THE STATE OF OHIO, APPELLANT, v. SOUTH, APPELLEE.
No. 2014-0563
Supreme Court of Ohio
September 30, 2015
144 Ohio St.3d 295, 2015-Ohio-3930
{14} Loudermill does not entitle a public employee to have his or her entire pretermination hearing held in public. See 470 U.S. at 542, 105 S.Ct. 1487, 84 L.Ed.2d 494. Stewart received due process: he had notice of the special meeting regarding his employment status and an opportunity to be heard at that meeting. Nothing prevented Lockland from thereafter adjourning into executive session to deliberate upon its decision.
Conclusion
{15} A public employee can require that a hearing about his employment status be held in public under
Judgment affirmed.
O‘CONNOR, C.J., and LANZINGER, KENNEDY, FRENCH, and O‘NEILL, JJ., concur.
O‘DONNELL, J., dissents and would dismiss the cause as having been improvidently accepted.
Kircher Law Office, L.L.C., Konrad Kircher, and Ryan J. McGraw, for appellant.
Bricker & Eckler, L.L.P., David J. Lampe, and Kate V. Davis, for appellee.
The Gittes Law Group, Frederick M. Gittes, and Jeffrey P. Varado, urging reversal for amicus curiae Ohio Employment Lawyers Association.
Isaac, Wiles, Burkholder & Teetor, L.L.C., Mark Landes, and Mark H. Troutman, urging affirmance for amicus curiae Ohio School Boards Association.
FRENCH, J.
{1} In this certified-conflict appeal, we consider how multiple sentencing statutes interact when a defendant is convicted of an operating-a-vehicle-while-under-the-influence (“OVI“) offense as a third-degree felony as well as a repeat-offender specification. In these circumstances, we hold that a trial court must sentence that defendant to a mandatory prison term of one, two, three, four, or five years for the repeat-offender specification. The trial court may also sentence the defendant to an additional prison term of 9, 12, 18, 24, 30, or 36 months for the underlying OVI conviction.
Facts and Procedural History
{2} A grand jury indicted appellee, Edward South, on one count of operating a vehicle while under the influence of alcohol or drugs in violation of
{3} Relevant to this appeal, the trial court merged the two OVI counts for sentencing purposes. The court imposed a three-year sentence for the specification, plus an additional, consecutive five-year sentence for the underlying OVI offense, both of which it characterized as “mandatory.”
{4} South appealed to the Ninth District Court of Appeals, which vacated his sentence, holding that it was contrary to law. The Ninth District held that South‘s sentence “had to consist of a one to five year mandatory prison term on his specification[,]
{5} The Ninth District also certified that its decision conflicted with State v. Sturgill, 12th Dist. Clermont Nos. CA2013-01-002 and CA2013-01-003, 2013-Ohio-4648, 2013 WL 5741435. In Sturgill, the Twelfth District analyzed the sentence imposed for identical third-degree-felony-OVI and repeat-offender-specification convictions. It upheld Sturgill‘s five-year sentence for the underlying OVI conviction and separate five-year mandatory sentence for the specification conviction. Id. at ¶ 40, 44.1
{6} We agreed that a conflict exists on the following question: “When a defendant is convicted of [an]
{7} The certified question assumes that the applicable statutes are irreconcilable. We conclude, however, that we can harmonize the statutes; no one provision need prevail over the others. And harmonizing them, we hold that offenders convicted of a third-degree-felony OVI and a repeat-offender specification under
Analysis
{8} Our primary concern when construing statutes is legislative intent. State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996). When we construe statutes relating to the same subject matter, we consider them together to determine the General Assembly‘s intent—even when the various provisions were enacted separately and make no reference to each other. D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-4172, 773 N.E.2d 536, ¶ 20, citing State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956), paragraph two of the syllabus. This requires us to harmonize provisions unless they irreconcilably conflict. Hughes v. Ohio Bur. of Motor Vehicles, 79 Ohio St.3d 305, 308, 681 N.E.2d 430 (1997). In doing so, “we must arrive at a reasonable construction giving the proper force and effect, if possible, to each statute.” D.A.B.E. at ¶ 20,
{9} Mindful of these principles, we consider the sentencing statutes applicable to these convictions. Scattered among multiple provisions within four separate statutes, they are repetitive and confusing, to say the least. We consider each statute, in turn.
