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OHIO SUPREME COURT ISSUES NEW OVI RULING


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9/30/2015
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[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

State v. South, Slip Opinion No. 2015-Ohio-3930.]

NOTICE

This slip opinion is subject to formal revision before it is published in

an advance sheet of the Ohio Official Reports. Readers are requested

to promptly notify the Reporter of Decisions, Supreme Court of Ohio,

65 South Front Street, Columbus, Ohio 43215, of any typographical or

other formal errors in the opinion, in order that corrections may be

made before the opinion is published.

SLIP OPINION NO. 2015-OHIO-3930

THE STATE OF OHIO, APPELLANT, v. SOUTH, APPELLEE.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State v. South, Slip Opinion No. 2015-Ohio-3930.]

R.C. 4511.19, 2941.1413, 2929.13, and 2929.14—Sentence ranges that may be

imposed on offenders convicted of a third-degree-felony charge for

operating a vehicle while under the influence and a repeat-offender

specification under R.C. 2941.1413.

(No. 2014-0563—Submitted February 3, 2015—Decided September 30, 2015.)

CERTIFIED by the Court of Appeals for Summit County,

No. 26967, 2014-Ohio-374.

_________________

FRENCH, J.

{¶ 1} In this certified-conflict appeal, we consider how multiple

sentencing statutes interact when a defendant is convicted of an operating-avehicle-

while-under-the-influence (“OVI”) offense as a third-degree felony, as

well as a repeat-offender specification. In these circumstances, we hold that a

trial court must sentence that defendant to a mandatory prison term of one, two,

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three, four, or five years for the repeat-offender specification. The trial court may

also sentence the defendant to an additional prison term of 9, 12, 18, 24, 30, or 36

months for the underlying OVI conviction.

Facts and Procedural History

{¶ 2} A grand jury indicted appellee, Edward South, on one count of

operating a vehicle while under the influence of alcohol or drugs in violation of

R.C. 4511.19(A)(1)(a), a third-degree felony, and a repeat-offender specification

under R.C. 2941.1413; one count of operating a vehicle while under the influence

of alcohol or drugs in violation of R.C. 4511.19(A)(1)(d), a third-degree felony;

and one count of driving under suspension in violation of R.C. 4510.11, a firstdegree

misdemeanor. The jury returned a guilty verdict on each count, including

the specification.

{¶ 3} Relevant to this appeal, the trial court merged the two OVI counts

for sentencing purposes. The court imposed a three-year sentence for the

specification, plus an additional, consecutive five-year sentence for the underlying

OVI offense, both of which it characterized as “mandatory.”

{¶ 4} South appealed to the Ninth District Court of Appeals, which

vacated his sentence, holding that it was contrary to law. The Ninth District held

that South’s sentence “had to consist of a one to five year mandatory prison term

on his specification[,] R.C. 4511.19(G)(1)(e)(i),” and a prison term “ ‘of any

duration specified in division (A)(3) of [R.C. 2929.14].’ ” 9th Dist. Summit No.

26967, 2014-Ohio-374, ¶ 17, quoting R.C. 2929.14(B)(4). Applying R.C.

2929.14(A)(3), the court held that the applicable version of R.C. 2929.14(A)(3)(b)

subjected South to a maximum three-year additional sentence for the underlying

OVI. Because the trial court’s five-year sentence exceeded the permissible

maximum, the Ninth District vacated the sentences related to his underlying OVI

conviction and the specification. It remanded the matter to the trial court for

resentencing.

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{¶ 5} The Ninth District also certified that its decision conflicted with

State v. Sturgill, 12th Dist. Clermont Nos. CA2013-01-002 and CA2013-01-003,

2013-Ohio-4648. In Sturgill, the Twelfth District analyzed the sentence imposed

for identical third-degree-felony OVI and repeat-offender-specification

convictions. It upheld Sturgill’s five-year sentence for the underlying OVI

conviction and separate five-year mandatory sentence for the specification

conviction. Id. at ¶ 40, 44.1

{¶ 6} We agreed that a conflict exists on the following question: “When a

defendant is convicted of [an] R.C. 2941.1413 specification, does Ohio’s OVI

statute, R.C. 4511.19[,] prevail so that a five year sentence can be imposed for a

third degree felony OVI or does R.C. 2929.14(A) require that the maximum

sentence that can be imposed is three years?” 139 Ohio St.3d 1402, 2014-Ohio-

2245, 9 N.E.3d 1061.

{¶ 7} The certified question assumes that the applicable statutes are

irreconcilable. We conclude, however, that we can harmonize the statutes; no one

provision need prevail over the others. And harmonizing them, we hold that

offenders convicted of a third-degree-felony OVI and a repeat-offender

specification under R.C. 2941.1413 are subject to the following: (1) for the

specification conviction, a one- to five-year mandatory prison sentence, which

must be served prior to and consecutive to any additional prison term and (2) for

the underlying OVI conviction, a discretionary term of 9 to 36 months.

