COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69034 CITY OF BROOK PARK : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION WALTER C. DANISON, JR. : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 15, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Berea Municipal Court, Case No. 94-TRC-4246. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Neal M. Jamison Assistant Law Director City of Brook Park 5709 Smith Road Brook Park, Ohio 44142 For Defendant-appellant: Marie M. Rady, Esq. Adam M. Fried, Esq. Wargo and Wargo 30 Park Drive, P.O. Box 332 Berea, Ohio 44017 - 3 - SWEENEY, JAMES D., P.J.: Defendant-appellant Walter C. Danison, Jr. (d.o.b. October 27, 1946), appeals from the court's sentence of the minimum actual incarceration of fifteen (15) days after having pled No Contest to, and been convicted of, operating a motor vehicle while under the influence of alcohol and/or drugs in violation of R.C. 1 4511.19(A)(1). For the reasons adduced below, we affirm. A review of the record on appeal indicates that the defendant on December 26, 1994, ran a red light, was involved in an auto accident and attempted to flee the scene of that accident before being arrested at the scene. The defendant refused to submit to both blood and breath testing. See R.C. 4511.191. On February 6, 1995, the defendant changed his plea of Not Guilty to No Contest. Following the preparation of a pre-sentence investigation report, the court conducted the sentencing hearing on April 19, 1995. At the close of the hearing, the court sentenced the defendant to the following: (1) a fine of $2,500.00 plus court costs; (2) 180 days in jail, of which 90 days are suspended; (3) 2 150 days of electronically monitored house arrest with work and therapy privileges during the days Monday through Saturday; (4) driver's license suspended for 5 years; (5) active probation for 5 years; (6) 15 days of actual jail confinement; and, (7) 80 hours of 1 A charge of driving under a suspended license was nolled. 2 Defendant is a licensed attorney. - 4 - 3 community service work after jail and house arrest are completed. See the version of the penalties statute, R.C. 4511.99(A)(3), in effect subsequent to June 23, 1994 and prior to May 1, 1995, specifically 145 v H 381. The lone assignment of error provides the following: THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AS INCORPORATED BY THE FOURTEENTH AMENDMENT AND ARTICLE I, SECTION 9 OF THE OHIO CONSTITUTION, FORBIDS THE IMPOSITION OF CRUEL AND UNUSUAL PUNISHMENT. Appellant argues that the fifteen day period of incarceration constitutes cruel and unusual punishment as applied to him by virtue of his particular medical history. Appellant believes that he is being incarcerated because he has a mental illness. At the sentencing hearing, the court questioned the offender's witness, Mr. Pat Malloy, a psychotherapist/social worker/chemical dependency counselor who first counseled the defendant in 1993. Mr. Malloy stated that defendant was an alcoholic who began drinking alcohol when the defendant was approximately 35 to 40 years old. This alcoholism stems from his recent diagnosis of Post Traumatic Stress Disorder (PTSD), which condition (PTSD) causes defendant to involuntarily lapse into states of disassociation, which states have been described as flashbacks to unpleasant childhood events and mental blackouts for extended periods of time. 3 The record indicates that defendant has three convictions for driving under the influence in 1990, one in 1987, and one in 1984. See computerized record attached to the Alcoholic Influence Report Form. - 5 - The PTSD was alleged to have been triggered when the defendant recently became aware of, allegedly, having been sexually abused as an adolescent. He claims that this disorder, PTSD, causes defendant to drink alcoholic beverages in excessive amounts, and drive a vehicle while under the influence of alcohol, so as to ameliorate the unwanted stress and anxieties associated with the PTSD. Mr. Malloy also stated that the defendant's disassociative states, which are brought about by extreme stress, have not always involved the use of alcohol. It was Mr. Malloy's belief that any period of incarceration would constitute cruel and unusual punishment as it would increase the likelihood of disassociation and further re-traumatize the defendant because the confinement would heighten defendant's sense of being trapped, which sense is 4 allegedly common to persons who have been sexually abused. In addressing the appellant's Eighth Amendment argument, we note, ... that the Cruel and Unusual Punishments Clause circumscribes the criminal process in three ways: First, it limits the kinds of punishment that can be imposed on those convicted of crimes, e.g., Estelle v. Gamble, supra; Trop v. Dulles, supra; second, it proscribes punishment grossly disproportionate to the severity of the crime, e.g., Weems v. United States, supra; and third, it imposes