R.C. 4511.19
{10} South was convicted of violating
{11} So, applied here,
R.C. 2941.1413
{12} South was convicted of violating
R.C. 2929.13
{13}
{14}
and may impose whichever of the following is applicable:
* * *
(2) For a third or fourth degree felony OVI offense for which sentence is imposed under division (G)(2) of this section, an additional prison term as described in [
R.C. 2929.14(B)(4) ] or a community control sanction as described in (G)(2) of this section.
Notwithstanding divisions (A) to (E) of this section, if an offender is being sentenced for a * * * third degree felony OVI offense, the court shall impose upon the offender a mandatory term of local incarceration or a mandatory prison term in accordance with the following:
* * *
(2) If the offender is being sentenced for a third degree felony OVI offense, * * * the court shall impose upon the offender a mandatory prison term of one, two, three, four, or five years if the offender also is convicted of or also pleads guilty to a specification of the type described in [
R.C. 2941.1413 ] * * * The offender shall serve the one-, two-, three-, four-, or five-year mandatory prison term consecutively to and prior to the prison term imposed for the underlying offense and consecutively to any other mandatory prison term imposed in relation to the offense.
{15} Several points are important here. First, subsection (G)(2) repeats the imposition of a one- to five-year mandatory term following a conviction for an
R.C. 2929.14
{16} Subject to exceptions not applicable here,
{17}
If the offender is being sentenced for a third or fourth degree felony OVI offense under [
R.C. 2929.13(G)(2) ], the sentencing court shall impose upon the offender a mandatory prison term in accordance with that division. In addition to the mandatory prison term, * * * if the offender is being sentenced for a third degree felony OVI offense, the sentencing court may sentence the offender to an additional prison term of any duration specified in division (A)(3) of this section.
{18} Again, several points are important. First, because the underlying OVI offense at issue here is not one of the excepted third-degree felonies listed in
Permissible Sentencing Ranges
{19} Applying these provisions together, offenders convicted of a third-degree-felony-OVI charge and a repeat-offender specification under
{20} The justices who dissent in part from this opinion interpret
{21} Having distilled the sentencing provisions from the various statutory subsections, we now apply them to South.
South‘s Sentencing
{22} Portions of South‘s sentencing entry are difficult to decipher, but we can conclude that the trial court imposed a three-year mandatory term for the specification and an additional five-year mandatory term for the underlying OVI offense. The Ninth District addressed only the five-year term for the OVI offense, holding that it was contrary to law. The parties did not address the propriety of the three-year term stemming from the repeat-offender-specification conviction, although the Ninth District vacated that portion of the sentence, too.
Applying the Statutes to South
{23} For defendants like South, sentencing courts must impose a prison term of one, two, three, four, or five years for the
{24} As to the underlying OVI conviction,
{26} Though the parties did not discuss it, State v. Evans, 113 Ohio St.3d 100, 2007-Ohio-861, 863 N.E.2d 113, along with
[T]he Revised Code does not provide that either a trial court or an appellate court may consider an offense and an attendant specification together as a “bundle.” Rather, the sentencing statutes set forth the sanctions available for an underlying offense and, separately, the additional sanctions for a specification.
Id. at ¶ 16, citing
Conclusion
{27} We affirm in part and reverse in part the Ninth District‘s judgment. We reinstate South‘s mandatory three-year prison sentence associated with his repeat-offender-specification conviction, and we remand this matter to the trial court for resentencing on the underlying OVI conviction in accordance with
Judgment affirmed in part and reversed in part, and cause remanded.
O‘CONNOR, C.J., and PFEIFER, LANZINGER, and O‘NEILL, JJ., concur.
O‘DONNELL and KENNEDY, JJ., concur in part and dissent in part.
