Opinion
2022-P-0082
12-29-2023
STATE OF OHIO, Plaintiff-Appellee, v. NICHOLAS A. MONACHINO, Defendant-Appellant.
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, (For Plaintiff-Appellee). David L Doughten, (For Defendant-Appellant).
Criminal Appeal from the Court of Common Pleas Trial Court No. 2022 CR 00519
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, (For Plaintiff-Appellee).
David L Doughten, (For Defendant-Appellant).
OPINION
EUGENE A. LUCCI, J.
{¶1} Appellant, Nicholas A. Monachino, appeals the judgment of the Portage County Court of Common Pleas, sentencing him to multiple, consecutive felony sentences. The matter was briefed and appellant asserted the trial court erred in entering its sentencing order because it allegedly failed to comport with the Supreme Court of Ohio's decision in State v. Gwynne, ___ Ohio St.3d ___, 2022-Ohio-4607, ___ N.E.3d ___("December 2022 decision"). On October 25, 2023, however, the Supreme Court, on reconsideration, reversed and vacated its December 2022 decision. See State v. Gwynne, ___ Ohio St.3d ___., 2023-Ohio-3851, ___ N.E.3d ___ ("October 2023 decision"). We affirm the trial court's sentence.
{¶2} On the evening of April 29, 2022, appellant nearly sideswiped a vehicle in Walton Hills, Ohio. This was observed by a police officer who initiated a traffic stop. Appellant was let go with a warning. Appellant left the stop, tailgated, and almost struck an elderly couple who were traveling in a vehicle. He then passed them on a double yellow line. The state submitted that appellant was traveling at speeds exceeding 110 m.p.h.
{¶3} On State Route 82 in Aurora, Ohio, approximately 12 minutes after the traffic stop, appellant rear-ended a motorcycle causing the driver, R.T., and passenger, ST., to be launched into a ditch. ST., whose helmet was knocked off from the impact, was pronounced dead shortly after the crash. R.T. died from his injuries several days later.
{¶4} Witnesses followed appellant, who continued to speed, run stop signs, and swerve in the road. Appellant eventually crashed his vehicle into a ditch. When officers arrived, appellant was slumped in his vehicle. Appellant appeared impaired, muttering incoherent comments as he was handcuffed. He had a large wet spot on the outside of his pants for which he could not account. Appellant had multiple cans of beer in his car. Appellant's blood was taken and tests revealed he was twice over the legal limit at 1.175 grams by weight of alcohol per 100 milliliters of blood. Further testing established per se cocaine metabolite and per se THC metabolite.
{¶5} Appellant was initially indicted on seven counts: two counts of Aggravated Vehicular Homicide, felonies of the second degree, in violation of R.C. 2903.06; two counts of Aggravated Vehicular Homicide, felonies of the third degree, in violation of R.C. 2903.06; one count of Failure to Stop After an Accident, a felony of the third degree, in violation of R.C. 4549.02; one count of Operating a Vehicle While Under the Influence of Alcohol or Drug of Abuse ("OVI"), a misdemeanor of the first degree, in violation of R.C. 4511.19; and one count of Assured Clear Distance, a minor misdemeanor, in violation of R.C. 4511.21. After the blood-draw results were received, the grand jury returned a supplemental indictment charging appellant with three additional counts of OVI, each first-degree misdemeanors.
{¶6} Following plea negotiations, appellant pleaded guilty to two counts of Aggravated Vehicular Homicide, second-degree felonies; one count of Failure to Stop After an Accident, a third-degree felony; and one count of OVI, a first-degree misdemeanor. The trial court accepted appellant's plea and nollied the remaining counts. The matter was referred for a presentence investigation and report.
{¶7} Prior to sentencing, the state and defense submitted sentencing briefs. The state requested the trial court to impose maximum, consecutive sentences Defense counsel requested the trial court impose minimum, concurrent sentences for the Aggravated Vehicular Homicide counts and "reasonable sentences" on the remaining counts. During the sentencing hearing, the trial court heard from both defense counsel and the state. The court additionally heard from family members of the victims, a character witness of appellant, and appellant's father. Finally, appellant spoke on his own behalf.
{¶8} The court sentenced appellant to an indefinite term of six to nine years on each count of Aggravated Vehicular Homicide, a term of 36-months for Failure to Stop After an Accident, and a term of 180 days for OVI. The court ordered the Aggravated Vehicular Homicide counts and the Failure to Stop count to be served consecutively and the sentence for OVI be served concurrently to those counts, for a total of 15 to 18 years' imprisonment. Appellant now appeals and assigns the following as error:
{¶9} "The trial court erred by sentencing the appellant to consecutive sentences without considering whether the R.C. 2929.14(C)(4) considerations applied in an aggregate term of incarceration."
