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State v. Owen

Court of Appeals of Ohio, Eleventh District

June 28, 2013

STATE OF OHIO, Plaintiff-Appellee,
TAMARA J. OWEN, Defendant-Appellant.

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 12 CR 000174.

Charles E. Coulson, Lake County Prosecutor, and Alana A. Rezaee, Assistant Prosecutor, (For Plaintiff-Appellee).

R. Paul LaPlante, Lake County Public Defender, and Vanessa R. Clapp, Assistant Public Defender, (For Defendant-Appellant).



{¶1} Appellant, Tamara J. Owen, appeals her sentence following her guilty plea in the Lake County Court of Common Pleas to operating a vehicle under the influence of alcohol ("OVI"), a felony of the third degree. At issue is whether the trial court erred in sentencing appellant pursuant to Ohio's OVI statute rather than Ohio's general sentencing statute, as revised by H.B. 86. For the reasons that follow, we reverse and remand.

{¶2} This case involves a conflict in Ohio's sentencing statutes with respect to the maximum prison sentence authorized for third-degree felony OVI and requires us to resolve this conflict. The OVI statute provides for a maximum sentence of five years for this offense. However, R.C. 2929.14(A)(3), recently enacted by H.B. 86, has reduced the maximum prison term for third-degree felonies, with certain exceptions not applicable here, to three years. The General Assembly did not resolve or even address this conflict in H.B. 86. Further, as both parties acknowledge, no Ohio appellate court has addressed this issue. Thus, neither the case law of the Ohio Supreme Court nor that of our sister Appellate Districts provides guidance. As a result, this court resolves this conflict according to the rules of statutory construction adopted by the General Assembly.

{¶3} Appellant was charged by way of information with one count of OVI, a third-degree felony, in violation of R.C. 4511.19(A)(2), having previously been convicted of a felony OVI within the last 20 years of the date of the current offense and having refused to submit to a chemical test in connection with the current offense. Appellant pled not guilty.

{¶4} Appellant subsequently entered a plea bargain with the state. At the guilty plea/sentencing hearing held on August 2, 2012, she pled guilty to OVI as charged in the information. The trial court advised appellant that H.B. 86, which revised Ohio's general sentencing statutes, became effective on September 30, 2011. The court stated that, pursuant to R.C. 2929.14(A)(3), as revised by H.B. 86, the five-year maximum prison sentence for certain listed third-degree felonies remains the same, while the maximum sentence for other third-degree felonies is three years. OVI was not included in that list.

{¶5} The court stated that, in contrast, R.C. 4511.19(G)(1)(e), which makes OVI a third-degree felony if the offender has previously been convicted of a felony OVI, allows for a maximum sentence of five years in prison.

{¶6} The trial court advised appellant that it is unclear whether the OVI offense with which she is charged allows for a five- or three-year maximum prison sentence. While the court interpreted the statutes to authorize a five-year maximum prison term for appellant's offense, the court acknowledged that a reasonable interpretation of H.B. 86 would limit appellant's sentence to a maximum of three years in prison.

{¶7} The court advised appellant that the maximum sentence would be five years or three years, depending on how H.B. 86 was interpreted. The court noted that at a recent pretrial, counsel for both parties told the court they would jointly recommend that appellant be sentenced to 24 months in prison. The court stated it told counsel that if the court accepted their recommendation, it would sentence appellant to five years in prison and suspend three years of the sentence. The court said that, after appellant served two years in prison, the court would place her on five years of community control sanctions so she will be under the court's supervision for a total of seven years. The court explained the reason for this hybrid sentence is that appellant did very well when she was on probation for her prior OVI conviction, but as soon as she was off probation, she committed the current offense. The court told appellant that if she did not successfully complete community control, there would be severe consequences. The court said it wanted to keep her under its supervision so she would have a better chance of not ruining her life.

{¶8} Appellant's counsel stated that he had asked the court at the recent pretrial to consider a three-year maximum sentence based on the change in H.B. 86. He said he made this request while acknowledging the OVI statute authorizes the court to sentence appellant to five years in prison. Appellant's counsel said that, since OVI was not included in the list of third-degree felonies that retain a five-year maximum sentence in H.B. 86, "there's maybe [sic] in my position * * * a little inconsistency, and still * * * maybe [sic] some consideration down the road as to what the legislature meant."

{¶9} The prosecutor outlined the factual basis for appellant's guilty plea. On February 22, 2012, appellant was driving her car in Painesville when an Ohio State Patrol Trooper clocked her driving 45 m.p.h. in a 25 m.p.h. zone. The trooper stopped appellant and asked for her license. She said it was suspended due to a prior OVI conviction. The trooper noticed a strong odor of alcohol coming from appellant. She denied drinking any alcoholic beverages. However, after failing the field sobriety tests, appellant said she knew she should not have been driving. She refused to take a breath test. The prosecutor also stated appellant was previously convicted of felony OVI in 2007.

{¶10} The court found that appellant's guilty plea was voluntary; accepted her plea; and found her guilty of OVI, a felony of the third degree, in ...

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