Criminal Appeal from County Court No. 4, Case No. 12TRD3282.
For Plaintiff-Appellee: Attorney Paul Gains, Prosecuting Attorney Attorney Ralph Rivera Assistant Prosecuting Attorney
For Defendant-Appellant: Attorney Rhys Cartwright-Jones.
JUDGES: Hon. Joseph J. Vukovich, Hon. Gene Donofrio, Hon. Cheryl L. Waite.
(¶1} Defendant-appellant Timothy Boafor appeals from the judgment of Mahoning County Court No. 4, which imposed a ninety-day license suspension after accepting a no contest plea to speeding at a rate of 77 mph in a 65 mph zone. First, appellant argues that a license suspension could not be imposed under R.C 4510.15 because this speeding charge could not be categorized as "relating to reckless operation." Second, appellant contends that he could only be convicted of a minor misdemeanor because the traffic ticket did not charge a third degree misdemeanor or mention predicate offenses. For the following reasons, we conclude that both arguments have merit. Appellant's license suspension is vacated and his speeding conviction must be modified to reflect only a minor misdemeanor.
STATEMENT OF THE CASE
(¶2} On May 13, 2012, defendant-appellant Timothy Boafor was stopped by the Ohio State Highway Patrol for speeding on Interstate 680 in Austintown, Ohio. He was clocked at 77 mph in a 65 mph zone and cited for violating R.C. 4511.21(D)(2), which provides that no person shall operate a motor vehicle at speeds exceeding 65 mph on a freeway.
(¶3} After a clerk noted on the dust jacket that the violation was a misdemeanor of the third degree, defense counsel filed a motion to exclude prior traffic violations derived from uncounseled guilty pleas, urging that although an uncounseled plea can be used to enhance a sentence, it cannot be used to enhance the degree of the offense. The court was thus asked to refrain from proceeding under R.C. 4511.21 (P)(1)(b) which raises a minor misdemeanor speeding violation to a fourth degree misdemeanor if the defendant has been convicted of two violations of R.C. 4511.21 within the past year or (c) which raises it to a third degree misdemeanor if the defendant has been convicted of three or more violations of R.C. 4511.21 within the past year. This motion was implicitly overruled. (The particular issue regarding uncounseled priors is not raised on appeal, but the motion is utilized by the state on appeal in support of one of its arguments.)
(¶4} A hearing was held on August 27, 2012. A plea agreement was contemplated but rejected by the defendant due to the court's statement that it would impose a license suspension. When the case was then called for trial on September 19, 2012, defense counsel stated that the prosecution and the defense are both of the opinion that a license suspension was not available on this offense and that the ticket charges only a minor misdemeanor. (Tr. 2). After the court refused to adopt a prepared judgment entry reflecting these statements, defense counsel asked if the court would accept a no contest plea. (Tr. 2-3). The court stated that it would.
(¶5} Counsel again urged that the offense was a minor misdemeanor because the charging instrument lists no prior offenses that would give rise to a different level of misdemeanor. (Tr. 3). Thus, he concluded that the speeding offense was charged as a minor misdemeanor, noting that the only item showing it was a third degree misdemeanor in the clerk's notation on the dust jacket. Counsel also reiterated that the prosecutor concurred that this is not an offense for which a license suspension could be attached. (Tr. 4).
(¶6} Regarding the first argument, the court replied that the prosecutor can amend the charge anytime he wants, up to and including the trial. As to the second argument, the court stated that regardless of how many priors are on a defendant's record, "the court has discretion at any time to suspend a license if they deem it's appropriate." (Tr. 4).
(¶7} The prosecutor then placed the facts on the record, including that it was 12:45 p.m., the pavement was dry, the visibility was clear, the weather was not adverse, there was moderate traffic in a rural area, and there was no near-crash. (Tr. 4-5). The court accepted the no contest plea to speeding and found appellant guilty.
(¶8} The court stated that this was appellant's fifth conviction in the past year, imposed a $150 fine plus court costs, and suspended appellant's license for 90 days. (Tr. 6-7). Appellant filed a timely notice of appeal from the September 19, 2012 judgment entry imposing this sentence.
ASSIGNMENT OF ERROR NUMBER ONE
(¶9} Appellant's first assignment of error provides:
(¶10} "The trial court erred in imposing a driver's license suspension on Mr. Boafor relative to his traffic charge."
(¶11} Appellant argues that, pursuant to R.C. 4510.15, the trial court cannot impose a license suspension in every traffic case or even in every speeding case as the court seemed to suggest. Appellant urges that a license suspension can only be imposed if the charge not only generally but also factually relates to reckless operation. And, he also posits that a court must make a finding of reckless operation.
(¶12} As to the latter argument, the state responds that no specific finding of reckless operation must be announced by the sentencing court. See State v. Secrest, 9th Dist. No. 04CA23, 2004-Ohio-4588, ¶ 7; State v. Jamnicky, 9th Dist. No. 03CA39, 2004-Ohio-324, ¶ 16. As to the main argument here, the state admits that the factual circumstances surrounding the violation must be evaluated in order to impose a suspension under R.C. 4510.15 as the violation must be one "relating to reckless operation." See id. Still, the state postulates that the court can also consider the offender's traffic history to determine if this violation relates to reckless operation.
(¶13} The statute at issue provides in pertinent part: "Whenever a person is found guilty under the laws of this state, or under any ordinance of any political subdivision of this state, of operating a motor vehicle in violation of any such law or ordinance relating to reckless operation, the trial court of any court of record, in addition to or independent of all other penalties provided by law, may impose a class five suspension of the offender's driver's or commercial driver's license or permit or nonresident operating privilege from the range specified in division (A)(5) of section 4510.02 of the Revised Code." R.C. 4510.15.
(¶14} As background for the application of this statute, we note that some courts previously held that this statute only applies if the offender is convicted under the reckless operation statute. However, the Supreme Court disagreed, holding that the statute empowers all courts of record to suspend a driver's license upon conviction of the violation of any law or ordinance relating to reckless driving. City of Akron v. Willingham, 166 Ohio St. 337, 338, 142 N.E.2d 652 (1957), interpreting former R.C. 4507.34 (which is now R.C. 4510.15). The Court generally stated that speeding is an offense relating to reckless operation, but the Court then recited the particular charge in that case in order to conclude that the defendant's guilty plea constituted an admission that he was driving without due regard for the rights of others. Id. at 338-339. Specifically, the Court emphasized that the defendant pled guilty to a charge of unlawfully operating a motor vehicle "at the rate of 60 miles per hour, in a 25 mile per hour zone, such speed being greater than was reasonable and proper, having due regard to the traffic, surface, and width of said street, and other condition then existing, in violation of [city ordinance cited]." Id.
(¶15} Contrary to the trial court's suggestion here, a sentencing court does not have carte blanche discretionary authority to suspend a license for a traffic violation. State v. Pessefall, 87 Ohio App.3d 222, 226, 621 N.E.2d 1370 (4th Dist.1993) (in accordance with multiple other cases reviewed infra). Rather, there must be something in the operation of the vehicle that indicates recklessness. Id.
(¶16} Thus, the court assesses the driving at issue and all of the circumstances under which that driving took place to assess the threat to others. Id. As aforementioned, the state agrees with this general premise, citing Ninth District law. See Secrest, 9th Dist. No. 04CA23, at ¶ 7; Jamnicky, 9th Dist. No. 03CA39 at ¶ 16. See also State v. Tamburin, 145 Ohio App.3d 774, 780-781, 764 N.E.2d 503 (9th Dist.2001) (failure to stay in marked lanes charges related to ...