[Cite as State v. Sturgill,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NOS. CA2013-01-002 CA2013-01-003 : - vs - OPINION : 10/21/2013

ISOME EARL STURGILL, JR., :

Defendant-Appellant. :

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2012-CR-00839

D. Vincent Faris, Clermont County Prosecuting Attorney, Judith A. Brant, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

Arenstein and Gallagher, Hal R. Arenstein, The Citadel, 114 East Eighth Street, Cincinnati, Ohio 45202, for defendant-appellant

HENDRICKSON, P.J.

{¶ 1} Defendant-appellant, Isome E. Sturgill, Jr., appeals from an amended judgment

entry sentencing him to 13 years in prison after a jury found him guilty of various offenses

relating to the operation of a motor vehicle. For the reasons discussed below, we affirm

appellant's convictions and sentence.

I. FACTS Clermont CA2013-01-002 CA2013-01-003

{¶ 2} On November 7, 2012, appellant was indicted on one count of failing to comply

with the order or signal of a police officer in violation of R.C. 2921.331(B) (count one), one

count of driving under an OVI suspension in violation of R.C. 4510.14(A) (count two), one

count of driving under a Financial Responsibility Act (FRA) suspension in violation of R.C.

4510.16(A) (count three), and one count of operating a vehicle while under the influence of

alcohol with a prior felony OVI conviction in violation of R.C. 4511.19(A)(1)(a) (count four).

Count four was accompanied with a specification that appellant had previously been

convicted of five or more OVI offenses within the past 20 years. The charges arose out of

allegations that on the evening of June 21, 2011, appellant, who was operating a motor

vehicle in Goshen Township, Clermont County, Ohio, while under the influence of alcohol

and while under OVI and FRA suspensions, attempted to elude or flee from a police officer

after receiving a visible or audible signal to stop the vehicle, thereby causing a substantial

risk of serious physical harm to persons or property.

{¶ 3} A jury trial was held in November 2012. At trial, the state presented testimony

from Sergeant Ronald Robinson, an officer with the Goshen Township Police Department.

Robinson testified that he was in uniform and in a marked police cruiser on the evening of

June 21, 2011 when he clocked a Chevrolet Cavalier being driven by appellant on State

Route 28, traveling 80 m.p.h. in a 45 m.p.h. speed zone. Robinson stated that although he

had activated his vehicle's overhead lights and siren, appellant continued driving above the

posted speed limit. A five-mile high-speed chase ensued, and during this time, Robinson

observed that appellant was driving on the wrong side of the road, crossing yellow lines,

passing cars, running stop signs, and driving through yards in residential areas. Robinson

testified that, at one point, appellant made a "big U-turn" in front of his vehicle, giving

Robinson a clear visual of appellant behind the wheel of the Cavalier. Appellant drove

through a subdivision at a high rate of speed before he eventually pulled into a private -2- Clermont CA2013-01-002 CA2013-01-003

driveway, he and his female passenger got out of the car, and both individuals attempted to

flee on foot. Robinson stated that the female passenger, appellant's girlfriend Jennifer Neal,

was apprehended shortly after she exited the car, but Robinson was unable to apprehend

appellant that evening. Robinson testified that his police cruiser's dash-cam recorded the

high-speed chase and appellant and Neal's subsequent act of fleeing the vehicle. A copy of

the recording was entered into evidence.

{¶ 4} Robinson explained that after apprehending Neal, he was able to discover

appellant's name and obtain information on how appellant and Neal had spent their evening.

Robinson discovered that appellant and Neal had started their evening at Hangovers, a bar

located in Goshen Township, before leaving the bar to pick up appellant's brother, Edwin

Sturgill. The three went to Zappz Bar and Grill in Loveland, Ohio. After getting into a

"scuffle" at Zappz, appellant, Neal, and Edwin left Zappz. Appellant and Neal dropped Edwin

off at his home, and the couple returned to Hangovers. It was after appellant and Neal left

Hangovers the second time that the high-speed chase occurred.

{¶ 5} Robinson testified that, as part of his investigation, he ran appellant's BMV

record and discovered that appellant was driving "under suspension." Robinson also

discovered that appellant had prior OVI convictions, including (1) a November 30, 1994 OVI

conviction in Clermont County Municipal Court Case No. 94TRC2291446, (2) an April 11,

1996 OVI conviction in Clermont County Municipal Court Case No. 96TRC254942, (3) a

December 28, 1998 felony OVI conviction in the Hamilton County Court of Common Pleas

Case No. B9805847, (4) a February 7, 2003 OVI conviction in the Clermont County Municipal

Court Case No. 02TRC23658A, and (5) a May 3, 2007 OVI conviction in the Clermont

County Court of Common Pleas Case No. 2007CR00039. A certified copy of appellant's

BMV record as well as certified copies of the judgment entries of conviction in the above

mentioned OVI cases were stipulated to by the parties as authentic and admissible and were -3- Clermont CA2013-01-002 CA2013-01-003

entered into evidence.

