State v. McCoy , 2015 Ohio 4124 ( 2015 )

[Cite as State v. McCoy, 2015-Ohio-4124.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2014CA00235
MATTHEW WILLIAM MCCOY
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from Stark County Court of
Common Pleas, Case No. 2012CR1931
JUDGMENT: Affirmed, in part, Reversed, in part, and
Final Judgment Entered
DATE OF JUDGMENT ENTRY: September 30, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO RODNEY A. BACA
Prosecuting Attorney, Schnars, Baca & Infantino, LLC
Stark County, Ohio 610 Market Ave North
Canton, Ohio 44702
By: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South - Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2014CA00235 2
Hoffman, P.J.
{¶1} Defendant-appellant Matthew William McCoy appeals the December 3,
2014 Judgment Entry and January 7, 2015 Nunc Pro Tunc Judgment Entry entered by
the Stark County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} On January 18, 2013, Appellant was indicted by the Stark County Grand
Jury for operating a vehicle under the influence of alcohol, drugs or a combination of
both on December 9, 2012 in Stark County, Ohio in violation of R.C. 4511.19(A)(1)(a)
and/or (d); and, as Appellant had within the previous twenty years been convicted of or
plead guilty to five or more equivalent offenses, the state also indicted Appellant on a
repeat OVI offender specification, in violation of R.C. 2941.1413.
{¶3} Appellant entered a plea of guilty to the charges and was sentenced on
March 11, 2013. The trial court sentenced Appellant to four years mandatory
incarceration, and advised him of post release control. The trial court also imposed a
mandatory fine and suspended Appellant's driver's license for ten years.
{¶4} On September 25, 2013, Appellant filed a motion to correct Sentencing
Order pursuant to Criminal Rule 36. Appellant's motion specifically requested the trial
court correct the clerical error in the sentencing order because the trial court did not
impose mandatory time against Appellant in open court. Appellant argued the trial court
did not notify Appellant at his change of plea hearing his sentence would or could be
mandatory.
1 A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Stark County, Case No. 2014CA00235 3
{¶5} Via Nunc Pro Tunc Judgment Entry: Change of Plea and Sentence of April
2, 2014 the trial court stated, in pertinent part,
IT IS THEREFORE ORDERED that the defendant be remanded to
the Lorain Correctional Facility to serve a term of four (4) years in prison,
pursuant to Ohio Revised Code Section 2929.13(F) on the charge of
Operating a Vehicle Under the Influence of Alcohol, a Drug of Abuse or a
Combination of Them (with repeat OVI offender specification), 1 ct. [R.C.
4511.19(A)(1)(a) and/or (d)] (F3), and
IT IS FURTHER ORDERED that the defendant shall pay a
mandatory fine in the amount of $1,350.00,***
{¶6} On July 21, 2014, Appellant filed a motion to vacate void judgment of
sentence for good cause and memorandum of law in support.
{¶7} On July 24, 2014, Appellant filed a motion to withdraw guilty plea.
{¶8} On September 30, 2014, the State filed a reply to the motion to vacate
void judgment of sentence. On the same date, the State filed a reply to the motion to
withdraw guilty plea.
{¶9} On October 22, 2014, the trial court granted Appellant's motion to vacate
void sentence. The trial court found Appellant's April 2, 2014 sentence was contrary to
law because it did not sentence Appellant to any mandatory time and did not sentence
Appellant on the repeat OVI offender specification.
{¶10} Via Judgment Entry filed October 22, 2014, the trial court denied
Appellant's motion to withdraw guilty plea.
Stark County, Case No. 2014CA00235 4
{¶11} On November 14, 2014, Appellant filed another motion to vacate void
judgment of sentence.
{¶12} On December 3, 2014, the trial court resentenced Appellant, ordering in
pertinent part,
IT IS THEREFORE ORDERED that the defendant be remanded to
the Lorain Correctional Facility to serve a term of three (3) years in prison,
pursuant to Ohio Revised Code Section 2929.13(F) on the charge of
Operating a Vehicle Under the Influence of Alcohol, a Drug of Abuse or a
Combination of Them (with repeat OVI offender specification), 1 ct. [R.C.
