State v. Back
2019 Ohio 3530
Ohio Ct. App.2019Background
- Defendant James Back, Jr. was indicted for felony OVI with three priors and faced a mandatory 60‑day local incarceration term under R.C. 4511.19(G)(1)(d)(i).
- Back moved (then withdrew) a suppression motion and later sought an alternative method of serving the 60 days (e.g., 20 weekends, work‑release, or facility with work release) arguing "consecutive" does not require uninterrupted day‑to‑day service.
- At plea hearing Back pled no contest to one count pursuant to an agreement that the State would dismiss the other count; sentencing was to impose the mandatory 60‑day local term.
- The trial court concluded the statute required the 60 days to be served "one after the other without interruption," filed that ruling, accepted the plea, and stayed execution pending appeal.
- On appeal Back argued (1) "consecutive" only requires sequential order (allowing weekend service), (2) a statutory conflict exists between R.C. 4511.19 and R.C. 2929.13 that should resolve in his favor, and (3) R.C. 2901.04(A) mandates construction in favor of the accused.
- The State argued the plain meaning of "consecutive days" compels uninterrupted day‑to‑day service and alternatively asserted the sentence was not appealable under R.C. 2953.08(D)(1) because it was jointly recommended and authorized by law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the statutory phrase "sixty consecutive days" requires uninterrupted day‑to‑day service (no gaps such as weekdays off while serving weekends) | "Consecutive days" plainly means days served in sequence one after another; statute requires the 60 days be served continuously. | "Consecutive" only means "following one after another" or "sequential" (not necessarily contiguous); weekends or other non‑contiguous scheduling satisfies sequentiality; ambiguity should be construed for the accused. | The court held "consecutive days" requires serving the 60 days one after the other without interruption. |
| Whether a conflict exists between R.C. 4511.19(G)(1)(d)(i) ("sixty consecutive days") and R.C. 2929.13(G)(1) ("sixty days") such that the more lenient/omitted term controls | No irreconcilable conflict; R.C. 4511.19 expressly references 2929.13 and the statutes read in pari materia require consecutive 60‑day service, with 2929.13 specifying facility options. | The omission of "consecutive" from 2929.13 creates a conflict; expressio unius / recent, more lenient provisions should control, so sentence could be non‑contiguous. | The court rejected a conflict; it read the sections together and concluded the consecutive requirement in R.C. 4511.19 controls while R.C. 2929.13 supplies where the term may be served. |
| Whether the sentence was unreviewable on appeal because it was jointly recommended/authorized (R.C. 2953.08(D)(1)) | The agreed 60‑day local sentence is authorized and thus not reviewable under the statute barring review of jointly recommended authorized sentences. | Preserved statutory interpretation issue; the court expressly deferred resolution to appellate review, so the issue is reviewable. | The court proceeded to review the legal issue de novo and resolved it on the merits (did not dismiss appeal on this ground). |
Key Cases Cited
- Underwood v. State, 922 N.E.2d 923 (Ohio 2010) (discusses limits on appellate review of jointly recommended sentences)