{¶ 6} Robinson testified that he exchanged phone calls with appellant the day after

the high-speed chase. During one of these phone calls, appellant admitted that he had been

drinking on the evening of June 21, 2011, but he denied being the driver of the vehicle

involved in the high-speed chase. Appellant claimed that Neal had been the driver.

Appellant later provided a written statement to the Goshen Township Police Department. In

his statement, appellant admitted that he and Neal had gone to Hangovers, where he "had a

drink and ordered a pizza." Appellant claimed that the bartender at Hangovers "was drinking

and had done several shots of tequila and * * * was smoking a bowl of marijauna [sic]."

Appellant stated that he and Neal left Hangovers to pick up his brother and then the three of

them went to Zappz "where [they] ordered one drink and didn't drink it because [he] got into a

confrontation with a guy. [They] just left instead of having trouble." After dropping off

appellant's brother, appellant stated that he and Neal "stopped back at Hangovers had one

drink [and] ate the rest of the pizza." Appellant claimed that Neal was driving when they left

Hangovers when "a cop for no aparent [sic] reason turned his lights on her. She panicked

went toward her fathers [sic] house and then turned on a street come [sic] out on Gibson and

down 48 where she missed a turn tried to turn around and then pulled in a driveway. I got

out and ran she tried to follow me and was caught."

{¶ 7} On cross-examination, Robinson admitted that other than observing appellant's

driving during the high-speed chase, he did not have the opportunity to personally observe or

interact with appellant on the evening of June 21, 2011. As a result, Robinson was unable to

utilize any of the sobriety tests typically used when an officer suspects an individual has been

drinking and driving, such as the eye nystagmus test, the walk and turn test, the one-leg

stand test, a breath test, a urine test, or a blood test. However, Robinson testified that the

manner in which appellant was driving indicated appellant was impaired. In determining -4- Clermont CA2013-01-002 CA2013-01-003

whether an individual may be driving impaired, Robinson explained that he looks at, "[s]peed,

marked lanes, driving erratic, slow speed, breaking a lot - - hitting their brakes. Just - -

there's different things. Mostly moving within their lanes a lot. A lot of that. I usually see a

lot of impaired drivers moving within lanes * * *." Given that appellant admitted to drinking

alcohol and Robinson observed appellant "speeding, * * * clearly driving into oncoming traffic

- - in the other lane, * * * moving within lanes, * * * [going] left of center, * * * running stop

signs, * * * [and] passing cars on curves," Robinson believed that appellant was operating a

motor vehicle while under the influence of alcohol on June 21, 2011.

{¶ 8} Samantha Fite, a bartender at Hangovers, and Shannon McAleenan, a

bartender at Zappz, testified at trial that they served alcohol to appellant on the evening of

June 21, 2011. Fite testified that appellant and Neal arrived at Hangovers around 6:00 p.m.,

and they stayed for one and one-half to two hours. During this time, appellant was personally

served four or five alcoholic drinks. When appellant and Neal returned to Hangovers

sometime later, around 10:00 p.m., Fite served appellant another drink. Appellant and Neal

played a game of pool and then left for the evening. Fite stated that at the time appellant and

Neal left, neither were stumbling around. However, Fite opined that neither appellant or Neal

should have been driving given that they each had consumed numerous drinks. Fite further

testified that she had not been drinking or smoking marijuana on the night she served

appellant alcohol.

{¶ 9} McAleenan testified that appellant, Edwin, and Neal arrived at Zappz, and

appellant and Edwin were each served an alcoholic drink. When she served appellant,

McAleenan did not observe him slurring his words or stumbling around. About ten minutes

later, McAleenan observed appellant getting into an argument with another man, a bar

regular. After chairs and punches were thrown, McAleenan "kicked" appellant, Edwin, and

Neal out of the bar. -5- Clermont CA2013-01-002 CA2013-01-003

{¶ 10} Following McAleenan's testimony, the state rested. Appellant presented one

witness on behalf of his defense. Appellant's brother, Edwin, testified that appellant drove to

his house and picked him up between 7:00 p.m. and 8:00 p.m. on June 21, 2011. Edwin

testified that appellant did not appear to be intoxicated, did not have red eyes, and was not

slurring his speech. Edwin rode with appellant to Zappz, and during this time, he did not

notice anything which caused him to believe appellant was driving impaired.

