Opinion
No. 108829
04-09-2020
STATE of Ohio, Plaintiff-Appellee, v. Andrew J. SAVOLA, Defendant-Appellant.
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Michael Barth, Assistant Prosecuting Attorney, for appellee. Eric Norton ; Law Office of Britt Newman, and Britt Newman, for appellant.
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Michael Barth, Assistant Prosecuting Attorney, for appellee.
Eric Norton ; Law Office of Britt Newman, and Britt Newman, for appellant.
JOURNAL ENTRY AND OPINION
EILEEN T. GALLAGHER, A.J.:
{¶1} Defendant-appellant, Andrew J. Savola, appeals his convictions and sentence. He claims the following four errors:
1. The trial court erred in convicting appellant of F-4 operating a motor vehicle under the influence because the state failed to establish that appellant had the requisite three prior, "substantially equivalent," escalating offenses.
2. The trial court erred in treating Michigan's underage OVI statute as a prior, "substantially equivalent" offense that escalated appellant's OVI charge at trial from an unclassified misdemeanor to a fourth-degree felony.
3. Appellant was denied his right to effective assistance of counsel due to the cumulative effect of defense counsel's trial errors.
4. The trial court erred in sentencing appellant to a 4-year driver's license suspension when it informed him at sentencing that it was suspending him to three years and "the minimum term" where, as here, three years is the minimum term.
{¶2} We find some merit to the appeal. We affirm Savola's convictions but remand the case to the trial court for the sole purpose of imposing a three-year driver's license suspension from the date Savola's license was confiscated.
I. Facts and Procedural History
{¶3} Savola was charged with one count of operating a vehicle under the influence of alcohol ("OVI") in violation of R.C. 4511.19(A)(1)(a), and one count of obstructing official business in violation of R.C. 2921.31(A). The OVI charge was indicted as fourth-degree felony, alleging that Savola unlawfully operated a motor vehicle while under the influence of alcohol and that he had previously been convicted of three "equivalent offenses" within the last ten years. The three prior offenses allegedly occurred in Michigan on or about November 21, 2011, May 23, 2011, and October 12, 2009.
{¶4} On the day of the bench trial and prior to the presentation of evidence, the state asked the court to take judicial notice of Savola's prior convictions. Savola's trial counsel objected, and the court held the ruling in abeyance. During trial, Officer Andrew Belzer, of the Middleburg Heights Police Department, identified certified copies of Savola's prior OVI convictions, which were identified as exhibit Nos. 3 through 5. Officer Belzer also testified regarding the information contained in the judgments of conviction, including Savola's personal information and the Michigan code sections under which he was convicted. Defense counsel objected to the presentation of each of the three exhibits, arguing they were hearsay and were not properly authenticated.
{¶5} After the state rested, the court heard arguments regarding the admissibility of the Michigan judgment entries of conviction. Defense counsel again asserted that the judgment entries of conviction were inadmissible because they were hearsay. The state argued the judgment entries were subject to the public records exception to the hearsay rule. The state further asserted that the judgment entries were properly authenticated as self-authenticating, certified copies. The trial court agreed and admitted the exhibits into evidence.
{¶6} Thereafter, Savola moved for acquittal pursuant to Crim.R. 29, arguing that the state provided no evidence regarding the substance of the conviction with respect to exhibit No. 5. The trial court denied the motion and found Savola guilty of one count of obstructing official business and one count of fourth-degree felony OVI based on his three prior convictions. The trial court sentenced Savola to 60 days of local incarceration and awarded him credit for time served. The court also imposed a $5,000 fine, ordered restitution in the amount of $646.80, which represented the cost of extraditing Savola to Ohio from Michigan, and suspended his driver's license for a period of three years. (Tr. 179.) The court's journal entry of conviction reflected the 60-day jail sentence, the restitution of $646.80, the $5,000 fine, and indicated that Savola's driver's license was suspended for three years from the date of the sentencing hearing. Savola now appeals his convictions and sentence.
