State v. Greer
2016 Ohio 8283
| Ohio Ct. App. | 2016Background
- Defendant George Greer pleaded guilty to possession of marijuana and failure to control; a jury convicted him of two OVI felonies with prior‑conviction specifications and one driving‑under‑suspension.
- Trial court originally imposed 5 years on an OVI count and 5 years on a prior‑conviction specification (10 years total); convictions were affirmed on direct appeal.
- After State v. South limited third‑degree felony OVI maximum to 36 months, the trial court resentenced Greer to 36 months for OVI plus a mandatory 5‑year specification term (8 years total) and imposed $1,350 in fines.
- Greer appealed, arguing (1) statutory conflict/illegal sentence because R.C. 2929.14(A)(3) caps OVI at 36 months, (2) the court erred in imposing mandatory fines despite his indigency, and (3) trial counsel was ineffective for not objecting to the fines.
- At resentencing the court relied on Greer’s extensive DUI history (presentence report listed ~20 prior DUI convictions), perceived insincerity of remorse, and public‑safety concerns to justify maximum sentences.
Issues
| Issue | Greer’s Argument | State’s Argument | Held |
|---|---|---|---|
| Whether R.C. 2941.1413 specification can be imposed in addition to the 36‑month OVI cap | R.C. 2929.14(A)(3) (36 months) conflicts with R.C. 2941.1413; the later statute or liberal construction favors Greer so specification term cannot be added | R.C. 2929.13 authorizes both a separate mandatory specification term and the statutory OVI term; no conflict | The court held both sanctions may be imposed: 36 months OVI + 5 years specification (no statutory conflict) |
| Whether the record supports imposition of maximum authorized sentences | Maximum unjustified: Greer injured only himself; lesser term (e.g., 4 years total) would meet goals of sentencing | Trial court has discretion to impose any sentence within statutory range; record (numerous prior DUIs, insincere remorse, public‑safety risk) supports maximum | Court held the record supports the maximum sentence; not clearly or convincingly contrary to law |
| Whether the trial court committed plain error by imposing mandatory fines despite Greer’s indigency affidavits | Greer filed affidavits of indigency (2012 and 2015) so court should have excused mandatory fines | Statute requires an affidavit filed prior to sentencing specifically asserting inability to pay the mandatory fine; Greer did not file such an affidavit before resentencing | Court held Greer failed to file the required pre‑sentencing affidavit regarding the mandatory fine; no plain error |
| Whether trial counsel was ineffective for not objecting to the mandatory fines | Counsel should have objected and prevented imposition of fines given claimed indigency | Because Greer did not file the required affidavit, objection would not have prevented the fines; counsel’s performance was not deficient or prejudicial | Court held no ineffective assistance under Strickland; assignment overruled |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard) (establishes deficient performance and prejudice test)
- State v. Foster, 109 Ohio St.3d 1 (trial courts have discretion to impose any sentence within statutory range; no mandatory findings for maximum)
- State v. Marcum, 146 Ohio St.3d 516 (standard for appellate review of felony sentences; clear and convincing standard)
- State v. Gipson, 80 Ohio St.3d 626 (mandatory fine statute requires pre‑sentencing affidavit claiming indigency)
- Cross v. Ledford, 161 Ohio St. 469 (definition of clear and convincing evidence)
- State v. Kalish, 120 Ohio St.3d 23 (presumption that trial court considered R.C. 2929.11/2929.12 when sentence is within statutory range)
- State v. South, 144 Ohio St.3d 295 (clarified maximum term for third‑degree felony OVI)