STATE OF OHIO v. TIMOTHY BOAFOR
CASE NO. 12 MA 192
STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
September 23, 2013
[Cite as State v. Boafor, 2013-Ohio-4255.]
Hon. Joseph J. Vukovich, Hon. Gene Donofrio, Hon. Cheryl L. Waite
CHARACTER OF PROCEEDINGS: Criminal Appeal from County Court No. 4, Case No. 12TRD3282. JUDGMENT: Vacated and Modified.
For Plaintiff-Appellee: Attorney Paul Gains, Prosecuting Attorney; Attorney Ralph Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503
For Defendant-Appellant: Attorney Rhys Cartwright-Jones, 42 North Phelps Street, Youngstown, Ohio 44503-1130
VUKOVICH, J.
{¶1} Defendant-appellant Timothy Boafor appeals from the judgment of Mahoning County Court No. 4, which imposed a ninety-day license suspension after accepting a no contest plea to speeding at a rate of 77 mph in a 65 mph zone. First, appellant argues that a license suspension could not be imposed under
STATEMENT OF THE CASE
{¶2} On May 13, 2012, defendant-appellant Timothy Boafor was stopped by the Ohio State Highway Patrol for speeding on Interstate 680 in Austintown, Ohio. He was clocked at 77 mph in a 65 mph zone and cited for violating
{¶3} After a clerk noted on the dust jacket that the violation was a misdemeanor of the third degree, defense counsel filed a motion to exclude prior traffic violations derived from uncounseled guilty pleas, urging that although an uncounseled plea can be used to enhance a sentence, it cannot be used to enhance the degree of the offense. The court was thus asked to refrain from proceeding under
{¶5} Counsel again urged that the offense was a minor misdemeanor because the charging instrument lists no prior offenses that would give rise to a different level of misdemeanor. (Tr. 3). Thus, he concluded that the speeding offense was charged as a minor misdemeanor, noting that the only item showing it was a third degree misdemeanor in the clerk‘s notation on the dust jacket. Counsel also reiterated that the prosecutor concurred that this is not an offense for which a license suspension could be attached. (Tr. 4).
{¶6} Regarding the first argument, the court replied that the prosecutor can amend the charge anytime he wants, up to and including the trial. As to the second argument, the court stated that regardless of how many priors are on a defendant‘s record, “the court has discretion at any time to suspend a license if they deem it‘s appropriate.” (Tr. 4).
{¶7} The prosecutor then placed the facts on the record, including that it was 12:45 p.m., the pavement was dry, the visibility was clear, the weather was not adverse, there was moderate traffic in a rural area, and there was no near-crash. (Tr. 4-5). The court accepted the no contest plea to speeding and found appellant guilty.
{¶8} The court stated that this was appellant‘s fifth conviction in the past year, imposed a $150 fine plus court costs, and suspended appellant‘s license for 90 days. (Tr. 6-7). Appellant filed a timely notice of appeal from the September 19, 2012 judgment entry imposing this sentence.
ASSIGNMENT OF ERROR NUMBER ONE
{¶9} Appellant‘s first assignment of error provides:
{¶11} Appellant argues that, pursuant to
{¶12} As to the latter argument, the state responds that no specific finding of reckless operation must be announced by the sentencing court. See State v. Secrest, 9th Dist. No. 04CA23, 2004-Ohio-4588, ¶ 7; State v. Jamnicky, 9th Dist. No. 03CA39, 2004-Ohio-324, ¶ 16. As to the main argument here, the state admits that the factual circumstances surrounding the violation must be evaluated in order to impose a suspension under
{¶13} The statute at issue provides in pertinent part: “Whenever a person is found guilty under the laws of this state, or under any ordinance of any political subdivision of this state, of operating a motor vehicle in violation of any such law or ordinance relating to reckless operation, the trial court of any court of record, in addition to or independent of all other penalties provided by law, may impose a class five suspension1 of the offender‘s driver‘s or commercial driver‘s license or permit or nonresident operating privilege from the range specified in division (A)(5) of section 4510.02 of the Revised Code.”
