2006 Ohio 5024 | Ohio Ct. App. | 2006
{¶ 2} In these consolidated appeals, defendant Estil Duncan appeals from the sentences imposed following his guilty pleas to drug possession and attempted failure to comply with the order or signal of a police officer. For the reasons set forth below, we affirm.
{¶ 3} On August 10, 2005, defendant was indicted in Case No. 469238 for possession of less than the bulk amount of Hydrocodone, a Schedule III drug, trafficking in less than the bulk amount of Hydrocodone, and possession of criminal tools. On September 20, 2005, defendant was indicted in Case No. 470478 for failure to comply with the order or signal of a police officer, and a furthermore clause alleging that defendant operated his motor vehicle in a manner which caused a substantial risk of serious physical harm to persons or property. On November 1, 2005, defendant pled guilty to drug possession, and attempted failure to comply with the order or signal of a police officer. The remaining charges were nolled.1 Thereafter, the trial court sentenced defendant to sixty days incarceration and also suspended his drivers' license for five years for the drug possession charge. The court also sentenced defendant to twelve months imprisonment and imposed a lifetime license suspension on the failure to comply charge.
{¶ 4} Defendant now appeals and assigns two errors for our review. Defendant's first assignment of error states:
{¶ 5} "The trial court erred to the prejudice of defendant-appellant when it ordered a term of imprisonment without making the requisite findings under the applicable sentencing statutes."
{¶ 6} Within this assignment of error defendant complains that the trial court failed to make the statutorily required findings before it imposed the sentence for attempted failure to comply, a felony of the fourth degree.
{¶ 7} As an initial matter, we note that in State v.Foster,
{¶ 8} "Community control is the default sentence for felonies of the fourth and fifth degree, except for those identified as mandatory prison offenses. R.C.
{¶ 9} In a footnote, the court further explained:
{¶ 10} "As noted by Griffin and Katz, `If the particular [R.C.
{¶ 11} In short, the Foster court held that judge who does not make the statutory findings and does not find that community control is a sufficient sanction could still impose a prison term.
{¶ 12} In this matter, the court did not make the findings listed in R.C.
{¶ 13} This assignment of error is without merit.
{¶ 14} Defendant's second assignment of error states:
{¶ 15} "The trial court erred to the prejudice of defendant-appellant when it ordered his driver's license suspended for the maximum terms provided by law."
{¶ 16} Defendant next asserts that the trial court erred when it suspended his drivers' license for life, following his guilty plea to attempted failure to comply with the order or signal of a police officer, in violation of R.C.
Attempted Failure to Comply
{¶ 17} Attempt is governed by R.C.
{¶ 18} "(E) Whoever violates this section is guilty of an attempt to commit an offense. * * * An attempt to commit any [offense other than certain drug abuse offenses] is an offense of the next lesser degree than the offense attempted. * * *"
{¶ 19} R.C.
{¶ 20} "(E) In addition to any other sanction imposed for a violation of this section, the court shall impose a class two suspension from the range specified in division (A)(2) of section
{¶ 21} R.C.
{¶ 22} "(1) For a class one suspension, a definite period for the life of the person subject to the suspension;
{¶ 23} "(2) For a class two suspension, a definite period of three years to life[.]" We additionally note that in State v.Holmes, Summit App. No. 22938,
{¶ 24} In this matter, defendant was charged with failure to comply with the order or signal of a police officer and the charge contained a furthermore clause alleging that defendant operated a motor vehicle in a manner that caused a substantial risk of serious physical harm to persons or property. Defendant was therefore charged with a felony of the third degree. Statev. Lumpkin, Cuyahoga App. No. 86177,
Drug Possession
{¶ 25} Defendant next complains that the trial court erred when it sentenced him to a five-year driver's license suspension for the drug possession charge.
{¶ 26} Pursuant to R.C.
{¶ 27} "(E) In addition to any prison term or jail term authorized or required by division (C) of this section and sections
{¶ 28} "(2) The court shall suspend for not less than six months or more than five years the offender's driver's or commercial driver's license or permit."
{¶ 29} The trial court is therefore required to impose a suspension. The duration of the suspension appears to be within the court's discretion. Cf. State v. Gipson,
{¶ 30} "You're the one that told the probation department you haven't used cocaine in two months. That was a lie. You know it was a lie. You tested positive for cocaine when I sent you to the lab three weeks ago.
{¶ 31} "* * *
{¶ 32} "* * * I am suspending your driver's license for five years due not only to your continued use of drugs, but also the misrepresentation that was made to our probation department."
{¶ 33} On this record, we cannot say that the trial court abused its discretion. This portion of the assigned error is without merit.
{¶ 34} This assignment of error is overruled.
Affirmed.
It is ordered that appellee recover from appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Calabrese, Jr., J., and Corrigan, J., concur.