{¶ 11} Edwin stated that he, appellant, and Neal each ordered an alcoholic drink after

arriving at Zappz, but they did not get to finish their drinks because appellant got into a

confrontation with someone at the bar and they had to leave. Appellant drove Edwin back to

his house and dropped him off. Edwin testified that when he said goodnight to appellant, he

did not have any concerns that appellant was intoxicated. In fact, Edwin stated, "I've known

him long enough to know not to get in a car with him when he's drinking. I mean it's like night

and day. You know, it's not something that is hard to tell when he's drinking. * * * He was

not intoxicated."

{¶ 12} Following closing arguments, the matter was submitted to the jury. The jury

returned guilty verdicts on all counts and further found that appellant had been convicted of

five or more OVIs in the past 20 years as set forth in the specification accompanying count

four. Appellant was sentenced to 36 months in prison on count one, 60 months in prison on

count four, and 60 months in prison on the specification accompanying count four, to run

consecutive to one another for a total of 13 years. The court ordered 180-day jail sentences

on counts two and three to be served concurrently to the 13-year prison term. Appellant

timely appealed, setting forth four assignments of error. For ease of discussion, we will

address appellant's third and fourth assignments of error together.

II. ANALYSIS

{¶ 13} Assignment of Error No. 1: -6- Clermont CA2013-01-002 CA2013-01-003

{¶ 14} TRIAL COUNSEL'S FAILURE TO REQUEST A STIPULATION FROM THE

PROSECUTOR TO THE SPECIFICATION CHARGING APPELLANT WITH HAVING BEEN

CONVICTED OF FIVE PRIOR OVI'S AMOUNTED TO INEFFECTIVE ASSISTANCE.

{¶ 15} In his first assignment of error, appellant contends his trial counsel was

ineffective for failing "to comprehend he could request a stipulation to the specification

charging [a]ppellant with having been previously convicted of five OVIs in the past [20] year[s]

to shield [a]ppellant from the introduction of evidence whose probative value was

substantially outweighed by the unfair prejudice it produced." Appellant argues his trial

counsel should have filed a motion in limine or an offer to stipulate to the specification so that

the jury would not have heard evidence that appellant had five similar OVI convictions within

the last 20 years. Appellant further argues that the specification accompanying count four of

the indictment "is nothing more than a sentence enhancement and not an actual element of

the underlying offense of OVI." We disagree with appellant's arguments.

{¶ 16} To prevail on an ineffective assistance of counsel claim, an appellant must

establish (1) that his trial counsel's performance was deficient and (2) that such deficiency

prejudiced the defense to the point of depriving the appellant of a fair trial. Strickland v.

Washington,

,

(1984); State v. Vore, 12th Dist. Warren

Nos. CA2012-06-049 and CA2012-10-106,

. Trial counsel's

performance will not be deemed deficient unless it "fell below an objective standard of

reasonableness."

. To show prejudice, the appellant must prove there

exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different."

. "A defendant's failure to satisfy one

prong of the Strickland test negates a court's need to consider the other." State v. Madrigal,

(2000).

-7- Clermont CA2013-01-002 CA2013-01-003

{¶ 17} Appellant was charged in count four of the indictment with operating a vehicle

while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a), which provides that

"[n]o person shall operate any vehicle * * * within this state, if, at the time of the operation, * *

* [t]he person is under the influence of alcohol." If a person has previously been convicted of

five or more equivalent offenses within 20 years of the offense, and one of those offenses

was a felony OVI, that person is guilty of third-degree felony OVI. R.C. 4511.19(G)(1)(e)(i).

The offense is a misdemeanor if the State does not set forth evidence of any prior

convictions. R.C. 4511.19(G)(1)(a). Because a prior OVI conviction raises the degree of a

subsequent OVI charge, the prior conviction is an essential element of the subsequent

charge, and therefore, must be proven beyond a reasonable doubt. State v. Jones, 12th

Dist. Warren No. CA2011-05-044,

, ¶ 12, citing State v. Russell, 12th Dist.

Butler No. CA98-02-018,

, *2 (Nov. 9, 1998); State v. Simin, 9th Dist.

Summit No. 26016,

. Furthermore, where a prior conviction is an

essential element of an offense, the state is not required to accept a defendant's stipulation

to a prior conviction. Jones at ¶ 12.

