STATE OF OHIO v. TAMARA J. OWEN
CASE NO. 2012-L-102
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
June 10, 2013
2013-Ohio-2824
CYNTHIA WESTCOTT RICE, J.
Criminаl Appeal from the Lake County Court of Common Pleas, Case No. 12 CR 000174. Judgment: Reversed and remanded.
R. Paul LaPlante, Lake County Public Defender, and Vanessa R. Clapp, Assistant Public Defender, 125 East Erie Street, Painesvillе, OH 44077 (For Defendant-Appellant).
{1} Appellant, Tamara J. Owen, appeals her sentence following her guilty plea in the Lake County Court of Common Pleas to operating a vehicle under the influence of alcohol (“OVI“), a felony of the third degree. At issue is whether the trial court erred in sentencing appellant pursuant to Ohio‘s OVI statute rather than Ohio‘s general sentencing statute, as revised by H.B. 86. For the reasons that follow, we reverse and remand.
{2} This case involves a conflict in Ohio‘s sentencing statutes with respect to the maximum prison sentence authorized for third-degree felony OVI and requires us to resolve this conflict. The OVI statute provides for a maximum sentence of five yeаrs for this offense. However,
{3} Appellant was charged by way of information with one count of OVI, a third-degree felony, in violation of
{4} Appellant subsequently entered a plea bargain with the state. At the guilty plea/sentencing hearing held on August 2, 2012, she pled guilty to OVI as charged in the information. The trial court advised appellant that H.B. 86, which revised Ohio‘s general sentencing statutes, became effective on September 30, 2011. The court stated that, pursuant to
{5} The court stated that, in contrast,
{6} The trial court advised appellant that it is unclear whether the OVI offense with which she is charged allows for a five- or three-year maximum prison sentence. While the court interpreted the statutes to authorize a five-year maximum prison term for appellant‘s offense, the court acknowledged that a reasonable interpretation of H.B. 86 would limit appellant‘s sentence to a maximum of three years in prison.
{7} The court advised appellant that thе maximum sentence would be five years or three years, depending on how H.B. 86 was interpreted. The court noted that at a recent pretrial, counsel for both parties told the court they would jointly recommend that appellant be sentenced to 24 months in prison. The court stated it told counsel that if the court accepted their recommendation, it would sentence appellant to five years in prison and suspend three years of the sentence. The court said that, after appellant served two years in prison, the court would place her on five years of community control sanctions so she will be under the court‘s supervision
{8} Appellant‘s counsel stated that he had asked the court at the recent pretrial to consider a three-year maximum sentence based on the change in H.B. 86. He said he made this request whilе acknowledging the OVI statute authorizes the court to sentence appellant to five years in prison. Appellant‘s counsel said that, since OVI was not included in the list of third-degree felonies that retain a five-year maximum sentence in H.B. 86, “there‘s maybe [sic] in my position a little inconsistency, and still * * * maybe [sic] some consideration down the roаd as to what the legislature meant.”
{9} The prosecutor outlined the factual basis for appellant‘s guilty plea. On February 22, 2012, appellant was driving her car in Painesville when an Ohio State Patrol Trooper clocked her driving 45 m.p.h. in a 25 m.p.h. zone. The trooper stopped appellant and asked for her license. She said it was suspended due to a prior OVI conviction. The trooper noticed a strong odor of alcohol coming from appellant. She denied drinking any alcoholic beverages. However, after failing the field sobriety tests, appellant said she knew she should not have been driving. She refused to take a breath test. The prosecutor also stаted appellant was previously convicted of felony OVI in 2007.
{10} The court found that appellant‘s guilty plea was voluntary; accepted her plea; and found her guilty of OVI, a felony of the third degree, in violation of
{11} The court then proceeded to sentencing. Appellant‘s counsel asked the court to adopt appеllant‘s and the state‘s joint recommendation that appellant be sentenced to two years in prison with the understanding that the court will suspend the remaining prison time and place her on community control for five years. Appellant‘s attorney told the court that after the last pretrial, he telephoned appellant and told her about the court‘s proposed sentence. He said appellant never hesitated to accept it. Appellant told her attorney that when she was on probation following her prior OVI conviction, that was the best four years of her life.
