued that his U.S. and Ohio constitutional

rights were violated because the State failed to collect and/or test Appellant's blood sample in

substantial compliance with the Ohio Department of Health regulations pursuant to Ohio Adm.

Code §3701.53.01, etseq.

This Court noted in State v. Mayl (2005), 106 Ohio St.3d 207, paragraph 3 that, "in a

criminal prosecution for aggravated vehicular homicide that depends upon proof of an R.C.

4511.19(A) violation, laboratory test results are admissible only if the state shows substantial

compliance with R.C. 4511.19(D)(1) and Ohio Adm. Code Chapter 3701.53, even if the test was

conducted in an accredited hospital laboratory." In the instant case, Appellant was taken to St.

Vincent's Mercy Medical Center, and a blood sample was taken for the purpose of performing

medical testing. (T.R. Vol. II,, pp 5-8). As part of the medical testing, St. Vincent's Mercy

Medical Center tested Appellant's blood for its alcohol content, producing a result that the

Appe}lant's blood alcohol level was.114. (TR. Vol. VI, pp 35-36).

Ohio Adm. Code §3701-53-05 provides:

(A) All samples shall be collected in accordance with division (D)of section 4511.19 or division (B) of section 1547.11 of theRevised Code as applicable.

(B) When collecting a blood sample, an aqueous solution of anon-volatile antiseptic shall be used on the skin. No alcoholsshall be used as a skin antise tic,--- --- -- -1? _

(C) Blood shall be drawn with a sterile dry needle into a vacuumcontainer with a solid anticoagulant, or according to thelaboratory protocol as written in the laboratory procedure manualbased on the type of specimen being tested.

5

(D) Urine shall be deposited into a clean glass or plastic screw topcontainer which shall be capped. The collection of a urinespecimen must be witnessed to assure that the sample can beauthenticated. The urine specimen must be collected accordingto the requirements of specimen collection as set forth in theprocedure manual of the laboratory that will be performing theanalysis in accordance with paragraph (D) of rul 3701-53-06 ofthe Administrative Code.

(E) Blood and urine containers shall be sealed in a manner suchthat tampering can be detected and have a label which contains atleast the following information:

(1) Name of suspect;(2) Date and time of collection;(3) Name or initials of persons collecting and/or sealing sample.

(F) While not in transit or under examination, all urine and bloodspecimens shall be refrigerated. (Emphasis added).

These regulations have been designed to ensure the accuracy of bodily substance test results.

State v. Dickerson (1986), 25 Ohio St.3d 64.

At the hearing on Appellant's Motion to Suppress, the State called witness Tashonda

Minniefield to testify. Ms. Minniefield was the nurse who drew Appellant's blood for testing.

Ms. Minniefield described the manner in which she performed the blood draw, stating

specifically that prior to drawing Appellant's blood, she disinfected the area with a Chloraprep

swab. The Chloraprep swab used contained alcohol. (T.R. Vol. II, pp 11; T.R. Vol. VI, p 27;

T.R. Vol. VI, p 48). The use of the Chloraprep swab is in specific violation of the terms of Ohio

Adm. Cod §3701-53-05(B), and seriously compromises the integrity of the blood alcohol test

results.

While it is true that the court in Mayl recognized that minor procedural errors will not

render test results inadmissible, the court fnrther stated, "[t]o avoid usurping a function that the

General Assembly has assigned to the Director of Health, however, we must limit the substantial-

compliance standard set forth in Plummer to excusing only errors that are clearly de minimus."

The use of an alcohol based disinfectant on Appellant's skin prior to drawing blood, which_is

then tested for its alcohol content cannot be described as de minimus. Therefore, the State failed

to establish that it substantially complied with the requirements of R.C. 4511.19(D)(1) and Ohio

Adm. Code Chapter 3701.53, and, therefore, the results of the blood test were inadmissible at

6

trial. Despite this fact, the trial court denied Appellant's Motion to Suppress, and the blood test

results were admitted into evidence at the trial. The use of the blood test results constituted a

violation of Appellant's United States and Ohio Constitutional rights against illegal searches and

seizures.