{¶ 18} Appellant relies on Old Chief v. United States,

,

(1997), for his argument that the probative value of the evidence detailing his five prior OVI

convictions was substantially outweighed by the danger of unfair prejudice. In Old Chief, the

Supreme Court determined that a district court had abused its discretion under Federal

Evid.R. 403 when it spurned a defendant's offer to concede a prior judgment for assault

causing bodily injury and admitted the full judgment record over the defendant's objection.

The Supreme Court held that providing the jury with the name and nature of the prior offense

raised the risk of a verdict tainted by improper considerations in the defendant's subsequent

case, where he faced charges of violating a federal statute prohibiting the possession of a

firearm by anyone with a prior felony conviction.

. -8- Clermont CA2013-01-002 CA2013-01-003

{¶ 19} This court has previously considered the holding of Old Chief and found it to be

non-binding and inapplicable, as it construes the Federal Rules of Evidence rather than

Ohio's Rules of Evidence. See Jones at ¶ 15; Russell at *3. We see no reason to deviate

from our holdings in Jones and Russell. The evidence concerning the name and nature of

appellant's prior OVI convictions had substantial probative value, as the state was required to

prove beyond a reasonable doubt that appellant had previously been convicted of five OVI

offenses within the past 20 years, one of which was a felony OVI, before appellant could be

convicted under R.C. 4511.19 of a third-degree felony OVI. Admittedly, the admission of

evidence regarding appellant's prior OVI convictions created a potential risk that the jury

would find him guilty of the charge of felony OVI in the underlying case on the basis of his

past convictions, but this potential risk of unfair prejudice arises from the wording of the

statute itself. See Jones at ¶ 17. Moreover, the trial court took appropriate steps to instruct

the jury as to the proper purpose of considering the prior OVI convictions, stating:

With reference to the convictions * * * that evidence is being presented for a limited purpose. You may not consider the prior convictions for OVI for the purpose of determining the Defendant's character in order to determine whether he acted in conformity with the character - - that character on this particular occasion. Putting it another way, you may not consider that evidence for any purpose in determining whether or not the Defendant in this case committed an OVI offense. In other words, you can't use the fact that there were prior convictions to prove or for the purpose of proving whether he was driving under the influence of alcohol and or any drug of abuse on this particular occasion. What you may consider it for is if you make a finding - - if and only if you make a finding that he was driving under the influence, then you will go ahead and make additional findings. One of the additional findings will be whether or not he was previously convicted of a felony OVI offense, and the other finding will be whether or not he was previously convicted of five or more OVI offenses within a period of 20 years prior to this.

We must presume that the jury followed the instructions given to it by the trial court. State v.

Martin, 12th Dist. Warren Nos. CA2002-10-111, CA2002-10-115, and CA2002-10-116, 2003-

-9- Clermont CA2013-01-002 CA2013-01-003

Ohio-6551, ¶ 24.

{¶ 20} In light of the foregoing considerations, we find no merit to appellant's first

assignment of error. As appellant's prior convictions for OVI actually transformed the crime

by increasing its degree, the prior convictions were an essential element of the crime that the

state was required to prove beyond a reasonable doubt. As such, the state would have been

under no obligation to accept an offer to stipulate to such convictions, had one been made by

appellant's trial counsel. Accordingly, we cannot say that trial counsel was ineffective for not

offering to stipulate to appellant's prior OVI convictions.

{¶ 21} Appellant's first assignment of error is, therefore, overruled.

{¶ 22} Assignment of Error No. 2:

{¶ 23} THE TRIAL COURT ERRED IN ENTERING A FINDING OF GUILTY ON THE

JURY'S VERDICT BECAUSE SUCH VERDICT WAS AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE.

{¶ 24} In his second assignment of error, appellant contends his conviction for OVI

was not supported by the manifest weight of the evidence. Specifically appellant argues that

the state did not present evidence establishing that he operated a motor vehicle while

impaired, contending that the fact that he was served alcoholic beverages and he fled police

are "insufficient to prove impairment beyond a reasonable doubt." Appellant does not argue

that the state failed to prove the specification accompanying his OVI charge, and, as such,

we shall limit our discussion to a determination of whether appellant's OVI conviction was

against the manifest weight of the evidence.

{¶ 25} A manifest weight of the evidence challenge examines the "inclination of the

greater amount of credible evidence, offered at a trial, to support one side of the issue rather

than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177,

, ¶

14. To determine whether a conviction is against the manifest weight of the evidence, the - 10 - Clermont CA2013-01-002 CA2013-01-003

reviewing court must look at the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and determine whether in resolving the

conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered. State v.

