State v. Wheeler

[Cite as State v. Wheeler, 2016-Ohio-2964.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 26702
:
v. : Trial Court Case No. 2015-CRM-2062
:
ERIC WHEELER : (Criminal Appeal from
: Municipal Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 13th day of May, 2016.

...........

ANDREW D. SEXTON, Atty. Reg. No. 0070892, Assistant City of Dayton Prosecutor, 335
West Third Street, Room 372, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee

CHARLES E. MCFARLAND, Atty. Reg. No. 0031808, 338 Jackson Road, New Castle,
Kentucky 40050
Attorney for Defendant-Appellant

.............

WELBAUM, J.
 -2-

{¶ 1} Defendant-appellant, Eric Wheeler, appeals from his conviction and

sentence in the Dayton Municipal Court for possession of marijuana following a bench

trial. For the reasons outlined below, the judgment of the trial court will be affirmed in

part, vacated in part, and remanded for the limited purpose of resentencing Wheeler to a

mandatory license suspension as required by R.C. 2925.11(E)(2).

Facts and Course of Proceedings

{¶ 2} On April 7, 2015, Wheeler received two citations in Dayton, Ohio; one for

failing to activate his turn signal at least 100 feet prior to turning his vehicle, and the other

for possessing marijuana in an amount less than 100 grams in violation of R.C.

2925.11(A). Both charges are minor misdemeanors and were processed under

separate case numbers in the Dayton Municipal Court. This appeal concerns the

possession of marijuana charge that was prosecuted under Case No. 2015 CRM 2062.

{¶ 3} Wheeler pled not guilty to the possession of marijuana charge and proceeded

pro se at a bench trial that was held before a magistrate on April 29, 2015. Following

trial, the magistrate found Wheeler guilty and ordered him to pay a $100 fine, court costs,

and lab fees in the amount of $125. The magistrate also imposed a six-month driver’s

license suspension.

{¶ 4} After receiving his sentence, Wheeler asked the trial court how to appeal his

conviction and sentence. The trial court advised Wheeler that he had the right to file

objections to a magistrate’s decision, but declined to provide any further information on

that matter. The magistrate then dated and recorded Wheeler’s verdict and sentence on
 -3-

the back of the corresponding citation under a heading entitled “Entry.” The next day,

April 30, 2015, the verdict and sentence were journalized on the docket. The written

entry on the citation was later imaged and filed on May 28, 2015. Neither the

magistrate’s entry nor the docket indicates that the parties were served with copies of the

entry.

{¶ 5} Instead of filing objections to the magistrate’s decision, on May 26, 2015,

Wheeler appealed the magistrate’s decision to this court. On June 10, 2015, this court

ordered Wheeler to show cause as to why his appeal should not be dismissed for lack of

jurisdiction due to there being no final appealable order. Wheeler filed a response on

June 22, 2015, in which he claimed the final appealable order was located on the back of

the citation. However, at that point in time, the trial court had not filed an entry adopting

the magistrate’s decision.

{¶ 6} On June 25, 2015, the trial court filed a “Final Appealable Entry and Order

Nunc Pro Tunc to April 29, 2015.” The trial court’s entry reflected the magistrate’s

decision finding Wheeler guilty of possessing marijuana in an amount less than 100

grams in violation of R.C. 2925.11(A), and also ordered Wheeler to pay a $100 fine, court

costs, and lab fees. The trial court’s entry, however, did not impose a driver’s license

suspension.

{¶ 7} In light of the trial court’s entry, on July 10, 2015, this court ruled that a final

appealable order was filed and that the show cause order was satisfied. In doing so, this

court ordered Wheeler’s notice of appeal to be amended to reflect that the appeal was

taken from the trial court’s June 25th entry and requested the record to be supplemented

to include that entry. Wheeler thereafter filed his appellate brief in which he raised the
 -4-

following three assignments of error for our review.