Analysis

{¶ 8} Our primary concern when construing statutes is legislative intent.

State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d

543, 545, 660 N.E.2d 463 (1996). When we construe statutes relating to the same

1 We note that since oral argument in this case, the Twelfth District has overruled Sturgill and

interpreted the sentencing statutes consistent with our holding today. State v. Burkhead, 12th Dist.

Butler No. CA2014-02-028, 2015-Ohio-1085.

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subject matter, we consider them together to determine the General Assembly’s

intent—even when the various provisions were enacted separately and make no

reference to each other. D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96

Ohio St.3d 250, 2002-Ohio-4172, 773 N.E.2d 536, ¶ 20, citing State ex rel. Pratt

v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956), paragraph two of the

syllabus. This requires us to harmonize provisions unless they irreconcilably

conflict. Hughes v. Ohio Bur. of Motor Vehicles, 79 Ohio St.3d 305, 308, 681

N.E.2d 430 (1997). In doing so, “we must arrive at a reasonable construction

giving the proper force and effect, if possible, to each statute.” D.A.B.E. at ¶ 20,

citing Maxfield v. Brooks, 110 Ohio St. 566, 144 N.E. 725 (1924), paragraph two

of the syllabus.

{¶ 9} Mindful of these principles, we consider the sentencing statutes

applicable to these convictions. Stretched among multiple provisions within four

separate statutes, they are repetitive and confusing, to say the least. We consider

each statute, in turn.

R.C. 4511.19

{¶ 10} South was convicted of violating R.C. 4511.19(A)(1)(a) and (d),

which prohibit operating a motor vehicle while under the influence of alcohol or

drugs. R.C. 4511.19(G)(1) requires a court to sentence an offender under R.C.

Chapter 2929, “except as otherwise authorized or required by” R.C.

4511.19(G)(1)(a) to (e). R.C. 4511.19(G)(1)(e) provides that an offender who,

like South, has previously been convicted of a felony OVI, is guilty of a felony of

the third degree. For an offender who, like South, is being sentenced for a

violation of R.C. 4511.19(A)(1)(a) or (d), subsection (G)(1)(e)(i) requires the

court to impose “a mandatory prison term of one, two, three, four, or five years as

required by and in accordance with [R.C. 2929.13(G)(2)] if the offender also is

convicted of or also pleads guilty to a specification of the type described in [R.C.

2941.1413].”

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{¶ 11} So, applied here, R.C. 4511.19 identifies South’s offenses as thirddegree

felonies. But more important for the question at hand, cross-referencing

both R.C. 2929.13(G)(2) and R.C. 2941.1413, R.C. 4511.19 requires a sentencing

court to impose a mandatory term of one to five years if an offender is convicted

of a specification pursuant to R.C. 2941.1413. We turn, then, to the specification.

R.C. 2941.1413

{¶ 12} South was convicted of violating R.C. 2941.1413(A), which

prescribes the repeat-offender specification an indictment must include in order to

support “[i]mposition of a mandatory additional prison term of one, two, three,

four, or five years upon an offender under” R.C. 2929.13(G)(2). In this way, this

section simply repeats the one- to five-year mandatory additional prison term that

R.C. 4511.19 prescribes. Both sections also refer to R.C. 2929.13, which we

consider next.

R.C. 2929.13

{¶ 13} R.C. 2929.13 is a general sentencing statute that provides guidance

by degree of felony. R.C. 2929.13(A) states: “Except as provided in division (E),

(F), or (G) of this section and unless a specific sanction is required to be imposed

or is precluded from being imposed pursuant to law, a court that imposes a

sentence upon an offender for a felony may impose any sanction or combination

of sanctions on the offender that are provided in” R.C. 2929.14 to 2929.18.

{¶ 14} R.C. 2929.13(A) provides: If the offender is being sentenced for a

third-degree-felony OVI offense, in addition to “the mandatory prison term

required for the offense by division (G)(1) or (2) of this section,” the court must

impose a fine

and may impose whichever of the following is applicable:

* * *

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(2) For a third or fourth degree felony OVI offense for

which sentence is imposed under division (G)(2) of this section, an

additional prison term as described in [R.C. 2929.14(B)(4)] or a

community control sanction as described in (G)(2) of this section.

R.C. 2929.13(G) says:

Notwithstanding divisions (A) to (E) of this section, if an

offender is being sentenced for a * * * third degree felony OVI

offense, the court shall impose upon the offender a mandatory term

of local incarceration or a mandatory prison term in accordance

with the following:

* * *

(2) If the offender is being sentenced for a third degree

felony OVI offense, * * * the court shall impose upon the offender

a mandatory prison term of one, two, three, four, or five years if

the offender also is convicted of or also pleads guilty to a

specification of the type described in [R.C. 2941.1413] * * *. * * *

The offender shall serve the one-, two-, three-, four-, or five-year

mandatory prison term consecutively to and prior to the prison

term imposed for the underlying offense and consecutively to any

other mandatory prison term imposed in relation to the offense.

