[Cite as State v. Stephens, 2013-Ohio-3944.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
: Appellate Case No. 2012-CA-30
Plaintiff-Appellee :
: Trial Court Case No. 11-CR-695
v. :
HASHIM STEPHENS : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 13th day of September, 2013.
...........
LISA M. FANNIN, Atty. Reg. #0082337, Clark County Prosecutor’s Office, 50 East Columbia
Street, 4th Floor, Post Office Box 1608, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
ADRIAN KING, Atty. Reg. #0081882, Adrian King Law Office, LLC, Post Office Box 302,
Xenia, Ohio 45385
Attorney for Defendant-Appellant
.............
FAIN, P.J.
{¶ 1} Defendant-appellant Hashim Stephens appeals from his conviction and sentence
for one count of Trafficking in Cocaine, a felony of the third degree, and one count of Failure to
Comply, a felony of the third degree. The trial court, as part of its sentence, imposed a two-year
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driver’s license suspension for Trafficking in Cocaine, and a three-year driver’s license
suspension for Failure to Comply, for a total suspension of five years.
{¶ 2} Stephens contends that the trial court erred by ordering his driver’s license
suspensions to be served consecutively. We agree. That part of the judgment of the trial court
is Reversed; the judgment of the trial court is Affirmed in all other respects; and this cause is
Remanded for the re-imposition of driver’s license suspensions.
I. The Course of Proceedings
{¶ 3} Stephens was charged by indictment with Trafficking in Crack Cocaine, in an
amount greater than ten grams, but less than twenty-five grams, in violation of R.C.
2925.03(A)(2), a felony of the third degree; Possession of Crack Cocaine, in an amount greater
than ten grams, but less than twenty-five grams, in violation of R.C. 2925.11(A); Trafficking in
Marijuana, in an amount less than 200 grams, in violation of R.C. 2925.03(A)(2); Failure to
Comply with an Order or Signal of a Police Officer, in violation of R.C. 2921.331(B) and
2921.331(C)(5), a felony of the third degree; and Failure to Comply with an Order or Signal of a
Police Officer, in violation of R.C. 2921.331(B) and 2921.331(C)(4).
{¶ 4} Pursuant to a plea bargain, Stephens pled guilty to Trafficking in Crack Cocaine
and to one count of Failure to Comply, and the other counts in the indictment were dismissed.
Consistently with the plea bargain, Stephens was sentenced to imprisonment for eighteen months
on each count, to run consecutively to one another, and also to a two-year sentence that had been
imposed in another case. Stephens was fined $5,000, and $1,725, which had apparently been
found on his person, was ordered forfeited, but was credited against his fine.
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{¶ 5} The plea agreement was silent on the issue of driver’s license suspension. The
Trafficking offense provides for a license suspension for a definite period time of not less than
six months, nor more than five years. R.C. 2925.03(D) and 2925.03(G). The Failure to
Comply offense provides for suspension for a definite period of time of not less than three years,
up to life. R.C. 2921.331(E), 4510.02(A)(2). The trial court ordered the suspension of
Stephens’s license for two years on the Trafficking count, and for three years on the Failure to
Comply count, for a total suspension of five years.
{¶ 6} Stephens appealed from the judgment of the trial court. His assigned counsel
filed a brief under the authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d
493 (1967), indicating that he had not found any potential assignments of error having arguable
merit.
{¶ 7} By entry herein dated April 18, 2013, we rejected the Anders brief, finding a
potential assignment of error based upon the imposition of consecutive driver’s license
suspensions. New appellate counsel has filed a brief setting forth the following as Stephens’s
sole assignment of error:
THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE
DRIVERS LICENSE SUSPENSIONS (TWO YEARS FOR COUNT I AND
THREE YEARS FOR COUNT IV) UNDER THE APPLICABLE SENTENCING
STATUTES.
II. The Imposition of Consecutive Driver’s License
Suspensions Is Not Authorized by Statute
[Cite as State v. Stephens, 2013-Ohio-3944.]