II. Law and Analysis
A. "Substantially Equivalent" Offenses
{¶7} In the first assignment of error, Savola argues the trial court erred in finding him guilty of a fourth-degree felony offense of OVI because the state failed to establish that he had three "substantially equivalent" escalating offenses. In the second assignment of error, Savola argues the trial court erred in treating Michigan's underage OVI statute as a prior "substantially equivalent" offense. We discuss these assigned errors together because they are interrelated.
{¶8} Savola was charged with fourth-degree felony OVI in violation of R.C. 4511.19(A)(1)(a), which states, in relevant part, 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, a drug of abuse, or a combination of them." A violation of R.C. 4511.19(A)(1)(a) is generally a first-degree misdemeanor. However, R.C. 4511.19(G)(1)(d) enhances the level of the offense to a fourth-degree felony if the offender has previously been convicted of three or four violations of division (A) or (B) of this section or other "equivalent offenses" within ten years of the offense.
{¶9} R.C. 4511.181(A) defines an "equivalent offense," in relevant part, as "[a] violation of an existing or former municipal ordinance, law of another state, or law of the United States that is substantially equivalent to division (A) or (B) of section 4511.19."
{¶10} Savola argues his 2011 conviction in Michigan for violating section 257.625B of the Michigan penal code is not "substantially equivalent" to a violation of R.C. 4511.19(A) or (B) because the Michigan code section criminalizes underage driving when there is any amount of alcohol within the underage driver's body, whereas an underage person is not in violation of R.C. 4511.19(B) unless the blood alcohol content of the underage driver crosses a .02 threshold. R.C. 4511.19(B)(1). Savola contends the two statutes do not define substantially equivalent offenses because the Michigan statute is stricter than the corresponding Ohio statute.
{¶11} Similarly, Savola contends the Ohio statute is stricter than the Michigan statute because it criminalizes underage drinking anywhere in the state, whereas the Michigan statute only bans the same conduct on "roadways or other places open to the general public or generally accessible to motor vehicles * * *."
{¶12} Finally, Savola argues that section 257.625B of the Michigan penal code is not "substantially equivalent" to a violation of R.C. 4511.19(A) or (B) because the statutes have different penalties. Although both statutes fine offenders the same amounts, Ohio law requires a court-imposed driving suspension and the Michigan statute does not. The Ohio statute also provides possible jail time for first time offenders, and the Michigan statute does not. Therefore, Savola argues, the Michigan and Ohio OVI statutes do not define "substantially equivalent offenses." We disagree.
{¶13} Although the Michigan version of an underage OVI offense is not identical to the Ohio version in all respects, they are substantially the same. Indeed, R.C. 4511.181(A) does not define an "equivalent offense" as an "identical offense"; it defines it as a "substantially equivalent" offense. It, therefore, contemplates that there were maybe minor differences between two "equivalent offenses."
{¶14} In State v. Schultz , 8th Dist. Cuyahoga No. 90412, 2008-Ohio-4448, 2008 WL 4078447, this court held that a physical control violation under Cleveland Codified Ordinances 433.011 was not substantially equivalent to an OVI violation under R.C. 4511.19(A) because an OVI violation required actual movement of the vehicle, whereas a physical control violation did not. Id. at ¶ 25. The movement requirement in the OVI offense was considered a significant distinguishing factor between the two offenses.
{¶15} The blood alcohol requirement of the Ohio underage OVI statute is not significantly different from the Michigan statute; the Michigan statute criminalizes the same conduct but simply requires a lower level of intoxication. And the fact that the Ohio statute criminalizes underage drinking anywhere in the state and the Michigan statute only bans the same conduct on "roadways or other places open to the general public or generally accessible to motor vehicles * * * " is hardly any difference at all. Both statutes prohibit underage drinking and driving on public roadways, driveways, parking lots, and other places generally accessible to motor vehicles. Although the Ohio OVI statute provides stricter penalties for OVI violations than the Michigan statute, these differences are insignificant when compared with the elements of the offenses prescribed by the statutes, which are essentially identical except that the Michigan statute requires a lesser blood alcohol content. Both statutes prohibit an underage driver from operating a motor vehicle while under a minimal level of intoxication. They are, therefore, substantially similar offenses.
