STATE OF OHIO v. HASHIM STEPHENS
Appellate Case No. 2012-CA-30
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
September 13, 2013
[Cite as State v. Stephens, 2013-Ohio-3944.]
Trial Court Case No. 11-CR-695 (Criminal Appeal from Common Pleas Court)
Rendered on the 13th day of September, 2013.
LISA M. FANNIN, Atty. Reg. #0082337, Clark County Prosecutor‘s Office, 50 East Columbia Street, 4th Floor, Post Office Box 1608, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
ADRIAN KING, Atty. Reg. #0081882, Adrian King Law Office, LLC, Post Office Box 302, Xenia, Ohio 45385
Attorney for Defendant-Appellant
FAIN, P.J.
{¶ 1} Defendant-appellant Hashim Stephens appeals from his conviction and sentence for one count of Trafficking in Cocaine, a felony of the third degree, and one count of Failure to Comply, a felony of the third degree. The trial court, as part of its sentence, imposed a two-year
{¶ 2} Stephens contends that the trial court erred by ordering his driver‘s license suspensions to be served consecutively. We agree. That part of the judgment of the trial court is Reversed; the judgment of the trial court is Affirmed in all other respects; and this cause is Remanded for the re-imposition of driver‘s license suspensions.
I. The Course of Proceedings
{¶ 3} Stephens was charged by indictment with Trafficking in Crack Cocaine, in an amount greater than ten grams, but less than twenty-five grams, in violation of
{¶ 4} Pursuant to a plea bargain, Stephens pled guilty to Trafficking in Crack Cocaine and to one count of Failure to Comply, and the other counts in the indictment were dismissed. Consistently with the plea bargain, Stephens was sentenced to imprisonment for eighteen months on each count, to run consecutively to one another, and also to a two-year sentence that had been imposed in another case. Stephens was fined $5,000, and $1,725, which had apparently been found on his person, was ordered forfeited, but was credited against his fine.
{¶ 5} The plea agreement was silent on the issue of driver‘s license suspension. The Trafficking offense provides for a license suspension for a definite period time of not less than six months, nor more than five years.
{¶ 6} Stephens appealed from the judgment of the trial court. His assigned counsel filed a brief under the authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that he had not found any potential assignments of error having arguable merit.
{¶ 7} By entry herein dated April 18, 2013, we rejected the Anders brief, finding a potential assignment of error based upon the imposition of consecutive driver‘s license suspensions. New appellate counsel has filed a brief setting forth the following as Stephens‘s sole assignment of error:
THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE DRIVERS LICENSE SUSPENSIONS (TWO YEARS FOR COUNT I AND THREE YEARS FOR COUNT IV) UNDER THE APPLICABLE SENTENCING STATUTES.
II. The Imposition of Consecutive Driver‘s License Suspensions Is Not Authorized by Statute
Stephens argues that the legislature had the opportunity to address consecutive license suspensions because of the Phinizee and [State v.] Reynolds[, 5th Dist. Fairfield No. 12 CA 7, 2012-Ohio-5956,] cases. However, these cases did not deal with the direct issue of whether a license suspension pursuant to O.R.C. §2925.03 and O.R.C. §4510.02 could run consecutive to one another.
In Phinizee, this Court held that nothing in O.R.C. §2925.03(M) authorized consecutive license suspensions for multiple drug trafficking cases and that O.R.C. §2929.41(A) required the sentence to be run concurrent. In Reynolds, the court of appeals for the fifth district held that the trial court could not impose consecutive license suspensions where all the suspensions were pursuant to O.R.C. §2925.03(G). (Emphasis added.)
{¶ 9} We disagree with the State‘s characterization of our holding in Phinizee, as set forth in the italicized portion of its brief set forth above. We did not hold that
{¶ 10} The State argues that the case before us is distinguishable from Phinizee because one of Stephens‘s driver‘s license suspensions was imposed by reason of
{¶ 11} But, in any event, the imposition of driver‘s license suspensions are penalties that are part of Stephens‘s sentences for Trafficking and for Failure to Comply. Because we are aware of no statutory provision authorizing that those penalties be made to run consecutively (and the State has not cited any such statutory provision), the rule of lenity provided for in
{¶ 12} Stephens‘s sole assignment of error is sustained.
III. Conclusion
{¶ 13} Stephens‘s sole assignment of error having been sustained, that part of the judgment of the trial court imposing driver‘s license suspensions is Reversed; the judgment of the trial court is Affirmed in all other respects; and this cause is Remanded for the limited purpose of re-imposing driver‘s license suspensions for the Trafficking and Failure to Comply offenses of which Stephens has been convicted. The trial court is not authorized to change the terms of the driver‘s license suspensions; it is directed to impose a two-year driver‘s license suspension for Trafficking and a three-year driver‘s license suspension for Failure to Comply, to be served concurrently.
DONOVAN and HALL, JJ., concur.
Copies mailed to:
Lisa M. Fannin
Adrian King
Hon. Douglas M. Rastatter