Summary
In Kinder, the court mistakenly concluded that a defendant who pled guilty to aggravated vehicular assault, committed under the prior statute, should be subject to the fourth degree felony provisions in R.C. 2903.08(A)(2).
Summary of this case from State v. KaplowitzOpinion
Case No. CT-2000-0024.
Date Of Judgment Entry: December 22, 2000.
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR99-0180.
For Plaintiff-Appellee, Shawn E. Crawmer, Assistant Prosecutor, 27 North Fifth Street, Zanesville, Ohio 43701.
For Defendant-Appellant, Mark W. Stubbins, 17 North Fourth Street, Zanesville, Ohio 43702.
JUDGES: Hon. William B. Hoffman, P.J. Hon. Sheila G. Farmer, J. Hon. W. Don Reader, V.J. (Retired from the Fifth Appellate District Sitting by Supreme Court Assignment).
OPINION
Defendant-appellant Jack L. Kinder, Jr. appeals the July 11, 2000, and the July 21, 2000 Judgment Entries of the Muskingum County Court of Common Pleas, which found him guilty and sentenced him accordingly. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
On May 16, 1999, appellant was operating a 1987 Dodge Ram pickup truck eastbound on St. Rt. 40 in Muskingum County, Ohio. Appellant drove his vehicle left of center, striking head-on a westbound vehicle driven by Kevin K. Wiltsie. As a result of this collision, another westbound vehicle, driven by Jeston Pepper, was forced to evade appellant's truck, which had come to rest in the middle of the highway. Mr. Pepper's vehicle struck Mr. Wiltsie's vehicle. Mr. Wiltsie died as a direct result of these collisions.
Appellant's toxicology screen revealed a blood alcohol concentration of 1800ths of 1% (.180), in excess of the legal limit. On November 3, 1999, the Muskingum County Grand Jury indicted appellant on aggravated vehicular homicide, in violation of R.C. 2903.06; aggravated vehicular assault, in violation of R.C. 2903.08; operating a motor vehicle while intoxicated, in violation of R.C. 4511.19(A)(1) and (A)(2); driving left of center, in violation of R.C. 4511.25(C); and reckless operation, in violation of R.C. 4511.20. At his November 10, 1999 arraignment, appellant plead not guilty to each charge. On March 27, 2000, appellant appeared before the trial court, withdrew his previously entered pleas of not guilty and entered pleas of guilty to aggravated vehicular assault with an operating a motor vehicle while under the influence specification; operating a motor vehicle while under the influence; driving left of center; and reckless operation. In a April 3, 2000 Judgment Entry, the trial court dismissed the remaining counts of the indictment. On June 19, 2000, the trial court conducted a sentencing hearing. After hearing the arguments of counsel and reviewing the victim impact statements, the trial court stated: THE COURT: * * * Mr. Kinder, on count number two, which is a felony of the fourth degree, the Court finds that the criteria has been met for the maximum 18 month term, and, therefore, the Court will impose the 18 month term in the appropriate state prison facility. It will also impose a $1,000 fine with a 99 year lifetime — 99 year license suspension.
T. of June 19, 2000 Hearing at 23.
The trial court did not reduce its statements at the close of the sentencing hearing to a judgment entry. On June 26, 2000, the trial court held an additional sentencing hearing because it had neglected to sentence appellant on the misdemeanor charges. After hearing arguments of counsel, the trial court stated on the record: THE COURT: All right. What we have to do, the left of center is a minor misdemeanor and will carry a $100 fine. The reckless operation, a minor misdemeanor, will carry a $100 fine. The operating a motor vehicle under the influence, second offense, I believe, will carry a term of six months and a $1,000 fine. The six months to run concurrent, however, with the time that you've already been sentenced on the OMVI. There will be a five-year license suspension.