I. THE APPELLATE COURT LACKS JURISDICTION DUE TO THE

FAILURE OF THE TRIAL COURT JUDGE TO APPROVE OR

ADOPT THE MAGISTRATE’S FINDING OF GUILT AND

SENTENCE.

II. THE TRIAL COURT ERRED IN FAILING TO MAKE AN

INDEPENDENT INQUIRY INTO WHETHER DEFENDANT

WHEELER’S WAIVER OF COUNSEL AT TRIAL WAS

KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY MADE, AND

FAILED TO INFORM WHEELER THAT THE CONSEQUENCES OF

HIS BEING FOUND GUILTY OF THE MINOR MISDEMEANOR

POSSESSION OF MARIJUANA CHARGES WOULD RESULT IN A

DRIVER’S LICENSE SUSPENSION, THEREBY DENYING

WHEELER DUE PROCESS OF LAW.

III. THE TRIAL COURT ERRED IN SUSPENDING DEFENDANT

WHEELER’S DRIVER’S LICENSE ON A MINOR MISDEMEANOR

DRUG OFFENSE.

Standard of Review

{¶ 8} At the outset, we note the State argues that Wheeler’s assignments of error

may only be reviewed for plain error because Wheeler never filed objections to the

magistrate’s decision. In support of this claim, the State cites to Crim.R. 19(D)(3)(b)(iv),

which provides: “Except for a claim of plain error, a party shall not assign on appeal the
 -5-

court’s adoption of any factual finding or legal conclusion, whether or not specifically

designated as a finding of fact or conclusion of law under Crim. R. 19(D)(3)(a)(ii), unless

the party has objected to that finding or conclusion as required by Crim. R. 19(D)(3)(b).”

See also State ex rel. Booher v. Honda of Am. Mfg., Inc., 88 Ohio St.3d 52, 53-54, 723

N.E.2d 571 (2000); State v. Dixon, 2d Dist. Greene No. 06-CA-0145, 2008-Ohio-415, ¶ 5.

{¶ 9} The foregoing rule is affected when a magistrate’s written decision does not

comply with the requirements in Crim.R. 19(D)(3)(a)(iii). Pursuant to that rule:

A magistrate’s decision shall be in writing, identified as a magistrate’s

decision in the caption, signed by the magistrate, filed with the clerk, and

served by the clerk on all parties or their attorneys no later than three days

after the decision is filed. A magistrate’s decision shall indicate

conspicuously that a party shall not assign as error on appeal the court’s

adoption of any factual finding or legal conclusion, whether or not

specifically designated as a finding of fact or conclusion of law under Crim.

R. 19(D)(3)(a)(ii), unless the party timely and specifically objects to that

factual finding or legal conclusion as required by Crim.R. 19(D)(3)(b).1

{¶ 10} “[T]he main purpose for the procedures set forth in [Crim.R. 19] is to afford

[parties] with a meaningful opportunity to file objections to a magistrate's decision.”

Skydive Columbus Ohio, L.L.C. v. Litter, 10th Dist. Franklin No. 09AP-563, 2010-Ohio-

1
We note that Civ.R. 53(D)(3)(a)(iii) and Juv.R. 40(D)(3)(a)(iii) are analogous to Crim.R.
19(D)(3)(a)(iii) in that they also govern the form, filing, and service of a magistrate’s
decision. Furthermore, all of these provisions contain identical language and
requirements. Accordingly, in ruling on this appeal, it is appropriate to rely on
precedents that have applied the analogous provisions. See State v. Masalko, 9th
Dist. Wayne No. 15AP0011, 2015-Ohio-5179, ¶ 5.
 -6-

3325, ¶ 6, citing Pinkerson v. Pinkerson, 7 Ohio App.3d 319, 455 N.E.2d 693 (1st

Dist.1982), syllabus. “The rationale is that when a magistrate fails to comply with

