State v. Semenchuk

[Cite as State v. Semenchuk, 2015-Ohio-5408.]
[Please see vacated opinion at 2015-Ohio-4767.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 102636

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

GEORGE SEMENCHUK
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-588154-A

BEFORE: S. Gallagher, J., Jones, P.J., and Laster Mays, J.

RELEASED AND JOURNALIZED: December 24, 2015
ATTORNEY FOR APPELLANT

Paul A. Mancino
Mancino, Mancino & Mancino
75 Public Square Building
Suite 1016
Cleveland, Ohio 44113-2098

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: John F. Hirschauer
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ON RECONSIDERATION1

SEAN C. GALLAGHER, J.:

{¶1} George Semenchuk appeals his conviction for driving under the influence of

alcohol, a third-degree felony, based on a prior felony operating a vehicle while

intoxicated (“OVI”) conviction, criminal trespass, petty theft, and attempted assault of a

peace officer. The trial court sentenced Semenchuk to an aggregate prison term of five

years, along with community control sanctions and the mandatory $1,350 fine. For the

following reasons, we affirm Semenchuk’s conviction, vacate his sentencing on the

driving under the influence count, and remand for the limited purpose of resentencing on

that count.

{¶2} Semenchuk was arrested for driving under the influence of alcohol after

trying to steal gasoline from the victim’s garage. Semenchuk was seen driving

erratically, and then parking on the curb in front of the victim’s home. When police

officers arrived, Semenchuk appeared intoxicated. He smelled of alcohol, was

stumbling, and had bloodshot eyes. The victim saw Semenchuk drive on the wrong side

of the road, hit a curb, and get out of the vehicle.

{¶3} After pleading guilty to a violation of R.C. 4511.19(A)(1)(a), a third-degree

felony pursuant to R.C. 4511.19(G)(1)(e), attempted assault of a police officer in

1
The original announcement of decision, State v. Semenchuk, 2015-Ohio-4767, released
November 19, 2015, is hereby vacated. This opinion, issued upon reconsideration, is the court’s
journalized decision in this appeal. See App.R. 22(C); see also S.Ct. Prac.R. 7.01.
violation of R.C. 2923.02, and the remaining misdemeanor charges not relevant to the

current appeal, the trial court sentenced Semenchuk to a five-year term of imprisonment,

community control sanctions to be served following the sentence on the felony OVI

offense, and a fine totaling $1,350. Semenchuk appealed, arguing in several assignments

of error: (1) that the maximum sentence for a felony three OVI without the R.C.

2941.1413 specification is three years; (2) that his guilty plea was not knowingly,

voluntarily, or intelligently entered; (3) that the trial court failed to consider a presentence

investigation (“PSI”) report prior to imposing community control sanctions; (4) that the

trial court failed to consider the statutory felony sentencing factors; and (5) that the trial

court failed to consider his ability to pay the fine pursuant to R.C. 2929.18. We agree

that the maximum sentence for a third-degree felony OVI offense without the

specification is three years, but disagree with the remainder of Semenchuk’s arguments.

{¶4} Both parties fixated on the conflict amongst the districts regarding the

maximum term of prison authorized by R.C. 4511.19(G)(1)(e) and 2929.13(G)(2) for

offenders also convicted of the R.C. 2941.1413 specification. See, e.g., State v. Jarrells,

8th Dist. Cuyahoga No. 101707, 2015-Ohio-879, ¶ 13. That conflict focused on R.C.

4511.19(G)(1)(e), which authorizes a mandatory one-, two-, three-, four-, or five-year

sentence of imprisonment if the offender is also found guilty of the specification

described in R.C. 2941.1413, and R.C. 2929.14(A)(3), which authorizes a three-year

maximum sentence except for certain enumerated crimes not including the felony OVI

offenses. The Ohio Supreme Court recently settled the issue and held that an offender
convicted of a third-degree felony OVI and the repeat-offender specification is subject to

(1) a one- to five-year mandatory, consecutive prison sentence under the specification,

and (2) an additional discretionary term of 9 to 36 months for the underlying OVI

conviction pursuant to R.C. 2929.14(A)(3). State v. South, Slip Opinion No.

2015-Ohio-3930. We need not dwell on this issue. Semenchuk was not found guilty of

the R.C. 2941.1413 specification, and therefore, the maximum sentence for his offense

was three years irrespective of the South decision.

{¶5} As discussed by Semenchuk, the maximum sentence for a violation of R.C.

