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State v. Back

Court of Appeals of Ohio, Second District, Montgomery

August 30, 2019

STATE OF OHIO Plaintiff-Appellee
JAMES BACK, JR. Defendant-Appellant

          Criminal Appeal from Common Pleas Court, Trial Court Case No. 2018-CR-4017

          MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Assistant Attorney for Plaintiff-Appellee

          DAVID C. GREER, Atty. Reg. No. 0009090, and JEFFREY D. SLYMAN, Atty. Reg. No. 0010098, Attorneys for Defendant-Appellant


          DONOVAN, J.

         {¶ 1} James Back, Jr. appeals from a May 8, 2019 judgment entry of conviction, following his no contest plea to one count of operating a vehicle while under the influence of alcohol and/or drugs ("OVI"). The trial court's judgment entry of conviction sentenced Back to "sixty (60) consecutive days in the Montgomery County Jail," with the sentence "to be served one day after the other without interruption." The court also imposed community control sanctions for a period not to exceed five years and suspended Back's driver's license for three years. We hereby affirm the judgment of the trial court.

         {¶ 2} On December 10, 2018, Back was indicted on one count of OVI (three priors within 10 years) in violation of R.C. 4511.19(A)(1)(a)/4511.19(G)(1)(d), and one count of OVI in violation of R.C. 4511.19(A)(1)(f)/4511.19(G)(1)(d), both felonies of the fourth degree. Back pled not guilty on January 8, 2019, and on January 11, 2019, he filed a motion to suppress. Back subsequently filed an amended motion to suppress, but then withdrew his motion to suppress.

         {¶ 3} On March 14, 2019, Back filed a memorandum asking the court to "impose an alternative sentence." Back argued as follows:

It is axiomatic that Ohio has an express statutory rule of construction requiring sections of its Revised Code defining criminal sanctions shall be strictly construed against the State, and liberally construed in favor of its accused. R.C. 2901.04(A).
Expressio unius est exclusio alterius is a "maxim of statutory interpretation meaning that the expression of one [thing] is the exclusion of another." Black's Law Dictionary (6 Ed. 1990) 581. Defendant asserts that this maxim applies to limit what constitutes "sexually oriented entertainment activity" to those specific items enumerated in the definition of "specific sexual activity". The Supreme Court of Ohio has long held that under the maxim of expressio [unius] exclusion alterius:
". . . if a statute specifies one exception to a general rule or assumes to specify the effects of a certain provision, other exception[s] or effects are excluded". Black's Law Dictionary (6 ED. 1990) 581. * * *
In the instant case, not only does R.C. 2929.13([G])(1) not specifically state that the mandatory terms of local incarceration must be consecutive sixty days, but the sentencing court is additionally given the option to indicate that the term of incarceration can be ["]served in a jail, community based corrections facility, a halfway house, or an alternative residential facility." Moreover, the term of local incarceration is "not subject to any [other Revised] Code provision that pertains to a prison term [except as provided in division (A)(1) of this section.]"
Accordingly, this Court it is respectfully submitted has the discretion to sentence the Defendant * * * to an in-patient residential hospital or treatment facility. The Defendant would * * * accept such an alternative.
The State however [h]as indicated that instead of that option they prefer 20 consecutive weekends in jail. That option while not preferable is of course acceptable to the Defendant.
Defendant contends that this Court has the authority and discretion not to put him in jail locally for sixty consecutive days without a break for work during the week. Defendant would request, accordingly a discretionary sentence to avoid the strictest interpretation.

         {¶ 4} A plea hearing occurred on April 5, 2019, at which the following exchange occurred:

THE COURT: * * * [T]he Court's understanding of the plea agreement is the following. Mr. Back has been indicted on two counts of operating a vehicle under the influence. Count I is a Felony 4 which carries the mandatory incarceration of either 60 local days or 60 prison days. Count II is also a Felony 4 but that carries a mandatory 120 days local incarceration or 120 days prison.
The plea agreement is that Mr. Back will plead no contest to Count I. The prosecutor will dismiss Count II. It is agreed that at sentencing Mr. Back will be sentenced to the 60 mandatory days local incarceration. So the case would not be put on the prison route. It would be the local incarceration.
The Court will order a pre-sentence investigation report and [Back will] be placed also on community control sanctions. Conditions of probation will be determined in the pre-sentence investigation report.
Now, and the reason for the no contest plea is an issue of interpretation of law. And the question raised first by [Defense Counsel] Mr. Slyman and also in chambers that [Defense Counsel] Mr. Greer will repeat into the record another argument that supports the position of Mr. Slyman.
Mr. Slyman, in his memorandum, * * * contends the Court with regard to the 60 mandatory days, the Court has the discretion of ordering those sentences not to be sentenced consecutively, day after day after day. The Court could split the mandatory days up so that perhaps - - to allow the defendant to work during the week and do the sentencing during the - - the mandatory days during the weekend. * * *
And there's an additional separate argument, Mr. Greer, if you would place into the record the other argument in support of Mr. Slyman's position.
MR. GREER: * * *
I'm really here on behalf of Mr. Back's employer.
MR. GREER: Happens to be his family. It's a place called High Tech Elastomers * * *.
As the family transitions from the current owners to their son, who is the defendant in this matter, he is the one who is the key customer contact. He's the one that's really in charge of the day-to-day operations. He knows this technology. He is an invaluable person which is the reason pragmatically why we desire this to have him serve his 60 days, which he has to serve, on weekends * * * permitting [him] to work during the week. That's the pragmatic argument.
The semantic argument is as follows: The word "consecutive" is not defined in the OVI statute. Semantically, consecutive means ...

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