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State v. Lazazzera

Court of Appeals of Ohio, Seventh District

June 17, 2013

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
DAVID LAZAZZERA, DEFENDANT-APPELLANT.

Criminal Appeal from Youngstown Municipal Court, Case No. 12TRC1527.

For Plaintiff-Appellee: Attorney Dana Lantz Prosecuting Attorney Attorney Kathleen Thompson Assistant Prosecuting Attorney

For Defendant-Appellant: Attorney Rhys Cartwright-Jones

Hon. Joseph J. Vukovich Hon. Gene Donofrio Hon. Cheryl L. Waite

OPINION

VUKOVICH, J.

{¶1} Defendant-appellant David Lazazzera appeals from his conviction and sentence entered in Youngstown Municipal Court for operating a motor vehicle while under the influence of drugs or alcohol in violation of R.C. 4511.19(A)(1)(a), a first degree misdemeanor. Two issues are raised in this appeal. The first is whether the trial court's advisement regarding the effect of the no contest plea complied with Traf.R. 10(D). The second issue is whether the 30 day sentence issued by the trial court is disproportionate to other sentences that were ordered for the same crime.

{¶2} For the reasons expressed below, the trial court's advisement on the effect of the no contest plea did not substantially comply with Traf.R. 10(D). That said, Lazazzera has failed to demonstrate prejudicial effect. Thus, we find that the plea was validly entered and, as such, there is no basis to vacate the plea. As to whether the sentence is disproportionate to other sentences issued for the same crime, we find no merit with this argument. Therefore, the judgment of the trial court is affirmed.

Statement of Facts

{¶3} On May 26, 2012, at 12:52 a.m., Lazazzera was stopped for speeding in the City of Youngstown. Upon advising Lazazzera of why he was being stopped, Trooper Murphy noticed that Lazazzera's eyes were glassy and bloodshot. He also detected an odor of alcohol. Lazazzera admitted to the trooper that he had been consuming wine. A breath test was performed on the Intoxilyzer 8000 and Lazazzera blew a .082.

{¶4} As a result of the stop, Lazazzera was charged with speeding in violation of R.C. 4511.21; operating a vehicle with a concentration of eight-hundredths of one gram or more but less than seventeen-hundredths of one gram by weight of alcohol per two hundred ten liters of the person's breath in violation of R.C. 4511.19(A)(1)(d); and operating a vehicle while under the influence of alcohol or drugs in violation of R.C. 4511.19(A)(1)(a).

{¶5} The state and Lazazzera reached a plea agreement; Lazazzera entered a no contest plea to violating R.C. 4511.19(A)(1)(a) and the state dismissed the other two charges. Also, despite having previous OVI (operating a vehicle while under the influence) convictions, the state, in entering the plea agreement, agreed to amend the charge to a first offense. Tr. 3.

{¶6} The trial court accepted the no contest plea, found Lazazzera guilty and sentenced him to 30 days in jail, a $500 fine and suspended his license for three years. 09/12/12 J.E. That same day, Lazazzera filed his notice of appeal and motion to stay his sentence pending appeal. 09/12/12 Notice of Appeal and Motion. The trial court granted the stay motion. 09/12/12 J.E.

First and Second Assignments of Error

{¶7} "The trial court erred in failing to advise Mr. Lazazzera of the effect of his no contest ...


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