{¶14} As background for the application of this statute, we note that some courts previously held that this statute only applies if the offender is convicted under the reckless operation statute. However, the Supreme Court disagreed, holding that the statute empowers all courts of record to suspend a driver‘s license upon conviction of the violation of any law or ordinance relating to reckless driving. City of Akron v. Willingham, 166 Ohio St. 337, 338, 142 N.E.2d 652 (1957), interpreting former
{¶15} Contrary to the trial court‘s suggestion here, a sentencing court does not have carte blanche discretionary authority to suspend a license for a traffic violation. State v. Pessefall, 87 Ohio App.3d 222, 226, 621 N.E.2d 1370 (4th Dist.1993) (in accordance with multiple other cases reviewed infra). Rather, there must be something in the operation of the vehicle that indicates recklessness. Id.
{¶16} Thus, the court assesses the driving at issue and all of the circumstances under which that driving took place to assess the threat to others. Id. As aforementioned, the state agrees with this general premise, citing Ninth District law. See Secrest, 9th Dist. No. 04CA23, at ¶ 7; Jamnicky, 9th Dist. No. 03CA39 at ¶ 16. See also State v. Tamburin, 145 Ohio App.3d 774, 780-781, 764 N.E.2d 503 (9th Dist.2001) (failure to stay in marked lanes charges related to recklessness because of particular facts such as that alcohol was involved and motorist almost caused an accident).
{¶17} In Pessefall, the defendant was cited with speeding for driving 70 mph in a 55 mph zone. The citation stated that the pavement was dry, traffic was light, and the area was a rural portion of a four-lane divided interstate. The trial court noted appellant‘s prior traffic record including a prior DUI and then imposed a license
{¶18} The Fourth District concluded that 70 mph in a 55 mph zone did not indicate recklessness in any form, especially since it occurred in the daytime with light traffic and no alcohol was involved. Pessefall, 87 Ohio App.3d at 226. The court also stated that it is improper to consider a driving record as the court is to consider only the circumstances of the offense being prosecuted in determining whether the offense at issue relates to reckless operation. Id.
{¶19} Moreover, the Second District has specifically held that a trial court cannot rely on the traffic history of the defendant to determine whether the present offense relates to reckless operation of a vehicle. State v. Kelso, 2d Dist. No. 2000CA10 (Oct. 6, 2000) (where the trial court stated that the defendant had three prior speeding tickets prior to the failure to yield at issue). That court also concluded the a failure to yield offense was not related to reckless operation where a motorist pulled out of a gas station after being waved out by another motorist. Id. (adding that even speeding is not reckless per se). Thus, that court reversed the license suspension, while noting that this has nothing to do with the BMV‘s ability to administratively suspend a license based upon traffic history. Id. at fn.2.
{¶20} In another case, the Second District explained, with regards to the offense of improper passing, that some factual scenarios constituting this offense would probably not be related to reckless operation, such as where a motorist forgets to use a turn signal to pass and there is no near-accident. State v. Short, 2d Dist. No. 2003-CA-42, 2004-Ohio-5985, ¶ 4. But, where the citation states that the
{¶21} An example of a license suspension that was upheld on a speeding violation exists in a case where the defendant was driving 22 mph over the speed limit while weaving in and out of the center lane to pass at least five vehicles. State v. Williams, 2d Dist. No. 2011CA18, 2012-Ohio-725, ¶ 29. The court found those facts sufficient for the sentencing court to find that the particular conduct constituting speeding in that case related to his reckless operation of the motor vehicle. Id.
{¶22} In a case relied upon by the state here, the Ninth District found that the trial court did not abuse its discretion in imposing a license suspension under former
{¶23} We pause here to note that contrary to appellant‘s alternative argument, the court need not specifically place a finding of reckless operation in the record. See Secrest, 9th Dist. No. 04CA23, at ¶ 7; Jamnicky, 9th Dist. No. 03CA39 at ¶ 16. There is nothing in the statute requiring such a finding, and we shall not create such a requirement. Rather, the record must support the application of the license suspension available under
{¶24} However, contrary to the state‘s suggestion, the driving record of the defendant is not relevant to an evaluation under the plain language of
{¶25} Past traffic tickets do not make a current violation more reckless; in other words, the existence of a prior moving violation does not make a current act more threatening to the other motorists. See id. See also Cincinnati v. Ryan, 13 Ohio St.2d 83, 234 N.E.2d 596 (1968) (statute does not provide for license suspension for the charge of driving under suspension). The modern cases reviewed proceed under this premise. The state‘s own citations to Secrest and Jamnicky support this conclusion as those cases both held that the trial court is to consider the facts surrounding the particular violation at issue to determine whether that violation is related to reckless operation. See Secrest, 9th Dist. No. 04CA23, at ¶ 7; Jamnicky, 9th Dist. No. 03CA39 at ¶ 16.