4511.19(G)(1)(e), a third-degree felony, is three years. The trial court sentenced

Semenchuk to five years based on the state’s argument that R.C. 4511.19(G)(1)(e) and,

therefore, R.C. 2929.13(G)(2), applied. We agree with the state regarding the

applicability of the statutory sections. The application of these sections to the current

case is altogether a different matter.

{¶6} R.C. 4511.19(G)(1)(e) provides that

[i]f the offender is being sentenced for a violation of division (A)(1)(a) * *

* of this section, [the court shall impose] 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 or also pleads guilty to a specification of the type described in

section 2941.1413 of the Revised Code or a mandatory prison term of sixty

consecutive days in accordance with division (G)(2) of section 2929.13 of
 the Revised Code if the offender is not convicted of and does not plead

guilty to a specification of that type. The court may impose a prison term

in addition to the mandatory prison term. The cumulative total of a

sixty-day mandatory prison term and the additional prison term for the

offense shall not exceed five years.

(Emphasis added.) Thus, the trial court may only impose a term of one, two, three, four,

or five years if the offender is also convicted of the R.C. 2941.1413 specification. If the

offender was not also convicted of that specification, the trial court must sentence the

offender to a mandatory 60-day prison term in accordance with subsection (G)(2) of R.C.

2929.13.

{¶7} That subsection, in turn, provides that

If the offender is being sentenced for a third degree felony OVI offense, * *
* the court shall impose upon the offender a mandatory prison term of one,
two, three, four, or five years if the offender also is convicted of or also
pleads guilty to a specification of the type described in section 2941.1413 of
the Revised Code or shall impose upon the offender a mandatory prison
term of sixty days or one hundred twenty days as specified in division
(G)(1)(d) or (e) of section 4511.19 of the Revised Code if the offender has
not been convicted of and has not pleaded guilty to a specification of that
type.

(Emphasis added.) R.C. 2929.13(G)(2). Again, the trial court must impose up to the

five-year sentence only if the offender is convicted of the R.C. 2941.1413 specification.

If not so convicted, the offender is subject to a three-year maximum sentence pursuant to

a third-degree felony sentencing, 60 or 120 days of which include the maximum

mandatory portion of the sentence pursuant to the OVI specific statutes provided by R.C.
4511.19(G)(1)(d) or (e). In light of the fact that Semenchuk was found guilty under R.C.

4511.19(G)(1)(e), the court should have imposed a mandatory 60-day term of prison on

the OVI offense and up to a maximum term of three years on the basic term for a

third-degree felony, not the five-year sentence imposed.

{¶8} In addition to the OVI specific statutes, if the trial court imposes an

additional basic term for a third-degree felony pursuant to R.C. 2929.14(B)(4), the

additional 60- or 120-day prison terms imposed under the felony OVI specific statutes

reduce the total prison term imposed under R.C. 2929.14(A)(3)(b) so as to limit the

maximum aggregate term. The dissenting justices in South believed that R.C.

2929.14(B)(4) authorized the trial court to impose any sentence authorized under R.C.

2929.14(A)(3), including the potential five-year term authorized under subsection

(A)(3)(a) even though that subsection only referenced certain statutory sections to the

exclusion of R.C. 4511.19. South, Slip Opinion No. 2015-Ohio-3930, at ¶ 40-58. The

majority rejected this interpretation. Id. at ¶ 20. As a result, we conclude that for a

third-degree felony offense under R.C. 4511.19(G)(1)(e) without the accompanying

specification, the maximum aggregate term is limited to the term authorized by subsection

(A)(3)(b) — three years, 60 days of which are mandatory. R.C. 2929.14(B)(4); State v.

Kincade, 3d Dist. Wyandot No. 16-09-20, 2010-Ohio-1497, ¶ 15; see also South.

{¶9} Kincade involved a similar set of circumstances as the current case.

Although Kincade was decided under the sentencing range then in effect, the rationale

still applies. The defendant was charged with a third-degree felony OVI offense, found
guilty, and sentenced to a mandatory 60-day term of prison and an additional basic term

of four years under the then applicable sentencing ranges. The defendant appealed,

arguing the maximum sentence for his offense was four years based on the version of

R.C. 2929.14(B)(4) then in effect, claiming the maximum term had to be reduced by the

60-day mandatory prison term. The Third District agreed and held that the mandatory

60-day prison term reduced the additional basic term to an aggregate term of four years

based on a plain reading of the statutory section.

{¶10} The maximum prison sentence the trial court could impose in this case is the

mandatory 60-day prison term set forth in R.C. 4511.19(G)(1)(e) and 2929.13(G)(2),

along with any additional term for a basic felony-three sentence pursuant to R.C.