The Court of Appeals affirmed the trial court's decision to deny Appellant's Motion to

Suppress Test Results, and found that the State is no longer required to establish substantial

compliance as stated in Mavl since the Ohio General Assembly passed Am.Sub.H.B. No. 461,

effective Apri14, 2007, which enacted R.C. 4511.19(D)(1)(a). In reaching this determination

the Court of Appeals relied upon State v. Davenport, Fayette County, App. No. CA208-01-011,

2009-Ohio-557. The court in Davenport allowed the admission of blood test results that were

"medical" and non-forensic despite the State's failure to demonstrate substantial compliance with

Ohio Adm. Code §3701-53.

Appellant draws this Court's attention to State v. Roberts, Hamilton County, App. No.

C-080474, 2009-Ohio-1799, and State v. Hoder, Wayne County, App. No. 08 CA0026, 2009-

Ohio-1647. The First and Ninth District Courts of Appeal have continued to utilize the

substantial compliance test as described in Mav1 after the effective date for Am.Sub.H.B. No.

461. In addition, Davenport is distinguishable from the facts in the instant case because in that

case all proper protocol was complied with in regard to the collection of appellant's blood

sample. Proper protocol was not complied with in this case.

The Sixth District Court of Appeals erred when it held that R.C. 4511.19(D)(1)(a)

authorized the admission of Appellant's blood test results at trial, and upheld the trial court's

denial of Appellant's Motion to Suppress Test Results. Therefore, it could not properly affnYn

the conviction and sentence in this case.

RESPONSE TO PROPOSITION OF LAW NO. II: APPELLANT WAS DENIEDEFFECTIVE ASSISTANCE OF COUNSEL AT THE COURT OF APPEALS BECAUSECOUNSEL FAILED TO ARGUE THE POINTS REFERENCE IN APPELLANT'SSUPPLEMENTAL BRIEF.

7

This Proposition ofLawNo. II is submitted at Appellant's direction. Appellant's submits

that he was denied effective assistance of counsel at the Court of Appeals because Appellate

Counsel failed to argue Assignments of Error which the Appellant submitted to the Court of

Appeals in a Supplemental Brie£ With the Supplemental Brief, the Appellant submitted a

Motion for Leave to Supplement Brief of Defendant-Appellant Cory Mendoza, which the Court

of Appeals denied on January 6, 2011.

In support of Appellant's argument that he was denied effective assistance of Appellate

Counsel, he would submit that the arguments contained in his Supplement Brief, if raised in the

original Appellate Brief and considered by the Court of Appeals, the Decision and Judgment

entered by the Sixth District Court of Appeals would have been different. The Assignments of

Error in the Supplemental Brief are as follows:

V. The trial court erred in sentencing Mr. Mendoza for aviolation of R.C. §4511.19(a)(1)(a) as for counts 1,11, III and IV,as the same were subject to merger and as not merging the sameviolated Double Jeopardy.

In order to prove a violation of either R.C. §2903.08(A)(1)(a) or R.C.§2903.06(A)(1)(a), the State has the burden to prove also a violation of thedistinct offense described in R.C. §4511.19(A^(1)(a). Thus, Counts I, II, III andIV all require proof of a violation of R.C. §4511.19(A). As such, these shouldhave all merged.

The Supreme Court of Ohio has determined that a court's analysispursuantto R.C. §2941.25 requires two steps. State v. Cabrales, 118 Ohio St.3d.54, 2008-Ohio-1625, at ¶14.

In the first step, the elements of the two crimes are compared. Ifthe elements of the offenses correspond to such a degree that thecommission of one crime will result in the conunission of theother, the crimes are allied offenses of similar import and thecourt must then proceed to the second step. Id., quoting State v.Blankenship ( 1988), 38 Ohio St.3d 116, 117.