T. of June 26, 2000 Hearing at 3-4.
Again, the trial court did not reduce the sentence to a judgment entry. On June 29, 2000, appellee filed a Motion to Reconsider a portion of appellant's sentence. The State asked the trial court to amend the 99-year suspension of appellant's driving privileges to a permanent revocation. On July 5, 2000, appellant filed a Motion to Reconsider his sentence. Appellant maintained R.C. 2903.08, the statute governing aggravated vehicular assault, had been amended, effective March 23, 2000, before appellant's plea and sentencing. Accordingly, appellant maintained his sentence should be governed by the new statute. On July 11, 2000, the trial court filed an "Amended Journal Entry." This entry stated, in pertinent part "after careful review and consideration, the court finds that the ninety-nine (99) year driving suspension language has been amended to read "lifetime" suspension of driving privileges, thereby revoking the defendant's driver's license for life." On July 21, 2000, the trial court filed a "Nunc Pro Tunc Entry." This was the first judgment entry in which the trial court found appellant guilty of the charges and sentenced appellant. The Entry found appellant had been convicted of aggravated vehicular assault with an OMVI specification and sentenced appellant to a term of eighteen months, fined him $1,000, and suspended his driver's license for a period of 99 years. The trial court further sentenced appellant to six months of local confinement, a $1,000 fine, and a five year driver's license suspension for the OMVI charge; a fine of $100 for driving left of center; and a fine of $100 for reckless operation. Appellant appeals the trial court's July 11, 2000 Amended Journal Entry, and the July 21, 2000 Nunc Pro Tunc Entry, assigning the following as error:
I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY IMPOSING A DRIVING LICENSE SUSPENSION IN EXCESS OF FIVE (5) YEARS AS A RESULT OF THE APPLICATION OF O.R.C. 1.58 AND THE AMENDMENT TO THE PENALTIES FOR AGGRAVATED VEHICULAR ASSAULT, O.R.C. 2903.08.
II. THE TRIAL COURT ERRED IN IMPOSING THE MAXIMUM SENTENCE ON APPELLANT SINCE IT FAILED TO MAKE THE REQUISITE STATUTORY FINDINGS (1) PURSUANT TO O.R.C. 2929.14(B) THAT A DEVIATION FROM THE MINIMUM SENTENCE WAS MERITED AND (2) PURSUANT TO 2929.14 (C) THAT THE MAXIMUM SENTENCE SHOULD HAVE BEEN IMPOSED.
R.C. 2903.08 The General Assembly modified R.C. 2903.08, aggravated vehicular assault, effective March 23, 2000. As noted above, appellant entered his guilty plea on March 27, 2000. The question before this court is which statute should apply to properly sentence appellant. R.C. 1.58(B) states as follows: If the penalty, or forfeiture, or punishment for any offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the statute as amended.
Accordingly, we will apply the sentencing provisions of the newly amended statute. We note, however, the newly amended statute and the previous statute, while similar, are markedly dissimilar in organization. Under the previous R.C. 2903.08, appellant was subject to fourth degree felony sanctions for recklessly causing serious physical harm to another person. Further, if the trial court found appellant was under the influence of alcohol at the time of the offense, the trial court was required to permanently revoke appellant's driver's license. The previous version of 2903.08 also required the trial court to sentence appellant to a "mandatory prison term" if the trial court found appellant committed the offense while driving a vehicle under the influence of alcohol. The amended version of 2903.08 prohibits a person, while operating a motor vehicle, to cause serious physical harm to another person in one of two ways. 2903.08(A)(1) makes it a crime for a person to cause such harm as the proximate result of driving under the influence of alcohol. 2903.08(A)(2) prohibits such serious physical harm to another person if the harm was caused recklessly. The sentencing scheme set forth under the amended version of 2903.08 presupposes a conviction under either the (A)(1) or the (A)(2) provision. In its July 21, 2000 Judgment Entry, the trial court found appellant had been convicted of "aggravated vehicular assault with an OMVI specification, a felony of the fourth degree * * *." While it may be factually more appropriate to sentence appellant under the amended (A)(1) section of 2903.08, the penalty provisions set forth in the new statute are more stringent then those set forth in the previous version. Section 10, Article I of the United States Constitution forbids state legislators from passing any "ex post facto [l]aw." "[T]he Clause is aimed at laws that 'retroactively * * * increase the punishment for criminal acts.'" California Dept. of Corrections v. Morales (1995), 514 U.S. 499, 504. Legislation, therefore, will violate the Ex Post Facto Clause if it increases the punishment for a crime after its commission. State v. Rush, (1998), 03 Ohio St.3d 53, 59. Because of the significant organizational differences in the previous and current versions of R.C. 2903.08, we find appellant must be subject to the sentencing provisions set forth for a conviction under division (A)(2). In his two assignments of error, appellant attacks two sentencing provisions. First, appellant maintains the trial court erred in imposing a 99-year license suspension. Further, appellant contends the trial court erred in failing to make the requisite findings to impose the maximum prison term for a felony of the fourth degree. We address each in turn.