[Crim.R. 19](D)(3)(a)(iii) * * * the parties may be unaware of the strict waiver rule

prescribed by [Crim.R. 19](D)(3)(b)(iv) * * * and the related time-limited procedures for

preserving objections to a magistrate’s decision.” (Citation omitted.) In re A.W.C., 4th

Dist. Washington No. 09CA31, 2010-Ohio-3625, ¶ 18. “The requirement that the

magistrate’s decision include a ‘conspicuous’ notice serves to warn the parties of the

consequences of failing to file objections[.]” (Citations omitted.) Walters v. Lewis, 7th

Dist. Mahoning No. 15 MA 0135, 2016-Ohio-1064, ¶ 18.

{¶ 11} The Ninth District Court of Appeals has consistently held that the failure to

comply with the requirements of Crim.R. 19(D)(3)(a)(iii) and its analogous provisions

amounts to reversible error that requires the matter to be remanded to the trial court so

that the magistrate can prepare and file a decision that comports with the requirements

of the rule and so that the parties may have the opportunity to file objections. See, e.g.,

State v. Masalko, 9th Dist. Wayne No. 15AP0011, 2015-Ohio-5179, ¶ 5-7 (reversing and

remanding for failure to provide notice of the waiver rule in a magistrate’s decision as

required by Crim.R. 19(D)(3)(a)(iii)); In re T.S., 9th Dist. Medina No. 11CA0033-M, 2012-

Ohio-858, ¶ 8-9 (reversing and remanding for failure to correctly caption the magistrate’s

decision and failure to provide notice of the waiver rule as required by Juv.R.

40(D)(3)(a)(iii)); Keller v. Keller, 9th Dist. Summit No. 25967, 2012-Ohio-4029, ¶ 7-8

(reversing and remanding for failure to correctly caption the magistrate’s decision and

failure to provide notice of the 14-day window to file objections to the magistrate’s

decision); Williams v. Ormsby, 9th Dist. Medina No. 09CA0080-M, 2010-Ohio-3666, ¶ 12-
 -7-

13 (reversing and remanding for failure to correctly caption the magistrate’s decision and

failure to provide notice of the waiver rule as required by Civ.R. 53(D)(3)(a)(iii)).

{¶ 12} In contrast, the Fourth, Fifth, Eleventh, and Twelfth Appellate Districts have

held that if a magistrate’s decision fails to comply with the analogous provisions of

Crim.R. 19(D)(3)(a)(iii), the parties are relieved from the waiver rule and are permitted to

raise assignments of error with respect to the magistrate’s decision for the first time on

appeal. Picciano v. Lowers, 4th Dist. Washington No. 08CA38, 2009-Ohio-3780, ¶ 18

(“[i]f the magistrate’s decision does not comply with Civ.R. 53(D)(3)(a)(iii), then a party

may assign as error on appeal the trial court’s adoption of the magistrate’s findings of fact

and conclusions of law”); compare Ellison v. Ellison, 4th Dist. Lawrence No. 12CA25,

2013-Ohio-3769, ¶ 15-16 (reversing and remanding for failure to provide notice of waiver

rule and failure to serve the magistrate’s decision on a party to the case as required by

Civ.R. 53); Kramanak v. Myers, 5th Dist. Stark No. 2013CA00010, 2013-Ohio-2977, ¶ 13

(“a party is not prohibited from assigning errors on appeal related to the court’s adoption

of a magistrate’s factual findings if the required language of Civ.R.53(D)(3)(a)(iii) is not

included in the magistrate’s decision”); Marble Builder Direct Internatl., Inc. v. Hauxhurst,

11th Dist. Lake No. 2011-L-040, 2012-Ohio-1674, ¶ 17 (“[t]his court has held, repeatedly,

that a party is not barred from assigning errors on appeal related to the court’s adoption

of the magistrate’s factual findings, if the magistrate failed to include the required

language of Civ.R. 53(D)(3)(a)(iii)”); In re Molitor, 12th Dist. Brown No. CA2012-06-013,