In determining whether offenses are allied offenses of similarimport under R.C. 2941.25(A), courts are required to compare theelements of offenses in the abstract without considering theevidence in the case, but are not required to find an exactalignment of the elements. Instead, if, in comparing the elementsof the offenses in the abstract the offenses are so similar that the- --- --- ^ . - - - - -_commission of the offense will necessarily result in commissionof the other, then the offenses are allied offenses of similarimport." State v. Cabrales, supra, at paragraph one of thesyllabus.

8

`In the second step, the defendant's conduct is reviewed to determinewhether the defendant can be convicted of both offenses. If the court finds eitherthat the crimes were committed separately or that there was a separate animus foreach crim, the defendant may be convicted of both offenses.' Id. at ¶14, quotingBlankenship, 38 Ohio St.3d at 117.

Clearly, Counts I and V, Counts II and V, Counts III and V should havemerged, as Counts IV and V. When this happens, the State has the option ofselecting which offenses to proceed with for sentencing, and clearly the Statelikely would have elected Counts I, II, 111, and IV. However, the State did notmake this election, instead allowing all five counts to result in convictions andsentences. The concurrent and consecutive nature of the sentencing is notrelevant, as the convictions should have merged.

Additionally, "[t]he applicable rule is that where the same act ortransaction constitutes a violation of two distinct statutory provisions, the test tobe applied to determine whether there are two offenses or only one, is whethereach provision requires proof of a fact which the other does not." Blockburgerv. United States (1932), 284 U.S. 299, 304. Clearly, a sentence for Count V,even if run concurrently with Counts I, II, III, and IV, violates Blockburger andDouble Jeopardy, as well.

For these reasons, therefore, the convictions and sentences for Counts I,II, III, IV, and V should be vacated and the matter remanded with instruction thatthe Trial Court appropriately merge these counts, with election to the State as tohow to effect that merger, with new sentencing to follow.

VI. Trial Counsel was ineffective when it allowed the TrialCourt to sentence Mr. Mendoza for a violation of R.C.§4511.19(A)(1)(a) and [sic] well as for Counts I, lI, IlI,and IV, as the same were subject to merger and as notmerging the same violated Double Jeopardy.

As explained above, Counts I, II, III, and IV each require proof of aviolation of R.C. §4511.19(A)(1)(a). As such, these counts should have merged.However, trial counsel failed to object to these sentences which violates R.C.§2941.25, as requiring the merger of the convictions into one offense.

The United States Supreme Court has held that there is a two-step processto determine the effectiveness of counsel. Strickland v. Washin tgon (1984), 466U.S. 668, 687. First, it must be shown that the attorney's performance wasprejudicial to the Defendant, thus depriving him of a fair trial. There is apresumption that counsel will provide assistance that is reasonably effective,based upon professional norms, and an objective standard of reasonableness. Id.at 688. In order to establish a claim for ineffective assistance of counsel, it mustfurther be shown that there exists a reasonable probability that the result of theproceeding would have been different but for the attorney's conduct, and that theDefendant was prejudiced by counsel's ineffectiveness. This standard has beenadopted by the Ohio Supreme Court in State v. Ballew (1996), 76 Ohio St.3d244.

The Supreme Court of Ohio enunciated this test in determining if theDefendant was denied effective assistance of counsel. There must be areasonable probability that were [sic] if not for counsel's errors, the result of thetrial would have been different. State v. Bradley (1989), 42 Ohio St.3d 136.

9

In this instant case, the failure of Defendant's counsel to not object to asentence which violates R.C. §2941.25, rised [sic] to the level of ineffectiveassistance of counsel under Lockhart v. Fretwell (1993), 506 U.S. 364, 372, 113S.St. 838, 844, 122 L.Ed.2d 167. As the failure to object to this sentence, whichincluded allied offenses, falls below an objective standard of reasonableness.