Graham, 12th Dist. Warren No. CA2008-07-095,

, ¶ 66. In reviewing the

evidence, an appellate court must be mindful that the jury, as the original trier of fact, was in

the best position to judge the credibility of witnesses and determine the weight to be given to

the evidence. State v. Blankenburg,

,

, ¶ 114 (12th

Dist.). "The discretionary power to grant a new trial should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction."

citing

State v. Thompkins,

(1997). Furthermore, "[a] unanimous

concurrence of all three judges on the court of appeals panel reviewing the case is required

to reverse a judgment on the weight of the evidence in a jury trial."

citing

.

{¶ 26} Appellant was convicted of OVI in violation of R.C. 4511.19(A)(1)(a), which

required that the state prove beyond a reasonable doubt that appellant operated a vehicle

within Ohio while under the influence of alcohol. Being "under the influence of alcohol" has

been defined as "[t]he condition in which a person finds himself after having consumed some

intoxicating beverage in such a quantity that its effect on him adversely affects his actions,

reactions, conduct, movement or mental processes or impairs his reactions to an appreciable

degree, thereby lessening his ability to operate a motor vehicle." City of Mason v. Molinari,

12th Dist. Warren No. CA2006-05-056,

, citing Toledo v. Starks,

(6th Dist. 1971). See also, State v. Steele,

(3d

Dist. 1952) ("[B]eing 'under the influence' of alcohol or intoxicating liquor means that the

- 11 - Clermont CA2013-01-002 CA2013-01-003

accused must have consumed some intoxicating beverage, whether mild or potent, and in

such quantity, whether small or great, that the effect thereof on him was to adversely affect

his actions, reactions, conduct, movements or mental processes, or to impair his reactions,

under the circumstances then existing so as to deprive him of that clearness of the intellect

and control of himself which he would otherwise possess").

{¶ 27} "Circumstantial evidence will sustain a conviction for driving under the

influence." State v. Wise, 5th Dist. Guernsey No. 2008-CA-9,

, citing

State v. Neff,

(3d Dist. 1957). Moreover, "[p]roof of factual

circumstance[s] concerning [a] defendant's conduct and activities preceding and following the

driving of the vehicle [one] is charged to have driven while under the influence of [alcohol] is

relevant to the ultimate issue of whether [a] defendant was driving a vehicle while under the

influence of [alcohol]." Id.;

.

{¶ 28} After reviewing the entire record, weighing inferences, and examining the

credibility of the witnesses, we cannot say that appellant's conviction for OVI was against the

manifest weight of the evidence. The evidence produced at trial supports the jury's finding

that appellant's consumption of alcohol on the night in question adversely affected his

actions, reactions, conduct, movement or mental processes or impaired his reactions to an

appreciable degree, thereby lessening his ability to operate the vehicle he was driving. The

jury heard testimony that appellant had been served six or seven alcoholic drinks throughout

the course of the evening, that appellant had admitted to police officials he had been drinking

on the night of the incident, and that appellant was observed driving a Chevrolet Cavalier in

Clermont County in a manner that Sergeant Robinson described as indicative of an impaired

driver (e.g. speeding, driving into oncoming traffic, driving in the improper lane, moving within

lanes, going left of center, running stop signs, passing cars on curves, and driving through

yards in residential areas). - 12 - Clermont CA2013-01-002 CA2013-01-003

{¶ 29} While the jury heard testimony from Edwin that he did not believe appellant was

intoxicated on the night of June 21, 2011 and neither of the bartenders who served appellant

alcohol observed appellant slurring his words or stumbling around their respective bars, the

jury was entitled to disregard such testimony if they did not find it credible. See State v.

Brown, 12th Dist. Butler CA2011-11-207,

("The jury in this case was in

a better position to view the witnesses, observe their demeanor, and assess their credibility,

and was free to believe or disbelieve all, part, or none of their testimony"). "It is well-

established that '[w]hen conflicting evidence is presented at trial, a conviction is not against

the manifest weight of the evidence simply because the jury believed the prosecution

testimony.'" State v. Bates, 12th Dist. Butler No. CA2009-06-174,

, ¶ 11,

quoting State v. Bromagen, 12th Dist. Clermont No. CA2005-09-087,

.

{¶ 30} Given the evidence the jury had to consider, we find appellant's conviction for

OVI was not against the manifest weight of the evidence. Appellant's second assignment of

error is, therefore, overruled.

{¶ 31} Assignment of Error No. 3:

{¶ 32} THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING

APPELLANT TO TWO FIVE YEAR TERMS OF IMPRISONMENT.

