[Cite as State v. Gregoire,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2019-04-066

: OPINION - vs - 2/10/2020 :

CHRISTOPHER J. GREGOIRE, :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2015-09-1383

Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Rittgers & Rittgers, Neal D. Schuett, 121 West High Street, Oxford, OH 45056, for appellant

M. POWELL, J.

{¶ 1} Appellant, Christopher Gregoire, appeals a decision of the Butler County

Court of Common Pleas denying his motion for limited driving privileges.

{¶ 2} Gregoire was indicted in October 2015 on one count of operating a vehicle

while under the influence of alcohol ("OVI"), a fourth-degree felony, and one count of driving

under OVI suspension. At the time of the indictment, Gregoire had already been convicted Butler CA2019-04-066

of OVI on three prior occasions within the previous six years. On January 4, 2016, Gregoire

pled guilty to the fourth-degree felony OVI; the driving under OVI suspension charge was

dismissed. Following a sentencing hearing on February 17, 2016, the trial court sentenced

Gregoire to 12 months in prison. The trial court further suspended Gregoire's driver's

license for a period of six years that was to expire on February 16, 2022.1

{¶ 3} At the time Gregoire was convicted and sentenced, R.C. 4510.13(A)(3)

prohibited a trial court from granting limited driving privileges to a person whose driver's

license had been suspended pursuant to R.C. 4511.19(G) "if the offender, within the

preceding six years, has been convicted of or pleaded guilty to three or more [OVI]

violations." (Emphasis added.) R.C. 4510.13(A)(3) was amended by Sub.H.B. No. 388

("H.B. 388") on April 6, 2017, and now prohibits a trial court from granting limited driving

privileges to a person whose driver's license has been suspended pursuant to R.C.

4511.19(G) "if the offender, within the preceding ten years, has been convicted of or

pleaded guilty to three or more [OVI] violations." (Emphasis added.)

{¶ 4} On March 4, 2019, Gregoire moved to terminate his driver's license

suspension or, alternatively, for limited driving privileges. Gregoire argued that the trial

court should apply the six-year look-back period set forth in the former R.C. 4510.13(A)(3)

that was in effect at the time of his conviction, and not the ten-year look-back period set

forth in the newly amended R.C. 4510.13(A)(3). Gregoire argued that applying the ten-year

look-back period to convictions committed prior to the April 6, 2017 amendment of the

statute would operate as an unconstitutional ex post facto application of the law in violation

of the United States and Ohio Constitutions.

1. At sentencing, the trial court suspended Gregoire's driver's license for a period of six years. However, the trial court's original sentencing entry erroneously suspended Gregoire's driver's license for a period of six months. The trial court corrected the clerical error via a nunc pro tunc entry on August 8, 2018. -2- Butler CA2019-04-066

{¶ 5} On March 29, 2019, the trial court denied Gregoire's motion. The trial court

found that applying the ten-year look-back period would not operate as an unconstitutional

ex post facto application of the law because amended R.C. 4510.13(A)(3) was remedial, as

opposed to substantive, in that "it has no effect on substantial rights, but rather provides a

course of procedure for the enforcement of rights." In so holding, the trial court relied on

this court's opinion in State v. Redman,

,

(12th Dist.).

{¶ 6} Gregoire now appeals, raising one assignment of error:

{¶ 7} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED MR.

GREGOIRE'S MOTION FOR DRIVING PRIVILEGES.

{¶ 8} Gregoire argues the trial court erred in denying his motion for limited driving

privileges by applying the ten-year look-back period set forth in amended R.C.

4510.13(A)(3). Gregoire asserts that amended R.C. 4510.13(A)(3) was not intended to be

applied retroactively by the General Assembly. Gregoire further asserts that the retroactive

application of the ten-year look-back period amounts to an unconstitutional ex post facto

law in violation of the United States and Ohio Constitutions.

{¶ 9} It is well settled that a statute is presumed to apply prospectively unless

expressly declared to be retroactive. R.C. 1.48; State v. Consilio,

,

, ¶ 9. Section 28, Article II of the Ohio Constitution, in turn, prohibits the

General Assembly from passing retroactive laws. Applying these two provisions, the

Supreme Court of Ohio has established a two-part test to determine whether a statute may

be applied retroactively. Id. at ¶ 10.