{¶ 15} Several points are important here. First, subsection (G)(2) repeats

the imposition of a one- to five-year mandatory term following a conviction for

an R.C. 2941.1413 specification—the same one- to five-year mandatory term that

both R.C. 4511.19 and 2941.1413 impose for the specification conviction.

Second, subsection (G)(2) expressly states that the offender must serve the

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specification-related sentence “consecutively to and prior to the prison term

imposed for the underlying offense.” And third, subsection (A) requires that

when a sentencing court imposes the mandatory specification-related sentence,

the court also “may impose” an additional prison term prescribed in R.C. 2929.14

or a community-control sanction prescribed in subsection (G)(2) for the

underlying OVI offense. To determine the term a court may impose, we turn,

finally, to R.C. 2929.14.

R.C. 2929.14

{¶ 16} Subject to exceptions not applicable here, R.C. 2929.14 applies if a

sentencing court elects or is required to impose a prison term. R.C.

2929.14(A)(3)(a) provides that for a felony of the third degree that is a violation

of listed offenses not at issue here, the term “shall be” in the range of 12 to 60

months. But for third-degree-felony offenses not listed in division (A)(3)(a), “the

prison term shall be nine, twelve, eighteen, twenty-four, thirty, or thirty-six

months.” R.C. 2929.14(A)(3)(b).

{¶ 17} R.C. 2929.14(B)(4) also provides:

If the offender is being sentenced for a third or fourth

degree felony OVI offense under [R.C. 2929.13(G)(2)], the

sentencing court shall impose upon the offender a mandatory

prison term in accordance with that division. In addition to the

mandatory prison term, * * * if the offender is being sentenced for

a third degree felony OVI offense, the sentencing court may

sentence the offender to an additional prison term of any duration

specified in division (A)(3) of this section.

{¶ 18} Again, several points are important. First, because the underlying

OVI offense at issue here is not one of the excepted third-degree felonies listed in

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R.C. 2929.14(A)(3)(a), subsection (A)(3)(b) provides a sentence of 9 to 36

months for that offense. Second, R.C. 2929.14(B)(4) repeats the requirement of

imposing a one- to five-year sentence arising from R.C. 2929.13(G)(2) and the

specification conviction. And finally, for those specification-offenders sentenced

under R.C. 2929.13(G)(2), R.C. 2929.14(B)(4) expressly states that for thirddegree-

felony-OVI offenses, a sentencing court may impose “an additional prison

term of any duration specified” in R.C. 2929.14(A)(3), that is, a sentence of 9 to

36 months for the underlying OVI offense.

Permissible Sentencing Ranges

{¶ 19} Applying these provisions together, offenders convicted of a thirddegree-

felony-OVI charge and a repeat-offender specification under R.C.

2941.1413 are subject to the following sentencing ranges: (1) a one- to five-year

mandatory prison term for the repeat-offender-specification conviction, which

must be served prior to and consecutive to any additional prison term imposed

under R.C. 2929.14(A)(3)(b) and (2) a discretionary 9- to 36-month definite

prison term for the underlying OVI conviction.

{¶ 20} The justices who dissent in part from this opinion interpret R.C.

2929.14(B)(4) to allow a discretionary sentence of any term provided in R.C.

2929.14(A)(3)(a) or (b). Concurring and dissenting opinion at ¶ 52. In doing so,

they rely in part on testimony before criminal-justice committees in both houses

of the General Assembly and analyses submitted by the Ohio Judicial Conference

and the Ohio Prosecuting Attorneys Association. Id. at ¶ 47. This information is

unpersuasive because Ohio does not maintain a comprehensive legislative history

of its statutes. State v. Dickinson, 28 Ohio St.2d 65, 67, 275 N.E.2d 599 (1971).

Instead, we rely on the language the General Assembly chose and our longestablished

rules of statutory construction.

{¶ 21} Having distilled the sentencing provisions from the various

statutory subsections, we now apply them to South.

January Term, 2015

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South’s Sentencing

{¶ 22} Portions of South’s sentencing entry are difficult to decipher, but

we can conclude that the trial court imposed a three-year mandatory term for the

specification and an additional five-year mandatory term for the underlying OVI

offense. The Ninth District addressed only the five-year term for the OVI

offense, holding that it was contrary to law. The parties did not address the

propriety of the three-year term stemming from the repeat-offender-specification

conviction, although the Ninth District vacated that portion of the sentence, too.

Applying the Statutes to South

{¶ 23} For defendants like South, sentencing courts must impose a prison

term of one, two, three, four, or five years for the R.C. 2941.1413-specification

conviction. R.C. 4511.19(G)(1)(e)(i) and 2929.13(G)(2). Therefore, South’s

specification-related sentence—a mandatory three-year prison term—is not

contrary to law.