2013-Ohio-525, ¶ 15 (“[w]hen the trial court has failed to comply with the requirements of

Civ.R. 53(D), this court is not precluded, on appeal, from addressing the merits of a party’s

assigned errors”).
 -8-

{¶ 13} Similarly, the Third and Seventh Appellate Districts have held that “ ‘[i]f a

magistrate fails to provide the parties with notice of the requirement to file objections, the

aggrieved parties, at a minimum, are relieved from Civ.R. 53(D)(3)(b)(iv)’s waiver rule and

are permitted to raise their arguments for the first time on appeal.’ ” Cooper v. Cooper,

3d Dist. Marion Nos. 9-13-62, 9-13-64, 2014-Ohio-4991, ¶ 8, quoting Larson v. Larson,

3d Dist. Seneca No. 13-11-25, 2011-Ohio-6013, ¶ 14; Walters, 7th Dist. Mahoning No.

15 MA 0135, 2016-Ohio-1064 at ¶ 18-19, quoting Larson at ¶ 14. However, where “the

aggrieved party ‘did not raise any arguments on appeal except for the magistrate’s failure

to abide by Civ.R. 53(D)(3)(a)(iii),’ the appropriate remedy is to reverse the trial court’s

decision so that the party can have an opportunity to file objections to the magistrate’s

decision.” Cooper at ¶ 8, quoting Larson at ¶ 14; Walters at ¶ 19.

{¶ 14} While there are different remedies employed for when a magistrate’s

decision does not comply with Crim.R. 19(D)(3)(a)(iii) or its analogous provisions, a

common thread between them is that the failure must have resulted in prejudice in order

for the remedy to apply. See Pinkerson, 7 Ohio App.3d 319, 455 N.E.2d 693 at syllabus

(“[t]he clear import of Civ.R. 53[(D)] is to provide litigants with a meaningful opportunity to

register objections to a report of the referee before judgment is entered thereon, and a

failure to provide such an opportunity to object is prejudicial error”). For example, in all

the aforementioned cases, the parties were prejudiced by the magistrate’s failure to

comply with Crim.R. 19(D)(3)(a)(iii) because they failed to file objections to the

magistrate’s decision as a result. Compare Neu v. Neu, 1st Dist. Hamilton No. C-

140170, 2015-Ohio-1466, ¶ 20-22 (applying waiver rule after finding no prejudice resulted

from the lack of notice language in the magistrate’s decision because objections were
 -9-

timely filed); Skydive Columbus Ohio, L.L.C., 10th Dist. Franklin No. 09AP-563, 2010-

Ohio-3325 at ¶ 11-12 (applying waiver rule after finding no prejudice resulted from the

lack of service of magistrate’s decision because appellant admitted to being aware of the

decision and obtaining a copy of the decision five days before the time for filing objections

expired).

{¶ 15} In this case, it is clear from the record that the magistrate’s April 29, 2015

entry on the back of the citation did not comply with Crim.R. 19(D)(3)(a)(iii). For example,

not only was the entry not identified as a magistrate’s decision or signed by the

magistrate, but it also did not advise Wheeler that the failure to object to the decision

would forfeit all but plain error on appeal. Moreover, even if the required information had

been included in the magistrate’s decision, we find nothing in the record establishing that

a copy of the entry was ever served on Wheeler. These defects prejudiced Wheeler

because he did not file any objections to the magistrate’s decision and was unaware of

the consequences of failing to do so. Under these circumstances, and in following the

majority of cases, we conclude that the waiver rule under Crim.R. 19(D)(3)(b)(iv) does not

apply here and that Wheeler may raise his arguments pertaining to the trial court’s

adoption of the magistrate’s decision for the first time on appeal. Accordingly, we will not

apply a plain error standard of review and instead review Wheeler’s assigned errors

directly upon their merits.

