Volpe v. Trim
| Decision Date | 31 January 2013 |
| Docket Number | No. 11–4365.,11–4365. |
| Citation | 708 F.3d 688 |
| Parties | Kelly L. VOLPE, Petitioner–Appellant, v. Ginine TRIM, Warden, Respondent–Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
OPINION TEXT STARTS HERE
ARGUED: Sarah M. Schregardus, Columbus, Ohio, for Appellant. M. Scott Criss, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: Sarah M. Schregardus, Columbus, Ohio, for Appellant. M. Scott Criss, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.
Before: CLAY and WHITE, Circuit Judges; HOOD, District Judge. *
Petitioner Kelly L. Volpe (Volpe), an Ohio state prisoner, appeals the district court's denial of her 28 U.S.C. § 2254 habeas corpus petition. She argues that her state convictions of both operating a vehicle while under the influence, Ohio Rev.Code § 4511.19(A)(1)(a), and aggravated vehicular homicide as a proximate result of operating a vehicle while under the influence, id. § 2903.06(A)(1)(a), violate the federal Double Jeopardy Clause. We AFFIRM.
The facts recounted by the state appellate court are undisputed:
On the evening of February 24, 2006, two motorists in the northwest area of Columbus called 911 to report a person driving a pick-up truck erratically. One of the motorists saw that the driver was a woman and that there was also a child in the truck. Both motorists witnessed the truck jump up onto the curbed median on at least two occasions, frequently go left of center, and stop at stop lights far short of the intersections and then fail to move when the light changed to green without prompting from other motorists. One of the motorists followed the truck for half an hour, trying to help the police locate it. Before the police could find it, the truck went off the road, and crashed into a tree.
State v. Volpe, No. 06AP–1153, 2008 WL 928342, at *1 (Ohio Ct.App. 10th Dist. Apr. 8, 2008) (unpublished). Upon arriving at the crash scene, the police found Volpe, intoxicated and trapped behind the truck's steering wheel. Volpe's daughter, found on the ground on the other side of the truck, died three days later from multiple blunt-force injuries consistent with a car accident. Id.
An Ohio grand jury charged Volpe with: (1) two counts of aggravated vehicular homicide (AVH) (one based on operating a vehicle while under the influence (OVI) and one based on recklessly causing her daughter's death), each with a specification that she had been convicted, or pleaded guilty, of three or more prior OVI or equivalent municipal offenses within the last six years; and (2) OVI with a specification that she had been convicted, or pleaded guilty, of five or more equivalent offenses within the last twenty years.
Volpe proceeded to trial and the jury found her guilty of all three charges and specifications. For sentencing purposes, the trial court merged the recklessness-based AVH count with the OVI-based AVH count and sentenced Volpe to a ten-year prison term for one AVH count plus a three-year prison term for the specification. The trial court also sentenced Volpe to a thirty-month prison term for the OVI count plus a five-year prison term for the specification. The trial court ordered the prison terms, for both the offenses and specifications, to run consecutively; thus, Volpe received a total prison term of twenty years and six months.
On direct appeal, Volpe argued that the trial court erred when it imposed consecutive prison terms for the AVH and OVI convictions—rather than merge them for sentencing purposes—because the offenses were allied offenses of similar import under Ohio's multi-count statute, Ohio Rev.Code § 2941.25, which controls the inquiry whether the state legislature intended cumulative punishments for the two offenses. Volpe argued that this asserted error violated the Double Jeopardy Clause of the Fifth Amendment, which prohibits the imposition of cumulative punishments for the same offense unless the state legislature intended to authorize cumulative punishments.
In April 2008, the state appellate court affirmed Volpe's convictions and rejected her double jeopardy claim:
[A]ppellant contends in her first assignment of error that the trial court erred when it failed to merge the counts of ... AVH ... and OVI for purposes of sentencing. The concept of merger for sentencing purposes arises out of the double jeopardy provisions of both the United States and Ohio Constitutions. These provisions guard against successive prosecutions and cumulative punishments for the same offense.
...