Therefore, Defendant-Appellant has specifically set forth the basis for hisineffective assistance of counsel argument, as to his failure to object to the trialcourt's sentence, which allowed a violation of Double Jeopardy as to alliedoffenses per R.C. §2941.25.

For these reasons, trial counsel deficient performance, nevertheless,prejudiced Mr. Mendoza to double jeopardy, and the convictions and sentencesfor Counts I, II, III, IV, and V should be vacated and the matter remanded withinstruction that the Trial Court appropriately merge these counts, with electionto the State as to how to effect that merger, with new sentencing to follow.

Appellant's Pro Se Supplemental Brief, pages 4-7.

CONCLUSION

For the reasons discussed above, this case involves a matter of great public interest. The

Appellant requests this Court accept jurisdiction in so that the important issues presented will

be reviewed.

ollie B. HojnickiAttorney for Appellant for Limited Purposes

10

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing was sent by regular U.S. mail 6^ day of

June, 2011 to:

Paul Dobson Ohio Public Defender's OfficeGwen Howe Gebers 250 E. Broad Street, Ste. 1400Wood County Prosecutor's Office Columbus, Ohip 43215One Courthouse SquareBowling Green, Ohio 43402

ollie B. Hojzficki,Attorney for Appellant for Limited Purposes

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04d22/2011 08:39 4192134844 COURT OF AP

IN T):iE COURT OF APPEALS OF OHIOSIXTH APPELLATE DISTRICT

WOOD COUNTY

State of Ohio Court of Appeals No. W1D-10-OOS

Appellee Trial Court No. 2008CR0529

V.

Cory Mendoza aka Waltz DECISION AND .TETDGMENT

Appellant Decided: tAPR $ 1

*r***

Paul A. Dobson. Wood County Prosecuting Attorney,Gwen Howe-Gebers and. Jacqueline M. Kirian, AssistantProsecuting Attorneys, for appellee.

Mollie B. Hojnicki, for appellan.t.

PAGE 01/13

OSOWIK, P.J.

{¶ 11 This is an appeal from ajudgment of the Wood County Court of ComnaoD.

Pleas that found appellant guilty, after trial to a jury, of two counts of aggravated

vehiciTlar bornicide; two eounts of aggravated-velli-cular assault, an^. count of operation of

I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT1 COPY OF THE ORIGINAL DOCUMENT FILED AT WOOD CO.

COMMON PLEAS COURT, BOWLING GREEN, OHION K O. COURTSH

BYTH IS

Y. fPUTYCLERK

D OF2n nl (

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a motor vehicle while under the influence, one count of endangering children, one count

of failure to comply with the order or signal of a police officer and one count of failure to

stop after an accident. Appellant was sentenced to an aggregate term of 39 years

imprisonment. For the reasons that follow, the judgment of the trial court is affirmed in

part and revetsed in part.

{¶ 2} Appellant sets forth the following assignments of error:

11131 "First Assignment of Error: The trial. court erred in denying appellant's

anotion to suppress the results of the blood test where the state made no showing of

substantial compliance.

{¶ 4} "Second Assignment of Error: The trial court's imposition of the maximum

and consecutive sentences was contrary to law and constituted an abuse of discretion.

i1j 5} "Third Assignment of Error: 1: ne trial couri's order requiring the warden of

the institution where the appellant is housed to place the appellant in solitary confinement

every October 5th is contrary to law.

{¶ 6) "Fourth Assignment of Error: The evidence at appellant's trial was

insufficient to support a conviction and appellant's conviction is against the manifest

weight of the evidence."

{¶ 7} The undisputed facts relevant to the issues raised on appeal are as follows.

