State v. LyonsState v. Lyons
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Joshua S. Horacek, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Nicholas H. Lyons, pro se, P.I.D. 460-818, Lake Erie Correctional Institution, P.O. Box 8000, Conneaut, OH 44030-8000 (Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} The instant matter has been submitted to this court on the record and the briefs of the parties. Nicholas H. Lyons, appellant herein, appeals from the final judgment of the Lake County Court of Common Pleas denying his post-conviction “motion to correct improper imposition of sentence.” For the reasons discussed below, we affirm.
{¶3} Appellant eventually withdrew his plea of “not guilty,” and, after plea negotiations, pleaded guilty to Count One, felonious assault, and Count Four, aggravated possession of drugs. The trial court nolled the remaining charges and, after a sentencing hearing, ordered appellant to serve a prison term of four years on Count One and six months on Count Four; these sentences were ordered to run concurrently. Appellant was also sentenced to a mandatory three-year term on the firearm specification. In total, appellant was ordered to serve a prison term of seven years. Finally, pursuant to
{¶4} Appellant now appeals, assigning one error for our review:
{¶5} “The trial court erred in overruling defendant-appellant‘s motion to correct and vacate the improper imposition of sentence in suspending his drivers [sic] licence [sic], enforced [beyond] the statutory provisions of Ohio Revised Code section 2929.11(f) in violation of his constitutional guarantees under the Fourteenth
{¶6} Despite his allegation that his rights to due process and equal protection were violated, appellant actually argues the trial court‘s sentence violated constitutional protections against double jeopardy. Appellant contends the statutory section which required the trial court to suspend his driver‘s license upon his conviction for aggravated drug possession,
{¶7} Before discussing these problems, we first point out that the error appellant asserts could have been raised on a direct appeal from the trial court‘s judgment entry on sentence. Although a plea of guilty significantly limits appealable issues, a defendant who has so plead may still challenge any sentencing errors allegedly committed by a trial court. The record does not indicate appellant availed himself to a direct appeal from the trial court‘s March 5, 2004 sentencing entry. In State v. Perry (1967), 10 Ohio St.2d 175, the Supreme Court of Ohio held:
{¶8} “Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any
{¶9} Because appellant could have raised the instant argument concerning his sentence on direct appeal, he is now barred by operation of the doctrine of res judicata.
{¶10} However, assuming res judicata would not operate to preclude his claim, his argument would still lack merit. Appellant pleaded guilty to one count of aggravated possession of drugs pursuant to
{¶11} “(E) In addition to any prison term or jail term authorized or required by division (C) of this section and sections 2929.13, 2929.14, 2929.22, 2929.24, and 2929.25 of the Revised Code and in addition to any other sanction that is imposed for the offense under this section, sections 2929.11 to 2929.18, or sections 2929.21 to 2929.28 of the Revised Code, the court that sentences an offender who is convicted of or pleads guilty to a violation of division (A) of this section shall do all of the following that are applicable regarding the offender:
{¶12} “***
{¶13} “(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.”
{¶15} Furthermore, appellant‘s argument fails to clearly delineate how the trial court‘s sentence placed him twice in jeopardy. The prohibition against double jeopardy guards citizens against both successive prosecutions and cumulative punishments for the “same offense.” State v. Rance, 85 Ohio St.3d 632, 634, 1999-Ohio-291. However, the Double Jeopardy Clause is not violated where the legislature intends to prescribe cumulative punishments for the same offense. Id. at 635, citing Albernaz v. United States (1981), 450 U.S. 333, 344. In this respect, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the General Assembly intended. State v. Stillwell, 11th Dist. No. 2006-L-010, 2007-Ohio-3190, at ¶24, citing Missouri v. Hunter (1983), 459 U.S. 359, 366.
{¶17} Moreover, nothing in the statute prohibits a sentencing court from requiring the license suspension to be served consecutive to appellant‘s prison term. Without some indication that a court must impose a sanction concurrent with other sanctions, the court is free to impose those sanctions consecutively. See, e.g., State v. Hiles, 5th Dist. No. 03 CA 24, 2003-Ohio-6290, at ¶40; (holding the court did not abuse its discretion by imposing prospective mandatory license suspension for conviction of trafficking in drugs).
{¶18} Additionally, for the suspension to have any practical impact, particularly in appellant‘s case, it only makes sense that the trial court order it to commence after an offender‘s release from prison, i.e., consecutive to that prison term. A typical prisoner cannot access, let alone drive a vehicle while imprisoned. Thus, an actively suspended driver‘s license while incarcerated would be inconsequential to any offender, like appellant, imprisoned beyond five years. Hiles, supra. (Pointing out that: “*** the driver‘s license suspension would have no meaning if it was imposed at the same time as appellant‘s incarceration.“)
{¶20} For the reasons discussed in this opinion, appellant‘s sole assignment of error is overruled and the judgment of the Lake County Court of Common Pleas is hereby affirmed.
MARY JANE TRAPP, P.J.,
TIMOTHY P. CANNON, J.,
concur.