State v. Walter Szefcyk

Decision Date24 May 1995
Docket Number95-LW-2401,94CA005928
PartiesSTATE OF OHIO, Appellee v. WALTER SZEFCYK, Appellant C.A.
CourtOhio Court of Appeals

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

DECISION

BAIRD Presiding Judge.

This cause comes before this court upon the appeal of Walter Szefcyk ("Defendant") from the judgment of the Lorain County Court of Common Pleas denying postconviction relief to Defendant. We reverse in part and affirm in part.

Defendant, while driving a truck, hit and killed a person riding a bicycle. Defendant was tried to a jury which found him guilty of involuntary manslaughter, in violation of R.C 2903.04(B), an aggravated third degree felony, vehicular homicide, in violation of R.C. 2903.07, a first degree misdemeanor, and leaving the scene of an accident, in violation of R.C. 4549.02, a first degree misdemeanor. Defendant was also found guilty of three minor misdemeanors including: 1) reckless operation, in violation of R. C. 4511.20; 2) failure to drive within an assured clear distance, in violation of R.C. 4511.21(A); and 3) improper passing, in violation of R.C. 4511.27(A). The involuntary manslaughter conviction was predicated upon the minor misdemeanor convictions.

Defendant brought a timely appeal on the merits, arguing that, pursuant to R.C. 2903.04(B), a conviction of involuntary manslaughter cannot be predicated upon a minor misdemeanor.(fn1) This court affirmed Defendant's conviction. State v. Szefcyk (Jan. 6, 1993), Lorain App. No 92CA005340, unreported. Defendant appealed to the Supreme Court of Ohio, which declined to hear the appeal. State v. Szefcyk (1993), 66 Ohio St.3d 1489.

The Ohio Supreme Court, however, subsequently decided a case involving the same legal question. In State v. Collins (1993), 67 Ohio St.3d 115, the defendant was convicted of involuntary manslaughter based upon his failure to stop at stop sign, a minor misdemeanor. The Court of Appeals for Miami County reversed his conviction, and the Ohio Supreme Court affirmed the appellate court's decision, holding that "[a] minor misdemeanor may not serve as the underlying predicate offense for purposes of the involuntary manslaughter statute, R.C. 2903.04(B)." Id. at the syllabus.(fn2) Relying on Collins, the Defendant challenged his involuntary manslaughter conviction by filing a petition in the trial court for postconviction relief, pursuant to R.C. 2933.21.(fn3) The trial court denied Defendant's petition without explanation. Defendant appeals, asserting two assignments of error.

ASSIGNMENT OF ERROR NUMBER ONE

THE TRIAL COURT ERRED BY ALLOWING A MINOR MISDEMEANOR TO SUPPORT A CONVICTION OF INVOLUNTARY MANSLAUGHTER.

Defendant argues that his petition for postconviction relief concerning his involuntary manslaughter conviction should have been granted based upon the Ohio Supreme Court's decision in Collins and this court's decision in State v. Zanders (Apr. 6, 1994), Summit App. No. 16166, unreported. In Zanders, this court relied on Collins to hold that a minor misdemeanor could not support a conviction for involuntary manslaughter. Id. at 2.

In response, the state argues that the denial of Defendant's petition for postconviction relief was proper for two reasons: (1) this court lacks proper jurisdiction to review Defendant's appeal on the basis of a res judicata; and (2) Defendant was found to have acted recklessly. Although the state's first contention arguably may have been valid at the time it submitted its brief, the Ohio Supreme Court's decision in State v. Westfall (1995), 71 Ohio St.3d 565, precludes this court from applying res judicata to affirm the denial of Defendant's petition for postconviction relief.

In WestfaIl, the defendant, Derwin Westfall, was convicted of involuntary manslaughter predicated upon conviction of a minor misdemeanor. On direct appeal from the conviction, this court rejected Mr. Westfall's contention that a minor misdemeanor cannot predicate a conviction of involuntary manslaughter. State v. Westfall (July 31, 1991), Summit App. No. 14930, unreported. However, based on the Ohio Supreme Court's holding in Collins, the trial court granted postconviction relief to Mr. Westfall. The state appealed the trial court's decision, and we reversed, stating that "[a]s a result [of res judicata], Mr. Westfall is barred from asserting, in a petition for postconviction relief, an argument which was fully and finally litigated." State v. Westfall (Sept. 28, 1994), Summit App. No 16663, unreported, at 5. However, relying on Collins, the Ohio Supreme Court reversed this court's application of res judicata and reinstated the trial court's grant of postconviction relief. State v. Westfall (1995), 71 Ohio St.3d 565.(fn4)

The state's second argument asserts that because Defendant was found to have acted recklessly,(fn5) Collins does not apply. In Collins, the defendant was convicted of involuntary manslaughter predicated upon his underlying conviction for failure to stop at a clearly marked stop sign, in violation of R.C. 4511.43, a strict liability minor misdemeanor.