4511.19(A)(1)(a) and/or (d)] (F3), and
IT IS FURTHER ORDERED that the defendant shall serve a stated
term of one (1) year in prison on the repeat OVI offender specification to
be served consecutive with and prior to the sentence for Operating a
Vehicle Under the Influence of Alcohol, a Drug of Abuse or a Combination
of Them, 1 ct. (F3), and
IT IS FURTHER ORDERED that the defendant shall pay a
mandatory fine in the amount of $1,350.00, ***
{¶13} On January 7, 2015, the trial court issued a Nunc Pro Tunc entry which
revised the language to read, in pertinent part,
IT IS THEREFORE ORDERED that the defendant be remanded to
the Lorain Correctional Facility to serve a mandatory term of three (3)
years in prison, pursuant to Ohio Revised Code Section 2929.13(F) on the
charge of Operating a Vehicle Under the Influence of Alcohol, a Drug of
Stark County, Case No. 2014CA00235 5
Abuse or a Combination of Them (with repeat OVI offender specification),
1 ct. [R.C. 4511.19(A)(1)(a) and/or (d)] (F3), and
IT IS FURTHER ORDERED that the defendant shall serve a
mandatory term of one (1) year in prison on the repeat OVI offender
specification to be served consecutive with and prior to the sentence of
Operating a Vehicle Under the Influence of Alcohol, a Drug of Abuse or a
Combination of Them, 1 ct. (F3), and
IT IS FURTHER ORDERED that the defendant shall pay a
mandatory fine in the amount of $1,350.00, and***
{¶14} Appellant appeals from the December 3, 2014 Judgment Entry and the
January 7, 2015 Nunc Pro Tunc Entry, assigning as error:
{¶15} "I. THE SENTENCE THAT RESULTED FROM THE APPELLANT'S
CONVICTION OF OVI AND HABITUAL OFFENDER SPECIFICATION IS CONTRARY
TO LAW.
{¶16} "II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
APPELLANT'S MOTION TO WITHDRAW HIS GUILTY PLEA."
I.
{¶17} Via the January 7, 2015 Nunc Pro Tunc Entry, Appellant was sentenced to
a mandatory term of three years on on the underlying OVI offense, in violation of R.C.
4511.19(A)(1)(a) and/or (d), and a mandatory term of one year in prison on the repeat
OVI offender specification, in violation of R.C. 2941.1413, to be served consecutive with
and prior to the sentence for operating a vehicle under the influence of alcohol.
Stark County, Case No. 2014CA00235 6
{¶18} Appellant states in his brief to this Court, "The issue before this Court is
the appropriate sentencing range for a third degree felony violation of R.C. 4511.19(A).
'There is currently a split amongst the Appellate Districts in Ohio regarding this issue.'"
The parties' briefs then discuss the split among Appellate Districts in Ohio, particularly
the Second, Ninth and Eleventh District Courts of Appeals regarding whether the range
of sentence is nine to thirty-six months, or twelve to sixty months. However, we do not
find the issues presented to those courts to be the issue presented herein as the trial
court's sentence for the underlying OVI offense was permissible under either position.
{¶19} The appropriate sentencing range for a third degree felony OVI is not at
issue herein. Rather, the issue presented to this Court is whether the mandatory
sentence imposed by the trial court on the underlying OVI violation of thirty-six months
mandatory incarceration is or is not required to be a mandatory term to run consecutive
to the sentence imposed for the separate term imposed for the repeat OVI offender
specification, which term is to be a mandatory term.
{¶20} As set forth above, Appellant was sentenced to a mandatory term of three
years on the underlying OVI charge pursuant to R.C. 2929.13(F), for violating R.C.
4511.19(A)(1)(a) and /or (d), which reads, in pertinent part,
{¶21} R.C. 4511.19(A)(1)(a) and (d) provide,
(A)(1) No person shall operate any vehicle, streetcar, or trackless
trolley within this state, if, at the time of the operation, any of the following
apply:
(a) The person is under the influence of alcohol, a drug of abuse, or
a combination of them.
Stark County, Case No. 2014CA00235 7
***
(d) The person has a concentration of eight-hundredths of one
gram or more but less than seventeen-hundredths of one gram by weight
of alcohol per two hundred ten liters of the person's breath.
{¶22} Subsection (G)(1)(e) of R.C. 4511.19 reads,
(e) An offender who previously has been convicted of or pleaded
guilty to a violation of division (A) of this section that was a felony,
regardless of when the violation and the conviction or guilty plea occurred,
is guilty of a felony of the third degree. The court shall sentence the
offender to all of the following:
(i) If the offender is being sentenced for a violation of division
(A)(1)(a), (b), (c), (d), (e), or (j) of this section, a mandatory prison term of
one, two, three, four, or five years as required by and in accordance with
division (G)(2) of section 2929.13 of the Revised Code if the offender also
is convicted of or also pleads guilty to a specification of the type described
in section 2941.1413 of the Revised Code or a mandatory prison term of
sixty consecutive days in accordance with division (G)(2) of section
2929.13 of the Revised Code if the offender is not convicted of and does
not plead guilty to a specification of that type. The court may impose a
prison term in addition to the mandatory prison term. The cumulative total
of a sixty-day mandatory prison term and the additional prison term for the
offense shall not exceed five years. In addition to the mandatory prison
term or mandatory prison term and additional prison term the court
Stark County, Case No. 2014CA00235 8
imposes, the court also may sentence the offender to a community control
sanction for the offense, but the offender shall serve all of the prison terms
so imposed prior to serving the community control sanction.
{¶23} Appellant asserts the trial court erred in imposing a mandatory three year
term of incarceration on the underlying OVI offense. Appellant cites State v. Burkhead,
12th Dist. 2014-02-028, 2015-Ohio-1085, arguing the trial court erred in imposing a
mandatory term of incarceration on the underlying OVI offense in addition to the
mandatory term imposed for the repeat OVI offender specification. In Burkhead the
Twelfth District held,
Upon further reflection, we find that Sturgill was misguided and we
hereby overrule Sturgill and its progeny to the extent it held that when an
offender is convicted of a third-degree felony OVI and an accompanying
habitual offender specification, R.C. 2929.13(G)(2), 2929.14(B)(4), and
4511.19(G)(1)(e) permit a maximum five-year mandatory prison term for
the OVI conviction and that R.C. 2941.1413 governs the sentence for
conviction of the habitual offender specification. Although Sturgill
concerned R.C. 4511.10(G)(1)(e)(i) and this case concerns R.C.
4511.19(G)(1)(e)(ii), the pertinent language of each of those divisions is
substantially similar in terms of sentencing for a third-degree felony OVI
offender who is also convicted of the habitual offender specification.
(Emphasis added) Instead, we find that when an offender is convicted of a
third-degree felony OVI in violation of R .C. 4511.19(A)(2) and an
accompanying habitual offender specification, R.C. 4511.19(G)(1)(e) and
Stark County, Case No. 2014CA00235 9
2929.13(G)(2) provides that a mandatory prison sentence of one, two,
three, four, or five years shall be imposed for the specification and the
additional sentence for the underlying OVI offense is governed under R.C.
2929.14(A)(3) and (B)(4), which provide for a non-mandatory sentence of
9, 12, 18, 24, 30, or 36 months. This view is in accord with several other
appellate districts. E.g., South at ¶ 17–18; State v. Eckles, 173 Ohio
App.3d 606, 2007-Ohio-6220 (7th Dist.), ¶. 64-66; State v. Smaltz, 6th
Dist. Ottawa No. OT-08-008, 2013-Ohio-5350, ¶. 9-11; State v.
Weideman, 11th Dist. Portage No. 2013-P-0100, 2014-Ohio-5768.
R.C. 4511.19(G)(1) provides, in pertinent part:
"Whoever violates * * * (A)(2) of this section is guilty of operating a
vehicle under the influence of alcohol * * *. The court shall sentence the
offender * * * under Chapter 2929. of the Revised Code, except as
otherwise authorized or required by divisions (G)(1)(a) to (e) of this
section."
There are two items of significance in R.C. 4511.19(G)(1) for
purposes of sentencing. First, the statute makes it clear that OVI
sentencing is subject to the general sentencing provisions of R.C. Chapter
2929. Second, reference is made to additional sentencing provisions in
divisions (G)(1)(a) to (e).***
R.C. 2929.13(G)(2), as relates to an offender convicted of a third-
degree felony OVI offense and the habitual offender specification,
provides that “the court shall impose upon the offender a mandatory term
Stark County, Case No. 2014CA00235 10
of local incarceration or a mandatory prison term * * * of one, two, three,
four, or five years.” The offender shall serve this mandatory prison term
“consecutively to and prior to the prison term imposed for the underlying
offense and consecutively to any other mandatory prison term imposed in
relation to the offense.” (Emphasis added in original.) R.C. 2929.13(G)(2).
The emphasized language of this statute clearly provides that the one,
two, three, four, or five-year mandatory sentence referred to is the
sentence for the habitual offender specification and not the underlying OVI
offense.
In Sturgill, this court found that the defendant's sentence for the
R.C. 2941.1413 habitual offender specification was authorized under R.C.
2941.1413 and must be a mandatory prison term of one, two, three, four,
or five years. Sturgill, 2013–Ohio–4648 at ¶ 44. This court then reasoned
that the reference in R.C. 4511.19(G)(1)(e)(i) to the “mandatory prison
term of one, two, three, four or five years” was relating to the sentence for
the underlying OVI offense and not the specification. Id. at ¶ 43. As
discussed above, the references in R.C 4511.19(G)(1)(e)(ii) and
2941.1413 to the one, two, three, four, or five-year mandatory prison term
are not references to different sentences (i.e., a sentence for the
underlying OVI offense and a sentence for the habitual offender
specification, respectively) as we held in Sturgill, but rather references the
same sentence (i.e., the sentence for the habitual offender specification
established by R.C. 2929.13(G)(2)).