{¶ 8} Stephens cites State v. Phinizee, 2d Dist. Clark No. 95-CA-54, 1996 WL 391722
(July 5, 1996), for the proposition that multiple driver’s license suspensions may not be imposed
consecutively. The State seeks to distinguish Phinizee by arguing that its application is limited
to multiple driver’s license suspensions under R.C. 2925.03:
Stephens argues that the legislature had the opportunity to address
consecutive license suspensions because of the Phinizee and [State v.] Reynolds[,
5th Dist. Fairfield No. 12 CA 7, 2012-Ohio-5956,] cases. However, these cases
did not deal with the direct issue of whether a license suspension pursuant to
O.R.C. §2925.03 and O.R.C. §4510.02 could run consecutive to one another.
In Phinizee, this Court held that nothing in O.R.C. §2925.03(M)
authorized consecutive license suspensions for multiple drug trafficking cases and
that O.R.C. §2929.41(A) required the sentence to be run concurrent. In
Reynolds, the court of appeals for the fifth district held that the trial court could
not impose consecutive license suspensions where all the suspensions were
pursuant to O.R.C. §2925.03(G). (Emphasis added.)
{¶ 9} We disagree with the State’s characterization of our holding in Phinizee, as set
forth in the italicized portion of its brief set forth above. We did not hold that R.C. 2929.41(A)
required the license suspensions in Phinizee to be served concurrently. We did note, in passing,
that R.C. 2929.41(A) expressly provides that sentences of imprisonment shall be served
concurrently, unless an exception applies. Phinizee, at *5. We then observed that: “While
consecutive sentences of imprisonment are expressly provided for in R.C. 2929.41(B), there is no
express provision for consecutive driver’s license suspensions in R.C. 2925.03(M).” Id. We
then cited the rule of lenity: “Sections of the Revised Code defining offenses or penalties shall be
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strictly construed against the State, and liberally construed in favor of the accused. R.C.
2901.04(A). Because section R.C. 2925.03(M) contains no provision for consecutive driver’s
license suspensions, we conclude that the trial court was without authority to make the multiple
driver’s license suspensions imposed in this case consecutive.” Id.
{¶ 10} The State argues that the case before us is distinguishable from Phinizee because
one of Stephens’s driver’s license suspensions was imposed by reason of R.C. 2925.03(G), and
the other was imposed by reason of R.C. 4510.02. We do not find this argument persuasive.
R.C. 2925.03(G) directly provides for a driver’s license suspension for persons convicted of
certain drug offenses, including the Trafficking offense of which Stephens was convicted. R.C.
2921.331(E) provides, for persons convicted of Failure to Comply, that the trial court shall
impose a class two license suspension “from the range specified in division (A)(2) of section
4510.02 of the Revised Code.” Thus, the requirement of a license suspension for persons
convicted of Failure to Comply is set forth in R.C. 2921.331(E), not R.C. 4510.02, which is
merely referred to in R.C. 2921.331(E) for the purpose of determining the duration of the license
suspension.
{¶ 11} But, in any event, the imposition of driver’s license suspensions are penalties that
are part of Stephens’s sentences for Trafficking and for Failure to Comply. Because we are
aware of no statutory provision authorizing that those penalties be made to run consecutively
(and the State has not cited any such statutory provision), the rule of lenity provided for in R.C.
2901.04(A) impels us to the same conclusion we came to in Phinizee – that these driver’s license
suspensions may not be ordered to run consecutively.
{¶ 12} Stephens’s sole assignment of error is sustained.
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III. Conclusion
{¶ 13} Stephens’s sole assignment of error having been sustained, that part of the
judgment of the trial court imposing driver’s license suspensions is Reversed; the judgment of the
trial court is Affirmed in all other respects; and this cause is Remanded for the limited purpose of
re-imposing driver’s license suspensions for the Trafficking and Failure to Comply offenses of
which Stephens has been convicted. The trial court is not authorized to change the terms of the
driver’s license suspensions; it is directed to impose a two-year driver’s license suspension for
Trafficking and a three-year driver’s license suspension for Failure to Comply, to be served
concurrently.
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DONOVAN and HALL, JJ., concur.
Copies mailed to:
Lisa M. Fannin
Adrian King
Hon. Douglas M. Rastatter