{¶26} Thus, we now evaluate the particular circumstances existing at the time the speeding offense was committed. Here, appellant was speeding on Interstate 680 in Austintown, an actual freeway with no intersections. It was May 13 in the middle of the day at 12:45 p.m. The pavement was dry. The visibility was clear. There was no rain or snow or fog or other adverse weather conditions. The officer labeled it as a rural area. There was no crash or near-crash or indication of erratic driving. Traffic was moderate but not heavy. No alcohol was involved.
{¶27} Appellant was driving 77 mph in a 65 mph zone. This is 12 mph over the speed limit. This is much different than: the Supreme Court‘s Willingham case where the defendant drove 60 mph in a 25 mph zone (35 mph over the limit); the Ninth District‘s Jamnicky case, cited by the state, where the motorcycle driver drove
{¶28} Rather, the cases reversing license suspensions are more on point here. See, e.g., Pessefall, 87 Ohio App.3d at 226 (70 mph in a 55 mph zone); Kelso, 2d Dist. No. 2000CA10 (failure to yield offense is not necessarily related to reckless operation); City of Maple Heights v. Gabarik, 8th Dist. No. 74234 (Sept. 24, 1998) (defendant did not operate recklessly where he was convicted of red light violation due to mere fact that he illegally turned right on red even though his friend followed him through the red light and caused an accident); Hartman, 41 Ohio App.3d 142 (license suspension reversed by Twelfth District as exceeding the speed limit by 10 mph and testing under the legal limit for DUI did not constitute a clear safety hazard to others).
{¶29} Most on point, is a case where the only negative fact surrounding the speeding offense upon which sentence was entered was that the motorist drove 67 mph in a 55 mph zone. This is 12 mph over speed limit, the same overage as exists in the case at bar. The Fifth District concluded that this constituted insufficient evidence to show that the speeding charge was related to reckless operation of the vehicle and reversed the license suspension imposed by the trial court. Zimmerman, 5th Dist. No. CA-8609 (but noting that the BMV can suspend a license if the driver had 12 points within two years).
{¶30} In conclusion, this assignment of error has merit as the facts here were not sufficient to support a finding that the conduct constituting the speeding violation related to reckless operation. The license suspension is thus vacated.
ASSIGNMENT OF ERROR NUMBER TWO
{¶31} Appellant‘s second assignment of error provides:
{¶32} “The trial court erred in sentencing Mr. Boafor to a graded misdemeanor traffic ticket rather than a minor misdemeanor traffic ticket.”
{¶34} The next subsection provides that the offense is a misdemeanor of the fourth degree if, within one year of the offense, the offender has been twice convicted of a violation of
{¶35} Appellant urges that by merely charging him with speeding under
{¶36} The state responds that the Traffic Rules apply, and they simply require the offense be charged in a manner readily understood, meaning that the defendant had notice of the nature and cause of the accusation, citing Bellville v. Keiffaber, 114 Ohio St.3d 124, 2007-Ohio-3763, 870 N.E.2d 697, ¶ 19. The state notes that the Bellville case held that notice is satisfied when the defendant is apprised of the nature of the charge together with a citation of the statute involved. The state argues that the defendant cannot argue a lack of notice because he knew that the case jacket listed the offense as a third degree misdemeanor, he pointed out that fact prior
{¶37} We should start by noting appellant was not sentenced in a manner higher than a minor misdemeanor allows: no jail or probation was imposed, and the fine was $150. See
{¶38} Notably, the trial court did not make it clear that appellant was convicted of a third degree misdemeanor. The judgment of conviction does not state the degree of the offense, appellant was not asked to plead to a certain degree of offense, and the court did not actually announce at the sentencing hearing what degree of misdemeanor appellant was found guilty.