{28} I concur fully in the majority‘s reasoning and holding. I write separately solely for the purpose of emphasizing that our role, as members of the judiciary, requires fidelity to the separation-of-powers doctrine. Accordingly, we must respect that the people of Ohio conferred the authority to legislate solely on the General Assembly. Sandusky City Bank v. Wilbor, 7 Ohio St. 481, 487-488 (1857); Article II, Section 1, Ohio Constitution. That authority includes the important and meaningful role of defining criminal offenses and assigning punishment for those offenses.
{29} As the majority opinion recognizes, the provisions at issue in this appeal span four separate statutes and “are repetitive and confusing, to say the least.” Majority opinion at ¶ 9. But rather than treating the complicated scheme here as an invitation to interpret the statutes as we wish they were written, the majority adeptly fulfills its duties to construe the statutes according to legislative intent, harmonizing them in a proper and reasonable fashion and giving the provisions their proper force and effect. D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-4172, 773 N.E.2d 536, ¶ 20; State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996); State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956), paragraph two of the syllabus.
{30} The majority‘s holding is based on a careful consideration of the plain wording and intent of the statutes as well as proper applications of the established rules of statutory construction. And it reflects the approach taken by several of our appellate courts. See, e.g., State v. Burkhead, 12th Dist. Butler No. CA2014-02-028, 2015-Ohio-1085, 2015 WL 1291538; State v. Eckles, 173 Ohio App.3d 606, 2007-Ohio-6220, 879 N.E.2d 829 (7th Dist.); State v. Smaltz, 6th Dist. Ottawa No. OT-08-008, 2013-Ohio-5350, 2013 WL 6410428; State v. Weideman, 11th Dist. Portage No. 2013-P-0100, 2014-Ohio-5768, 2014 WL 7456402. As importantly, it illustrates a proper application of judicial restraint that affords due respect to the legislature.
{31} Although any member of the judiciary is certainly entitled to his or her opinion that another justice‘s or judge‘s interpretation of a statutory scheme is “illogical,” concurring and dissenting opinion at ¶ 55, none of us are entitled to interpret a statutory scheme to make it reflect the logic that the justice or judge wants it to reflect. As we repeatedly have recognized, judicial policy preferences may not be substituted for valid legislative enactments. See, e.g., Painter v. Graley, 70 Ohio St.3d 377, 385, 639 N.E.2d 51 (1994), citing State v. Smorgala, 50 Ohio St.3d 222, 223, 553 N.E.2d 672 (1990).
{33} Rather than interpreting statutes to make them fit our views of what Ohio‘s public policy should be, we must harmonize even their most complicated provisions in a manner that is consistent with their wording and the legislative intent that lies behind those words. The majority opinion adeptly does so, rejecting the temptation to adopt a contrary analysis that another court has already labeled “misguided.” Burkhead, 2015-Ohio-1085, 2015 WL 1291538, ¶ 13.
{34} If we are incorrect in our understanding of the words used by the General Assembly in its complicated statutory scheme for OVI offenders, the General Assembly will amend the statutes to more clearly indicate its intent. Anderson v. Barclay‘s Capital Real Estate, Inc., 136 Ohio St.3d 31, 2013-Ohio-1933, 989 N.E.2d 997, ¶ 25; Shay v. Shay, 113 Ohio St.3d 172, 2007-Ohio-1384, 863 N.E.2d 591, ¶ 25 (noting that within six months of a decision interpreting
LANZINGER, J., concurs in the foregoing opinion.
O‘NEILL, J., concurring.
{35} I concur in the majority‘s statutory analysis. Simply put, the plain language of the statutes governs. While I understand the statutory framework, I write separately to explain the effect it is having on justice in Ohio‘s courtrooms. The Ohio General Assembly has adopted a policy of mandating the sentences available to judges—which has the practical effect of telegraphing to judges: “No discretion needed here.”