{¶ 33} Assignment of Error No. 4:

{¶ 34} THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO

CONSECUTIVE PRISON TERMS.

{¶ 35} In his third and fourth assignments of error, appellant challenges his 13-year

prison sentence. Appellant first argues that the two five-year prison terms he received on

count four's OVI conviction and its accompanying specification were excessive and an abuse

of discretion given that his conduct was "less serious" than conduct normally constituting the

- 13 - Clermont CA2013-01-002 CA2013-01-003

offense of OVI. Appellant also argues that the trial court erred in ordering that the five-year

prison term for the specification accompanying count four run consecutively to count four's

five-year prison term, as it too resulted in an excessive sentence.1

{¶ 36} As we recently noted in State v. Crawford, 12th Dist. Clermont No. CA2012-12-

088,

, "the standard of review set forth in R.C. 2953.08(G)(2) shall govern all

felony sentences." Id. at ¶ 6, quoting State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-

Ohio-2525, ¶ 7; see also State v. Cochran, 10th Dist. Franklin No 11AP-408, 2012-Ohio-

5899, ¶ 52. "When considering an appeal of a trial court's felony sentencing decision under

R.C. 2953.08(G)(2), '[t]he appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence and remand the

matter to the sentencing court for resentencing.'" Crawford at ¶ 7, quoting R.C.

2953.08(G)(2). However, an appellate court's review of an imposed sentence is not whether

the sentencing court abused its discretion. Id.; State v. Warren, 12th Dist. Clermont No.

CA2012-12-087,

. Rather, an appellate court may take any action

authorized by R.C. 2953.08(G)(2) only if the court "clearly and convincingly finds" that either:

(1) "the record does not support the sentencing court's findings under division (B) or (D) of

section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section

2929.20 of the Revised Code, whichever, if any, is relevant;" or (2) "[t]hat the sentence is

otherwise contrary to law." R.C. 2953.08(G)(2)(a)-(b).

{¶ 37} In making a determination under R.C. 2953.08(G)(2), it is "important to

understand that the clear and convincing standard * * * is written in the negative." Warren at

1. Appellant concedes that the trial court was required by R.C. 2923.331(D) to run his three-year prison sentence on count one's failure to comply with the order or signal of a police officer consecutively to his underlying OVI offense. Therefore, appellant's challenge to the imposed consecutive sentences is limited to the trial court's decision to run the five-year prison term on the specification consecutively to the five-year prison term on the OVI conviction.

- 14 - Clermont CA2013-01-002 CA2013-01-003

¶ 8, quoting Crawford at ¶ 8. "It does not say that the trial judge must have clear and

convincing evidence to support its findings."

Rather, the language in R.C. 2953.08(G)(2)

"establishes an 'extremely deferential standard of review' for 'the restriction is on the

appellate court, not the trial judge.'"

quoting Crawford at ¶ 8. An appellate court will not

find a sentence clearly and convincingly contrary to law where the trial court considers the

purposes and principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12,

properly applies postrelease control, and sentences appellant within the permissible statutory

range. Id. at ¶ 7; State v. Humes, 12th Dist. Clermont No. CA2009-10-057,

,

¶ 18.

{¶ 38} In determining whether appellant's sentence on count four and its

accompanying specification falls within the permissible statutory range, this court must first

determine if recently enacted 2011 Am.Sub.H.B. 86 (H.B. 86) impacted the maximum

sentence that an offender may receive under Ohio's OVI statute. To date, only one other

appellate court has addressed this issue.

{¶ 39} In State v. Owen, 11th Dist. Lake No. 2012-L-102,

, the

Eleventh District determined that a conflict exists between Ohio's OVI statute, R.C. 4511.19,

which authorizes a five-year maximum sentence for third-degree felony OVI, and Ohio's

general sentencing statute, 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)—of which OVI 2 is not specifically listed. In Owen, the defendant was convicted of a third-degree felony OVI

in violation of R.C. 4511.19(A)(2), as she had previously been convicted of a felony OVI

within the last 20 years of the date of her current offense and refused to submit to a chemical

2. The specific felonies listed in R.C. 2929.14(A)(3)(a) for which a five-year prison term may be imposed are: 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.

- 15 - Clermont CA2013-01-002 CA2013-01-003

test in connection with her current offense. Id. at ¶ 3-4. Although Owen was sentenced to

five years in prison pursuant to R.C. 4511.19(G)(1)(e)(ii), only two years were ordered

mandatory and the remaining three years were suspended. Id. at ¶ 12. Upon Owen's

release from prison, she was ordered to be placed on community control for five years. Id.