substantive limits on what can be made criminal 4 The defendant admitted to the court that he had previously spent a total of ten days in jail over a period of four weekends, presumably for past convictions involving drinking while driving. - 6 - and punished as such, e.g., Robinson v. California, supra. Ingraham v. Wright, supra, 430 U.S. at 667, 97 S.Ct. at 1410. Appellant uses a shotgun approach to his legal argument, incorporating each of the three standards enunciated in Ingraham. In reviewing appellant's argument, we note that appellant, in reliance on Estelle v. Gamble, supra, frames his argument in terms of whether the 15 day sentence is proportionate to the crime for which he has been convicted. At the same time appellant, at pages 17-18 of his appellate brief and relying on Solem v. Helm (1983), 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (a sentence of life imprisonment without possibility of parole under a state recidivist statute for the offense of uttering a no account check in the amount of $100.00 held to be significantly disproportionate to the severity of the crime and therefore constitutes cruel and unusual punishment), argues that the sentence herein was grossly disproportionate to the severity of his crime. See also Weems v. United States, supra. Finally, in apparent reliance on Robinson v. California, supra, and Dayton v. Sutherland (1974), 42 Ohio Misc. 5 See Estelle v. Gamble (1976), 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (incarceration without medical care); Trop v. Dulles (1958), 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (expatriation for desertion); Weems v. United States (1910), 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (15 years' imprisonment and other penalties for falsifying an official document); Robinson v. California (1962), 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (incarceration as a criminal for addiction to narcotics). The explanations following each of these citations were provided in Ingraham v. Wright (1977), 430 U.S. 651, 667, 97 S.Ct. 1401, 1410, 51 L.Ed.2d 711. - 7 - 35 (conviction under a criminal ordinance for being a habitual alcoholic offender held to constitute cruel and unusual punishment), at page 9 of his appellate brief, appellant argues that he was sentenced "to prison on the basis of ... chronic illness" (in reference to PTSD), appellant's brief at 18, and that on this basis of allegedly suffering from a chronic illness, confining appellant "to prison for even one day ... is ... cruel and unusual punishment." Appellant's brief at 20. The common denominator which courses through each of these subarguments is that the punishment imposed is cruel and unusual as applied to a person with his particular infirmity. To sustain this common denominator, it is appellant's steadfast belief that he was punished for the crime of having a mental illness. This belief of appellant, that he was punished for having a mental illness, is a ruse which confuses the matter. Appellant was not punished for the offense of having a mental illness. Instead, appellant was punished, for the sixth time since 1984, for the offense of having driven an automobile while under the influence of alcohol. In placing the true offense in proper context, the cases relied upon by appellant are easily distinguished from the present case, as those cases (1) rely upon excessive punishment in relation to the minimal nature of the offense to prove disproportionality or (2) provide punishment for offenses which make criminal a physical malady or disease. In light of the human carnage and severe financial costs imposed on society by drunk drivers, the punishment - 8 - of 15 days imprisonment cannot seriously be interpreted as disproportionate to the severity of the offense, particularly when the trial court could have imposed an actual term of imprisonment of 30 days to one year had the court not, in its leniency and discretion, imposed the 15 days and electronically monitored house arrest on the repeat offender before us. See the version of R.C. 4511.99(A)(3)(a) in effect at the time of the court's sentencing. This sentence by the trial court, which falls within the range of punishments contained within the valid punishment statute, does not shock the conscience of this panel, let alone the conscience of the community, particularly where there is no evidence to suggest that his medical needs will not be met during his incarceration. Accordingly, the punishment imposed cannot be deemed to be cruel and unusual punishment. See State v. O'Shannon (1988), 44 Ohio App.3d 197, 200-201, citing State v. Juliano (1970), 24 Ohio St.2d 117, and State v. Chaffin (1972), 30 Ohio St.2d 13. The assignment of error is overruled. Judgment affirmed. - 9 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Berea Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES M. PORTER, J., and ANN DYKE, J., CONCUR. JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .