State v. Roberts , 2022 Ohio 3772 ( 2022 )

[Cite as State v. Roberts, 2022-Ohio-3772.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
State of Ohio Court of Appeals No. E-21-047
Appellant Trial Court No. 2008-CR-0234
v.
Marisa A. Roberts nka Riffle DECISION AND JUDGMENT
Appellee Decided: October 21, 2022
*****
Kevin J. Baxter, Erie County Prosecuting Attorney, and
Kristin R. Palmer, Assistant Prosecuting Attorney, for appellant.
Kenneth R. Bailey, for appellee.
*****
PIETRYKOWSKI, J.
{¶ 1} This state appeal is from the October 26, 2021 judgment of the Erie County
Court of Common Pleas which granted appellee Marisa Roberts’ motion for limited
driving privileges. Because we find no error, we affirm.
I. Background
{¶ 2} In 2009, appellee was convicted of aggravated vehicular homicide and four
counts of aggravated vehicular assault following a 2008 automobile accident where she
was driving while intoxicated. Appellee was sentenced to a total of three years of
imprisonment and was subject to a lifetime driver’s license suspension for the aggravated
vehicular homicide and concurrent ten year suspensions for each aggravated vehicular
assault.
{¶ 3} Following her 2011 release from prison, in 2014, 2016, and 2017, appellee
unsuccessfully moved for limited driving privileges. On April 24, 2019, appellee again
filed a motion for limited driving privileges under R.C. 4510.021. Appellee stated that
she was requesting driving privileges due to her full-time employment and the fact that
she is a single mother to a child nearing preschool age. The state opposed the motion
arguing that appellee’s lifetime suspension, a class one suspension, barred any driving
privileges.
{¶ 4} A hearing on the motion was held on March 5, 2020. In dispute was
whether limited driving privilege were available for a class-one, lifetime suspension or
whether such privileges would be considered an impermissible “modification” of the
suspension or portion of the suspension. At the request of the court, written memoranda
were filed by the parties.
2.
{¶ 5} On October 26, 2021, the court granted appellee’s motion for limited driving
privileges. The judgment entry specifically granted driving privileges for appellee to take
her driver’s license examination and, upon proof of insurance, to drive to and from
appellee’s job and transport her minor child to and from day-care and school. The state
then commenced this appeal.
II. Assignment of Error
Assignment of Error One: The trial court erred as a matter of law
under R.C. 4510.13(C)(3) and R.C. 4510.021(A) by granting Defendant’s
Motion for Limited Driving Privileges.
III. Discussion
{¶ 6} Generally, the decision to grant limited driving privileges during a driving
suspension is a matter left to the discretion of the sentencing court. State v. Dzurilla, 8th
Dist. Cuyahoga No. 101960, 2015-Ohio-1954, ¶ 14. However, because the issue before
us revolves around the trial court’s interpretation of various statutory sections in R.C.
Chapter 4510 relating to license suspensions, a question of law, we must conduct a de
novo review. Riedel v. Consol. Rail Corp., 125 Ohio St.3d 358, 2010-Ohio-1926, 928
N.E.2d 448, ¶ 6, quoting State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871
N.E.2d 1167, ¶ 8.
{¶ 7} Relevant to this appeal, appellee was convicted of a violation of R.C.
2903.06(A)(1)(a), which in 2009 provided:
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(A) No person, while operating or participating in the operation of a
motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft,
shall cause the death of another or the unlawful termination of another’s
pregnancy in any of the following ways:
(1)(a) As the proximate result of committing a violation of division
(A) of section 4511.19 of the Revised Code or of a substantially equivalent
municipal ordinance; * * *.
{¶ 8} The section also provided for a license suspension as follows:
(d) In addition to any other sanctions imposed pursuant to division
(B)(2)(a), (b), or (c) of this section for aggravated vehicular homicide
committed in violation of division (A)(1) of this section, the court shall
impose upon the offender a class one suspension of the offender’s driver’s
license, commercial driver’s license, temporary instruction permit,
probationary license, or nonresident operating privilege as specified in
division (A)(1) of section 4510.02 of the Revised Code.1
1
Notably, the 2017 version of the R.C. 2903.06(B)(2)(d) added the following language:
Divisions (A)(1) to (3) of section 4510.54 of the Revised Code apply to a
suspension imposed under division (B)(2)(d) of this section.
4.
R.C. 2903.06(B)(2)(d).
{¶ 9} The state’s argument centers on its interpretation of and interplay between
R.C. 4510.021 and R.C. 4510.13. The sections at issue provide:
(A) Unless expressly prohibited by section 2919.22, section 4510.13,
or any other section of the Revised Code, a court may grant limited driving
privileges for any purpose described in division (A) of this section during
any suspension imposed by the court. In granting the privileges, the court
shall specify the purposes, times, and places of the privileges and may
impose any other reasonable conditions on the person’s driving of a motor
vehicle. The privileges shall be for any of the following limited purposes:
(1) Occupational, educational, vocational, or medical purposes;
(2) Taking the driver’s or commercial driver’s license examination;
(3) Attending court-ordered treatment;
(4) Any other purpose the court determines to be appropriate;
(5) Attending any court proceeding related to the offense for which
the offender’s suspension was imposed;
(6) Transporting a minor to a child care provider, day-care,
preschool, school, or to any other location for purposes of receiving child
care.
R.C. 4510.021.
5.
{¶ 10} R.C. 4510.13(C)(3) states:
No judge or mayor shall suspend any class one suspension, or any
portion of any class one suspension, imposed under section 2903.04,
2903.06, 2903.08, or 2921.331 of the Revised Code. No judge or mayor
shall suspend the first thirty days of any class two, class three, class four,
class five, or class six suspension imposed under section 2903.06, 2903.08,
2903.11, 2923.02, or 2929.02 of the Revised Code.
{¶ 11} We initially note that the clear language in R.C. 4510.21 allows limited
driving privileges for any suspension unless expressly prohibited. The state argues that
because R.C. 4510.13(C)(3) specifically prevents a court from suspending any portion of
a class one suspension imposed under R.C. 2903.06, the court lacked the authority to
grant appellee limited driving privileges as such privileges would be considered a portion
of the suspension. Appellee, however, contends that a plain reading of the statute simply
prevents a court from suspending a suspension or a finite part of the suspension and that
case law clearly demonstrates that driving privileges do not effect a class one suspension.
{¶ 12} In the trial court and on appeal, the parties debate the application of a
Supreme Court of Ohio case addressing the availability of limited driving privileges
following a lifetime license suspension. State v. Manocchio, 138 Ohio St.3d 292, 2014-
Ohio-785, 6 N.E.3d 47. In Manocchio, the class-two suspension at issue was imposed
following the defendant’s fourth OVI conviction and second felony OVI conviction. The
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court held that “when a trial court grants limited driving privileges and issues an entry in
compliance with R.C. 4510.021(A), that grant is not a modification of a lifetime
suspension within the meaning of former R.C. 4510.54(A).” Id. at ¶ 2.
{¶ 13} In reaching its holding, the court stressed that the General Assembly had
“expressly distinguished between the granting of driving privileges during a license
suspension and the modification of that license suspension.” Id. at ¶ 15. The court
explained:
[T]he General Assembly has carved out two procedures by which
drivers under license suspensions may seek to drive and has given them
distinct labels. One procedure allows limited driving privileges. R.C.
4510.021 and related statutes. The other allows termination or modification
of the suspension. R.C. 4510.54.
Id. at ¶ 18. See State v. Varholick, 2017-Ohio-9181, 103 N.E.3d 242 (8th Dist.); State v.
Semenchuk, 8th Dist. Cuyahoga No. 100323, 2014-Ohio-1521.
{¶ 14} The state urges us to follow the Seventh Appellate District which rejected
an appeal of a denial of a motion for limited driving privileges under R.C. 4510.021.
State v. Morris, 7th Dist. Columbiana No. 19 CO 0012, 2020-Ohio-3147. Analyzing the
availability of driving privileges following a class-one lifetime license suspension
imposed pursuant to an aggravated vehicular homicide conviction under R.C.
2903.06(A)(1)(a), the court distinguished the holding in Manocchio stating that the case
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at bar did not involve the denial of a request for driving privileges based on a time
provision (in Manocchio, the 15-year proscription against modifying a lifetime
suspension). Id. at ¶ 9. The court then found that R.C. 4510.13, referenced in R.C.
4510.021, applied and that appellee, by seeking the ability to drive while under a class
one suspension was in essence requesting that the trial court “suspend the suspension or a
portion of the suspension” which was prohibited under R.C. 4510.13(C)(3). Id. at ¶
12.
{¶ 15} Reviewing the relevant statutes and case law, we reject the nonbinding
Morris court’s interpretation of R.C. 4510.13(C)(3). “Limited driving privileges” is
statutorily defined as “the privilege to operate a motor vehicle that a court grants under
section 4510.021 of the Revised Code to a person whose driver’s or commercial driver’s
license or permit or nonresident operating privilege has been suspended.” R.C.
4501.01(UU). Thus, such privileges are clearly available during a license suspension.
And, as stated in R.C. 4510.021, the availability of driving privileges applies to any
license suspension barring limited exceptions under R.C. 4510.13.
{¶ 16} Importantly, the plain language of R.C. 4510.13(C)(3), unlike other
subsections in R.C. 4510.13, does not address, let alone expressly prohibit limited driving
privileges for driver’s convicted under R.C. 2903.06. R.C. 4510.13(A)(1) states that
divisions (A)(2) to (9) “apply to a judge or mayor regarding the suspension of, or the
grant of limited driving privileges during a suspension of an offender’s driver’s * * *
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license.” Reading the statute as a whole, several other sections set forth conditions and
time restrictions regarding the availability of limited driving privileges based on a
defendant’s conviction. For example, R.C. 4510.13(3) through (6) expressly prohibit a
court’s granting of limited driving privileges for convictions under R.C. 4511.19 prior to
the expiration of set time periods, for certain commercial driver’s license suspensions, or
unless various other conditions are met. Thus, because certain subsections of R.C.
4510.13—on their face—expressly prohibit the granting of limited driving privilege in
circumstances not applicable to this case, it would be entirely unreasonable to interpret
R.C. 4510.13(C)(3), which does not contain similar prohibitive language, as “expressly
prohibit[ing]* * *limited driving privileges” as that phrase is used in R.C. 4501.021.
{¶ 17} Appellant nonetheless contends that R.C. 4510.13(C)(3)’s use of the phrase
“portion of a suspension” necessarily includes limited driving privileges. We disagree.
We must conclude that if the legislature intended to expressly prohibit limited driving
privileges for certain class one suspensions under R.C. 4510.13(C)(3), it would have used
the explicit language that it used in other subsections of R.C. 4510.13 to do so.
Moreover, the state’s interpretation is contrary to the plain meaning of the statute. Where
a particular word is not defined in the statute we must give it its plain and ordinary
meaning. State /City of Bowling Green v. Drake, 2017-Ohio-4336, 91 N.E.3d 1263 (6th
Dist.), ¶ 12; State v. Anthony, 96 Ohio St.3d 173, 2002-Ohio-4008, 772 N.E.2d 1167, ¶
11. The plain and ordinary meaning of “portion” is “an often limited part set off or
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abstracted from a whole.” Merriam-Webster’s Collegiate Dictionary Eleventh Edition
967 (2003). Harmonizing this definition with R.C.4510.13 and the Supreme Court of
Ohio’s explanation of the relationship between license suspensions and limited driving
privileges in Manocchio, supra, we cannot conclude that section (C)(3) was enacted as a
means to limit the availability of driving privileges for class-one suspensions imposed
under R.C. 2903.06. Rather, it simply restricts the sentencing court’s ability to suspend
the suspension in full or in part.
{¶ 18} In granting appellee driving privileges the court, in compliance with R.C.
4510.021, specifically limited appellee’s driving ability to her work and to her child’s
day-care and school on Monday through Friday from 7:00 a.m. until 5:30 p.m. Based on
the foregoing, find that the court did not err when it granted appellee’s motion for limited
driving privileges. Appellant’s assignment of error is not well-taken.
{¶ 19} As to the conflict which exists between our decision and the Seventh
Appellate District’s decision in State v. Morris, 7th Dist. Columbiana No. 19 CO 0012,
2020-Ohio-3147, we note that Section 3(B)(4), Article IV of the Ohio Constitution
provides that “[w]henever the judges of a court of appeals find that a judgment upon
which they have agreed is in conflict with a judgment pronounced upon the same
question by any other court of appeals of the state, the judges shall certify the record of
the case to the supreme court for review and final determination.” The Ohio Supreme
Court set forth three requirements which must be met in order to certify a case:
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First, the certifying court must find that its judgment is in conflict
with the judgment of a court of appeals of another district and the asserted
conflict must be “upon the same question.” Second, the alleged conflict
must be on a rule of law-not facts. Third, the journal entry or opinion of the
certifying court must clearly set forth that rule of law which the certifying
court contends is in conflict with the judgment on the same question by
other district courts of appeals.
Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 596, 613 N.E.2d 1032 (1993).
{¶ 20} Because we find that the court’s decision in this appeal is in conflict with
Morris, supra, we certify a conflict to the Supreme Court of Ohio on the following issue:
Are limited driving privileges available for a class-one lifetime driver’s suspension
imposed following a conviction under R.C. 2903.06(A)(1)(a), or are they considered an
impermissible suspension of a portion of the suspension under R.C. 4510.13(C)(3)? The
parties are directed to S.Ct.Prac.R. 5.03 and 8.01 for guidance.
IV. Conclusion
{¶ 21} On consideration whereof, we affirm the October 26, 2021 judgment of the
Erie County Court of Common Pleas. Pursuant to App.R. 24, appellant is ordered to pay
the costs of this appeal.