Owen appealed, arguing that the three-year maximum sentence provided for in R.C.

2929.14(A)(3) prevailed over the five-year maximum sentence authorized by R.C. 4511.19.

Id. at ¶ 22. The Eleventh District agreed with Owen, holding:

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).

Id. at ¶ 29.

{¶ 40} We disagree with the Eleventh District's finding that the "two statutes are in

irreconcilable conflict." Rather, under the facts of this case—where appellant was convicted

of an R.C. 2941.1413 specification—we find that Ohio's OVI statute, R.C. 4511.19, and

Ohio's general sentencing statute, R.C. 2929.14, are not in conflict with one another and can

be read together to ascertain the General Assembly's intent to permit a five-year maximum

sentence for a third-degree felony OVI.

{¶ 41} The primary goal of statutory interpretation is to ascertain and give effect to the

intent of the legislature. State v. Richardson, 12th Dist. Clermont No. CA2012-06-043, 2013-

Ohio-1953, ¶ 12, citing State v. Hairston,

,

, ¶ 11. In

determining intent, we first look to the language of the respective statutes.

"If the

meaning of the statute is unambiguous and definite, it must be applied as written and no

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further interpretation is necessary. State ex rel. Savarese v. Buckeye Local School Dist. Bd.

of Edn.,

(1996).

{¶ 42} Ohio's general sentencing statute provides:

Except as provided in division * * * (B)(4) * * * of this section * * * if the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender pursuant to this chapter, the court shall impose a definite prison term that shall be one of the following:

***

(3)(a) For a felony of the third degree that is a violation of section 2903.06, 2903.08, 2907.03, 2907.04, or 2907.05 of the Revised Code or that is a violation of section 2911.02 or 2911.12 of the Revised Code if the offender previously has been convicted of or pleaded guilty in two or more separate proceedings to two or more violations of section 2911.01, 2911.02, 2911.11, or 2911.12 of the Revised Code, the prison term shall be twelve, eighteen, twenty-four, thirty, thirty-six, forty-two, forty-eight, fifty- four, or sixty months.

(b) For a felony of the third degree that is not an offense for which division (A)(3)(a) of this section applies, the prison term shall be nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.

(Emphasis added.) R.C. 2929.14(A). From the above language, it is evident that the

General Assembly intended for R.C. 2929.14(A)(3)(a) and (b) to apply only where no other

specific provision of the general sentencing statute reserved sentencing for a third-degree

felony. However, division (B)(4) of the general sentencing statute was clearly reserved for

third-degree felony OVI sentencing. R.C. 2929.14(B)(4) specifically provides that "[i]f the

offender is being sentenced for a third * * * degree felony OVI offense under division (G)(2) of

section 2929.13 of the Revised Code, the sentencing court shall impose upon the offender a

mandatory prison term in accordance with that division." (Emphasis added.) R.C.

2929.13(G)(2), in turn, provides that "[i]f the offender is being sentenced for a third degree

felony OVI offense * * * the court shall impose upon the offender a mandatory prison term of

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one, two, three, four, or five years if the offender also is convicted of * * * a [R.C. 2941.1413]

specification" (that the offender has been convicted of five or more OVIs within the past 20

years).

{¶ 43} Ohio's OVI statute also sets forth that an offender who has been convicted of a

third-degree felony OVI in violation of R.C. 4511.19(A)(1)(a) shall be sentenced in

accordance with R.C. 2929.13(G)(2). Pursuant to R.C. 4511.19(G)(1)(e)(i), an offender who

has been convicted of a third-degree felony OVI shall be sentenced to "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 * * * a [R.C.

2941.1413] specification." (Emphasis added.)

{¶ 44} Having found that R.C. 2929.14(B)(4) and R.C. 4511.19(G)(1)(e)(i) both permit

a maximum mandatory five-year prison term for a third-degree felony OVI, we find the trial

court's imposition of a five-year prison term on count four was not contrary to law, as it falls

within the permissible statutory range. Furthermore, as a mandatory additional prison term of

one, two, three, four, or five years on the specification is provided for in R.C. 2941.1413, we

find no error in the trial court's decision to sentence appellant to five years on the

specification.