While on duty on the afternoon of October 5, 2008, Sergeant Gregory Konrad of the

Wood County Sheriff s Office noticed a white Bonneville approaching him at a high rate

of speed on Sand Ridge Road in Wood County. The car moved into Konrad's lane and

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the officer was forced to drive off the road to avoid a collision. Konrad turned around,

and followed the car with his lights and siren activated, at one point traveling at

approximately 90 m.p.h. as he attempted to keep up. Konrad briefly lost sight of the car

at a curve in the road and, as he rounded the curve, saw a minivan lodged against a tree

on the side of the road. Fart.ber down the road, Konrad saw the white car, which had

rolled onto its roof and caught fire. Sharon and William DeWitt, two of the minivan's

passengers, died in the crash. The DeWitts' daughter, Shelen Steven, was seriously

injured. Steven's three-year-old son was also in the rtlinivan but was not seriously

injured. Appellant, who had, fled the scene, was located walking along the road about a

mile from the crash site.

{¶ 8} On October 15, 2008, appellant was indicted as follows: Counts 1 and 2,

aggravated vehicular homicide with specifications, in violation of R.C. 2903.06(!a)(1)(a)

and (B)(2)(b)(i); Counts 3 and 4, aggravated vehicular assault, in violation of R.C.

2903.08(A)(1)(a) and (B)(1)(a); Count 5, driving while under the influence of alcohol in

violation of R.C. 4511.19(A)(1)(a); Count 6, endangering chil.dren., with a specification,

in violation of R.C. 2919.22(C)(1) and (E)(5)(b); Count 7, failure to comply with an order

or signal of police officer, with a specification, in violation of R.C. 2921.331(B) and

(C)(5)(a)(i), and Count 8, failure to stop after an accident in violation of R.C. 4549.02(A)

and (B).

{¶ 9} Appellant entered pleas of not guilty to all counts.

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{¶ 10} On December 29, 2008, appellant filed a motion to suppress statements and

a motion to suppress blood test results. The state filed a motion in limine to allow the

blood test results to be introduced as evidence and a motion in opposition to the motions

to suppress. After hearings on the motions, the trial court granted the motion to suppress

statements appellant made while sitting in the police cruiser immediately after the crash,

ruled admissible appellant's statements made while in the hospital on October 7, 2008,

denied appellant's motion to suppress the blood test results, and granted the state's motion

in limine.

{¶ 11] Following a three-day trial, the jury found appellant guilty as to all counts.

The trial court proceeded directly to sentencing and imposed the following prison terms,

to be served consecutively: a mandatory ten years as to Count 1, a mandatory ten years

as to Count 2, eight years as to Count 3, four years as to Count 4, four years as to Count

7, and three years as to Count 8. As to Count 5, the trial court ordered appellant

incarcerated in the Wood CountyTustice Center for ten. days, and for six months on

Count 6, with those sentences to be served concurrently with the prison terms. Finally,

the trial court ordered that appellant be placed in solitary confinement every year on

October 5, the anniversary of the crash.

{¶ 12} In his first assignment of error, appellant asserts that the trial court erred in

denying his motion to suppress the results of his blood alcohol test.

{¶ 13} Initially, we note that "[a]ppellate review of a motion to suppress presents a

mixed question of law and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

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¶ 8. In ruling on a motion to suppress, "the trial court assumes the role of trier of fact and

is therefore in the best position to resolve factual questions and evaluate the credibility of

witnesses." Id., citing State v. Mills (1992), 62 Ohio St.3d 357, 366. On appeal, we "must

accept the trial court's findings of fact if they are supported by competent, credible

evidence." Id.. State v. Garysinger (1993), 86 Ohio App.3d 592, 594. Accepting these

facts as true, we must then "independently d.etermine as a matter of law, -without deference

to the trial court's conclusion, whether they meet the applicable legal standard." State v.

Luckett, 4th Dist. Nos. 09CA3108 and 09CA3109, 2010-Ohi.o-1444, ¶ B. citing State v.

Klein (1991), 73 Ohio.A.pp.3d 486, 488.

{¶ 14) Appellant relies on State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-4629, in

whioh the Ohio Supreme Court held that upon a defendant's motion to suppress the

results of a blocd alcohol test, the state nnzst "show substantial eon;plianca with R.C.