{¶ 24} As to the underlying OVI conviction, R.C. 2929.14(A)(3)(b)

provides that any additional prison term for an underlying third-degree-felony-

OVI conviction must be 9, 12, 18, 24, or 36 months. South received a five-year

mandatory prison term for his underlying OVI conviction. Therefore, that

sentence is contrary to law, and the Ninth District correctly vacated South’s

underlying-OVI-related prison term.

{¶ 25} We note, too, that the trial court labeled the five-year additional

prison term for the underlying OVI conviction as “mandatory.” But there is no

statutory provision imposing a mandatory additional sentence for third-degreefelony-

OVI convictions underlying R.C. 2941.1413-specification convictions.

Rather, as noted, for the underlying third-degree-felony-OVI conviction, a trial

court may impose an additional definite term of 9 to 36 months.

{¶ 26} Though the parties did not discuss it, State v. Evans, 113 Ohio

St.3d 100, 2007-Ohio-861, 863 N.E.2d 113, along with R.C. 2953.08(G)(2),

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compels us to reverse the appellate court’s decision to vacate South’s statutorily

authorized specification-related prison term. As the appellate court noted, R.C.

2953.08(G)(2) allows appellate courts to “vacate the sentence and remand the

matter to the sentencing court for resentencing” if the sentence is contrary to law.

See also State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824,

¶ 4. But in Evans, we stated:

[T]he Revised Code does not provide that either a trial court or an

appellate court may consider an offense and an attendant

specification together as a “bundle.” Rather, the sentencing statutes

set forth the sanctions available for an underlying offense and,

separately, the additional sanctions for a specification.

Id. at ¶ 16, citing R.C. 2929.11 through 2929.19. Because there is no infirmity in

South’s specification-related prison term, the appellate court should not have

vacated and remanded that sanction for resentencing. We reverse that portion of

the appellate court’s judgment.

Conclusion

{¶ 27} We affirm in part and reverse in part the Ninth District’s judgment.

We reinstate South’s mandatory three-year prison sentence associated with his

repeat-offender-specification conviction, and we remand this matter to the trial

court for resentencing on the underlying OVI conviction in accordance with R.C.

2929.14(A)(3)(b).

Judgment affirmed in part

and reversed in part,

and cause remanded.

O’CONNOR, C.J., and PFEIFER, LANZINGER, and O’NEILL, JJ., concur.

O’DONNELL and KENNEDY, JJ., concur in part and dissent in part.

January Term, 2015

11

_________________

O’CONNOR, C.J., concurring.

{¶ 28} I concur fully in the majority’s reasoning and holding. I write

separately solely for the purpose of emphasizing that our role, as members of the

judiciary, requires fidelity to the separation-of-powers doctrine. Accordingly, we

must respect that the people of Ohio conferred the authority to legislate solely on

the General Assembly. Sandusky City Bank v. Wilbor, 7 Ohio St. 481, 487-488

(1857); Article II, Section 1, Ohio Constitution. That authority includes the

important and meaningful role of defining criminal offenses and assigning

punishment for those offenses.

{¶ 29} As the majority opinion recognizes, the statutes at issue in this

appeal span four separate statutes and “are repetitive and confusing, to say the

least.” Majority opinion at ¶ 9. But rather than treating the complicated scheme

here as an invitation to interpret the statutes as we wish they were written, the

majority adeptly fulfills its duties to construe the statutes according to legislative

intent, harmonizing them in a proper and reasonable fashion, and giving the

provisions their proper force and effect. D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd.

of Health, 96 Ohio St.3d 250, 2002-Ohio-4172, 773 N.E.2d 536, ¶ 20; State ex

rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545,

660 N.E.2d 463 (1996); State ex re. Pratt v. Weygandt, 164 Ohio St. 463, 132

N.E.2d 191 (1956), paragraph two of the syllabus.

{¶ 30} The majority’s holding is based on a careful consideration of the

plain wording and intent of the statutes as well as proper applications of the

established rules of statutory construction. And it reflects the approach taken by

several of our appellate courts. See, e.g., State v. Burkhead, 12th Dist. Butler No.

CA2014-02-028, 2015-Ohio-1085; State v. Eckles, 173 Ohio App.3d 606, 2007-

Ohio-6220, 879 N.E.2d 829 (7th Dist.); State v. Smaltz, 6th Dist. Ottawa No. OT-

08-008, 2013-Ohio-5350; State v. Weideman, 11th Dist. Portage No. 2013-PSUPREME

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0100, 2014-Ohio-5768. As importantly, it illustrates a proper application of

judicial restraint that affords due respect to the legislature.

{¶ 31} Although any member of the judiciary is certainly entitled to his or

her opinion that another justice’s or judge’s interpretation of a statutory scheme is

“illogical,” concurring and dissenting opinion at ¶ 55, none of us is entitled to

interpret a statutory scheme to make it reflect the logic that the justice or judge

wants it to reflect. As we repeatedly have recognized, judicial policy preferences

may not be substituted for valid legislative enactments. See, e.g., Painter v.