{36} The root cause of almost all repeat criminal behavior is that the defendant failed to “get it” the last time. But this is not always true. Factors such as addiction and poverty commonly lead to repetitious offending. In those circumstances, mandatory jail terms, like that required for the specification in this case, tie the hands of the trial court judges. This case offers us an illustrative example: Does Edward South need another round in prison or a
{37} This type of thinking led to
{38} We elect judges to make decisions on a case-by-case basis. Theft to feed a child is obviously different from theft by a career criminal. I believe that we can trust Ohio‘s elected trial court judges to make tough calls about sentencing. Judges act responsibly when given broad sentencing authority and the power to impose nonprison alternatives. Society does in fact render its judgment on the performance of all judges every six years at the ballot box.
{39} Our elected trial courts are eminently capable of crafting less costly and more effective alternatives to long and expensive imprisonment. Let judges do the jobs that they were elected to do.
KENNEDY, J., concurring in part and dissenting in part.
{40} Respectfully, I concur in part and dissent in part.
{41} I wholly agree with Chief Justice O‘Connor‘s concurring opinion that as members of the third branch of government we must adhere to our limited role in our constitutional form of government and avoid encroaching upon the powers conferred on the other branches. As members of the judicial branch “we must respect that the people of Ohio conferred the authority to legislate solely on the General Assembly.” Chief Justice O‘Connor‘s concurring opinion at ¶ 28. As emphasized by the United States Supreme Court, the authority to define and fix the punishment for a crime belongs indisputably to the legislature. Ex parte United States, 242 U.S. 27, 42, 37 S.Ct. 72, 61 L.Ed. 129 (1916). It is for these very reasons that I respectfully concur in part with and dissent in part from the majority opinion.
{42} The certified question before us is a narrow one and asks us to give effect to the sentencing policies of the General Assembly when an offender is
{43} The only remaining question, therefore, is, what was the intention of the General Assembly when it said in
{44}
{45} The majority places a limitation on the General Assembly‘s language by asserting that only subsection (A)(3)(b) of
{46} This reading of the statute is bolstered when examined in light of its language when it was originally enacted, the amendments that were made to the language, and the testimony that was presented to the General Assembly when it was considering the amendments. In 1996, the General Assembly enacted
{47} In 2000, the General Assembly amended
{48} In 2011, House Bill No. 86, a bill aimed at reducing overcrowding in Ohio‘s prisons and “eas[ing] the strain of incarceration on the state budget,” was introduced. Representative Lou Blessing, Sponsor Testimony in Support of H.B. 86, House Criminal Justice Committee, February 23, 2011. Among other provisions, H.B. 86, as introduced, decreased the maximum sentence for a third-degree felony from five to three years, a provision recommended by the Council of State Governments Justice Center. Id. at 2; see also Marshall Clement, Witness Testimony in Support of H.B. 86, February 23, 2011.
{49} This proposed sentence reduction for third-degree felonies was met with opposition from the Ohio Judicial Conference (“OJC“) and the Ohio Prosecuting Attorneys Association (“OPAA“). Ohio Judicial Conference, June 3, 2011 Judicial Impact Statement, http://www.ohiojudges.org/Document.ashx?DocGuid=d71deb56-9a3e-4ada-94fe-527b9600e340 (accessed Sept. 1, 2015); Ohio Prosecuting Attorneys Association, Memorandum to House Criminal Justice Committee regarding H.B. 86, April 6, 2011. The OJC‘s statement specifically addressed the serious nature of some third-degree-felony offenses, such as repeat OVI offenses and crimes of violence:
There are serious offenses that are classified as felonies of the third degree such as unlawful sexual conduct where there is a 10 or more year age difference, sexual battery, a second felony OVI offense, child endangerment where there is serious physical harm cause[d] to the victim * * * aggravated vehicular assault, abduction, robbery, burglary, aggravated
involuntary manslaughter, and third offense domestic violence. These offenses are predominantly crimes of violence and bear more similarity to first and second degree felonies in terms of sheer gravity, than to fourth and fifth degree felonies.
Recommendation: Retain the ability for a judge to impose a four or five year penalty for felonies of the third degree.
