State v. SmaltzState v. Smaltz
* * * * *
Mark E. Mulligan, Ottawa County Prosecuting Attorney, and Andrew M. Bigler, Assistant Prosecuting Attorney, for appellee.
Brad F. Hubbell, for appellant.
* * * * *
PIETRYKOWSKI, J.
{¶ 1} In a judgment filed on September 18, 2012, we granted appellant’s
{¶ 2} Appellant contends that the trial court erred as to the sentence it imposed for operating a motor vehicle under the influence, a violation of
{¶ 3} This appeal is a direct appeal from a January 15, 2008 judgment of conviction and sentence filed in the Ottawa County Court of Common Pleas, after a jury returned guilty verdicts at trial against appellant on all counts of a five count indictment. At sentencing, the trial court found that Counts 1, 2, 4, and 5 of the indictment were allied offenses of similar import. The court merged the offenses for purposes of sentencing and imposed sentence on the third degree felony OVI offense, the accompanying
{¶ 4} In the January 15, 2008 sentencing judgment, the trial court ruled that the OVI offense carried a mandatory sentence of imprisonment of four years. The court imposed the four year term of imprisonment on the OVI conviction and imposed an additional four year term on the accompanying
{¶ 5} Appellant argues that the OVI offense was not subject to a mandatory term of imprisonment and that the sentence on the OVI offense is contrary to law and void. The state agrees and has joined appellant in requesting that this court reverse the sentencing judgment to the extent it imposed a mandatory four year term of imprisonment on the third degree felony OVI offense. Both request that we remand the case for resentencing on the OVI offense. The parties also agree that the trial court did not err as to the sentence imposed on the
{¶ 6} We issued our decision and judgment in this appeal on February 6, 2009, in State v. Smaltz, 6th Dist. Ottawa No. OT-08-008, 2009-Ohio-517. Appellant presented no claim of trial court error as to sentencing in prior proceedings in this appeal.
{¶ 7} For the reasons that follow, we conclude that the trial court’s sentence on the third degree felony violation of
R.C. 4511.19(A) OVI Offense Where Conviction Includes R.C. 2941.1413 Specification
{¶ 8} Count 1 of the indictment charged appellant with operating a vehicle while under the influence of alcohol, a drug of abuse or a combination of them in violation of
{¶ 9} With respect to the
Where an offender is convicted of a felony violation of
{¶ 10} The statutory scheme provides that the OVI offender is to be sentenced on both the
{¶ 11} At the time of the OVI offense and sentencing,
{¶ 12} We conclude that imposition of a mandatory four year sentence on the OVI offense is clearly and convincingly contrary to law under the analysis mandated by State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 15, and cannot stand.
{¶ 13} Accordingly we reverse the trial court judgment with respect to the sentence on the third degree felony OVI conviction and remand for resentencing on that
Judgment reversed in part.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
_______________________________
JUDGE
Stephen A. Yarbrough, J.
_______________________________
James D. Jensen, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.