{¶39} The trial court seemed to reject appellant‘s argument concerning the degree of the offense. But, its response to appellant‘s argument was that the prosecutor could amend at any time, which did not occur as the prosecutor apparently disagreed with the trial court‘s position. Still, the court opined at sentencing that it could impose a jail sentence. (Tr. 7). As no jail sentence can be imposed for a minor misdemeanor, the trial court was apparently proceeding as though the offense was more than a minor misdemeanor. See
{¶40}
{¶41} In O‘Connor, the Court concluded that a defendant charged with DUI under a listed ordinance was sufficiently charged even though the ticket did not specify if he was under the influence of alcohol or drugs. Id. at 222 (“A Uniform Traffic Ticket effectively charges an offense even if the defendant has to make some reasonable inquiry in order to know exactly what offense is charged.“). The Court stated that the defendant should have known what substance was alleged, noting that the alcohol report was filed with the court, or that he should have taken steps to find out by asking the prosecutor to amend the complaint or seeking a bill of particulars. Id. at 221. It was emphasized that the defendant never attempted to have any defects in the complaint corrected and waited until after pleading and being sentenced to claim for the first time that he was not properly charged with an offense. Id. at 221-222.
{¶42} That case is distinguishable as it did not involve an elevated degree of the offense based upon a prior record. Moreover, defense counsel here did have discussions with the prosecutor (who seemed to agree with the defense on the issue), and the defense raised the issue to the trial court before pleading.
{¶43} The case relied upon by the state here reiterates that the traffic citation must provide notice of the nature of the charge and that notice can be satisfied where the ticket apprises the defendant of the nature of the charge and provides a citation to the statute at issue. Bellville, 114 Ohio St.3d 124, at ¶ 19. The Bellville Court further stated that citation to the specific subsection has not been required to fulfill this function. Id. at ¶ 20.
{¶44} The Bellville holding could dispose of an argument, for instance, that a ticket does not charge speeding sufficiently where it cites
{¶45} As appellant points out, where the existence of prior convictions enhance only the penalty for the offense, such matter is a mere sentencing consideration. State v. Allen, 29 Ohio St.3d 53, 54, 506 N.E.2d 199 (1987). However, where the existence of prior convictions elevates the degree of the offense, additional elements must be alleged and proven. State v. Owen, 134 Ohio St.3d 284, 982 N.E.2d 626, 2012-Ohio-5046, ¶ 11, citing id. Hence, the prior traffic convictions are additional elements which must be alleged in order to charge a third degree misdemeanor and then must be pled to or proven. This leads to a discussion of
(A) When the presence of one or more additional elements makes an offense one of more serious degree:
(1) The affidavit, complaint, indictment, or information either shall state the degree of the offense which the accused is alleged to have committed, or shall allege such additional element or elements. Otherwise, such affidavit, complaint, indictment, or information is effective to charge only the least degree of the offense.
(2) A guilty verdict shall state either the degree of the offense of which the offender is found guilty, or that such additional element or elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged.
(B)(1) Whenever in any case it is necessary to prove a prior conviction, a certified copy of the entry of judgment in such prior conviction together with evidence sufficient to identify the defendant named in the entry as the offender in the case at bar, is sufficient to prove such prior conviction.
(2) Whenever in any case it is necessary to prove a prior conviction of an offense for which the registrar of motor vehicles maintains a record, a certified copy of the record that shows the name, date of birth, and social security number of the accused is prima-facie evidence of the identity of the accused and prima-facie evidence of all prior convictions shown on the record. The accused may offer evidence to rebut the prima-facie evidence of the accused‘s identity and the evidence of prior convictions. Proof of a prior conviction of an offense for which the registrar maintains a record may also be proved as provided in division (B)(1) of this section. * * *
{¶46} Thus, “if a charge omits to specify the additional elements or to specify the degree, it is effective to charge only the lowest degree of the offense.” Staff Note to
{¶47} We next note that
{¶48} If the Traffic Rules provide no specific procedure on a topic, then the Criminal Rules apply.