Judgment affirmed.
11.
State of Ohio
v. Marisa A. Roberts nka Riffle
E-21-047
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Christine E. Mayle, J.
CONCUR. ____________________________
JUDGE
Gene A. Zmuda, J ____________________________
CONCURS IN DECISION ONLY JUDGE
AND WRITES SEPARATELY.
ZMUDA, J.
{¶ 22} I concur with the majority’s decision affirming the trial court’s judgment.
However, because I believe the state fails to meet the necessary threshold of showing that
R.C. 4510.13 is ambiguous, we merely need to apply the plain language of the statute to
reach this result without any interpretive analysis. I write separately to address this issue.
{¶ 23} The state asks this court to interpret R.C. 4510.13(C)(3)’s prohibition
against “suspending” a driver’s license suspension imposed under R.C. 2903.06 to
include a prohibition against the granting of limited driving privileges to an offender
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serving that suspension. To resolve this appeal, we must review the statute to determine
whether such a construction is warranted.
{¶ 24} The Ohio Supreme Court has established a specific process for courts to
construe statutes. “It is a cardinal rule of statutory construction that where the terms of a
statute are clear and unambiguous, the statute should be applied without interpretation.”
Wingate v. Hordge, 60 Ohio St.2d 55, 58, 396 N.E.2d 770 (1979). “If [the statute] is not
ambiguous, then we need not interpret it; we must simply apply it.” State v. Hairston,
101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471, ¶ 13. “A statute is ambiguous
when its language is subject to more than one reasonable interpretation.” State v. Jordan,
89 Ohio St.3d 488, 492, 733 N.E.2d 601, (2000). Therefore, in order to interpret the
statute as the state requests, we must first find that the statute is ambiguous on the issue
presented for our review. It is not.
{¶ 25} R.C. 4510.13 states, in relevant part:
(B) Any person whose driver's or commercial driver's license or permit or
nonresident operating privilege has been suspended pursuant to section
4511.19 or 4511.191 of the Revised Code or under section 4510.07 of the
Revised Code for a violation of a municipal OVI ordinance may file a
petition for limited driving privileges during the suspension.
***
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(C)(3) No judge or mayor shall suspend any class one suspension, or any
portion of any class one suspension, imposed under section
2903.04, 2903.06, 2903.08, or 2921.331 of the Revised Code.
(emphasis added). The plain language of R.C. 4510.13(B) clearly states the
circumstances where certain driving privileges may be granted “during the suspension.”
This is distinguishable from the plain language prohibiting the suspension of a suspension
under R.C. 4510.13(C)(3), that would establish a period during which the suspension was
not in effect. In other words, when a trial court grants an offender limited driving
privileges, the suspension is not suspended but remains in effect subject to the granted
privileges.
{¶ 26} In light of the plain language of R.C. 4510.13(B), I do not believe there is a
reasonable interpretation of R.C. 4510.13(C)(3) in which a trial court’s grant of limited
driving privileges constitutes a suspension of a driver’s license suspension as the state
argues. Notably, the majority reaches this exact same conclusion recognizing that some
provisions under R.C. 4510.13 include an “express prohibition” against the granting of
limited driving privileges while R.C. 4510.13(C)(3) does not. As a result, the majority
finds that the state’s interpretation of the statute is not supported by the statute’s plain
language, showing that the statute is not ambiguous. Inexplicably, the majority does not
recognize the consequence of that conclusion—that no further statutory interpretation is
14.
necessary—and proceeds to review the statute as if it were ambiguous. This analysis is
superfluous and I do not join in that portion of the majority’s decision.
{¶ 27} Having concluded that the plain language of the statute is unambiguous, we
need only to apply that language and resolve this matter accordingly. Wingate at 58. In
doing so, it is clear that the state’s argument that R.C. 4510.13(C)(3) prohibited the trial
court’s granting of limited driving privileges to appellant as a suspension of her
suspension is unfounded. I find the state’s assignment of error not well-taken for this
reason alone and concur with the majority’s decision for that reason only.
{¶ 28} I note that while I agree with only a portion of the majority’s analysis to
resolve this appeal, I concur in full with the majority’s certification of a conflict between
this decision and State v. Morris, 7th Dist. Columbiana No. 19 CO 0012, 2020-Ohio-
3147. Our conclusion here is in direct conflict on an issue of law resolved in Morris and
is properly certified for resolution by the Ohio Supreme Court pursuant to Section
3(B)(4), Article IV of the Ohio Constitution.
{¶ 29} For these reasons, I concur in the majority’s decision but would do so only
through applying the plain language of the statute to the question before us.
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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