{¶16} Savola nevertheless argues that because the most recent version of the Michigan OVI statute was amended in January 2019, and has been amended at least six times since Savola was first convicted of OVI in 2009, there was no evidence that the statutes in effect in 2009 and 2011 were substantially equivalent to the Ohio OVI statute. However, the certified copies of his convictions indicate that he was convicted of operating a motor vehicle "while intoxicated" or "impaired." In other words, the material elements of an OVI offense has been the same in Michigan since 2009. Therefore, Savola's prior convictions were substantially similar to a violation under either R.C. 4511.19(A) or 4511.19(B).
{¶17} The first and second assignments of error are overruled.
B. Ineffective Assistance of Counsel
{¶18} In the third assignment of error, Savola argues his trial counsel was ineffective for failing to move the trial court to exclude evidence of his three prior OVI convictions.
{¶19} To establish ineffective assistance of counsel, the defendant must demonstrate that counsel's performance fell below an objective standard of reasonable representation and that he or she was prejudiced by that deficient performance. Strickland v. Washington , 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is established when the defendant demonstrates "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052.
{¶20} Savola argues the trial court would have excluded his prior OVI convictions and he would not have been convicted of a fourth-degree felony if his trial counsel had moved to exclude evidence of his prior convictions under Evid.R. 404(B).
{¶21} Evid.R. 404(A) and 404(B) generally provide that evidence of a person's character is not admissible to prove the person acted in conformity with that character. However, Savola was charged with fourth-degree felony OVI under R.C. 4511.19(A)(1)(a) and 4511.19(G)(1)(d). As previously stated, R.C. 4511.19(G)(1)(d) enhances the level of the OVI offense to a fourth-degree felony if the offender has previously been convicted of three or four violations of division (A) or (B) of this section or other "equivalent offenses" within ten years of the offense. Therefore, proof of his prior OVI convictions was an essential element of the state's case. When prior convictions are elements of the crime, they are not "other acts" evidence barred by Evid.R. 404(A) and 404(B). State v. Spaulding , 151 Ohio St. 3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 118 (proof of prior domestic violence conviction was element of felony domestic violence charge and, therefore, not prior acts evidence). Even if Savola's trial counsel had moved to exclude evidence of his prior OVI convictions, the motion would have been denied. Therefore, his counsel was not ineffective for failing to make such a request.
{¶22} The third assignment of error is overruled.
C. Sentence
{¶23} In the fourth assignment of error, Savola argues the driver's license suspension set forth in the journal entry is not consistent with the suspension the court imposed at the sentencing hearing. At the sentencing hearing, the court stated, in relevant part:
Your driver's license suspension will be for a minimum period of three years, but that would be three years from today, I'm not going to make a post-sentence suspension. In other words, from the date that your license was confiscated.
(Tr. 179.) The sentencing entry indicates the suspension began on the day of the sentencing hearing instead of the date Savola's license was confiscated. Although the court stated that the suspension "would be three years from today," i.e., the date of the sentencing hearing, the court then stated that it was not going to make a post-sentence suspension. Moreover, the court clarified that suspension would begin on the date Savola's license was confiscated. The state concedes there is a discrepancy between the court's statements at the sentencing hearing and the sentencing journal entry. We, therefore, remand the case to the trial court for the sole purpose of imposing a three-year driver's license suspension from the date the license was confiscated.
{¶24} The fourth assignment of error is sustained.
{¶25} Judgment affirmed in part, reversed in part, and remanded.
FRANK D. CELEBREZZE, JR., J., and MICHELLE J. SHEEHAN, J., CONCUR