[Cite as State v. Owen,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2012-L-102 - vs - :

TAMARA J. OWEN, :

Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 12 CR 000174.

Judgment: Reversed and remanded.

Charles E. Coulson, Lake County Prosecutor, and Alana A. Rezaee, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff- Appellee).

R. Paul LaPlante, Lake County Public Defender, and Vanessa R. Clapp, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant- Appellant).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Tamara J. Owen, appeals her sentence following her guilty plea

in the Lake County Court of Common Pleas to operating a vehicle under the influence of

alcohol (“OVI”), a felony of the third degree. At issue is whether the trial court erred in

sentencing appellant pursuant to Ohio’s OVI statute rather than Ohio’s general sentencing statute, as revised by H.B. 86. For the reasons that follow, we reverse and

remand.

{¶2} This case involves a conflict in Ohio’s sentencing statutes with respect to

the maximum prison sentence authorized for third-degree felony OVI and requires us to

resolve this conflict. The OVI statute provides for a maximum sentence of five years for

this offense. However, R.C. 2929.14(A)(3), recently enacted by H.B. 86, has reduced

the maximum prison term for third-degree felonies, with certain exceptions not

applicable here, to three years. The General Assembly did not resolve or even address

this conflict in H.B. 86. Further, as both parties acknowledge, no Ohio appellate court

has addressed this issue. Thus, neither the case law of the Ohio Supreme Court nor

that of our sister Appellate Districts provides guidance. As a result, this court resolves

this conflict according to the rules of statutory construction adopted by the General

Assembly.

{¶3} Appellant was charged by way of information with one count of OVI, a

third-degree felony, in violation of R.C. 4511.19(A)(2), having previously been convicted

of a felony OVI within the last 20 years of the date of the current offense and having

refused to submit to a chemical test in connection with the current offense. Appellant

pled not guilty.

{¶4} Appellant subsequently entered a plea bargain with the state. At the guilty

plea/sentencing hearing held on August 2, 2012, she pled guilty to OVI as charged in

the information. The trial court advised appellant that H.B. 86, which revised Ohio’s

general sentencing statutes, became effective on September 30, 2011. The court

stated that, pursuant to R.C. 2929.14(A)(3), as revised by H.B. 86, the five-year

2 maximum prison sentence for certain listed third-degree felonies remains the same,

while the maximum sentence for other third-degree felonies is three years. OVI was not

included in that list.

{¶5} The court stated that, in contrast, R.C. 4511.19(G)(1)(e), which makes

OVI a third-degree felony if the offender has previously been convicted of a felony OVI,

allows for a maximum sentence of five years in prison.

{¶6} The trial court advised appellant that it is unclear whether the OVI offense

with which she is charged allows for a five- or three-year maximum prison sentence.

While the court interpreted the statutes to authorize a five-year maximum prison term for

appellant’s offense, the court acknowledged that a reasonable interpretation of H.B. 86

would limit appellant’s sentence to a maximum of three years in prison.

{¶7} The court advised appellant that the maximum sentence would be five

years or three years, depending on how H.B. 86 was interpreted. The court noted that

at a recent pretrial, counsel for both parties told the court they would jointly recommend

that appellant be sentenced to 24 months in prison. The court stated it told counsel that

if the court accepted their recommendation, it would sentence appellant to five years in

prison and suspend three years of the sentence. The court said that, after appellant

served two years in prison, the court would place her on five years of community control

sanctions so she will be under the court’s supervision for a total of seven years. The

court explained the reason for this hybrid sentence is that appellant did very well when

she was on probation for her prior OVI conviction, but as soon as she was off probation,

she committed the current offense. The court told appellant that if she did not

successfully complete community control, there would be severe consequences. The

3 court said it wanted to keep her under its supervision so she would have a better

chance of not ruining her life.

{¶8} Appellant’s counsel stated that he had asked the court at the recent

pretrial to consider a three-year maximum sentence based on the change in H.B. 86.

He said he made this request while acknowledging the OVI statute authorizes the court

to sentence appellant to five years in prison. Appellant’s counsel said that, since OVI

was not included in the list of third-degree felonies that retain a five-year maximum

sentence in H.B. 86, “there’s maybe [sic] in my position * * * a little inconsistency, and

still * * * maybe [sic] some consideration down the road as to what the legislature

meant.”

{¶9} The prosecutor outlined the factual basis for appellant’s guilty plea. On

February 22, 2012, appellant was driving her car in Painesville when an Ohio State

Patrol Trooper clocked her driving 45 m.p.h. in a 25 m.p.h. zone. The trooper stopped

appellant and asked for her license. She said it was suspended due to a prior OVI

conviction. The trooper noticed a strong odor of alcohol coming from appellant. She

denied drinking any alcoholic beverages. However, after failing the field sobriety tests,

appellant said she knew she should not have been driving. She refused to take a

breath test. The prosecutor also stated appellant was previously convicted of felony

OVI in 2007.

{¶10} The court found that appellant’s guilty plea was voluntary; accepted her

plea; and found her guilty of OVI, a felony of the third degree, in violation of R.C.

4511.19(A)(2).

4 {¶11} The court then proceeded to sentencing. Appellant’s counsel asked the

court to adopt appellant’s and the state’s joint recommendation that appellant be

sentenced to two years in prison with the understanding that the court will suspend the

remaining prison time and place her on community control for five years. Appellant’s

attorney told the court that after the last pretrial, he telephoned appellant and told her

about the court’s proposed sentence. He said appellant never hesitated to accept it.

Appellant told her attorney that when she was on probation following her prior OVI

conviction, that was the best four years of her life.

{¶12} Consistent with the parties’ joint recommendation, the court imposed a

hybrid sentence. The court sentenced appellant to five years in prison. Appellant was

to serve the first two years of the sentence. The remaining three years were suspended

to secure appellant’s compliance with the community control component of her

sentence. Upon her release from prison in two years, she was ordered to be placed on

community control sanctions for the next five years.

{¶13} Appellant appeals her sentence, asserting the following for her sole

assignment of error:

{¶14} “The trial court imposed a prison sentence that was contrary to law when it

sentenced the defendant-appellant to five years in prison where Ohio’s sentencing

statute limits the prison sentence to a maximum of three years.”

{¶15} In State v. Kalish,

,

, the Supreme Court

of Ohio established a two-step analysis for an appellate court reviewing a felony

sentence. In the first step, we consider whether the trial court “adhered to all applicable

rules and statutes in imposing the sentence.” Id. at ¶14. “As a purely legal question, this

5 is subject to review only to determine whether it is clearly and convincingly contrary to

law, the standard found in R.C. 2953.08(G).” Id. The Supreme Court in Kalish stated

that if the trial court's sentence was outside the permissible statutory range, the

sentence would be clearly and convincingly contrary to law. Id. at ¶15.

{¶16} Next, if the first step is satisfied, we consider whether, in selecting the

actual term of imprisonment within the permissible statutory range, the trial court

abused its discretion.

.

{¶17} The instant appeal also involves the interpretation of statutory provisions.

“[T]his court reviews a trial court’s interpretation and application of a statute under a de

novo standard of appellate review.” State v. Phillips, 11th Dist. No. 2008-T-0036, 2008-

Ohio-6562, ¶11. “Statutory interpretation involves a question of law; therefore, we do

not give deference to the trial court's determination.”

The cornerstone of statutory

interpretation is legislative intention. State ex rel. Francis v. Sours,

(1944). In order to determine legislative intent, it is a cardinal rule of statutory

construction that a court must first look to the language of the statute itself. Provident

Bank v. Wood,

(1973). “If the meaning of the statute is

unambiguous and definite, it must be applied as written and no further interpretation is

necessary.” State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn.,

(1996). A court may interpret a statute only where the words of the

statute are ambiguous. State ex rel. Celebrezze v. Allen Cty. Bd. of Commrs.,

(1987). Ambiguity exists if the language is susceptible of more than one

reasonable interpretation. State ex rel. Toledo Edison Co. v. Clyde,

(1996).

6 {¶18} The OVI statute, R.C. 4511.19, was last revised, effective September 23,

2011. R.C. 4511.19(G)(1)(e) makes OVI a third-degree felony if the offender has

previously been convicted of a felony OVI. R.C. 4511.19(G)(1)(e)(ii) provides that if the

offender is convicted of a violation of R.C. 4511.19(A)(2) for the refusal to submit to a

chemical test, as in this case, the offender shall be sentenced to a mandatory prison

term of one, two, three, four, or five years pursuant to R.C. 2929.13(G)(2) (if the

offender is also convicted of a specification that he has five or more prior OVI

convictions in the last 20 years) or a mandatory prison term of 120 days (if the offender

is not convicted of such specification). The court may also impose a prison term in

addition to the mandatory term. The total of a mandatory prison term and the additional

prison term shall not exceed five years. In addition, the court may also impose a

community control sanction.

{¶19} In contrast, R.C. 2929.14(A)(3)(a), which was revised by H.B. 86, effective

September 30, 2011, provides that the five-year maximum prison sentence for the

following third-degree felonies remains in effect: aggravated vehicular homicide,

aggravated vehicular assault, sexual battery, unlawful sexual conduct with a minor,

gross sexual imposition, and robbery or burglary if the offender has two or more prior

aggravated or regular robbery or burglary convictions. However, for other third-degree

felonies, the maximum sentence is three years. R.C. 2929.14(A)(3)(b). Thus, the five-

year maximum sentence was only retained for certain felonies involving violence. This

revision to R.C. 2929.14(A)(3) did not include OVI in the list of offenses retaining a five-

year maximum sentence.

7 {¶20} Further, R.C. 2929.14(B)(4), revised as part of H.B. 86, provides that if an

offender is being sentenced for a third-degree felony OVI, the court shall impose a

mandatory prison term under R.C. 2929.13(G)(2) of one, two, three, four, or five years

(if he is also convicted of a specification that he has five or more prior OVI convictions

within the last 20 years) or a mandatory prison term of 120 days (if not convicted of

such a specification). In addition to the mandatory prison term, the court may sentence

the defendant to an additional prison term of any duration specified in R.C.

2929.14(A)(3). The total of the additional prison term and the mandatory prison term

shall equal one of the authorized prison terms in R.C. 2929.14(A)(3) for a third-degree

felony OVI. In addition to the mandatory and additional prison terms, the court may also

sentence the defendant to a community control sanction.

{¶21} Appellant argues that the trial court’s sentence is clearly and convincingly

contrary to law because the court sentenced her to five years in prison, although, she

argues, H.B. 86 limited her maximum sentence to three years. Appellant’s argument

therefore addresses only the first step of the Kalish analysis.

{¶22} Appellant asserts two reasons in support. First, she argues there is a

conflict between R.C. 4511.19, which authorizes a five-year maximum sentence for

third-degree felony OVI, and R.C. 2929.14(A)(3), which provides for a maximum

sentence of three years for those third-degree felonies not listed in R.C.

2929.14(A)(3)(a). She argues that, because H.B. 86 was enacted after RC. 4511.19

was last revised, the three-year maximum sentence provided for in R.C. 2929.14(A)(3)

prevails over the five-year maximum sentence authorized by R.C. 4511.19. Second,

appellant argues that the conflict between these two statutes should be resolved in

8 favor of R.C. 2929.14(A)(3) to promote the legislative goal expressed in H.B. 86 of

emphasizing the use of minimum sanctions.

{¶23} In contrast, the state argues the different sentences provided for in R.C.

4511.19(G)(1)(e)(ii) and 2929.14(A)(3) “have created an ambiguity.” Thus, the state

argues this court should interpret these statues pursuant to R.C. 1.49, which contains

rules for interpreting ambiguous statutes, to effectuate the legislative intent that the five-

year sentence in R.C. 4511.19(G)(1)(e)(ii) for third-degree felony OVI remain in effect.

{¶24} We are therefore asked to consider which sentencing statute prevails over

the other. As there is no case law addressing which of these statutes prevails, we turn

to the rules of statutory construction enacted by the General Assembly to resolve this

conflict. Contrary to the state’s argument, there is nothing ambiguous about these

sentencing statutes; each is plain and definite. Thus, the rules for interpreting an

ambiguous statute, as set forth in R.C. 1.49, do not apply. Rather, the problem is that

the OVI statute and the general sentencing statute are in conflict.

{¶25} The General Assembly has also enacted rules for interpreting conflicting

statutes in R.C. 1.51 and R.C. 1.52. R.C. 1.51 provides:

{¶26} If a general provision conflicts with a special * * * provision, they

shall be construed, if possible, so that effect is given to both. If the

conflict between the provisions is irreconcilable, the special * * *

provision prevails as an exception to the general provision, unless

the general provision is the later adoption and the manifest intent

[of the legislature] is that the general provision prevail.

9 {¶27} R.C. 1.51 thus applies when a conflict exists between a general and a

special or specific statutory provision. While appellant argues that R.C. 2929.14 is a

general, rather than a specific, sentencing statute, R.C. 2929.14(A)(3) sets forth a

specific, two-tiered sentencing scheme for third-degree felonies. Further, R.C.

2929.14(B) outlines a highly specific sentencing scheme for third-degree felony OVI

offenses. As a result, R.C. 2929.14(A)(3) and R.C. 2929.14(B)(4) are specific

sentencing statutes.

{¶28} Thus, R.C. 1.51 does not apply here because both statutes at issue, R.C.

4511.19 and R.C. 2929.14(A)(3), are specific, rather than general, in nature. However,

R.C. 1.52, the companion statute to R.C. 1.51, is not limited to cases in which a general

statute conflicts with a specific statute. To the contrary, R.C. 1.52(A) provides: “If

statutes * * * are irreconcilable, the statute latest in date of enactment prevails.”

{¶29} It cannot be disputed that these two statutes are in irreconcilable conflict

since the maximum sentence authorized for a third-degree felony OVI under R.C.

4511.19(G)(1)(e) is five years, while the maximum sentence allowed for third-degree

felonies, other than those listed in R.C. 2929.14(A)(3)(a), is three years. Since these

statutes are in conflict and both are specific in nature, we hold that, pursuant to R.C.

1.52, the later enacted statute, i.e., R.C. 2929.14(A)(3), prevails over R.C.

4511.19(G)(1)(e)(ii).

{¶30} Our interpretation is consistent with the legislative intent of H.B. 86, as

expressed in R.C. 2929.11 and R.C. 2929.14(A)(3). According to the current version of

R.C. 2929.11, the revised portion of which is emphasized, the overriding purposes of

felony sentencing are to “protect the public from future crime by the offender and others

10 and to punish the offender using the minimum sanctions that the court determines

accomplish those purposes without imposing an unnecessary burden on state or local

government resources.” (Emphasis added.) This emphasized language evinces the

legislative intent that sentencing courts are to use the minimum sanctions available to

accomplish the purposes of felony sentencing.

{¶31} Further, H.B. 86’s creation of a two-tiered sentencing scheme for third-

degree felonies in R.C. 2929.14(A)(3) also shows the legislative intent to limit the five-

year maximum sentence for third-degree felonies to certain listed offenses involving

violence.

{¶32} Moreover, we note that the only vehicle-related third-degree felonies that

retain a five-year maximum sentence in R.C. 2929.14(A)(3)(a) are aggravated vehicular

homicide and aggravated vehicular assault. This provision signals the legislature’s

intent that a five-year maximum sentence for third-degree felonies involving vehicles be

limited to offenses involving violence.

{¶33} We recognize that the trial judge, in imposing appellant’s hybrid sentence,

was seeking to fashion a sentence that would take into account her prior felony OVI

conviction, but also help her to avoid repeating her pattern of drunk driving in the future.

The record shows that appellant did very well while on probation following her prior OVI

conviction and that the trial court wanted to keep her under the court’s supervision as

long as possible to ensure her rehabilitation and avoid another OVI conviction.

{¶34} On remand, the trial court shall exercise its discretion in re-sentencing

appellant to one of the prison terms set forth in R.C. 2929.14(A)(3)(b) up to three years

in prison.

11 {¶35} We therefore hold that the five-year maximum sentence imposed by the

trial court was clearly and convincingly contrary to law.

{¶36} For the reasons stated in the opinion of this court, it is the judgment and

order of this court that the judgment of the Lake County Court of Common Pleas is

reversed, and this matter is remanded to the trial court for further proceedings

consistent with this opinion.

THOMAS R. WRIGHT, J.,

COLLEEN MARY O’TOOLE, J.,

concur.

12