State v. Richter , 2014 Ohio 5396 ( 2014 )

[Cite as State v. Richter, 2014-Ohio-5396.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
CASE NO. CA2014-06-040
Plaintiff-Appellee, :
OPINION
: 12/8/2014
- vs -
:
DANNY RAY RICHTER, JR., :
Defendant-Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT
Case No. 2013TRC685
D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee
William J. Rapp and Joshua R. Crousey, One East Main Street, Amelia, Ohio 45102, for
defendant-appellant
S. POWELL, J.
{¶ 1} Defendant-appellant, Danny Ray Richter, Jr., appeals from the 155-day jail term
he received in the Clermont County Municipal Court after he admitted to violating the terms of
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his community control sanctions. For the reasons outlined below, we affirm.
{¶ 2} On January 10, 2013, Richter was charged in the Clermont County Municipal
1. Pursuant to Loc.R. 6(A), we sua sponte remove this case from the accelerated calendar.
Clermont CA2014-06-040
Court with one count of operating a motor vehicle while under the influence of alcohol (OVI)
in violation of R.C. 4511.19(A)(1)(a), a first-degree misdemeanor. Richter subsequently
entered a no contest plea and the municipal court found him guilty. The municipal court then
sentenced Richter to 180 days in jail, suspending 135 of those days, and placed him on three
years of community control. As part of his misdemeanor community control sanctions,
Richter was ordered not to commit any additional criminal offenses or to consume any
alcohol or illegal drugs. Richter was also explicitly informed that if he violated a condition of
his community control sanctions, he would be "facing the revocation of [his] community
control and all of the outstanding jail time that has not been imposed[.]"
{¶ 3} On April 3, 2014, Richter's probation officer filed an affidavit with the municipal
court that alleged Richter had violated his community control sanctions. According to the
submitted affidavit, Richter had been convicted in the Clermont County Court of Common
Pleas for yet another OVI offense in violation of R.C. 4511.19(A)(1)(a), this time a fourth-
degree felony. It is undisputed that Richter pled guilty to this new OVI offense and was
thereafter sentenced by the common pleas court to serve 16 months in prison.
{¶ 4} On May 9, 2014, the municipal court held a hearing on Richter's alleged
community control violation, during which time Richter admitted to violating the terms of his
community control sanctions. Over his objection, the municipal court then revoked Richter's
community control sanctions and ordered him to serve a 155-day jail term representing the
135 days that were previously suspended, as well as an additional 20 days originally imposed
but not yet served, all consecutive to the 16-month prison sentence he received in the
common pleas court. In so holding, the municipal court relied on R.C. 2929.41(B)(3), which
states:
A jail term or sentence of imprisonment imposed for a
misdemeanor violation of section 4510.11, 4510.14, 4510.16,
4510.21, or 4511.19 of the Revised Code shall be served
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consecutively to a prison term that is imposed for a felony
violation of section 2903.06, 2903.07, 2903.08, or 4511.19 of the
Revised Code or a felony violation of section 2903.04 of the
Revised Code involving the operation of a motor vehicle by the
offender and that is served in a state correctional institution when
the trial court specifies that it is to be served consecutively.
{¶ 5} Richter now appeals from the municipal court's decision ordering him to serve
his 155-day jail term consecutive to his 16-month prison sentence, raising one assignment of
error for review.
{¶ 6} THE TRIAL COURT EXCEEDED ITS AUTHORITY BY ORDERING THAT A
JAIL SENTENCE FOR A MISDEMEANOR BE RUN CONSECUTIVE TO A FELONY
PRISON TERM.
{¶ 7} In his single assignment of error, Richter argues the municipal court erred by
sentencing him to serve the 155-day jail term he received resulting from his admitted
community control violation consecutive to his 16-month prison sentence imposed by the
common pleas court for his most recent OVI conviction. In support of this claim, Richter
argues the municipal court improperly applied R.C. 2929.41(B)(3) by ordering his jail term to
run consecutive to his prison sentence as that statute was merely "intended to grant power to
the common pleas court when sentencing a defendant for specific misdemeanor and felony
sentences at the same time."
{¶ 8} Pursuant to R.C. 2929.41(A), it is presumed that misdemeanor and felony
"sentences would be served concurrently unless a court stated otherwise." In re H.V., 138
Ohio St. 3d 408, 2014-Ohio-812, ¶ 59. However, as the parties correctly point out, R.C.
2929.41(B)(3) was amended through 1999 Am.Sub.S.B. 22 to allow for the imposition of
consecutive sentences for certain misdemeanors and felony convictions. See State v. Early,
8th Dist. Cuyahoga No. 100482, 2014-Ohio-2643, ¶ 19; see also State v. Dunham, 5th Dist.
Richland No. 13CA26, 2014-Ohio-1042, ¶ 76-77. Yet, as a simple review of the record
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reveals, this case deals with the question of whether a jail term imposed for a violation of
one's community control sanctions may be ordered to run consecutive to a prison sentence
received in a different and unrelated case. It is well-established that any penalty imposed for
violating a condition of one's community control sanctions is a punishment for that violation
and not for the original underlying offense. State v. Hart, 4th Dist. Athens No. 13CA8, 2014-
Ohio-3733, ¶ 22. Therefore, we find this case presents a somewhat different factual scenario
that is not directly implicated by R.C. 2929.41(B)(3) regarding the imposition of multiple
sentences for misdemeanor and felony offenses.