Stark County, Case No. 2014CA00235 11
R.C. 4511.19(G)(1)(e)(ii) also provides discretion to the sentencing
court to impose a prison term in addition to the mandatory prison term for
conviction of the habitual offender specification. The additional prison term
is governed under the general sentencing statute, R.C. 2929.14. See R.C.
4511.19(G)(1) (sentence for an OVI offense shall be under R.C. Chapter
2929). R.C. 2929.14(B)(4) provides that if an offender is being sentenced
for a third-degree OVI felony under R.C. 2929.13(G)(2), “the sentencing
court shall impose upon the offender a mandatory prison term in
accordance with that division.”
The statute goes on to provide,
"In addition to the mandatory prison term, * * * and if the offender is
being sentenced for a third-degree felony OVI offense, the sentencing
court may sentence the offender to an additional prison term of any
duration specified in division (A)(3) of this section. The total of the
additional prison term imposed under division (B)(4) * * * shall equal one
of the authorized prison terms specified in division (A)(3) of this section for
a third degree felony OVI offense."
R.C. 2929.14(B)(4). OVI is not a specified third-degree felony in
R.C. 2929.14(A)(3)(a) and therefore any additional term for a third-degree
OVI felony must be for 9, 12, 18, 24, 30 or 36 months. R.C.
2929.14(A)(3)(b).
Consequently, when an offender is convicted of a third-degree
felony OVI offense under R.C. 4511.19(A)(2) and the habitual offender
Stark County, Case No. 2014CA00235 12
specification pursuant to R.C. 2941.1413, 4511.19(G)(1)(e) provides the
offender's sentence for the habitual offender specification must be a
mandatory term of one, two, three, four, or five years pursuant to R.C.
2929.13(G)(2). The court may also impose an additional non-mandatory
prison term for the underlying OVI offense of 9, 12, 18, 24, 30, or 36
months under R.C. 2929.14(A)(3)(b) and (B)(4). The mandatory prison
term must be served consecutively to and prior to the additional non-
mandatory prison term pursuant to R.C. 2929.13(G)(2).
In this case, appellant was sentenced to a mandatory prison term of
four years for the habitual offender specification and a mandatory prison
term of five years in regards to his underlying OVI conviction and was
ordered to serve the sentences consecutively. Appellant's sentence to a
mandatory prison term of four years for the R.C. 2941.1413 specification
is within the permissible statutory range. However, appellant's sentence to
a mandatory five-year prison term for the OVI offense is not within the
permissible statutory range and is contrary to law. When an offender has
been convicted of a third-degree felony OVI offense and also has been
convicted of the habitual offender specification, the trial court may only
impose an additional prison term of 9, 12, 18, 24, 30, or 36 months.
Furthermore, the additional term is not a mandatory prison term.
{¶24} In the case sub judice, Appellant was convicted of OVI, in violation of R.C.
4511.19(A)(1)(a) and/or (d). Further, Appellant had five or more convictions or guilty
Stark County, Case No. 2014CA00235 13
pleas to OVI offenses within the previous twenty years. As such, we agree with the
Twelfth District's holding in Burkhead, supra,2 and find the trial court herein committed
error in imposing a three year mandatory term of incarceration on the underlying OVI
offense.
{¶25} The first assignment of error is sustained.
II.
{¶26} In the second assignment of error, Appellant argues the trial court abused
its discretion in denying his motion to withdraw guilty plea.
{¶27} Criminal Rule 32.1 provides,
A motion to withdraw a plea of guilty or no contest may be made
only before sentence is imposed; but to correct manifest injustice the court
after sentence may set aside the judgment of conviction and permit the
defendant to withdraw his or her plea.
{¶28} Here, Appellant has failed to demonstrate a manifest injustice. Appellant
was initially sentenced on March 11, 2013. Appellant argues his plea was not
knowingly, voluntarily and intelligently made as his counsel was ineffective in failing to
advise him of the possible maximum sentence.
{¶29} Appellant bears the initial burden of demonstrating operative facts to
demonstrate the lack of competent counsel. State v. Kapper, 5 Ohio St.3d 36, 448 N.E.
2nd 823 (1983). Appellant's own self-serving statements and affidavits alleging a
coerced guilty plea are insufficient to rebut the record on review. Id.2 Appellee's brief makes no reference to Burkhead.
Stark County, Case No. 2014CA00235 14
{¶30} Here, Appellant has offered no evidence as to his assertion counsel
misadvised him of the possible maximum term, other than self-serving affidavits.
Rather, the guilty plea form Appellant reviewed with counsel, as well as discussed in
court, confirms Appellant was informed of the maximum potential penalty. Appellant did
not object to the plea form at the sentencing hearing.
{¶31} Accordingly, Appellant has not demonstrated a manifest injustice, and the
second assignment of error is overruled.
By: Hoffman, P.J.
Wise, J. and
Delaney, J. concur
Stark County, Case No. 2014CA00235 15