{¶ 10} Under this test, a court must first determine as a threshold matter whether the

General Assembly expressly intended the statute to apply retroactively. Id.; Hyle v. Porter,

,

, ¶ 8; Bielat v. Bielat,

(2000). If

a statute is clearly retroactive, the court must then determine whether it is substantive or

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remedial in nature. Consilio at ¶ 8. A retroactive statute is unconstitutional if it retroactively

impairs vested substantive rights, but not if it is merely remedial in nature. Id. at ¶ 9; Hyle

at ¶ 7. A reviewing court does not address the question of constitutional retroactivity unless

and until it determines that the General Assembly expressly made the statute retroactive.

Hyle at ¶ 10. In other words, "[t]he General Assembly's failure to clearly enunciate

retroactivity ends the analysis, and the relevant statute may be applied only prospectively."

Consilio at ¶ 10.

{¶ 11} We first determine whether the General Assembly expressly made the 2017

amendments to R.C. 4510.13(A)(3) retroactive. Gregoire asserts the General Assembly

did not clearly proclaim that amended R.C. 4510.13(A)(3) was to apply retroactively, and

thus, the trial court erred in retroactively applying the statute. The amended version of R.C.

4510.13(A)(3) provides that

No judge or mayor shall grant limited driving privileges to an offender whose driver's or commercial driver's license or permit or nonresident operating privilege has been suspended under division (G) or (H) of section 4511.19 of the Revised Code, under division (C) of section 4511.191 of the Revised Code, or under section 4510.07 of the Revised Code for a municipal OVI conviction if the offender, within the preceding ten years, has been convicted of or pleaded guilty to three or more violations of one or more of the Revised Code sections, municipal ordinances, statutes of the United States or another state, or municipal ordinances of a municipal corporation of another state that are identified in divisions (G)(2)(b) to (h) of section 2919.22 of the Revised Code.

{¶ 12} "In order to overcome the presumption that a statute applies prospectively, a

statute must 'clearly proclaim' its retroactive application." Hyle,

at ¶ 10;

Consilio,

at ¶ 15. "Text that supports a mere inference of retroactivity is

not sufficient to satisfy this standard; we cannot infer retroactivity from suggestive

language." (Emphasis sic.) Hyle at ¶ 10. Likewise, a statute's "ambiguous language is not

sufficient to overcome the presumption of prospective application." Id. at ¶ 13. "If the

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retroactivity of a statute is not expressly stated in plain terms, the presumption in favor of

prospective application controls." Consilio at ¶ 15.

{¶ 13} Upon reviewing amended R.C. 4510.13(A)(3) and H.B. 388, we find that

neither expressly proclaim retroactivity. At most, the language of the statute implies

retroactivity. However, as the supreme court unequivocally held, the mere suggestion or

inference of retroactivity is not sufficient to overcome the presumption of prospective

application; instead, the statute must "clearly proclaim" its retroactive application. Consilio

at ¶ 15; State v. Thacker, 5th Dist. Fairfield No. 07 CA 38,

.

{¶ 14} In support of the trial court's retroactive application of the statute, the state

argues that amended R.C. 4510.13(A)(3) "is devoid of any language indicating an intent to

* * * have prospective application only." However, that is not the test. Rather, the question

is whether the General Assembly expressly made the statute retroactive. Furthermore,

notwithstanding the state's assertion, a look-back period does not "expressly or even

implicitly make a statute retroactive." Carney v. Shockley, 7th Dist. Jefferson No. 14 JE 9,

, ¶ 40.

{¶ 15} "[T]he General Assembly is presumed to know that it must include expressly

retroactive language to create that effect." Consilio,

at ¶ 15. "In drafting

prior legislative enactments and amendments, the General Assembly certainly has

demonstrated its ability to include retrospective language when it so desires." State v.