{¶ 45} We further find that the record demonstrates the trial court considered the

principles and purposes of sentencing and the seriousness and recidivism factors before

sentencing appellant. The record reflects that the trial court discussed appellant's extensive

prior record, which included eight previous driving under the influence convictions, six

convictions for failure to stop or comply with the order of a police officer, and 13 convictions

for driving under suspension, as well as the fact that appellant committed the present

alcohol-related offense just months after being released from prison on a similar 2007 driving

under the influence conviction. The court noted appellant has a "very high risk of recidivism," - 18 - Clermont CA2013-01-002 CA2013-01-003

his actions were of great risk to the public, and he was "very lucky" that no one died in the

high speed chase. Given the circumstances of this case, the trial court did not err in

sentencing appellant to the maximum sentence on his third-degree felony OVI conviction or

on its accompanying specification.

{¶ 46} Appellant also challenges the trial court's imposition of consecutive sentences.

Appellant does not argue that his sentence was clearly and convincingly contrary to law or

that the court failed to comply with the requirements of R.C. 2929.14(C) in imposing

consecutive sentences. Rather, appellant argues that the trial court's decision to run his five-

year prison term for the specification consecutively to his five-year prison term for felony OVI

resulted in an "abuse of discretion." As noted above, the General Assembly has explicitly

stated through the passage of R.C. 2953.08(G)(2) that this court's standard for review "is not

whether the sentencing court abused its discretion." State v. Pearce, 12th Dist. Clermont No.

CA2013-01-001,

. Therefore, we are not entitled to review the trial

court's decision under the more lenient abuse of discretion standard. Id.; Crawford, 2013-

Ohio-3315 at ¶ 17. However, in the interest of justice and fairness, we will review the trial

court's decision in accordance with the applicable standard as provided by R.C.

2953.08(G)(2).

{¶ 47} H.B. 86 revived the requirement that a trial court make certain factual findings

before imposing consecutive sentences. State v. Dillon, 12th Dist. Madison No. CA2012-06-

012,

. A trial court must now engage in a three-step analysis and make

certain findings before imposing consecutive sentences pursuant to R.C. 2929.14(C)(4). Id.

at ¶ 9. First, the trial court must find that the consecutive sentence is necessary to protect

the public from future crime or to punish the offender. R.C. 2929.14(C)(4). Second, the trial

court must find that consecutive sentences are not disproportionate to the seriousness of the

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offender's conduct and to the danger the offender poses to the public. Id. Third, the trial

court must find that one of the following applies:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

R.C. 2929.14(C)(4)(a)-(c).

{¶ 48} "A trial court satisfies the statutory requirement of making the required findings

when the record reflects that the court engaged in the required analysis and selected the

appropriate statutory criteria." State v. Smith, 12th Dist. Clermont No. CA2012-01-004, 2012-

Ohio-4523, ¶ 26, citing State v. Alexander, 1st Dist. Hamilton Nos. C-110828 and C-110828,

. In imposing consecutive sentences, "the trial court is not required to

state any talismanic language" or otherwise give reasons explaining its findings. State v.

Oren, 12th Dist. Madison No. CA2012-05-010,

; State v. Hubbard, 10th

Dist. Franklin No. 11AP-945,

, ¶ 86. Nevertheless, the record must reflect

that the court made the requisite findings.

{¶ 49} In imposing consecutive sentences here, the trial court explicitly stated:

The consecutive sentences are necessary to protect the public and to punish Mr. Sturgill. They're not disproportionate to the seriousness of his conduct and to the danger he poses to the public. The harm caused by the separate offenses is so great or unusual that no single prison term for any of the offenses committed as part of the courses of conduct adequately reflects - 20 - Clermont CA2013-01-002 CA2013-01-003

the seriousness of the conduct. And his history of criminal conduct demonstrates the consecutive sentences are necessary to protect the public from future crime by him.

These findings were later memorialized in the trial court's sentencing entry.

{¶ 50} From the trial courts statements at the sentencing hearing and the language

utilized in the sentencing entry, it is clear that the trial court properly complied with the

dictates of R.C. 2929.14(C)(4). See Crawford,

; Dillon, 2013-

Ohio-335, ¶ 6-13. The trial court, therefore, did not err by imposing consecutive sentences in

this matter.

{¶ 51} As the trial court considered the principles and purposes of R.C. 2929.11 and

the factors listed in R.C. 2929.12 before sentencing appellant within the permissible statutory

limits, and it made the required findings before imposing consecutive sentences in

accordance with R.C. 2929.14(C), we find that appellant's sentence does not run afoul of

R.C. 2953.08(G)(2) and is not clearly and convincingly contrary to law. Appellant's third and

fourth assignments of error are, therefore, overruled.

III. CONCLUSION

{¶ 52} For the reasons set forth above, we hereby affirm appellant's convictions and

sentence.

{¶ 53} Judgment affirmed.

S. POWELL and PIPER, JJ., concur.

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