4511..19(D)(1) and Ohio Adm.Code Chapter 3701-53 before the test results are

adm,issible." Mayl at ¶ 48.

{¶ 1$} The results of the test in this case indicated that appellant's blood alcohol

level was .114 percent. Appellant argues that the state failed to test hi.s blood sample in

substantial compliance with the Ohio Department of Health regulations pursuant to Ohio

Adm.Code 3701-53-01, et seq., which provides that "[w]hen collecting a blood sample,

an aqueous solution of a non-volatile antiseptic shall be used on the skin. No alcohol

shall be used as a skin antiseptic." The nurse who performed the blood draw testified at

the suppression hearing that she first disinfected appellant's arm with an alcohol swab.

5.

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Therefore, appellant asscrts, the state failed to establish that it substantially complied with

the requirements of R.C. 4511.19(D)(1) and Ohio Adm.Code Chapter 3701-53, rendering

the results of the blood test inadmissible at trial.

(¶ 16} Two years after the Nlayl decision, bowever, the Ohio General Assembly

passed Am.Sub.H.B. No. 461, effective Apri14, 2007, which enacted R.C.

4511.19(D)(1)(a). The version of R.C. 4511.19(D)(1)(a) in effect on October 5, 2008,

states:

{¶ 17# "In any criminal prosecution or juvenile court proceeding for a violation of

division (A)(1)(a) of this section. or for an equivalent offense that is vehicle-related, the

result of any test of any blood or urine withdrawn and analyzed at any health care

provider, as defined in section 2317.02 ofthe Revised Code, may be admitted with expert

testimony to be considered with any other relevar,t and co,;,petent evidence in

determining the guilt or innocence of the defendant." (Emphasis added.)

{¶ 1s} The Twelflb. District Court of Appeals discussed the application of RC.

4511.19(D)(1)(a) in State v. Davenport, 12th Dist. No. CA2008-04-011, 2009-Ohio-557,

and concluded that, based on the plain language of R.C. 4511.19(D)(1)(a), "tbe results of

'any test of anv blood' may be admitted with expert testimony and considered with any

other relevant and competen.t evidence in order to determine the guilt or innocence ofthe

defendant for purposes of establishing a violation of division R.C. 4511.19(A)(1)(a), or

'an equivalent offense,' including aggravated vehicular homicide in violation of R.C.

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2903.06(A)(1)(a), so long as the blood was withdrawn and analyzed at a'health care

provider' as defined by R.C. 2317.12" (Emphasis sic.)

{¶ 191, Immediately after the collision, appellant was transported to tbe hospital,

where he underwent a non-forensic, or medical, blood alcohol test. We find that R.C.

4511.19(D)(1)(a), in effect on. October 5, 2008, applies to this case and authorizes the

admission of appellant's blood test results. We note first that appellant stipulated that the

hospital where his blood was drawn is a"health care provider" as required by the statute.

Further, appellant was charged rv^:th violations of R.C. 4511.19(_A)(1)(a), 2903.06(A)(1)(a)

and 2903.08(A)(1)(a); according to R.C. 4511.181(A)(4), violations of those three

offenses are "equivalent offenses" as set forth in R.C. 4511.19(D)(1)(a). It also is not

disputed that the prosecution in this case is "vehicle related."

{¶ 20} For the reasons set forth above, we agree with tlle trial court`s application

of R.C. 4511.19(17)(1)(a) as well as the holding in Davenport and find that the trial court

did. not err in denying appellant's motion to suppress the results of his blood alcohol test.

Accordingly, appellant's first assigntnent of error is not well-taken.

(1121) In his second assignment of error, appellant asserts that the trial court

abused its discretion when it imposed maximum and consecutive sentences for his

convictions on two counts of aggravated vehicular homicide and two counts of

aggravated vehicular assault. Appellant also argues that the trial court etzed by failing to

reference either R.C. 2929.11 or 2929.12 during the sentencing hearing, which, appellant

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asserts, indicates that the trial court did not consider any of the relevant factors set forth

in those statutory sections.