As the state in this case argues, the Ohio Supreme Court in Collins relied on the "well-reasoned" dissents of Judge Cacioppo in State v. Montecalvo (Sept. 5, 1990), Lorain App. No. 89CA004653, unreported, at 7-18, and State v. Westfall (July 31, 1991), Summit App. No. 14930, unreported, at 5-15. In both Montecalvo and Westfall Judge Cacioppo dissented from the majority's holdings that a minor misdemeanor can serve as a predicate to a conviction for involuntary manslaughter. In both cases, however, Judge Cacioppo clearly distinguished between strict liability minor misdemeanors and those committed recklessly, or with a "culpable mental state." See Montecalvo at 14 (Cacioppo, J., dissenting); Westfall at 10 (Cacioppo, J., dissenting).(fn6) This distinction was further evidenced in Judge Cacioppo's separate concurnng opinion in the first appeal in this case, in which she stated

I concur in the judgment reached by the court but write separately to clarify an important point. In the case at bar, the jury found that appellant acted recklessly [convicting Defendant of reckless operation]. As a result, I agree that appellant was properly found guilty of involuntary manslaughter. However, I continue to believe that a conviction for involuntary manslaughter cannot be based on a minor misdemeanor.

State v. Szefcyk (Jan. 6, 1993), Lorain App. No. 92CA005340, unreported, at 6.

Regardless of whether or not we would agree with the state's second argument addressing the culpability issue, this court is nonetheless bound by the Ohio Supreme Court's clear directive in State v. Collins, supra. An appellate court may not disregard a clear and unambiguous directive from the Supreme Court of Ohio expressed in the syllabus of an opinion. Smith v. Klein (1983), 6 Ohio St.3d 16, 18.

The syllabus of Collins, 67 Ohio St.3d 115, clearly states that "[a] minor misdemeanor may not serve as the underlying predicate offense for purposes of the involuntary manslaughter statute[.]" Accordingly, despite the fact that Defendant was convicted of reckless operation in violation of R.C. 4511.20, a statute requiring a culpable mental state, Defendant's first assignment of error is sustained.

ASSIGNMENT OF ERROR NUMBER TWO

THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION TO REINSTATE DRIVING PRIVILEGES.

While Defendant's second assignment of error challenges the trial court's denial of his postconviction motion to reinstate his driving privileges, Defendant offers no legal authority to support his argument. He instead offers support for his contention that the trial court did indeed have jurisdiction to consider his motion. That issue, however, is not before this court. With respect to whether the trial court erred in denying the motion, Defendant correctly asserts that the trial court "maintains control over the suspension or revocation *** [of a driver's license] so long as the suspension or revocation is in effect." Cincinnati v. Phelps (1961), 85 Ohio Law Abs. 602, 604. Defendant also correctly contends that "there are circumstances under which a person may apply for a new license following revocation, thus implying all revocations may not be permanent [.]" State v. White (1987), 29 Ohio St.3d 39, 41.

With respect to the reasons for reinstating Defendant's driving privileges, Defendant's sole argument is that "[h]e has accepted responsibility for his past actions and has moved his life in a positive direction." Defendant asserts that his circumstances are the same as those "that may warrant reinstatement of driving privileges that the court spoke of in both Phelps and White."

"No part of Ohio's motor vehicle law requires a trial court to reinstate previously revoked driving privileges." State v. Marinik (Sept. 21, 1994), Lorain App. No. 5719, unreported, at 2. The Ohio General Assembly "left to the discretion of the trial [court] the length of time for a license suspension under R.C. 4507.16(A) *** and further granted the trial court the discretion to revoke the license." White, 29 Ohio St.3d at 40.

Defendant was convicted of, inter alia, leaving the scene of an accident. The trial court, pursuant to R.C. 4507.16(A)(3),(fn7) suspended Defendant's driver's license for three years, commencing after his release from prison. Accordingly, the trial court's decision not to reinstate Defendant's previously revoked driving privileges was not error. Defendant's second assignment of error is overruled.

The judgment of the trial court denying Defendant's ...

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