First Assignment of Error

{¶ 16} Under his First Assignment of Error, Wheeler claims this court lacks

jurisdiction to review this case because the trial court did not issue a final appealable
 -10-

order adopting the magistrate’s decision as required by Crim.R. 19. Wheeler also claims

that he was never formally found guilty and sentenced by the magistrate because the

magistrate’s written decision fails to comply with Crim.R. 19(D)(3)(a)(iii), and as a result,

there was no official order for the trial court to adopt. We disagree with these claims.

{¶ 17} As Wheeler correctly notes, “[a] magistrate’s decision is not effective unless

adopted by the court.” Crim.R. 19(D)(4)(a). A magistrate’s decision is merely an

interlocutory recommendation that does not constitute a final appealable order until the

trial court adopts the decision. State v. Pennington, 187 Ohio App.3d 526, 2010-Ohio-

2139, 932 N.E.2d 941, ¶16 (2d Dist.). “[F]or a judgment entry of the court to be a final

appealable order, it must adopt, reject, or modify the magistrate’s decision and state, for

identification purposes, the date the magistrate’s decision was filed. * * * It should state

the outcome and contain an order which states the relief granted so that the parties are

able to determine their rights and obligations by referring solely to the judgment entry and

should be a document separate from the magistrate’s decision.” Bennett v. Bennett,

2012-Ohio-501, 969 N.E.2d 344, ¶ 20 (2d Dist.), quoting Sowald & Morganstern, Ohio

Practice Domestic Relations Law (2009) 701–02, Section 31:13. Accord In re D.J., 2d

Dist. Montgomery No. 26599, 2015-Ohio-2295, ¶ 4.

{¶ 18} In this case, despite the magistrate’s written decision not complying with

Crim.R. 19(D)(3)(a)(iii), the trial court issued a separate “Final Appealable Entry and

Order Nunc Pro Tunc to April 29, 2015,” which referenced the date of the magistrate’s

decision in its caption and, with the exception of the driver’s license suspension, reflected

the same verdict and sentence that was provided in the magistrate’s decision. A

magistrate’s failure to comply with the procedural requirements under Crim.R. 19 does
 -11-

not affect the trial court’s jurisdiction to determine the action. State v. Litreal, 170 Ohio

App.3d 670, 2006-Ohio-5416, 868 N.E.2d 1018, ¶ 9 (4th Dist.), citing Eisenberg v. Peyton,

56 Ohio App.2d 144, 148, 381 N.E.2d 1136 (8th Dist.1978). Accord Hines v. Amole, 4

Ohio App.3d 263, 265, 448 N.E.2d 473 (2d Dist.1982). Therefore, Wheeler’s claim that

there is no final appealable order as a result of the defects in the magistrate’s decision

lacks merit, as the trial court had jurisdiction to issue its entry adopting the magistrate’s

decision despite the defects. Furthermore, our decision and entry of July 10, 2015,

already concluded that the trial court’s entry constituted a final appealable order giving

this court jurisdiction to review the matter.

{¶ 19} In so holding, we distinguish this case from State v. Hayes, 9th Dist. Medina

No. 3175-M, 2002 WL 242115 (Feb. 20, 2002), where it was held that the trial court’s

nunc pro tunc entry adopting the magistrate’s decision was invalid because there was

nothing for the trial court to adopt due to a magistrate’s decision never being filed or

journalized. Id. at *2. Here, the magistrate’s decision was journalized on the docket

and the citation on which the decision was written was eventually filed with the court.

Accordingly, the holding in Hayes is inapplicable here

{¶ 20} Wheeler’s First Assignment of Error is overruled.

Second Assignment of Error

{¶ 21} Under his Second Assignment of Error, Wheeler contends his constitutional

right to due process was violated because the trial court failed to determine whether he

was capable of representing himself and whether his decision to waive counsel and

proceed pro se at trial was knowing, intelligent, and voluntary. Wheeler also claims the
 -12-

trial court violated due process by failing to inform him that his driver’s license would be

subject to a mandatory suspension if he were found guilty of the minor misdemeanor

charge for possessing marijuana. We once again disagree with Wheeler’s claims.

{¶ 22} “The Fifth and Fourteenth Amendments to the United States Constitution

provide that no person shall be deprived of life, liberty, or property without due process of

law. The Fourteenth Amendment prohibition is specifically applicable to the states.”

State v. Lopez, 2d Dist. Greene No. 2002CA81, 2003-Ohio-679, ¶ 7. Basic procedural

due process is required in cases involving minor misdemeanors. Warren v. Granitto, 93

Ohio App.3d 723, 726, 639 N.E.2d 865 (11th Dist.1994). “A two-step analysis is used

when considering a claim that due process rights were violated. First, a court must

determine whether the claimant has a right or interest that is entitled to due process

protection. Second, if the claimant was deprived of such a right or interest, the court

must determine what process is due.” (Citation omitted.) McDonald v. Dayton, 146

Ohio App.3d 598, 2001-Ohio-1825, 767 N.E.2d 764, ¶ 20 (2d Dist.).

{¶ 23} That said, “a defendant has no constitutional right to court-appointed

counsel when a criminal prosecution carries no possibility of incarceration.” (Citations

omitted.) State v. Woods, 2d Dist. Montgomery No. 16665, 1998 WL 906786, *4 (Dec.

31, 1998). Rather, a defendant merely has the right to retain counsel of his or her own

choice. State v. Bettah, 5th Dist. Licking No. 05 CA 50, 2006-Ohio-1916, ¶ 42. Under

that circumstance, we have held that a trial court is not obligated to advise a defendant

of the right to counsel or to obtain a waiver of that right. State v. Minne, 2d Dist.

Montgomery No. 23390, 2010-Ohio-2269, ¶ 20, citing State v. Sturgill, 3d Dist. Auglaize

No. 2-01-34, 2002 WL 596114, *2 (Apr. 18, 2002), and State v. Wiest, 1st Dist. Hamilton
 -13-

No. C-030674, 2004-Ohio-2577, ¶ 26-27.

{¶ 24} As noted above, Wheeler was charged with a minor misdemeanor, which

does not carry the possibility of incarceration. Because he was not facing the possibility

of incarceration, Wheeler had no right to a court-appointed counsel and the trial court did

not have any obligation to advise Wheeler of the right to counsel or to obtain a waiver of

that right. Therefore, we do not find that the trial court’s failure to obtain a waiver of the

right to counsel violated due process, as Wheeler had no such right to waive. Without

this right, the act of determining whether Wheeler understood the ramifications of

representing himself or his capability of doing so was unwarranted.

{¶ 25} Wheeler has also not provided any authority in support of his claim that due

process requires a trial court to advise a defendant prior to trial of the consequences of

being found guilty. Rather, the requirement to advise a defendant of the potential

consequences of a charge generally arises when the defendant is waiving a right, such

as the right to counsel, or the various rights waived when entering a guilty or no contest

plea. Neither of these situations exist in the present case. Therefore, we do not find

that the trial court was obligated to advise Wheeler prior to trial that his driver’s license

would be subject to suspension if he were found guilty.

{¶ 26} Wheeler’s Second Assignment of Error is overruled.

Third Assignment of Error

{¶ 27} Under his Third Assignment of Error, Wheeler contends the trial court erred

in imposing a mandatory license suspension under R.C. 2925.11(E)(2). Specifically,

Wheeler claims that the language of this statute indicates that it does not apply to
 -14-

offenders who commit minor misdemeanors.