(1221 The Supreme Court of Ohio has established a two-step procedure for

reviewing a felony sentence. State v. Kalish (2008), 120 Ohio St.3d 23, 2008-Ohio-4912.

The first step is to examine the sentencing court's compliance with all applicable rules

and statutes in imposing the sentence to determine whether the sentence is clearly and

convincingly contrary to law. Id. at ¶ 15. The second step requires the trial court's

decision to be reviewed under anabuse of discretion standard. Id. at ¶ 19. An abuse of

discretion is "more than an error of law or judgment; it implies that the trial court's

attitude is unreasonable, arbitrary or unconscionable." Blakemare v. Blakemore (1983), 5

Ohio St.3d 217, 219.

{Pp` 23} Appellant's sentences aIl fell wzthin the statutory range and thus meet the

criteria of the first step. The ten-year maximum sentences for the two convictions of

aggravated vehicular homicide with specifications were mandatory pursuant to R.C.

2903.06(B)(2)(b)(i). As to theconvictions for aggravated vehicular assault with

specifications, both sentences were within the statutory range. While the eight-year

sentence for Count 3 was the maximum allowed by statute for a second-degree felony,

the four-year sentence for Count 4, also a second-degree felony, was less than the

maximum.

{¶ 24} This court has repeatedly held that State v. Foster (2006), 109 Ohio St.3d 1,

2006-Ohio-856, is the controlling law regarding t11is issue. Foster held several of Ohio's

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sentencing statutes unconstitutional. in violation of the Sixth Amendment to the United

States Constitution. Since that ruling, trial courts have no longer been required to make

specific findings of fact or give their rcasons for imposing maximum, consecutive or

greater than minimum sentences. State v. Donald, 6th Dist. No. S-09-027, 2010-Ohio-

2790, ¶ S. Thus, Foster vests trial courts with full discretion to impose a prison sentence

which falls within the statutory range. Id.

{¶ 25) We note that where the trial court does not put on the record its

consideration of R C, 2929.11 and 2929.12, it is presumed that the trial court gave proper

consideration to those statutes. Kalish at fn, 4 (citing State v. Ad'ams (1988), 37 Ohio

St.3d 295, paragraph three of the syllabus). Nevertheless, the record in this case clearly

reflects that, although the court did not specifically cite R.C. 2929.11 and 2929.12, it

acknowledged that it was required to consider the principals aud purposes of criminal

sentencing prior to imposing appellant's sentences. The record is clear that appellant's

sentences were based upon th.e trial courl's proper consideration of the relevant statutes

and. factors. We cannot fmd that the trial court abused its discretion when imposing the

sentences or when ordering that they be served consecutivelv. Accordingly, appellant's

second assignrnent of error is not well-taken.

{¶ 261 In his third assignment of error, appellant asserts that the trial court erred

by ordering him to be placed in solitary confinement on October 5 of each year. •The

state in this case concedes that Ohio courts have held that solitary confinement is not an

acceptable penalty for a trial court to impose. We agree. The punishments set forth in

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the Ohio Revised Code for appellant's convictions do not provide for any period of

solitary confinement. There is no statutory provision for this type of punishment and it is

contrary to law. See, e.g., State v. Williams, 8th Dist. No. 88737, 2007-Ohio-5073.

Appellant's third assignment of error is well-taken and, accordingly, the offending portiotA

of appellant's sentence must be vacated.

{¶ 27} In his fourth assignment of error, appellant asserts that the evidence at trial

was insufficient to support a conviction and that his conviction was against the manifest

weight of the evidence.

{¶ 28} A mauifest weight challenge questions whether the state has met its burden

of persuasion. State v. Thompkins, 78 Ohio St.3d 380, 387. In making this

determination, the court of appeals sits as a"thirteentb juror" and, after "reviewing the

entire record, weighs the evidence and ail reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the evidence, the jury

clearly lost its way and created such a manifest miscarriage ofjustice that the conviction

must be reversed and a new trial ordered." Thompkins, supra, at 386, citing State v.

