Perrysburg v. Wells
2019 Ohio 4620
Ohio Ct. App.2019Background
- Raymone L. Wells, Jr. charged with two OVI counts and a lane-travel offense; at a January 10, 2019 change-of-plea hearing the prosecutor amended one OVI count to R.C. 4511.194 (physical control) and the court accepted a guilty plea; remaining counts were dismissed.
- At the sentencing hearing the court orally imposed 33 days in jail (3 days in a driver intervention program, 30 days suspended), a $375 fine, and said it would grant limited driving privileges on proper motion; the transcript contains no mention of probation or a license suspension length.
- The clerk’s contemporaneous journalized sentencing entry, however, added 24 months of probation (with screening/treatment conditions) and a 12-month driver’s license suspension with limited privileges.
- Wells appealed, arguing the court improperly added terms after sentencing and violated Crim.R. 43(A) by imposing sentence terms when he was not present.
- The Sixth District majority held the trial court abused its discretion and violated Crim.R. 43(A) by including probation and a 12-month license suspension in the written judgment without announcing them at the hearing; the court modified the judgment as a matter of law under App.R. 12(B) to vacate those portions, affirmed as modified, and terminated the stay of the license suspension pending appeal.
- Judge Zmuda dissented: he agreed a Crim.R. 43(A) violation occurred but would remand for resentencing rather than vacate terms as a matter of law, because probation and a up-to-one-year suspension were lawful and the error was procedural.
Issues
| Issue | Wells' Argument | State's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by adding probation and a 12‑month license suspension in the written judgment when those terms were not announced at sentencing | The court lacked jurisdiction to add terms after sentencing and Crim.R. 43(A) was violated; Wells was not present for imposition of those terms | The court’s oral reference to granting driving privileges put Wells on notice; the additional terms were authorized by statute | The court found a Crim.R. 43(A) violation and abuse of discretion; it vacated the probation and license suspension in the written judgment and affirmed as modified |
| Proper remedy for sentencing‑entry terms announced only in the journal entry | Vacatur of the added terms (or otherwise relief) because the defendant wasn’t present when added | The added terms are statutorily authorized and could be corrected or enforced; remand might be appropriate | Majority used App.R. 12(B) to vacate the added terms as a matter of law; dissent would remand for resentencing to vindicate Crim.R. 43(A) rights |
Key Cases Cited
- State v. Perz, 173 Ohio App.3d 99 (6th Dist. 2007) (standard of abuse of discretion review for misdemeanor sentences)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (definition of abuse of discretion)
- State v. Williams, 6 Ohio St.3d 281 (1983) (Crim.R. 43 right to be present and procedural due process in sentencing)