Graley, 70 Ohio St.3d 377, 385, 639 N.E.2d 51 (1994), citing State v. Smorgala,

50 Ohio St.3d 222, 223, 553 N.E.2d 672 (1990).

{¶ 32} It is fully within the province of the General Assembly to set the

penalty for a third-degree-felony-OVI offense. Whether we agree or disagree

with the legislature’s resolution of policy questions is immaterial to our duty as

justices. This is true particularly when the policy questions relate to criminalsentencing

statutes. After all, judges have no inherent power to create sentences.

State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 22,

citing Griffin & Katz, Ohio Felony Sentencing Law, Section 1:3, at 4, fn. 1

(2008).

{¶ 33} Rather than interpreting statutes to make them fit our views of what

Ohio’s public policy should be, we must harmonize even their most complicated

provisions in a manner that is consistent with their wording and the legislative

intent that lies behind those words. The majority opinion adeptly does so,

rejecting the temptation to adopt a contrary analysis that another court has already

labeled “misguided,” Burkhead, 2015-Ohio-1085, ¶ 13.

{¶ 34} If we are incorrect in our understanding of the words used by the

General Assembly in its complicated statutory scheme for OVI offenders, the

General Assembly will amend the statute to more clearly indicate its intent.

Anderson v. Barclay’s Capital Real Estate, Inc., 136 Ohio St.3d 31, 2013-OhioJanuary

Term, 2015

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1933, 989 N.E.2d 997, ¶ 25; Shay v. Shay, 113 Ohio St.3d 172, 2007-Ohio-1384,

863 N.E.2d 591, ¶ 25 (noting that within six months of a decision interpreting

R.C. 3937.31, the General Assembly responded by amending the statute). But

until it signals that this court and at least four courts of appeals are incorrect in our

understanding of what the legislature intended, judges must apply the sentencing

provisions of the Revised Code that govern OVI offenses in the manner set forth

by the majority.

LANZINGER, J., concurs in the foregoing opinion.

_________________

O’NEILL, J., concurring.

{¶ 35} I concur in the majority’s statutory analysis. Simply put, the plain

language of the statutes governs. While I understand the statutory framework, I

write separately to explain the effect it is having on justice in Ohio’s courtrooms.

The Ohio General Assembly has adopted a policy of mandating the sentences

available to judges—which has the practical effect of telegraphing to judges: “No

discretion needed here.”

{¶ 36} The root cause of almost all repeat criminal behavior is that the

defendant failed to “get it” the last time. But this is not always true. Factors such

as addiction and poverty commonly lead to repetitious offending. In those

circumstances, mandatory jail terms, like that required for the specification in this

case, tie the hands of the trial court judges. This case offers us an illustrative

example: Does Edward South need another round in prison or a comprehensive

medical intervention for his addiction? It is likely that he needs both. A lengthy

prison sentence alone simply will not cure this habitual drunk driver. There are

those in the legislature who would truly like to replace judges with an automated

data-processing machine. “You do this crime, and you get that sentence. Don’t

bother me with the specific facts of the case.”

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{¶ 37} This type of thinking led to R.C. 2951.041(B)(2), which ties the

hands of the trial courts by excluding drunk drivers from the case-by-case

attention regularly given to other offenders dealing with addiction. That makes

no sense, since addiction is almost always at the core of repeat drunk-driving

convictions. When a court imposes intervention in lieu of conviction, the

intervention plan must require abstention from illegal drugs and alcohol,

participation in treatment and recovery programs, and random testing for

substances. R.C. 2951.041(D). In these cases, the court has broad power to craft

creative methods for dealing with individuals on a case-by-case basis. Id. If an

offender fails to comply with his or her plan, the court may impose a prison term.

R.C. 2951.041(F).

{¶ 38} We elect judges to make decisions on a case-by-case basis. Theft

to feed a child is obviously different from theft by a career criminal. I believe that

we can trust Ohio’s elected trial court judges to make tough calls about

sentencing. Judges act responsibly when given broad sentencing authority and the

power to impose nonprison alternatives. Society does in fact render its judgment

on the performance of all judges every six years at the ballot box.

{¶ 39} Our elected trial courts are eminently capable of crafting less costly

and more effective alternatives to long and expensive imprisonment. Let judges

do the jobs that they were elected to do.

_________________

KENNEDY, J., concurring in part and dissenting in part.

{¶ 40} Respectfully, I concur in part and dissent in part.

{¶ 41} I wholly agree with Chief Justice O’Connor’s concurring opinion

that as members of the third branch of government we must adhere to our limited

role in our constitutional form of government and avoid encroaching upon the

powers conferred on the other branches. As members of the judicial branch “we

must respect that the people of Ohio conferred the authority to legislate solely on

January Term, 2015

15

the General Assembly.” Chief Justice O’Connor’s concurring opinion at ¶ 28. As

emphasized by the United States Supreme Court, the authority to define and fix

the punishment for a crime belongs indisputably to the legislature. Ex Parte

United States, 242 U.S. 27, 42, 37 S.Ct. 72, 61 L.Ed. 129 (1916). It is for these

very reasons that I respectfully concur in part with and dissent in part from the

majority opinion.

