STATE OF OHIO vs. SAIDOU SOW

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In 2016, Sow had been charged with aggravated vehicular assault, in

violation of R.C. 2903.08(A)(1)(a), and with vehicular assault, in violation of R.C.

2903.08(A)(2)(b), for causing serious injuries to his passenger when Sow, while

under the influence of alcohol, drove his car into a utility pole. R.C. 2903.08(A)(1)(a)

proscribes causing serious physical harm as the proximate result of operating a

motor vehicle while intoxicated in violation of R.C. 4511.19 (“OVI”). R.C.

2903.08(A)(2)(b) proscribes recklessly causing serious physical harm while

operating a motor vehicle.

{¶3} Sow entered no-contest pleas to both offenses. At a combined plea and

sentencing hearing, the trial court stated, “Now I think for purposes of sentencing

that these counts * * * will probably merge.” Sow’s trial counsel agreed. The state

offered no comment and the trial court continued the plea colloquy. Nonetheless,

the trial court, after accepting Sow’s pleas and finding him guilty, convicted Sow for

both offenses, imposed a term of confinement for each offense, and ordered those

terms to be served concurrently. The trial court also imposed, inter alia, a lifetime

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driver’s license suspension as part of the sentence for the aggravated-vehicular

assault offense.

{¶4} In a direct appeal to this court, Sow unsuccessfully challenged only the

denial of a motion to suppress his blood-alcohol-test results. See State v. Sow, 1st

Dist. Hamilton No. C-160835 (Nov. 3, 2017). But in April 2018, we granted Sow’s

App.R. 26(B) application to reopen his appeal. We reviewed the case law in effect

prior to the submission of Sow’s initial appeal and reopened that appeal upon our

determination that Sow’s appellate counsel had been ineffective in failing to present

an assignment of error challenging the trial court’s authority to impose sentence for

both OVI-based aggravated vehicular assault and recklessness-based vehicular

assault.

{¶5} Sow now advances that assignment of error in this reopened appeal.

In addition, he advances two others, challenging the voluntariness of his no-contest

pleas and the trial court’s authority to impose a lifetime driver’s license suspension.

Allied Offenses

{¶6} In his first assignment of error, Sow argues that the trial court erred in

convicting him for aggravated vehicular assault and vehicular assault because they

are allied offenses of similar import. He also notes that the trial court further erred

by imposing sentences for both offenses after it had announced at sentencing that

those offenses would “probably merge” as allied offenses of similar import.

Therefore, he contends, the trial court denied him the protections of R.C. 2941.25,

Ohio’s multiple-count statute, by finding him guilty of and sentencing him for both

offenses. We agree.

{¶7} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,

paragraph three of the syllabus, the Ohio Supreme Court held that, pursuant to R.C.

2941.25, separate sentences may be imposed on a defendant whose conduct supports

multiple offenses if the offenses were dissimilar in import, were committed

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separately, or were committed with a separate animus. Offenses are of dissimilar

import “when the defendant’s conduct constitutes offenses involving separate victims

or if the harm that results from each offense is separate and identifiable.” Id. at ¶ 23.

When, as here, it is clear from the record that the trial court was aware of the alleged

error before imposing sentence, its imposition of multiple sentences is reviewed de

novo. See State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245,

¶ 28.

{¶8} In this case, as the state concedes, the trial court erred in sentencing

Sow for both OVI-based aggravated vehicular assault and recklessness-based

vehicular assault. The offenses were allied offenses of similar import under R.C.

2941.25. They were predicated upon the same conduct which resulted in serious

physical harm to a single victim. The harm resulting from each offense was not

separate and identifiable. See State v. Smith, 2017-Ohio-537, 85 N.E.3d 304, ¶ 19

(8th Dist.). And the offenses cannot be said to have been committed either

separately or with a separate animus as to either. See Ruff at ¶ 31; see also State v.

Campbell, 2012-Ohio-4231, 978 N.E.2d 970, ¶ 14 (1st Dist.) (holding, in a pre-Ruff

decision, that OVI-based aggravated vehicular homicide and recklessness-based

aggravated vehicular homicide were allied offenses of similar import).

{¶9} Moreover, as both parties noted, before accepting Sow’s pleas to both

offenses, the trial court stated that the counts would “probably merge” for

sentencing. When a trial court has concluded that a defendant has been found guilty

of allied offenses of similar import, it cannot impose a separate sentence for each

offense. The court has “a mandatory duty to merge the allied offenses by imposing a

single sentence, and the imposition of separate sentences for those offenses—even if

imposed concurrently—is contrary to law * * * .” State v. Williams, 148 Ohio St.3d

403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 28; see State v. Benson, 1st Dist. Hamilton

No. C-180128, 2019-Ohio-3255, ¶ 49.

