State v. Winstead, Unpublished Decision (4-5-2004)

{¶ 18} I dissent from the majority for the following reasons. Although the specific words of R.C. 2929.16(A)(3) does not prohibit the actions of the trial court, the sentence imposed violates the spirit of the sentencing statutes. One who has been convicted of an OMVI that is a fourth degree felony is one who, within six years, has been convicted of three violations of the OMVI statute. If convicted of this offense, the offender may be sentenced to a term of local incarceration, not prison. R.C.2929.13(G)(1). This term of incarceration may be served in a jail, a community-based correctional facility, a halfway house, or an alternative residential facility. Id. The maximum term of incarceration available for a fourth degree felony is eighteen months. R.C. 2929.14(A)(4). To impose the maximum term, certain findings are required to be made on the record and the reasons for the maximum sentence need to be placed on the record. R.C.2929.19.

{¶ 19} In this case, the trial court imposed a total of 18 months be spent in local incarceration as part of the community control. This, in essence, is the maximum term possible for a felony of the fourth degree. The trial court was able to impose this sentence without making any of the statutory findings or stating its reasons on the record. In addition, there is no longer any jail term to impose for a violation of community control that is not a criminal offense in itself. This court has previously held that time spent in the WORTH center must be counted as time served in a jail term. In addition, the statute provides that the time of local incarceration for an OMVI offense may be served in a community based correctional facility, which is what the WORTH center is. If the trial court wanted to require a defendant to serve the sentence in a treatment facility, that can be ordered as part of the term of local incarceration. R.C.2929.13(G)(1). Thus, sentencing an offender to both a term of local incarceration and a consecutive term in a community based correctional facility, violates the spirit of the statutes. For these reasons, I respectfully dissent from the majority.