{¶ 9} Rather, pursuant to R.C. 2929.25(D)(2), if an offender violates any condition of
their misdemeanor community control sanctions, such as the case here, the sentencing court
may impose upon the violator one or more penalties, including the imposition of a jail term.
As R.C. 2929.25(D)(2) states:
If an offender violates any condition of a community control
sanction, the sentencing court may impose upon the violator one
or more of the following penalties:
(a) A longer time under the same community control sanction if
the total time under all of the community control sanctions
imposed on the violator does not exceed the five-year limit
specified in division (A)(2) of this section;
(b) A more restrictive community control sanction;
(c) A combination of community control sanctions, including a
jail term.
{¶ 10} Nothing within R.C. 2929.25(D) regarding the consequences of violating a
condition of one's misdemeanor community control sanctions prohibits the sentencing court
from ordering the sentence to be served consecutively to any other jail term or sentence of
imprisonment. Instead, the only prohibition is that the "the total time spent in jail for the
misdemeanor offense and the violation of a condition of the community control sanction shall
not exceed the maximum jail term available for the offense for which the sanction that was
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violated was imposed," which, in this case, amounts to a total of 180 days. R.C.
2929.25(D)(3).
{¶ 11} Admittedly, this case presents a unique situation. However, as the record firmly
establishes, Richter's 155-day jail term imposed by the municipal court resulting from his
admitted violation of his community control sanctions was within the statutory range for a
first-degree misdemeanor OVI offense. See R.C. 2929.24(A)(1). Therefore, we find the
municipal court's decision to sentence Richter to serve his 155-day jail term consecutive to
the 16-month prison sentence he received in the common pleas court was proper. To hold
otherwise would effectively eliminate any penalty for his admitted violation of his community
control sanctions through the commission of a new felony offense. That is clearly not the
General Assembly's intent behind the provisions found in R.C. 2929.25(D). Such a decision
is further supported by the fact that Richter was explicitly informed by the municipal court at
his original sentencing hearing that he would be "facing the revocation of [his] community
control and all of the outstanding jail time that has not been imposed" if he were to violate his
community control sanctions.
{¶ 12} We reach the same conclusion through the application of the multiple
sentences statute found in R.C. 2929.41(B)(3). As a simple reading of that statute reveals,
through the passage of R.C. 2929.41(B)(3), the General Assembly explicitly permitted a trial
court, in its discretion, to impose a jail term or sentence of imprisonment for a misdemeanor
OVI violation to be served consecutive to a felony OVI violation "when the trial court specifies
that it is to be served consecutively." That is what the municipal court did here. In fact, as
the municipal court specifically stated, "that 155-day sentence in that case, as I previously
indicated, is to be served consecutively to the prison sentence[.]"
{¶ 13} Richter, however, argues the municipal court improperly relied on R.C.
2929.41(B)(3) because that statute was only intended to "give the common pleas court the
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authority to run specific misdemeanors consecutive to specific felonies that were indicted
together – or, related charges where punishment is being meted out by one court."
(Emphasis sic.) In support of this claim, Richter relies on the General Assembly's inclusion of
the word "is" as opposed to "was," as well as its use of the singular "trial court" instead of
"any court" or "second sentencing court." According to Richter, "the statute uses the present
tense which indicates that it applies when the misdemeanor and felony sentences are being
imposed at the same time" and by the same court.
{¶ 14} Although presenting a novel argument, we find Richter's interpretation of the
statute would lead to absurd results and place an unrealistic burden on the various courts
when dealing with repeat OVI offenders. For instance, although claiming the inclusion of the
singular "trial court" indicates the General Assembly's intent to have the statute apply only to
common pleas courts, nothing within the plain language of R.C. 2929.41(B)(3) defines or
limits the term as such. Moreover, Richter's interpretation of the statute fails to take into
account the General Assembly's use of the word "it," which, when read in context, refers back
to the phrase "jail term or sentence of imprisonment imposed for a misdemeanor violation,"
including misdemeanor OVI in violation of R.C. 4511.19(A)(1)(a). Therefore, we find R.C.
2929.41(B)(3) authorized the municipal court to impose a jail term for Richter's misdemeanor
OVI conviction to run consecutive to the prison sentence imposed by the common pleas
court for his otherwise unrelated felony OVI conviction. See Olmsted Falls v. Clifford, 8th
Dist. Cuyahoga No. 100375, 2014-Ohio-2397, ¶ 12 (a municipal court has the authority under
R.C. 2929.41(B)(1) to order a misdemeanor sentence to run consecutive to a felony
sentence that has been previously imposed by a common pleas court). Accordingly,
Richter's sole assignment of error is overruled.
{¶ 15} Judgment affirmed.
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RINGLAND, P.J., and M. POWELL, J., concur.
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