I.
Driver's License Suspension R.C. 2903.08, as amended, provides, in pertinent part: (2) Whoever violates division (A)(2) of this section is guilty of vehicular assault. Except as otherwise provided in this division, vehicular assault is a felony of the fourth degree. * * *
In addition to any other sanctions imposed, the court shall suspend the offender's driver's license, * * * for a definite period of one to five years pursuant to section 4507.16 of the Revised Code or, if the offender previously has been convicted of or pleaded guilty to a violation of this section or any traffic-related homicide, manslaughter, or assault offense, for a definite period of two to ten years pursuant to that section.
Accordingly, the trial court was required to suspend appellant's driver's license for either a definite period of one to five years or a definite period of two to ten years. In its July 21, 2000 Judgment Entry, the trial court, using the previous statute, revoked appellant's driver's license for a period of 99 years. Because we find the trial court should have sentenced according to the amended statute, appellant's first assignment of error is sustained. We remand this matter to the trial court for further findings. The trial court must determine which of the two potential driver's license suspensions is appropriate, based upon the facts and circumstances of this case. We further instruct the trial court, after such determination, to re-sentence appellant, imposing the appropriate driver's license suspension.
II.
Prison Term In appellant's second assignment of error, he maintains the trial court erred in imposing the maximum sentence for a fourth degree felony under the previous R.C. 2903.08 because it failed to make the requisite statutory findings pursuant to R.C. 2929.14 to impose a maximum sentence. Appellant also maintains the trial court failed to make the requisite findings before deviating from the minimum sentence. We agree. The revised version of R.C. 2903.08, provides the sentencing scheme for those offenders convicted under the (A)(2) provision. This statute states: (C) * * * The court shall impose a mandatory prison term on an offender who is convicted of or pleads guilty to a violation of division (A)(2) of this section if either of the following applies:
(1) The offender previously has been convicted of or pleaded guilty to a violation of this section or section 2903.06 of the Revised Code.
(2) At the time of the offense, the offender was driving under suspension under Chapter 4507 or any other provision of the Revised Code.
In its July 21, 2000, the trial court sentenced appellant to a term of eighteen months in prison. While this sentence may be an appropriate imposition of the maximum sentence for a felony of the fourth degree, the trial court failed to make the requisite findings required by R.C. 2929.14(B) and (C). See, State v. Butts (Sept. 30, 1999), Licking App. No. 98CR441, unreported; State v. Brooks (Oct. 5, 1998), Stark App. No. 98CA00041, unreported.
Accordingly, we sustain appellant's second assignment of error and remand this matter to the trial court. The trial court is instructed to re-sentence appellant. Should the trial court find the offense requires an imposition of greater than the shortest prison term, or an imposition of the maximum prison term, we instruct the trial court to make the findings required by R.C. 2929.14(B) and/or (C). The July 21, 2000 Judgment Entry of the Muskingum County Court of Common Pleas is reversed. This matter is remanded to the trial court for further proceedings consistent with law and this opinion.
By: Hoffman, P.J. Farmer, J. and Reader, V.J. concur