... [T]o determine whether cumulative punishments may be imposed for crimes that arise from a single criminal act, we must apply the Supreme Court of Ohio's decision in State v. Rance, 710 N.E.2d 699 (Ohio 1999). Under Rance, our analysis begins with R.C. 2941.25, the General Assembly's “clear indication” of its intent to permit cumulative punishments for the commission of certain offenses. With that statute, the General Assembly permits multiple punishments if the defendant commits offenses of dissimilar import. If, however, the defendant's actions constitute two or more allied offenses of similar import, the defendant may only be convicted (, found guilty and punished) of only one. However, if offenses of similar import are committed separately or with a separate animus, the defendant may be punished for both.
Thus, to determine whether appellant may be punished for both AVH and OVI, we must decide whether those offenses are allied offenses of similar import. In determining whether crimes are allied offenses of similar import, the Supreme Court of Ohio explained that “[c]ourts should assess, by aligning the elements of each crime in the abstract, whether the statutory elements of the crimes correspond to such a degree that the commission of one crime will result in the commission of the other.” The court explained that if the elements do so correspond, the defendant may not be convicted of both “unless the court finds that the defendant committed the crimes separately or with separate animus.” If they do not, the offenses are of dissimilar import, and the defendant may be punished for both.
The jury found appellant guilty of two counts of AVH in violation of R.C. 2903.06. The trial court properly merged these two counts for purposes of sentencing and sentenced appellant only for one count. R.C. 2903.06, the AVH statute, provides:
(A) No person, while operating or participating in the operation of a motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft, shall cause the death of another or the unlawful termination of another's pregnancy in any of the following ways:
(1)(a) As the proximate result of committing a violation of [R.C. 4511.19(A) ] [ (the OVI statute) ] or of a substantially equivalent municipal ordinance[.]
* * *
(2) * * * (a) Recklessly;
* * *
[ (3) ] * * *
(a) Negligently[.]
Further, the AVH count also contained allegations of prior OVI convictions (three convictions within six years) that increased the severity of the count from a second-degree felony to a first-degree felony. When the existence of a prior conviction transforms the crime itself by increasing its degree, the prior conviction is an essential element of the crime. These prior convictions are, therefore, also elements that must be considered in the Rance analysis.
Appellant was also found guilty of OVI in violation of R.C. 4511.19(A)(1)(a). That statute provides:
No person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation, any of the following apply:
The person is under the influence of alcohol, a drug of abuse, or a combination of them.
Additionally, this count contained allegations of prior OVI convictions (five convictions within 20 years) that increased the severity of the count from a first-degree misdemeanor to a fourth-degree felony. These prior convictions are, therefore, also elements that must be considered in the Rance analysis.
We find these counts of AVH and OVI are not allied offenses of similar import. Comparing the statutory elements of each offense in the abstract, they do not correspond to such a degree that the commission of one crime will result in the commission of the other. It is obvious that one could drive under the influence of alcohol, a drug of abuse, or a combination of them in violation of R.C. 4511.19 and not cause the death of another in violation of R.C. 2903.06. Additionally, one could drive recklessly or negligently and cause the death of another in violation of R.C. 2903.06 and not drive under the influence of alcohol, a drug of abuse, or a combination of them in violation of R.C. 4511.19. Finally, an individual who has three OVI convictions within six years, and therefore commits the first-degree felony form of AVH, does not necessarily commit the fourth-degree felony form of OVI, because that offense requires five such convictions within 20 years.
One other appellate court has also determined that AVH and OVI are not allied offenses of similar import. Other courts have found similar offenses, aggravated vehicular assault and vehicular homicide, not to be allied offenses of similar import of OVI.
Because the AVH and OVI offenses are not allied offenses of similar import, the trial court properly sentenced appellant on both counts. Appellant's first assignment of error is overruled.
Volpe, 2008 WL 928342, at *13–15 ().
Volpe then filed a motion for reconsideration, relying on an Ohio Supreme Court decision that was issued one day after the appellate court's decision in her case. The motion was denied:
In her application for reconsideration, appellant argues we should reconsider our opinion in light of State v. Cabrales, 886 N.E.2d 181 (Ohio 2008), which was released one day after we released...
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