{¶ 42} The certified question before us is a narrow one and asks us to give

effect to the sentencing policies of the General Assembly when an offender is

convicted of a third-degree-felony offense of operating a vehicle while under the

influence (“OVI”) and a repeat-offender specification. I agree with the majority

that R.C. 4511.19 required the trial court to sentence Edward South to a

mandatory prison term of one, two, three, four, or five years for the OVI repeatoffender

specification. I also agree with the majority that the General Assembly,

pursuant to R.C. 2929.14(B)(4), gave the trial court discretionary authority to

impose additional prison time for the underlying third-degree-felony OVI offense.

{¶ 43} The only remaining question, therefore, is, what was the intention

of the General Assembly when it said in R.C. 2929.14(B)(4) that a trial court has

discretion to sentence an offender for the underlying third-degree-felony OVI

offense to any duration specified in R.C. 2929.14(A)(3)? Did the General

Assembly intend, as the majority declares, that only those terms of imprisonment

found in R.C. 2929.14(A)(3)(b) apply? Based on the statutory language that the

General Assembly chose, the answer is no. Therefore, I dissent.

{¶ 44} R.C. 2929.14(A) states, “Except as provided in division * * *

(B)(4) * * * of this section * * * the court shall impose a definite prison term that

shall be one of the following * * * .” This language signals that the provisions of

R.C. 2929.14(B)(4) are controlling when sentencing an underlying felony OVI

offense. Therefore, R.C. 2929.14(A) yields to those provisions of R.C.

2929.14(B)(4) that modify or change R.C. 2929.14(A). See State v. Evans, 102

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Ohio St.3d 240, 2004-Ohio-2659, 809 N.E.2d 11, ¶ 15. The General Assembly

provided in R.C. 2929.14(B)(4) that an additional prison term of any duration

specified in R.C. 2929.14(A)(3) may be imposed for the underlying third-degreefelony

OVI offense. This requires that both subsections (A)(3)(a) and (A)(3)(b)

of R.C. 2929.14 apply. Accordingly, I would hold that the General Assembly

gave the trial court discretionary authority to sentence South to an additional

prison term of 9, 12, 18, 24, 30, 36, 42, 48, 54, or 60 months for the underlying

third-degree-felony OVI offense.

{¶ 45} The majority places a limitation on the General Assembly’s

language by asserting that only subsection (A)(3)(b) of R.C. 2929.14 applies

when sentencing pursuant to R.C. 2929.14(B)(4). However, the General

Assembly placed no such limitation in the statute. See Cleveland Mobile Radio

Sales, Inc. v. Verizon Wireless, 113 Ohio St.3d 394, 2007-Ohio-2203, 865 N.E.2d

1275, ¶ 12 (a court may not delete or insert words in construing a statute, but must

give effect to the words the General Assembly has chosen).

{¶ 46} This reading of the statute is bolstered when examined in light of

its language when it was originally enacted, the amendments that were made to

the language, and the testimony that was presented to the General Assembly when

it was considering the amendments. In 1996, the General Assembly enacted R.C.

2929.14(D)(4), the predecessor to R.C. 2929.14(B)(4). Am.Sub.S.B. No. 166,

146 Ohio Laws, Part V, 9852, 9876 (effective Oct. 17, 1996). When it was

enacted, R.C. 2929.14(D)(4) addressed only an underlying fourth-degree-felony

OVI offense and provided that the offender could receive up to 18 months for that

underlying offense. Id.

{¶ 47} In 2000, the General Assembly amended R.C. 2929.14(D)(4) to

address when the underlying OVI offense was a third-degree felony.

Am.Sub.S.B. No. 22, 148 Ohio Laws, Part IV, 8353, 8364, 8367 (effective May

17, 2000). Consistent with the June 6, 1999 testimony before the House Criminal

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Justice Committee of then-senator Bruce Johnson, the General Assembly

amended R.C. 2929.14(D)(4) to provide that the length of sentence for an

underlying third-degree-felony OVI offense was controlled by R.C.

2929.14(A)(3), which provided for a prison term of one, two, three, four, or five

years. Id. Also testifying in support of increasing the penalty for repeat OVI

offenders was Michael K. Allen, who was the Hamilton County prosecutor at the

time. He illustrated the need for greater punishment by submitting a summary of

the OVI history of a defendant who in a 25-year period had 13 OVI convictions

and a 14th charge pending. The defendant’s maximum possible sentence for the

14th OVI was 18 months.