Lasalle,

,

. Several cases serve as examples of

clear expressions of retroactivity and underscore the absence of a comparable declaration

in amended R.C. 4510.13(A)(3).

{¶ 16} For instance, a statute expressly applying to any action pending on the

effective date of the statute, which included causes of action which arose prior to the

statute's effective date, "notwithstanding any provisions of any prior statute or rule of law"

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was found to clearly indicate a legislative intent that it be applied retroactively. Van Fossen

v. Babcock & Wilcox Co.,

(1988). Likewise, in a case cited by the

state, a statute expressly applying to anyone who "was convicted of or pleaded guilty to a

sexually oriented offense prior to the effective date of this section, if the person was not

sentenced for the offense on or after" that date was found to clearly proclaim its retroactive

application. State v. Cook,

(1998).2 See also Bielat,

(finding that the General Assembly expressed a clear intent that a statute would be applied

retroactively where the statute specifically stated that it applied to conduct done "prior to,

on, or after" the effective date of the statute); State v. Ferguson,

, 2008-

Ohio-4824, ¶ 16 (finding that the General Assembly intended a statute be applied

retroactively where the statute stated "that it applies to offenders who were sentenced to

prison for offenses against children" regardless of when the offenses were committed).

{¶ 17} Amended R.C. 4510.13(A)(3) is likewise vastly different from the statute at

issue in this court's opinion in Redman and the trial court's reliance on Redman is

misplaced. The trial court denied Gregoire's motion for limited driving privileges on the

ground that similar to the statute at issue in Redman, amended R.C. 4510.13(A)(3) "falls

within the definition of 'remedial' because it has no effect on substantial rights, but rather

provides a course of procedure for the enforcement of rights." However, the two statutes

significantly differ in that the General Assembly expressed a clear intent that the statute at

2. In its brief, the state does not address whether the General Assembly expressly intended amended R.C. 4510.13(A)(3) to apply retroactively. Instead, the state only addresses whether the application of the ten-year look back period constitutes an unconstitutional ex post facto law. In doing so, the state relies upon the "intent- effects" test used by the Ohio Supreme Court in State v. Cook,

(1998). The state's reliance on the "intent-effects" test is misplaced. In Cook, the supreme court applied this test when it addressed whether the statute at issue violated the Ex Post Facto Clause of the United States Constitution. Such analysis, however, came only after the supreme court found that the statute was constitutionally retroactive under the Ohio Constitution because the General Assembly specifically intended that the statute apply retroactively and the statute was remedial in nature. However, as stated above, the question of constitutional retroactivity "does not arise unless there has been a prior determination that the General Assembly specified that the statute so apply."

. -6- Butler CA2019-04-066

issue in Redman was to apply retroactively to conduct that was committed prior to the

statute's effective date. Redman,

(noting that the statute at issue

expressly stated that it was to "apply to conduct or an offense committed prior to" the

statute's effective date). Curiously, such crucial difference was noted, but ultimately

ignored, by the trial court: "The statute at issue in Redman is distinguishable from the statute

at bar because [R.C.] 4510.54 * * * did explicitly provide that the statute applied to offenses

committed prior to the effective date of the statute, which [R.C.] 4510.13 does not." Despite

the foregoing finding, the trial court improperly resolved the issue of retroactivity upon

whether amended R.C. 4510.13(A)(3) was remedial or substantive in nature.

{¶ 18} Because amended R.C. 4510.13(A)(3) lacks express language making it

retroactive, our inquiry ends and we do not address whether the statute is substantive or

remedial in nature. In other words, our conclusion that amended R.C. 4510.13(A)(3) was

not expressly made retroactive precludes us from addressing the constitutional prohibition

against retroactivity. Hyle,

at ¶ 24.3 It follows that amended R.C.

4510.13(A)(3) may be applied only prospectively and the trial court erred in applying the

ten-year look-back period of the statute when ruling upon Gregoire's motion for limited

driving privileges.

{¶ 19} We therefore reverse the trial court's decision denying Gregoire's motion for

limited driving privileges and remand this matter for the trial court to rule upon the merits of

Gregoire's motion for limited driving privileges by applying the six-year look-back period set

forth in former R.C. 4510.13(A)(3) in effect at the time Gregoire was convicted.