(Emphasis sic.) Ohio Judicial Conference, June 3, 2011 Judicial Impact Statement, http://www.ohiojudges.org/Document.ashx?DocGuid=d71deb56-9a3e-4ada-94fe-527b9600e340.
{50} Members of the General Assembly also heard the testimony of Judge Jerry McBride, Clermont County Common Pleas Court. Judge McBride‘s position was in concert with the OJC‘s; he opposed reducing the sentence for third-degree-felony offenses because there are serious offenses classified as third-degree felonies, including violent crimes and repeat-OVI offenses. Addressing repeat OVI offenses, he stated:
[I]t is my opinion that reducing the maximum possible penalty for a felony of the third degree from five years to three years will impair the confidence that the public will have in the fairness of the sentencing scheme * * *. Just using one example, a first felony OVI would be punishable with a maximum prison term of 30 months, while a second (or hundredth for that matter) felony OVI would only be punishable by a maximum prison term of 36 months. The proposed reduction in the sentencing range * * * will also impair my ability to give a sentence that is proportionate based on the seriousness of the conduct involved.
Clermont County Common Pleas Court Judge Jerry McBride, Witness Testimony in Opposition to H.B. 86, Senate Judiciary—Criminal Justice Committee, May 17, 2011.
{51} In 2011, when the General Assembly amended
{53} Chief Justice O‘Connor‘s concurring opinion cites four cases and contends that all of these cases have taken the approach advanced by the majority. However, in State v. Eckles, 173 Ohio App.3d 606, 2007-Ohio-6220, 879 N.E.2d 829 (7th Dist.), the Seventh District examined the sentencing structure for an OVI repeat-offender conviction and an underlying fourth-degree-felony-OVI conviction, not a third-degree-felony-OVI conviction. Id. at ¶ 12. The Seventh District neither relied upon nor engaged in any statutory analysis of
{54} Finally, in State v. Burkhead, 12th Dist. Butler No. CA2014-02-028, 2015-Ohio-1085, 2015 WL 1291538, ¶ 13, the Twelfth District disavowed its “misguided” decision in State v. Sturgill, 12th Dist. Butler No. CA2013-01-002, 2013-Ohio-4648, 2013 WL 5741435. The Sturgill court had relied upon
{56} The problems caused when drivers operate vehicles while under the influence of alcohol are well known. The Ohio Department of Public Safety reported that in 2014, there were 271 fatal crashes, 5,049 injury crashes, and 7,160 property-damage crashes that were related to alcohol. http://www.publicsafety.ohio.gov/links/2014CrashFacts.pdf, Table 6.02 (accessed Aug. 26, 2015). It is also well known that OVI offenders often reoffend. In March 2014, the National Highway Traffic Safety Administration released a study regarding repeat offenders and concluded that of those in Ohio convicted of OVI in the years 2007 to 2011, 34 percent had prior OVI arrests within six years of their conviction. www.nhtsa.gov/staticfiles/nti/pdf/811991-DWI_Recidivism_in_USA-tsf-rn.pdf, at 3 (accessed Aug. 26, 2015). It is the exclusive province of the General Assembly to make policy decisions as to the best way to address the problems underlying these statistics and protect the citizens of Ohio from OVI offenders.
{57} For all the foregoing reasons, I would affirm in part and reverse in part the Ninth District‘s judgment. I agree with the majority that the court of appeals should not have vacated South‘s mandatory three-year prison sentence associated with his repeat-offender-specification conviction and that that sentence should be reinstated. Additionally, I agree with the majority that the court of appeals was correct in vacating South‘s five-year prison sentence for the underlying OVI conviction, but only because the trial court believed that the five-year sentence was mandatory. On remand, I would instruct the trial court that it is within its discretion to impose an additional prison term of any duration as set forth in
{58} Accordingly, I respectfully concur in part and dissent in part.
O‘DONNELL, J., concurs in the foregoing opinion.
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Heaven DiMartino, Assistant Prosecuting Attorney, for appellant.
Timothy Young, Ohio Public Defender, and Valerie Kunze, Assistant Public Defender, urging affirmance for amicus curiae, Office of the Ohio Public Defender.