{¶ 48} In 2011, House Bill No. 86, a bill aimed at reducing overcrowding

in Ohio’s prisons and “eas[ing] the strain of incarceration on the state budget,”

was introduced. Representative Lou Blessing, Sponsor Testimony in Support of

H.B. 86, House Criminal Justice Committee, February 23, 2011. Among other

provisions, H.B. 86, as introduced, decreased the maximum sentence for a thirddegree

felony from five to three years, a provision recommended by the Council

of State Governments Justice Center. Id. at 2; see also Marshall Clement,

Witness Testimony in Support of H.B. 86, February 23, 2011.

{¶ 49} This proposed sentence reduction for third-degree felonies was met

with opposition from the Ohio Judicial Conference (“OJC”) and the Ohio

Prosecuting Attorneys Association (“OPAA”). Ohio Judicial Conference, June 3,

2011 Judicial Impact Statement,

http://www.ohiojudges.org/Document.ashx?DocGuid=d71deb56-9a3e-4ada-94fe-

527b9600e340 (accessed Sept. 1, 2015); Ohio Prosecuting Attorneys Association,

Memorandum to House Criminal Justice Committee regarding H.B. 86, April 6,

2011. The OJC’s statement specifically addressed the serious nature of some

third-degree-felony offenses, such as repeat-OVI offenses and crimes of violence:

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There are serious offenses that are classified as felonies of the

third degree such as unlawful sexual conduct where there is a 10

or more year age difference, sexual battery, a second felony

OVI offense, child endangerment where there is serious

physical harm cause[d] to the victim * * * aggravated vehicular

assault, abduction, robbery, burglary, aggravated involuntary

manslaughter, and third offense domestic violence. These

offenses are predominantly crimes of violence and bear more

similarity to first and second degree felonies in terms of sheer

gravity, than to fourth and fifth degree felonies.

Recommendation: Retain the ability for a judge to

impose a four or five year penalty for felonies of the third

degree.

(Emphasis sic.) Ohio Judicial Conference, June 3, 2011 Judicial Impact

Statement, http://www.ohiojudges.org/Document.ashx?DocGuid=d71deb56-9a3e-

4ada-94fe-527b9600e340.

{¶ 50} Members of the General Assembly also heard the testimony of

Judge Jerry McBride, Clermont County Common Pleas Court. Judge McBride’s

position was in concert with the OJC’s; he opposed reducing the sentence for

third-degree-felony offenses because there are serious offenses classified as thirddegree

felonies, including violent crimes and repeat-OVI offenses. Addressing

repeat-OVI offenses, he stated:

[I]t is my opinion that reducing the maximum possible penalty

for a felony of the third degree from five years to three years

will impair the confidence that the public will have in the

fairness of the sentencing scheme * * *. Just using one

January Term, 2015

19

example, a first felony OVI would be punishable with a

maximum prison term of 30 months, while a second (or

hundredth for that matter) felony OVI would only be punishable

by a maximum prison term of 36 months. The proposed

reduction in the sentencing range * * * will also impair my

ability to give a sentence that is proportionate based on the

seriousness of the conduct involved.

Clermont County Common Pleas Court Judge Jerry McBride, Witness Testimony

in Opposition to H.B. 86, Senate Judiciary—Criminal Justice Committee, May

17, 2011.

{¶ 51} In 2011, when the General Assembly amended R.C. 2929.14, it

subdivided R.C. 2929.14(A)(3) into subsections (a) and (b). 2011 Am.Sub.H.B.

No. 86 (effective Sept. 30, 2011). In subdividing (A)(3), the General Assembly

addressed the concerns of both the proponents and opponents of the original bill.

In R.C. 2929.14(A)(3)(a), the General Assembly provided a sentencing range of

12 to 60 months for those third-degree-felony offenses that are predominately

offenses of violence. In R.C. 2929.14(A)(3)(b), the General Assembly gave effect

to the recommendation of the Council of State Governments Justice Center by

providing a sentencing range of 9 to 36 months for other third-degree felonies.

{¶ 52} In the 2011 amendments, the General Assembly also recodified

subsection R.C. 2929.14(D)(4), which addresses sentencing for repeat-OVI

offenders, as subsection (B)(4). 2011 Am.Sub.H.B. No. 86. It amended the

“[e]xcept as provided in division” language of R.C. 2929.14(A) to reflect this

recodification. The legislature did not change the language of R.C.

2929.14(B)(4), and the length of the discretionary sentence that a trial court could

impose for an underlying third-degree-felony OVI offense was still controlled by

R.C. 2929.14(A)(3) as a whole. Therefore, the General Assembly intended that

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after the 2011 amendments, the discretionary sentencing authority of a trial court

included prison terms set forth in R.C. 2929.14(A)(3)(a) and (b).

{¶ 53} Chief Justice O’Connor’s concurring opinion cites four cases and

contends that all of these cases have taken the approach advanced by the majority.

However, in State v. Eckles, 173 Ohio App.3d 606, 2007-Ohio-6220, 879 N.E.2d

829 (7th Dist.), the Seventh District examined the sentencing structure for an OVI

repeat-offender conviction and an underlying fourth-degree-felony OVI

conviction, not a third-degree-felony OVI conviction. Id. at ¶ 2. The Seventh

District neither relied upon nor engaged in any statutory analysis of R.C.