{¶ 28} As a preliminary matter, we note that while the magistrate’s decision in this

case imposed a six-month license suspension, the trial court’s entry adopting the

magistrate’s decision did not impose any license suspension. We have previously held

that “[b]ecause a mandatory driver’s license suspension is a statutorily mandated term, a

trial court’s failure to include this term in a criminal sentence renders the sentence void in

part.” State v. Smith, 2d Dist. Montgomery No. 26217, 2015-Ohio-700, ¶ 9, citing State

v. Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509, ¶ 15. (Other citation

omitted.) In such a situation, “[r]esentencing is limited to the imposition of the mandatory

driver’s license suspension.” Id., citing Harris at ¶ 18. Therefore, if the mandatory

license suspension under R.C. 2925.11(E)(2) is applicable in this case, the matter must

be remanded to the trial court for resentencing solely for purposes of imposing the

suspension.2

{¶ 29} Pursuant to R.C. 2925.11(E)(2):

In addition to any prison term or jail term authorized or required by division

(C) of this section and sections 2929.13, 2929.14, 2929.22, 2929.24, and

2929.25 of the Revised Code and in addition to any other sanction that is

imposed for the offense under this section, sections 2929.11 to 2929.18, or

sections 2929.21 to 2929.28 of the Revised Code, the court that sentences

an offender who is convicted of or pleads guilty to a violation of division (A)

2
We note that the State claims Wheeler’s argument concerning the license suspension
is not yet ripe for review since the trial court did not impose a license suspension in its
final appealable order. However, we find that under the circumstances of this case,
judicial economy would be better served by addressing Wheeler’s argument at this
juncture.
 -15-

of this section shall do all of the following that are applicable regarding the

offender:

***

(2) The court shall suspend for not less than six months or more than five

years the offender’s driver’s or commercial driver’s license or permit.

{¶ 30} Wheeler contends the phrase “[i]n addition to any prison term or jail term”

indicates that the statute limits the applicability of license suspensions to circumstances

where incarceration is authorized or required for the underlying offense. Thus, Wheeler

maintains that the license suspension provided for in R.C. 2925.11(E)(2) does not apply

to offenders who commit minor misdemeanors, as minor misdemeanors do not require or

authorize any period of incarceration as punishment.

{¶ 31} The exact same argument was rejected by the Sixth District Court of

Appeals in State v. Boukissen, 6th Dist. Sandusky No. S-14-046, 2015-Ohio-2973. In

Boukissen, the court stated the following:

In our view, the phrase “in addition to” is not language of limitation.

In connotes something added to what is already in place. The language

treats license suspension as an additional collateral consequence in

addition to a sentence under applicable Ohio sentencing laws for an R.C.

2925.11(A) conviction. The statute does not limit license suspensions to

circumstances where the offender’s violation of R.C. 2925.11(A) was of a

type for which a prison term or jail term was authorized or imposed.

Specifically, we interpret the words “[i]n addition to any prison term

or jail term authorized or required by division (C) of this section and sections
 -16-

2929.13, 2929.14, 2929.22, 2929.24, and 2929.25 of the Revised Code and

in addition to any other sanction that is imposed for the offense under this

section, sections 2929.11 to 2929.18, or sections 2929.21 to 2929.28 of the

Revised Code” to authorize imposition of a license suspension under R.C.

2925.11(E)(2) even where the R.C. 2915.11(A) offense was a minor

misdemeanor.

Id. at ¶ 7-8.

{¶ 32} Accordingly, the court in Boukissen concluded that “the plain meaning of

R.C. 2925.11(E) and (E)(2) demonstrates that the ‘in addition to’ introductory phrases to

R.C. 2925.11 do not act to limit the license suspension provisions of R.C. 2925.11(E)(2)

to R.C. 2925.11(A) offenses for which incarceration is authorized or has been imposed.”

Id. at ¶ 18.

{¶ 33} The court in Boukissen also thoroughly analyzed the legislative history of

R.C. 2925.11(E) and concluded that even if “the statute was considered ambiguous on

the issue, the statutory history demonstrates that R.C. 2925.11(E)(2) has been

consistently interpreted as applying to minor misdemeanor violations of R.C. 2925.11(A).”