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{¶10} Even when, as here, the sentences imposed for allied offenses are

ordered to be served concurrently, a defendant is prejudiced by having more

convictions than are authorized by law. See State v. Underwood, 124 Ohio St.3d 365,

2010-Ohio-1, 922 N.E.2d 923, ¶ 31. The imposition of concurrent sentences is not

harmless error. State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, 950 N.E.2d

512, ¶ 17; see State v. Anderson, 2012-Ohio-3347, 974 N.E.2d 1236, ¶ 41 (1st Dist.).

{¶11} Thus we hold that the trial court should have afforded Sow the

protection of R.C. 2941.25. Sow’s first assignment of error is sustained.

Not Prejudiced by Erroneous Penalty Information

{¶12} In his second assignment of error, Sow challenges the voluntariness of

his plea of no contest to aggravated vehicular assault. He argues that the trial court

failed to substantially comply with Crim.R. 11(C) when, at the plea hearing, it

informed Sow that the potential one-to-five-year prison term for the third-degree

felony offense would include “a mandatory one-year prison sentence.” Sow’s written

plea form also provided for a one-year mandatory prison term. But under R.C.

2903.08(D)(1), the entire prison term imposed for the third-degree aggravated

vehicular-assault offense was mandatory by operation of law. See State v. Earley,

145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 13; see also State v. Ware, 141

Ohio St.3d 160, 2014-Ohio-5201, 22 N.E.3d 1082, ¶ 14.

{¶13} The trial court ultimately imposed a three-year prison term for that

offense with 320 days credited for time already served.

{¶14} A plea is constitutionally valid only if it is entered knowingly,

voluntarily, and intelligently. State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450

(1996). To ensure a no-contest plea is made knowingly, intelligently, and voluntarily,

the trial court must personally address the defendant pursuant to Crim.R. 11(C) and

inform him of certain constitutional and nonconstitutional rights. Id.

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{¶15} A trial court need only substantially comply with Crim.R. 11 when

explaining the nonconstitutional rights set forth in Crim.R. 11(C)(2), including the

nature of the charges, the maximum penalty involved, and the eligibility of the

defendant for community control. “Substantial compliance means that under the

totality of the circumstances the defendant subjectively understands the implications

of his plea and the rights he is waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564

N.E.2d 474 (1990). When a trial court fails to substantially comply with Crim.R.

11 with regard to a nonconstitutional right, the plea may be vacated only if the

defendant can also demonstrate “a prejudicial effect.” Id. “The test [for prejudice] is

whether the plea would have otherwise been made.” Id.; see State v. Foster, 2018

Ohio-4006, 121 N.E.3d 76, ¶ 16 (1st Dist.).

{¶16} At the combined hearing, Sow’s trial counsel acknowledged the “grave

mistake” that his client had made “in getting behind the wheel.” He stated that he

had discussed the potential sentence with Sow. Counsel then told the court that in

light of Sow’s “complete lack of [a criminal] record and his long stretch showing the

Court that he can abide by the law, we would be asking for a sentence of three years”

with credit for time served. Since Sow received the exact length of sentence that he

had suggested to the trial court as an appropriate sanction for his “grave mistake,”

Sow is unable to demonstrate that he would not have otherwise entered a no-contest

plea. In the absence of prejudicial effect demonstrated on the face of the record, we

cannot vacate Sow’s plea despite the trial court’s failure to substantially comply with

Crim.R. 11(C)(2). The second assignment of error is overruled.

Unauthorized Driver’s License Suspension

{¶17} In his third assignment of error, Sow argues that the trial court erred

in imposing a lifetime driver’s license suspension as a sanction for the aggravated

vehicular-assault offense. We agree.

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{¶18} “Crimes are statutory, as are the penalties therefor, and the only

sentence which a trial court may impose is that provided for by statute.” Colegrove

v. Burns, 175 Ohio St. 437, 438, 195 N.E.2d 811 (1964); see State v. Fischer, 128 Ohio

St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 23. As the state concedes, under R.C.

2903.08(B)(2) and 4510.02(A)(3), the trial court was authorized to impose a driver’s

license suspension only for a definite term of two to ten years. A lifetime suspension

was not authorized by statute. Thus that part of Sow’s sentence was contrary to law.

Fischer at ¶ 23. Accordingly, we sustain the third assignment of error.

Having sustained Sow’s first and third assignments of error, we vacate,

in their entirety, the sentences imposed for OVI-based aggravated vehicular assault

and recklessness-based vehicular assault. We remand the cause for the state to elect

which offense should survive, and for resentencing in accordance with law and this

opinion. See State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182,

paragraph two of the syllabus.