2929.14(D)(4), the predecessor to R.C. 2929.19(B)(4). Id. at ¶ 58-65. In State v.

Smaltz, 6th Dist. Ottawa No. OT-08-008, 2013-Ohio-5350, the Sixth District

applied a version of R.C. 2929.14(A)(3) that was prior to the General Assembly’s

2011 amendment that subdivided R.C. 2929.14(A)(3) into subsections (a) and (b).

Id. at ¶ 11. In State v. Weideman, 11th Dist. Portage No. 2013-P-0100, 2014-

Ohio-5768, the Eleventh District reached the same conclusion as the majority,

that the (A)(3) provision in R.C. 2929.14(B)(4) means (A)(3)(b). Id. at ¶ 16. The

appellate court did so, however, without explanation as to why it was reading

subsection “(b)” into the statute notwithstanding its acknowledgement that “thirddegree

felony OVI offenses are specifically governed by R.C. 2929.14(B)(4),

rather than section (A)(3)(b).” Id. at ¶ 12.

{¶ 54} Finally, in State v. Burkhead, 12th Dist. Butler No. CA2014-02-

028, 2015-Ohio-1085, ¶ 13, the Twelfth District disavowed its “misguided”

decision in State v. Sturgill, 12th Dist. Butler No. CA2013-01-002, 2013-Ohio-

4648. The Sturgill court had relied upon R.C. 2929.13(G)(2) to determine the

sentence for the underlying OVI conviction. Id. at ¶ 42-43. Accordingly, the

“misguided” analysis that the Burkhead court addresses is not the basis of this

dissent. Moreover, the Burkhead court, in reaching its conclusion that “the

additional sentence for the underlying OVI offense was governed under R.C.

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21

2929.14(A)(3) and (B)(4),” Burkhead, ¶ 13, followed the lead of the Weideman

court and read subsection (A)(3)(b) into the language of (B)(4) without any

explanation.

{¶ 55} Based on the plain language of the statute, it is illogical to find that

the General Assembly intended to limit a trial court’s discretionary sentencing

authority for an underlying third-degree-felony OVI offense to a maximum of 36

months pursuant to R.C. 2929.14(A)(3)(b), when R.C. 2929.14(B)(4) refers to

R.C. 2929.14(A)(3) as a whole. If the General Assembly had intended to limit the

discretionary sentencing authority of a trial judge for underlying third-degreefelony

OVI offenses pursuant to R.C. 2929.14(A)(3)(b), then in 2011, the General

Assembly would have changed R.C. 2929.14(B)(4) to provide that only R.C.

2929.14(A)(3)(b) applied. However, the legislature did not do so.

{¶ 56} The problems caused when drivers operate vehicles while under the

influence of alcohol are well known. The Ohio Department of Public Safety

reported that in 2014, there were 271 fatal crashes, 5,049 injury crashes, and

7,160 property-damage crashes that were related to alcohol.

http://www.publicsafety.ohio.gov/links/2014CrashFacts.pdf, Table 6.02 (accessed

Aug. 26, 2015). It is also well known that OVI offenders often reoffend. In

March 2014, the National Highway Traffic Safety Administration released a study

regarding repeat offenders and concluded that of those in Ohio convicted of OVI

in the years 2007 to 2011, 34 percent had prior OVI arrests within six years of

their conviction. www.nhtsa.gov/staticfiles/nti/pdf/811991-

DWI_Recidivism_in_USA-tsf-rn.pdf, page 3 (accessed Aug. 26, 2015). It is the

exclusive province of the General Assembly to make policy decisions as to the

best way to address the problems underlying these statistics and protect the

citizens of Ohio from OVI offenders.

{¶ 57} For all the foregoing reasons, I would affirm in part and reverse in

part the Ninth District’s judgment. I agree with the majority that the court of

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appeals should not have vacated South’s mandatory three-year prison sentence

associated with his repeat-offender-specification conviction and that that sentence

should be reinstated. Additionally, I agree with the majority that the court of

appeals was correct in vacating South’s five-year prison sentence for the

underlying OVI conviction, but only because the trial court believed that the fiveyear

sentence was mandatory. On remand, I would instruct the trial court that it is

within its discretion to impose an additional prison term of any duration as set

forth in R.C. 2929.14(A)(3)(a) and (b) for the underlying OVI conviction for a

felony of the third degree.

{¶ 58} Accordingly, I respectfully concur in part and dissent in part.

O’DONNELL, J., concurs in the foregoing opinion.

_________________

Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Heaven

DiMartino, Assistant Prosecuting Attorney, for appellant.

Lawrence J. Whitney, for appellee.

Timothy Young, State Public Defender, and Valerie Kunze, Assistant

Public Defender, urging affirmance for amicus curiae, Office of the Ohio Public

Defender.

___________________



Category: DUI/OVI/Traffic


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