Youngstown Daily Legal News

Man who killed two in fatal crash will be resentenced

ANNIE YAMSON
Special to the Legal News
Published: November 6, 2014

A three-judge appellate panel in Ohio’s 1st District Court of Appeals recently considered a reopened appeal after it had previously affirmed the defendant’s conviction for murder and aggravated vehicular assault.

The defendant, Mark Gerth, challenged the judgment of the Hamilton County Court of Common Pleas for a second time and prevailed.

Upon reconsideration, the appellate panel found that Gerth received ineffective assistance from his original appellate counsel and that the Hamilton County Court failed to make the proper findings before imposing consecutive sentences.

Gerth was charged and found guilty on two counts of felony murder, four counts of aggravated vehicular homicide, one count each of aggravated vehicular assault and vehicular assault, two counts of leaving the scene of an accident and one count of failure to comply with the order or signal of a police officer.

The trial court imposed a sentence of 48 and a half years in prison.

Case summary from Gerth’s original appeal states that Officer Mark McChristian was on a routine patrol in Cincinnati’s Over-the-Rhine neighborhood when he noticed a red Toyota Rav4 that had been reported stolen two days earlier.

He activated his emergency lights and the driver of the Rav4, later identified as Gerth, pulled over to a curb.

However, as McChristian stepped out of his cruiser, Gerth drove away.

A high-speed chase ensued during which police in marked cruisers with their lights activated followed the Rav4 at speeds of 50 to 60 m.p.h. through residential streets.

According to case summary, the Rav4 sped through every stop sign and red light, crossing left of center multiple times.

Ultimately, the Rav4 accelerated to speeds in excess of 75 m.p.h., ran a red light and crashed into two vehicles at an intersection in downtown Cincinnati.

The Rav4 hit the front end of one vehicle before “crushing” a taxicab then hitting a parking meter and catching fire.

Gerth rolled out of the Rav4 and attempted to flee on foot but he was quickly apprehended. A blood test revealed that he was under the influence of alcohol, marijuana and cocaine.

The driver of the taxi was found dead behind the wheel, wearing his seatbelt.

His passenger, a female, had been ejected from the taxi and was found on the street underneath the cab. She died en route to the hospital.

Gerth’s passenger in the Rav4 suffered severe injuries and several fractures.

Last year, the 1st District court affirmed Gerth’s convictions and sentence in his direct appeal.

He then filed a motion to reopen the appeal in the basis that he had been denied the effective assistance of appellate counsel. The court of appeals granted the motion.

In the reopened appeal, he argued his attorney should have challenged the trial court’s failure to merge the two counts of failing to stop after and accident.

“In this case, we agree that appellate counsel was deficient,” wrote Presiding Judge Lee Hildebrandt for the appellate panel.

Citing R.C. 2941.25, Judge Hildebrandt held that “a defendant may be sentenced for only one of multiple counts of failing to stop after an accident even when there are multiple victims in a single collision, as ‘the unit of prosecution ... is not the number of victims, but the number of collisions.’”

The appellate panel agreed that the two counts of failure to stop were related to the same collision and the state conceded that the trial court erred in imposing multiple sentences for the offenses.

Gerth also argued that his counsel was ineffective for declining to point out the trial court’s failure to make the requisite statutory findings for imposing consecutive sentences. The appellate panel agreed.

“At the sentencing hearing, the trial court made numerous comments about Gerth’s abysmal criminal record, his lack of remorse and other aggravated factors,” wrote Judge Hildebrandt. “But the court did not make any findings under R.C. 2929.14.”

The court of appeals acknowledged that a word-for-word recitation of the statute was not necessary. Still, it held that the trial court’s comments were insufficient.

Gerth went on to challenge the trial court’s admission of the victims’ medical records into evidence, but the court of appeals found little merit to that assignment of error.

Gerth’s sentences were vacated in part and the cause was remanded for the trial court to sentence Gerth on one count of failure to stop and make the proper findings for consecutive sentences.

Judges Sylvia Hendon and Patrick Dinkelacker concurred.

The case is cited State v. Gerth, 2014-Ohio-4569.

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