{¶ 20} Judgment reversed and remanded.

3. It is upon this point that our dissenting colleague misconstrues our holding. It is of no consequence whether amended R.C. 4510.13(A)(3) implicates Section 28, Article II of the Ohio Constitution as impairing a vested right or is merely remedial because the General Assembly did not expressly declare the statute to have retroactive application. -7- Butler CA2019-04-066

PIPER, J., concurs.

S. POWELL, P.J., dissents

S. POWELL, dissenting.

{¶ 21} I respectfully disagree with my colleagues that R.C. 4510.13(A)(3) has

improper retroactive effect. Nor would I find that the statute impacts a vested right.

Consequently, I would find the statute constitutional as applied and affirm the trial court.

{¶ 22} As a preliminary matter, Ohio statutes are entitled to a strong presumption of

constitutionality. Wilson v. AC&S, Inc.,

,

(12th

Dist.), citing State v. Cook,

(1998). A regularly enacted statute

enjoys the benefit of every presumption of constitutionality. This court must find "clear

conflict" between the statute in question and some particular provision of the Constitution.

{¶ 23} "Section 28, Article II of the Ohio Constitution prohibits the General Assembly

from passing retroactive laws and protects vested rights from new legislative

encroachments."

, citing Vogel v. Wells,

(1991).

Impermissible retroactive laws are those that impose "new duties and obligations upon a

person's past conduct and transactions* * *." Personal Serv. Ins. Co. v. Mamone,

(1986).

{¶ 24} Amended R.C. 4510.13(A)(3) does not impose new "duties or "obligations"

upon Gregoire. The statute does not impose a new penalty or increase the prior penalties

imposed for any of Gregoire's past OVI convictions. It does not impose new driving

restrictions. It does not require him to take any additional actions based upon his past

conduct. The effect of the statute is that he simply ceased to qualify for limited driving

privileges after the effective date of the act. Had Gregoire applied for privileges prior to the

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amendment, he would have qualified to have the court consider his petition.

{¶ 25} Were I to find that the statute had retroactive impact, I would not find that it

extinguished any vested right. "A 'vested right' may be created by common law or statute

and is generally understood to be the power to lawfully do certain actions or possess certain

things; in essence, it is a property right." Washington Cty. Taxpayers Assn. v. Peppel,

(4th Dist. 1992). "It has been described as a right 'which it is proper

for the state to recognize and protect, and which an individual cannot be deprived of

arbitrarily without injustice.'" State ex rel. Jordan v. Indus. Comm.,

,

, ¶ 9, quoting State v. Muqdady,

(M.C. 2000). A

right cannot be considered "vested" unless it amounts to something more than a "mere

expectation or interest based upon an anticipated continuance of existing laws." Roberts

v. Treasurer,

(10th Dist. 2001), quoting In re Emery,

(1st Dist. 1978).

{¶ 26} In Ohio, a license to operate a motor vehicle is a privilege, not an absolute

property right. Doyle v. Ohio BMV,

(1990), paragraph two of the syllabus.

Thus, it goes without saying that the limited driving privileges that Gregoire sought were not

his property right.

{¶ 27} That Gregoire had no vested right in limited driving privileges is also

reinforced by the fact that the Revised Code required him to petition the court for privileges.

In other words, Gregoire had no automatic right to limited driving privileges. And even if

Gregoire was otherwise qualified to file a petition does not mean that the court was required

to grant the petition. The court's decision whether to grant or deny limited driving privileges

is discretionary. R.C. 4510.021(A); R.C. 4510.13(B); State v. Butler, 12th Dist. Warren No.

CA2011-01-004,

, ¶ 8.

{¶ 28} All that Gregoire possessed prior to the effective date of amended R.C.

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4510.13(A)(3) was a "mere expectation" that the look-back period set forth in that section

would remain the same. However, Gregoire's mere expectation that the law would not

change is not a vested right. For these reasons, I do not find "clear conflict" between this

statute and the Ohio Constitution and would affirm the trial court.

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