STATE OF OHIO, Plaintiff-Appellee, - vs - JOSEPH W. WEIDEMAN, Defendant-Appellant.
CASE NO. 2013-P-0100
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
2014-Ohio-5768
[Cite as State v. Weideman, 2014-Ohio-5768.]
TIMOTHY P. CANNON, P.J.
Criminal Appeal from the Portage County Court of Common Pleas. Case No. 2013 CR 0433. Judgment: Affirmed in part, reversed in part, and remanded.
Richard E. Hackerd, 231 South Chestnut Street, Ravenna, OH 44266-3023 (For Defendant-Appellant).
OPINION
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Joseph W. Weideman, appeals his sentence by the Portage County Court of Common Pleas following his guilty plea to one count of operating a vehicle under the influence of alcohol (OVI), with a specification of five or more convictions within the last 20 years, a felony of the third degree. For the reasons that follow, we affirm in part and reverse in part.
{¶3} Appellant initially pled not guilty to all three counts, but he subsequently entered into a counseled plea bargain with appellee, the state of Ohio. On August 16, 2013, appellant entered a counseled written plea of guilty to one count of OVI with a specification. The state entered a nolle prosequi on the remaining two counts.
{¶4} On October 1, 2013, the trial court sentenced appellant to a five-year term of imprisonment for the underlying OVI offense and a three-year term of imprisonment for the specification, to run consecutively to each other, for a total of eight years.
{¶5} Appellant filed a motion for leave to file a delayed appeal on November 25, 2013, which was granted by this court. Appellant now appeals his sentence, raising three assignments of error. Appellant‘s first assignment of error states:
{¶6} “The Trial Court‘s sentence to a five year prison term on a third degree felony OVI was contrary to law where ORC 2929.14(A) limits the term to three years and violated this Court‘s controlling precedent as stated in State v. Owen, 2013-Ohio-2824.”
{¶7} Ohio‘s felony-sentencing scheme allows judges to exercise discretion within established statutory bounds. State v. Ries, 11th Dist. Portage No. 2008-P-0064, 2009-Ohio-1316, ¶13, citing State v. Mathis, 109 Ohio St.3d 54 (2006), paragraph three of the syllabus. Despite having significant latitude, sentencing courts are required to follow statutory direction in choosing a prison term. State v. Belew, 140 Ohio St.3d 221, 2014-Ohio-2964, ¶10 (Lanzinger, J., dissenting).
{¶8} Am.Sub.H.B. No. 86 (“H.B. 86“), enacted by the Ohio General Assembly in 2011, reflects the General Assembly‘s intent that appellate review of sentences be governed by
The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶9} Here, appellant argues that his five-year sentence on the underlying OVI offense is contrary to law based on this court‘s holding in State v. Owen, 11th Dist. Lake No. 2012-L-102, 2013-Ohio-2824, which was released approximately three months prior to the trial court‘s imposition of sentence.
MANDATORY TERM
OVI Sentencing Statute
{¶11}
General Sentencing Statute
{¶12}
{¶13}
{¶14} Appellant falls under the first category, as he pled guilty to a
ADDITIONAL TERM
OVI Sentencing Statute
{¶15}
General Sentencing Statute
{¶17} Further, when the applicable mandatory prison term is 60 or 120 days under
Conflict
{¶18} It is these two statutory provisions that are in conflict. Specifically, there are two different conflicts that exist: one relates to the cumulative prison term and one relates to the additional prison term.
{¶19} Both statutes limit the cumulative prison term only for third-degree OVI offenders who fall under the mandatory term of 60 or 120 days. The OVI Sentencing Statute limits this cumulative prison term to a maximum of five years.
{¶20} This is the conflict that was identified and resolved in Owen. Owen was neither convicted of nor did she plead guilty to a
{¶21} Further, the OVI Sentencing Statute does not appear to limit the additional prison term that may be imposed on any third-degree felony OVI offender. See
{¶22} This is the conflict that exists in the case sub judice. As these statutory provisions are in irreconcilable conflict and both are specific in nature, we hold that the later enacted General Sentencing Statute prevails over the OVI Sentencing Statute.1 See
{¶23} Pursuant to the General Sentencing Statute, appellant‘s additional prison term was required to be only 9, 12, 18, 24, 30, or 36 months. Yet the trial court imposed an additional term of five years. Accordingly, although the cumulative total of eight years was not contrary to statute, the additional five-year portion of appellant‘s sentence
{¶24} As an aside, we note that the Ohio Supreme Court has certified a conflict on this issue. State v. South, 139 Ohio St.3d 1402, 2014-Ohio-2245. The conflict is stated as follows: “When a defendant is convicted of a
{¶25} The conflict cases are State v. South, 9th Dist. Summit No. 26967, 2014-Ohio-374 and State v. Sturgill, 12th Dist. Clermont Nos. CA2013-01-002/003, 2013-Ohio-4648. In South, the Ninth District held, as we do today, that the maximum additional prison term that can be imposed for the underlying OVI offense is 36 months. South at ¶18.
{¶26} In Sturgill, the Twelfth District did not differentiate between (1) the additional term permitted on the underlying OVI offense and (2) the mandatory term, the length of which depends on the presence of an
{¶28} We hold that the additional portion of appellant‘s sentence is contrary to law, but not pursuant to this court‘s decision in Owen. Accordingly, appellant‘s first assignment of error has merit to the extent indicated.
{¶29} Appellant‘s second and third assignments of error state:
[2.] Weideman‘s plea was not knowingly made in August, 2013 because Weideman was not informed of this Court‘s decision in Owen when he considered, and ultimately accepted, a plea.
[3.] Weideman was denied effective assistance of counsel when his attorneys failed to argue Owen‘s limitation on third-degree felony OVI sentences.
{¶30} Appellant argues that because trial counsel failed to inform appellant and the trial court of the Owen decision, appellant‘s plea was not made knowingly and counsel was ineffective. As held under appellant‘s first assignment of error, however, Owen does not apply to appellant‘s plea or sentence. In Owen, this court did not engage in an analysis regarding whether a conflict existed between the two statutory provisions as they relate to an
{¶31} Appellant‘s second and third assignments of error are without merit.
{¶32} For the reasons stated in this opinion, the judgment of the Portage County Court of Common Pleas is hereby affirmed in part and reversed in part. This matter is remanded to the trial court for further proceedings. Upon remand, the trial court shall resentence appellant only on his underlying OVI conviction, pursuant to
DIANE V. GRENDELL, J.,
COLLEEN MARY O‘TOOLE, J.,
concur.