State of Ohio, Plaintiff-Appellee, v. Kari A. Mercier, Defendant-Appellant.
No. 13AP-906 (C.P.C. No. 12CR-5476)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
June 30, 2014
[Cite as State v. Mercier, 2014-Ohio-2910.]
(REGULAR CALENDAR)
Rendered on June 30, 2014
Ron O‘Brien, Prosecuting Attorney, and Michael P. Walton, for appellee.
Yeura R. Venters, Public Defender, and Timothy E. Pierce, for appellant.
APPEAL from Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Kari A. Mercier, appeals from a judgment of the Franklin County Court of Common Pleas sentencing appellant to 54 months incarceration for a violation of
I. Facts and Procedural History
{¶ 2} On October 24, 2012, a Franklin County Grand Jury indicted appellant for two counts of operating a motor vehicle while under the influence of alcohol or drugs (“OVI“) under
II. Assignment of Error
{¶ 3} Appellant assigns the following assignment of error for our review:
[1.] The trial court imposed a felony-three OVI sentence that was contrary to law when it ordered Appellant to serve a 54 month period of incarceration when the General Assembly limited the maximum sentence to 36 months duration.
III. Standard of Review
{¶ 4} Generally, we review felony sentences to determine ” ‘whether clear and convincing evidence establishes that a felony sentence is contrary to law.’ ” State v. Ayers, 10th Dist. No. 13AP-371, 2014-Ohio-276, ¶ 8, quoting State v. Allen, 10th Dist. No. 10AP-487, 2011-Ohio-1757, ¶ 19. ” ‘A sentence is contrary to law when the trial court failed to apply the appropriate statutory guidelines.’ ” Id., quoting Allen at ¶ 19, citing State v. Burton, 10th Dist. No. 06AP-690, 2007-Ohio-1941, ¶ 19.
IV. Discussion
{¶ 5} Appellant argues the maximum allowable sentence for a third-degree felony OVI conviction should be three years incarceration pursuant to
{¶ 6} As a preliminary matter, appellant argues that the trial court improperly applied
(A) * * * [I]f the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender pursuant to this chapter, the court shall impose a definite prison term that shall be one of the following:
* * *
(3)(a) For a felony of the third degree that is a violation of section 2903.06, 2903.08, 2907.03, 2907.04, or 2907.05 of the Revised Code or that is a violation of
section 2911.02 or 2911.12 of the Revised Code if the offender previously has been convicted of or pleaded guilty in two or more separate proceedings to two or more violations of section 2911.01, 2911.02, 2911.11, or 2911.12 of the Revised Code, the prison term shall be twelve, eighteen, twenty-four, thirty, thirty-six, forty-two, forty-eight, fifty-four, or sixty months. (b) For a felony of the third degree that is not an offense for which division (A)(3)(a) of this section applies, the prison term shall be nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.
(Emphasis added.)
{¶ 7} As appellant correctly recognizes,
{¶ 8} Appellant was convicted under
(1) No person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation, any of the following apply:
(a) The person is under the influence of alcohol, a drug of abuse, or a combination of them.
The sentencing provision for violating
Whoever violates any provision of divisions (A)(1)(a) to (i) * * * is guilty of operating a vehicle under the influence of alcohol * * *. The court shall sentence the offender for either offense under Chapter 2929. of the Revised Code, except as otherwise authorized or required by divisions (G)(1)(a) to (e) of this section.
(Emphasis added.) Under the plain and unambiguous language of
{¶ 9}
(e) An offender who previously has been convicted of or pleaded guilty to a violation of division (A) of this section that was a felony * * * is guilty of a felony of the third degree. The court shall sentence the offender to all of the following:
(i) If the offender is being sentenced for a violation of division (A)(1)(a) * * * of this section, * * * a mandatory prison term of sixty consecutive days in accordance with division (G)(2) of section 2929.13 of the Revised Code * * *. The court may impose a prison term in addition to the mandatory prison term. The cumulative total of a sixty-day mandatory prison term and the additional prison term for the offense shall not exceed five years.
(Emphasis added.)
{¶ 10} When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need to apply rules of statutory interpretation. State v. Kreischer, 109 Ohio St.3d 391, 2006-Ohio-2706, ¶ 12. A court should only interpret a statute when an ambiguity exists. State ex rel. Celebrezze v. Allen Cty. Bd. of Commrs., 32 Ohio St.3d 24, 27-28 (1987).
{¶ 11} Based on the plain and unambiguous language of
{¶ 12} We recognize four of Ohio‘s appellate courts have addressed the interplay between similar statutes and have come to inconsistent conclusions. The Eleventh District first addressed the issue in State v. Owen, 11th Dist. No. 2012-L-102, 2013-Ohio-2824. In Owen, the court was asked to determine whether
{¶ 13} The Second District reviewed the statutes at issue here and agreed with the Owens court that the two statutes “present an irreconcilable conflict and that the recent changes and more lenient provisions in
{¶ 14} We agree with the courts in Owen and May to the extent we find the statutes are not ambiguous and the language plain and definite. However, we disagree the statutes are in conflict. The Owen decision, on which the May court relied, ultimately concluded that both statutes were specific in nature and the latter in time,
{¶ 15} Two additional courts addressed similar statutes but are factually distinguishable. The Twelfth District addressed the issue in State v. Sturgill, 12th Dist. No. CA2013-01-002, 2013-Ohio-4648. The court in Sturgill concluded the two sentencing statutes were not in conflict and could be read together in a case where the defendant had been convicted of a
{¶ 16} Similarly, the Ninth District addressed this issue where a defendant was indicted under
{¶ 17} In both South and Sturgill, the defendants were convicted of a specification under
{¶ 18} For the reasons stated above, we do not find the decisions in Owen, May, Sturgill or South persuasive. Rather, we find the trial court here was authorized under
V. Conclusion
{¶ 19} Based on the foregoing reasons, we find the trial court did not error and appellant‘s sentence was not contrary to law. Accordingly, we overrule appellant‘s assignment of error and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and O‘GRADY, JJ., concur.