2929.14(A)(3) up to a maximum aggregate sentence of three years. The trial court’s

five-year prison sentence is contrary to law. We vacate Semenchuk’s sentence on the

driving under the influence count and remand for the purposes of resentencing. In light

of the reversal, Semenchuk’s argument that the trial court failed to consider the felony

sentencing factors, in reaching the aggregate five-year sentence of imprisonment, is moot.

{¶11} Semenchuk next argues that his guilty plea was not knowingly, voluntarily,

or intelligently entered because the trial court failed to explain the effect of the guilty

plea.

{¶12} “When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily.” State v. Engle, 74 Ohio St.3d 525, 527,

1996-Ohio-179, 660 N.E.2d 450. The standard of review for determining whether a plea
was knowing, intelligent, and voluntary within the meaning of Crim.R. 11 for

nonconstitutional issues is substantial compliance, and strict compliance for constitutional

issues. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990), citing State v.

Stewart, 51 Ohio St.2d 86, 92-93, 364 N.E.2d 1163 (1977). “Substantial compliance

means that under the totality of the circumstances the defendant subjectively understands

the implications of his plea and the rights he is waiving.” Nero. In addition, when

challenging his guilty plea based on the trial court’s lack of substantial compliance, a

defendant must also show a prejudicial effect — that the plea would not have been

otherwise entered but for the error. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748,

893 N.E.2d 462, ¶ 32, citing State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897

N.E.2d 621, ¶ 15.

{¶13} In this case, the trial court informed Semenchuk of the nature of the

charges, the consequences he faced, and the constitutional rights he waived by pleading

guilty. Under a totality of the circumstances, the trial court at least partially complied

with the Crim.R. 11 nonconstitutional advisements.

{¶14} Semenchuk has not demonstrated, nor even argued, that he would not have

entered the guilty plea but for the perceived lack of advisements. As panels from this

court continuously warn, “‘even if the [trial] court failed to substantially comply with

explaining the effects of his plea,’ the defendant still has to prove that he was prejudiced

by the court’s failure.” State v. Mannarino, 8th Dist. Cuyahoga No. 98727,

2013-Ohio-1795, ¶ 17, citing State v. Simonoski, 8th Dist. Cuyahoga No. 98496,
2013-Ohio-1031. In both Mannarino and Simonoski, the defendants argued that no

showing of prejudice was required because the trial court failed to comply. Mannarino

at ¶ 15; Simonoski at ¶ 11. In both cases, panels from this court determined that there

was partial compliance, and therefore, the defendants were required to demonstrate

prejudice. Mannarino at ¶ 16; Simonoski. As a result of the defendants not offering any

argument demonstrating that they would not have entered the plea but for the inadequate

explanation, the panels were forced to affirm the convictions. Mannarino at ¶ 18;

Simonoski at ¶ 12. We must overrule any assigned errors seeking to vacate the guilty

plea. Semenchuk has not demonstrated, let alone argued, prejudice even if we found the

trial court failed to adequately advise Semenchuk of his rights.

{¶15} We must also summarily overrule Semenchuk’s remaining assigned errors.

{¶16} Semenchuk argues that the trial court failed to order a new PSI report

pursuant to R.C. 2951.03(A)(1) before imposing the community control sanctions. The

trial court did not err. R.C. 2951.03(A)(1) provides, “[n]o person who has been

convicted of or pleaded guilty to a felony shall be placed under a community control

sanction until a written presentence investigation report has been considered by the

court.” (Emphasis added.) The statute does not specify that a new report must be

generated each and every time an offender recidivates. In this case, the trial court

considered a PSI report from Semenchuk’s 2007 OVI conviction — for which he served a

five-year prison term — without objection and as required by a plain reading of R.C.

2951.03(A)(1).
 {¶17} Finally, Semenchuk argues that the trial court improperly imposed the

$1,350 fine without considering his ability to pay pursuant to R.C. 2929.18(A)(2). The

fine was imposed pursuant to R.C. 4511.19(G)(1)(e), which mandates the imposition of a

fine “[i]n all cases, notwithstanding section 2929.18 of the Revised Code * * *.” R.C.

2929.18 does not apply in this case.2

{¶18} Semenchuk’s conviction is affirmed. His sentence on the driving under the

influence count is vacated, and the matter remanded for resentencing on that count only.

It is ordered that appellee and appellant share the costs herein taxed. The

court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

SEAN C. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and
ANITA LASTER MAYS, J., CONCUR

2
Although Semenchuk argues upon reconsideration that requiring an indigent offender to pay
a fine violates constitutional protections, such argument was not raised in the appellant’s merit
briefing and is therefore disregarded. New theories cannot be considered for the first time upon
reconsideration.