Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court, Trial Court Case No.
MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No.
0095826, Assistant Attorney for Plaintiff-Appellee
C. GREER, Atty. Reg. No. 0009090, and JEFFREY D. SLYMAN,
Atty. Reg. No. 0010098, Attorneys for Defendant-Appellant
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
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.
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
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 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
The semantic argument is as follows: The word
"consecutive" is not defined in the OVI statute.
Semantically, consecutive means ...