Id. at ¶ 18. The court explained that before the “in addition to language” was added to

the statute in 1996, the prior version of the statute, R.C. 2925.11(F), had previously been

interpreted as providing for a mandatory license suspension for minor misdemeanor

violations. Id. at ¶ 10, citing State v. Vanpelt, 3d Dist. Crawford No. 3-95-18, 1996 WL

65530, *2 (Feb. 1, 1996); State v. Keene, 3d Dist. Crawford No. 3-95-19, 1996 WL 65533,

* 2 (Feb. 2, 1996); Akron v. Wait, 9th Dist. Summit No. 17373, 1996 WL 62111, *1-2 (Feb.

14, 1996). The court also cited several cases reviewing the 1996 version of the statute
 -17-

with holdings indicating that the suspension applies to minor misdemeanor offenses. Id.

at ¶ 12-15, citing Metro. Park Dist. v. Pauch, 8th Dist. Cuyahoga No. 74792, 1999 WL

1204878 (Dec. 16, 1999); State v. Fisher, 11th Dist. Portage No. 97-P-0026, 1997 WL

799912 (Dec. 26, 1997); State v. Mihely, 11th Dist. Ashtabula Nos. 2001-A-0083, 2001-

A0084, 2002-Ohio-6939.

{¶ 34} The 1996 version of R.C. 2925.11(E) included similar “in addition to”

language that is found in the present version of the statute.3 This wording remained in

effect until the current version was enacted under 2002 S.B. No. 123 and 2002 H.B. No.

490, effective January 1, 2004. Boukissen, 6th Dist. Sandusky No. S-14-046, 2015-

Ohio-2973 at ¶ 16. Under the current version, the Eleventh District Court of Appeals has

held that the suspension of a juvenile’s driver’s license for a minor misdemeanor

possession of marijuana offense was properly ordered pursuant to R.C. 2925.11(E)(2).

In re C.C., 11th Dist. Geauga No. 2008-G-2838, 2008-Ohio-6776, ¶ 4, 18.

3
Beginning July 1, 1996, R.C. 2925.11(E)(2) provided the following:

In addition to any prison term authorized or required by division (C) of this section and
sections 2929.13 and 2929.14 of the Revised Code and in addition to any other
sanction that is imposed for the offense under this section or sections 2929.11 to
2929.18 of the Revised Code, the court that sentences an offender who is convicted of
or pleads guilty to a violation of division (A) of this section shall do all of the following
that are applicable regarding the offender:

***

(2) The court shall suspend for not less than six months or more than five years the
driver's or commercial driver's license or permit of any person who is convicted of or has
pleaded guilty to a violation of this section.

1996 S.B. No. 269; 1995 S.B. No. 2.
 -18-

{¶ 35} Wheeler claims that Boukissen’s interpretation of R.C. 2925.11(E) violates

several rules of statutory construction. We disagree and adopt the analysis and

interpretation set forth in Boukissen. Both the plain meaning of the statute and its

legislative history indicate that the license suspension provided for in R.C. 2925.11(E)(2)

applies to minor misdemeanor offenses. Therefore, because the mandatory license

suspension applies to Wheeler’s minor misdemeanor offense and the trial court did not

include the license suspension in its final order, the matter must be remanded for the

limited purpose of imposing the license suspension.

{¶ 36} Wheeler’s Third Assignment of Error is overruled.

Conclusion

{¶ 37} Having overruled all of Wheeler’s assignments of error, the judgment of the

trial court is affirmed in part, vacated in part, and remanded for the limited purpose of

resentencing Wheeler to the mandatory license suspension required by R.C.

2925.11(E)(2).

.............

FAIN, J. and FROELICH, J., concur.

Copies mailed to:

Andrew D. Sexton
Charles E. McFarland
Hon. Daniel G. Gehres