{¶10} This court reviews felony sentences pursuant to R.C. 2953.08(G)(2). That subsection provides, in pertinent part:
The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings under division * * * (C)(4) of section 2929.14[, the section governing consecutive sentences] * * *;
(b) That the sentence is otherwise contrary to law.
{¶11} "A sentence is contrary to law when it is 'in violation of statute or legal regulations' * * *." State v. Meeks, 11th Dist. Ashtabula No. 2022-A-0060, 2023-Ohio-988, ¶ 11, quoting State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 34. Thus, "'[a] sentence is contrary to law when it does not fall within the statutory range for the offense or if the trial court fails to consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12.'" State v. Shannon, 11th Dist. Trumbull No. 2020-T-0020, 2021-Ohio-789, ¶ 11, quoting State v. Brown, 2017-Ohio-8416, 99 N.E.3d 1135, ¶ 74 (2d Dist.).
{¶12} Pursuant to R.C. 2929.14(C)(4), separate prison terms for multiple offenses may be ordered to be served consecutively if the court finds it is necessary to protect the public from future crime or to punish the offender; that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public; and if the court also finds any of the factors in R.C. 2929.14(C)(4)(a)-(c) are present. Those factors include the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶13} Applying the foregoing statute, the Supreme Court in its December 2022 decision, 2022-Ohio-4607, at ¶ 31 held: "R.C. 2929.14(C)(4) requires trial courts to consider the overall number of consecutive sentences and the aggregate sentence to be imposed when making the necessity and proportionality findings required for the imposition of consecutive sentences." If a reviewing court concludes the required R.C. 2929.14(C)(4) findings have been made, the court:
may then determine whether the record clearly and convincingly supports those findings. * * * The point * * * is that if even one of the consecutive-sentence findings is found not to be supported by the record under the clear-and-convincing standard provided by R.C. 2953.08(G)(2), then the trial court's order of consecutive sentences must be either modified or vacated by the appellate court. See R.C. 2953.08(G)(2).December 2022 decision, at ¶ 26. The Supreme Court determined that a reviewing court's consideration of the record and findings is de novo. Id. at ¶ 27. Regarding this point, the Supreme Court observed:
[A] de novo standard of review applies to whether the evidence in the record supports the findings that were made. Under this standard, the appellate court is, in fact, authorized to substitute its judgment for the trial court's judgment if the appellate court has a firm conviction or belief, after reviewing the entire record, that the evidence does not support the specific findings made by the trial court to impose consecutive sentences, which includes the number of consecutive terms and the aggregate sentence that results.Id. at ¶ 29.
{¶14} After the Supreme Court issued its December 2022 decision, the state of Ohio moved for reconsideration of that decision, which the Court granted. In its October 2023 decision, the Supreme Court, by way of a plurality decision, reversed and vacated the December 2022 decision concluding: (1) the conclusion of the 2022 decision, requiring an appellate court to review the record in consecutive-sentencing cases de novo, is contrary to the plain language of the statute; (2) R.C. 2929.14(C)(4) does not require express consideration of the aggregate prison term that eventuates from the imposition of consecutive sentences; and (3) the record did not clearly and convincingly fail to support the trial court's consecutive-sentence findings. October 2023 decision, 2023-Ohio-3851, at ¶ 16, 18-24. Accordingly, the lead opinion granted the state's motion for reconsideration, vacated its December 2022 decision, and affirmed the appellate court's judgment in Gwynne.
{¶15} In this case, appellant does not dispute the trial court's findings and imposition of consecutive sentences on the two counts of Aggravated Vehicular Homicide; in fact, he concedes that had the court only issued consecutive sentences on these counts "the findings would have been sufficient under current case law." Instead, he contends the trial court erred by requiring the additional three years for the felony-three Failure to Stop to be served consecutively. Appellant maintains the trial court's findings were insufficient to support the conclusions that would permit a consecutive sentence for that count under the Supreme Court's December 2022 decision.
{¶16} Initially, the Court's October 2023 decision is a plurality opinion, which generally indicates a lack of an express agreement on the rationale leading to the disposition of the case. In the absence of a majority on the issues of law developed in the October 2023 decision, it is not entirely clear what weight appellate courts will (or should) afford the lead opinion's discussion moving forward. Nevertheless, the October 2023 decision expressly vacated the December 2022 decision by way of granting reconsideration. As a result, we conclude the October 2023 decision essentially reinstated consecutive-sentencing appellate review which existed prior to the December 2022 decision. In light of this point, we shall proceed to consider appellant's argument.