{12} Consistent with the parties’ joint recommendation, the court imposed a hybrid sentencе. The court sentenced appellant to five years in prison. Appellant was to serve the first two years of the sentence. The remaining three years were suspended to secure appellant‘s compliance with the community control component of her sentence. Upon her release from prison in two yeаrs, she was ordered to be placed on community control sanctions for the next five years.
{13} Appellant appeals her sentence, asserting the following for her sole assignment of error:
{14} “The trial court imposed a prison sentence that was contrary to law when it sentenced the defendant-appellant to five yeаrs in prison where Ohio‘s sentencing statute limits the prison sentence to a maximum of three years.”
{15} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, the Supreme Court of Ohio established
{16} Next, if the first step is satisfied, we consider whether, in selecting the actual term of imprisonment within thе permissible statutory range, the trial court abused its discretion. Kalish, supra, at 26.
{17} The instant appeal also involves the interpretation of statutory provisions. “[T]his court reviews a trial court‘s interpretation and application of a statute under a de novo standard of appellate review.” State v. Phillips, 11th Dist. No. 2008-T-0036, 2008-Ohio-6562, 11. “Statutory interpretation involves a question of lаw; therefore, we do not give deference to the trial court‘s determination.” Id. The cornerstone of statutory interpretation is legislative intention. State ex rel. Francis v. Sours, 143 Ohio St. 120, 124 (1944). In order to determine legislative intent, it is a cardinal rule of statutory construction that a court must first look to the language of the statute itself. Provident Bank v. Wood, 36 Ohio St.2d 101, 105 (1973). “If the meaning of the statute is unambiguous and definite, it must be аpplied as written and no further interpretation is necessary.” State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545 (1996). A court may interpret a statute only where the words of the statute are ambiguous. State ex rel. Celebrezze v. Allen Cty. Bd. of Commrs., 32 Ohio St.3d 24, 27 (1987). Ambiguity exists if the language is susceptible of more than one reasonable interpretation. State ex rel. Toledo Edison Co. v. Clyde, 76 Ohio St.3d 508, 513 (1996).
{18} The OVI statute,
{19} In contrast,
{20} Further,
{21} Appellant argues that the trial court‘s sentence is clearly and convincingly contrary to law because the court sentenced her to five years in prison, although, she argues, H.B. 86 limited her maximum sentence to three years. Appellant‘s argument therefore addresses only the first step of the Kalish analysis.
{22} Appellant asserts two reasons in support. First, she argues there is a conflict between
{23} In contrast, the state argues the different sentences provided for in
{24} We are therefore asked to consider which sentencing statute prevails over the other. As there is no case law addressing which of these statutes prevails, we turn to the rules of statutory construction enacted by the General Assembly to resolve this conflict. Contrary to the state‘s argument, there is nothing ambiguous about these sentencing statutes; each is plain and definite. Thus, thе rules for interpreting an ambiguous statute, as set forth in
{25} The General Assembly has also enacted rules for interpreting conflicting statutes in
{26} If a general provision conflicts with a special * * * provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable,
{27}
{28} Thus,
{29} It cannot be disputed that these two statutes are in irreconcilable conflict since the maximum sentence authorized for a third-degree felony OVI under
{30} Our interpretation is consistent with the legislative intent of H.B. 86, as expressed in
{31} Further, H.B. 86‘s creation of a two-tiered sentencing scheme for third-degree felonies in
{32} Moreover, we note that the only vehicle-related third-degree felonies that retain a five-year maximum sentence in
{33} We recognize that the trial judge, in imposing appellant‘s hybrid sentence, was seeking to fashion a sentence that would take into account her prior felony OVI conviction, but also help her to avoid repeating her pattern of drunk driving in the future. The record shows that appellant did very well while on рrobation following her prior OVI conviction and that the trial court wanted to keep her under the court‘s supervision as long as possible to ensure her rehabilitation and avoid another OVI conviction.
{35} We therefоre hold that the five-year maximum sentence imposed by the trial court was clearly and convincingly contrary to law.
{36} For the reasons stated in the opinion of this court, it is the judgment and order of this court that the judgment of the Lake County Court of Common Pleas is reversed, and this matter is remanded to the trial court for further proceedings consistent with this opinion.
THOMAS R. WRIGHT, J.,
COLLEEN MARY O‘TOOLE, J.,
concur.