{¶49} On this topic, the Supreme Court has held that
{¶50} This court has previously had a case similar to the one at bar. In Carr, the speeding ticket generally alleged a violation of Youngstown City Ordinance 333.03. This ordinance initially characterizes speeding as a minor misdemeanor. But, if the offender was convicted of another traffic violation within the prior year, the ordinance makes the offense a fourth degree misdemeanor. And, if the offender was convicted of two or more traffic violations within the prior year, the offense is a third degree misdemeanor. The trial court convicted the Carr defendant of fourth degree misdemeanor speeding based upon her record.
{¶51} In reversing the trial court, this court cited the law set forth by the Supreme Court in Allen and the Ninth District in Tamburin. State v. Carr, 7th Dist. No. 01CA162, 2003-Ohio-331, ¶ 29. We also quoted
{¶52} We also concluded that there was nothing presented at sentencing to substantiate the court‘s finding regarding a prior offense, noting that the court enhanced the degree of the speeding offense based on something characterized as “the record” but not introduced or made part of the actual record. Id. at ¶ 37-38. For
{¶53} Finally, we note here that courts have applied
{¶54} In applying all of this law, there are various reasons why appellant‘s speeding conviction should be modified to show that it is only a minor misdemeanor. Appellant pled no contest, which is an admission to the truth of the facts alleged in the complaint. See
{¶55} Nor can the duty of the legal system be satisfied by a defense motion regarding prior uncounseled convictions. In any event, that motion only referred to three priors, only one of which was speeding and one of which was not even a moving violation. Rather, the ticket must provide notice of the additional element in some manner either by citing subsection (P)(1)(b) or (c), by stating the number of predicate offenses within a year, or by stating the degree of the offense.
{¶56} We cannot conclude that the defendant‘s objection to the court proceeding as if this were a third degree misdemeanor shows he had notice and was not prejudiced. Rather, the objection helped preserve the issue. Had he failed to
{¶57} As mandated by
{¶58} In any event, yet another issue independently permits this modification. Appended to the trial court‘s file is a May 15, 2012 BMV printout of appellant‘s driving record. This printout shows that appellant was convicted of the following five traffic violations within the year prior to the speed at issue: traffic control light in March 2012, speed in February 2012, failure to control in February 2012, failure to register a vehicle in January 2012, and speed in August 2011 in New York.
{¶59} The trial court presumably relied on this printout at sentencing when it stated that appellant had five prior convictions in a year. (Tr. 6). However, it was not time-stamped; nor was it introduced at sentencing. Thus, it is not actually part of the record. Furthermore, it is not a certified copy of a BMV record. See
{¶60} Despite the consequences of that evidentiary issue,
{¶61} The offenses involving a traffic control light, failure to control, and failure to register a vehicle are all prohibited under other sections of the Revised Code.
{¶62} That leaves us to consider the two prior speeding convictions on appellant‘s record. Firstly, if the New York speeding conviction could be used in conjunction with the prior similar Ohio conviction, the enhancement would only be to a fourth degree misdemeanor, not a third degree misdemeanor. See
{¶63} A New York speeding conviction is not a conviction under section 4511.21. As for the statutory alternative involving a prior conviction of a substantially similar municipal ordinance, even if this language could be applied to a prior speeding violation cited under a similar ordinance of some city in New York, there is no evidence that appellant‘s New York speed violation was ticketed under a city ordinance. It could very well have been derived from a violation of New York state law.
{¶64} Another state‘s law is not a municipal ordinance. If section 4511.21 intended to allow consideration of speeding offenses from other states, it would have also stated, “or substantially similar law of another state“. Compare
{¶65} Thus, even if the BMV printout can be relied upon, appellant had only one prior conviction for a violation of section 4511.21 or a substantially similar
{¶66} For the following reasons, both of appellant‘s assignments of error are sustained, appellant‘s license suspension is vacated, and his speeding conviction is modified to reflect only a minor misdemeanor.
Donofrio, J., concurs.
Waite, J., concurs.