{¶17} In this case, the trial court made the following findings in support of consecutive sentences on each count:
Weighing all the factors, a prison term is consistent with the purposes and principles of the sentencing guidelines, and the defendant is not amenable to community control sanctions.
On the first count of Aggravated Vehicular Homicide, a felony of the second degree, that would be the count that is attributed to Ryan, I am going to sentence the defendant to six years in the Ohio Department, up to an indefinite sentence of nine years.
On the second count of Aggravated Vehicular Homicide, a felony of the second degree, and that's attributed to Sara, I am going to sentence the defendant to six years in the Ohio Department, up to an indefinite nine years in prison.
On the felony of the third degree, which is as everyone has said, one of the most outrageous acts that you failed to stop after the accident, they laid in that ditch, I'm going to sentence you to 36 months in the Ohio Department of Corrections, all to run consecutive to one another.
On the Operating a Vehicle Under the Influence of Drugs or Alcohol, a misdemeanor of the first degree, I'm going to sentence you to 180 days local jail to be run concurrent with the other sentences.
* * *
The court finds that consecutive sentences are necessary to protect the public from future crimes and to punish the defendant. Consecutive sentences are not disproportionate to the seriousness of the defendant's conduct and to the danger the defendant poses to the public.
At least two or more of the offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses committed was so great or unusual that no single prison term adequately reflects the seriousness of the conduct.
{¶18} Appellant argues that the record does not support the trial court's imposition of a consecutive term for the 36-month sentence. Specifically, he contends the findings were insufficient because "the court failed to make a determination as to whether the case necessitated three consecutive sentences, or whether the aggregate sentence was disproportionate to the seriousness of the conduct and/or the necessity to protect the public." He claims that "[b]ecause the trial court made only a single finding as to the necessity of consecutive sentences, the third sentence for Failure to Stop After an Accident, is not permissible under current Ohio law."
{¶19} In Gwynne, the defendant was ordered to serve 31 sentences consecutively for an aggregate sentence of 65 years. See December 2022 decision, 2022-Ohio-4607, at ¶ 5. The defendant's sentence stemmed from multiple felony burglaries and thefts as well as misdemeanor receiving stolen property charges to which she pleaded guilty. Upon review, the Supreme Court of Ohio held that "an appellate court may reverse or modify a defendant's consecutive sentences-including the number of consecutive sentences imposed-when it clearly and convincingly finds that the record does not support the trial court's findings. (Emphasis added.) Id. at ¶ 12. In light of these points, even under the vacated December 2022 decision, there was no requirement that trial courts make additional necessity and proportionality findings for each sentence it orders to serve consecutively. And, under the current law, the court certainly has no such burden.
{¶20} The record reflects that appellant was notably intoxicated on the evening of the incident. Prior to the fatal crash, he nearly side-swiped a vehicle as he sped past a police officer and, when stopped, he had visible signs of intoxication. Despite the issuance of only a warning, appellant continued driving recklessly, eventually killing the victims and crashing his car.
{¶21} The record reflects that appellant had long-standing substance abuse issues that he chose not to address until he was incarcerated. These issues included drugs as well as alcohol. Although appellant did not have a felony record, he had a prior conviction for underage alcohol and lost two jobs due to his alcohol problems.
{¶22} Further, statements at the sentencing hearing illustrated the pain and anguish the family members of the victims experienced as a result of appellant's acts and omissions. Ryan's mother emphasized that the "absolutely worst part is you left them laying there dying. They must have been terrified, and that is on you." S.T.'s Godmother submitted there are "many among us who have driven drunk and could have hit someone. But who hits and runs away? Who hits and runs away? Nicolas, why did you leave them there?" S.T.'s sister stated "[w]hen you hit my sister and [R.T.], that was bad. But the worst part of all this is that you hit them and you left them as if they were nothing more than road kill. Not a concern for them at that moment ran through your head. The only thought you appeared to have is how can I get out of the situation, and then took off for miles." And S.T.'s son asserted: "Nicolas, you don't deserve any forgiveness for what you did. You took two lives, two lives and you didn't care. You left him, you left my mom, my best friend on the side of the road all because of your selfishness."
{¶23} Since his incarceration, appellant has been required to abstain from alcohol and feels he is in a recovery phase. He expressed a desire to remain sober and expressed genuine remorse. Nevertheless, in light of the record, particularly appellant's alcohol abuse and indifference to driving intoxicated, which led to the deaths of the victims, this is not a case where the trial court's consecutive sentencing findings were clearly and convincingly unsupported by the record.
{¶24} Appellant's assignment of error is without merit.
{¶25} The judgment of the Portage County Court of Common Pleas is affirmed.
JOHN J. EKLUND, P.J., ROBERT J. PATTON, concur.