Martin (1983), 20 Ohio App.3d 172, 175.

{¶ 29} In contrast, "sufficiency" of the evidence is a question of law as to whether

the evidence is legally adequate to support ajury verdict as to all elements of the crime.

Thompkins, supra, at 386. When reviewing the sufficiency of the evidence to support a

criminal conviction, an appellate court must exanline "the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

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defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime proven beyond a reasonable doubt."

State v. Jenks (199I), 61 Ohio St.3d 259, paragraph two of the syllabus. A conviction

that is based on legally insufficient evidence constitutes a denial of due process, and will

bar a retrial. Thompkfns, supra, at 386-387.

{¶ 301 Appellant's sole argument in support of his challenges to the sufficiency of

the evidence and the Nveig,ht of *.be evidence is that the state failed to establish that he was

driving the car at the time of the crash. Appellant argues that the undisputed fact that his

father also fled the scene, and smelled of alcohol according to witnesses, strongly

suggest,s that his father was the driver of the car, not appellant. Additionally, appellant

challenges the credibility of the three witnesses who were passengers in the car at the

time of th.e crash, all of whom testified that appellan.t was the driver. Appellant states that

the witnesses all admitted to drinking prior to the crash and asserts that alcohol clouded

their memories.

{¶ 31) Trinity Jay testified that on the afternoon of the crash appellant picked her

up along witb Jay's friends Roger Lambert and Alivia Baron. Appellant was driving; his

young son and his father were also in. the car. The group spent the next several hours

driving around, the area with appellant at the wheel. At one point, appellant and his fatber

argued because appellant was driving extremely fast and swerving on the road. At the

time of the crash, Jay testified, appellant was driving. Although everyone else had been

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drinking alcoholic beverages, Jay testified that she had not. Roger Lambert testified that

appellant was driving at the time of the crash. Lambert confirmed Jay's testimony that

shortly before the crash, appellant and his father argued about who should drive since

everyone was drinking. Alivia Baron testified that she and her friends had been drinking

as they drove around town and that appellant and his father argued because appellant was

"too drnnk to drive." Additionally, Tamara Cook, a cashier at a gas station in Weston,

Ohio, testified that appellant and several others had come into the store to purchase gas

and other items in the early evening. She ider:tified appellant as the or.e driving the car

when it left the station.

{¶ 32} Based on the foregoing, we find that appellant's convictions were not

against the mauifest weight of the evidence. The jury clearly reached the rational

conclusion, based on the testitnony summarized above, that appellant was driving the car

at the time of the crash. Further, we find that the state presented sufficient evidence that

appellant was driving the car to support the convictions. Accordingly, appellant's fourth

assignment of error is not well-taken.

(1133) Because we find that the trial court erred in ordering solitary confinement

as part of its sentence, we affirm in part and reverse in part. It is ordered that a special

mandate issue out of this court directing the Wood County Court of Common Pleas to

carry this judgment into execution by modifying its judgment eniry to delete that portion

ordering solitary confinement. Thejudgment of the Wood County Court of Colnmon

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Pleas is otherwise affirmed. This matter is remanded to the trial court for correction of

sentence. Costs of this appeal are assessed to appellant pursuant to App.R. 24.

JUDGMENT AFFIRMED IN PARTAND REVERSED 1N PART.

PAGE 13/13

- A certified. copy of this entry shall constitute the mandate pursuant to App.R. 27. See,a1so, 6th Dist.Loc.App.R. 4.

Mark L. Piett3*kowski. J.

Arlene Sineer. J.

Thomas J. Osowik, P.J.CONCUR.

This decision is subject to further editing by the Supreme Court ofOhio's Reporter of Decisions. Parties interested in viewing the final reported

version are advised to visit the Ohio Supreme Court's web site at:http:7 www,sconetstate.oh.us/rod/newpdfl7source=6.

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