State v. Chancey

[Cite as State v. Chancey, 2017-Ohio-2828.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY

STATE OF OHIO, :
: Case No. 16CA18
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
EDWARD CHANCEY :
:
Defendant-Appellant. : Released: 05/10/17
_____________________________________________________________
APPEARANCES:

Angela Wilson Miller, Jupiter, Florida, for Appellant.

Kevin A. Rings, Washington County Prosecuting Attorney, Nicole Tipton
Coil, Washington County Assistant Prosecuting Attorney, Marietta, Ohio,
for Appellee.
_____________________________________________________________

McFarland, J.

{¶1} Edward R. Chancey (Appellant) appeals from the “Journal Entry:

Defendant Taken Into Custody to Serve Sentence” entered on May 4, 2016

in the Washington County Court of Common Pleas. Appellant raises three

assignments of error with regard to the length of his sentence for a third-

degree felony. Upon review, we find merit to Appellant’s first assignment

of error. Accordingly, we vacate the judgment of the trial court and remand

the matter for resentencing consistent with this opinion.
Washington App. No. 16CA18 2

FACTUAL AND PROCEDURAL BACKGROUND

{¶2} Appellant was indicted for a violation of R.C. 4511.19(A)(1)(h)

and (G)(1)(e), operating a motor vehicle under the influence after having

been previously convicted of a felony OVI. The indictment contained a

specification, R.C. 2941.1413, that he had previously been convicted of or

pleaded guilty to five or more equivalent offenses. On February 5, 2015,

Appellant proceeded to a jury trial, in which he was convicted of a violation

of R.C. 4511.19(A)(1)(h) and (G)(1)(e). The details surrounding

Appellant’s traffic stop are set forth more fully in our decision rendered in

his direct appeal, State v. Chancey, 4th Dist. Washington No. 15CA17,

2015-Ohio-5585, ¶ 2.

{¶3} The trial court sentenced Appellant to 120 days at the Orient

Reception Center to be followed by a mandatory three-year prison term.

Appellant filed a timely notice of appeal. In his direct appeal, Appellant

argued his conviction was not supported by the sufficiency of the evidence

or the manifest weight of the evidence. He further asserted his counsel was

ineffective for failing to retain an expert. He did not raise any assignments

of error with regard to his sentence, nor did he supplement his appeal with

any additional authority regarding his sentence. We considered his

arguments under the applicable standards of review and released our
Washington App. No. 16CA18 3

decision in the direct appeal, State v. Chancey, supra, on December 24,

2015.

{¶4} The currently appealed from entry notes that on March 14, 2016,

Appellant, his counsel, and the assistant prosecuting attorney for

Washington County appeared in court and addressed the issue of the

imposition of Appellant’s sentence in light of our decision in his direct

appeal and other “recent opinions concerning the imposition of sentence.”

The hearing transcript of the March 14th hearing states that the sentence is

“hereby modified, consistent with State versus South to 36 months with a

credit for 39 days previously served.” However, the appealed from entry

makes no mention of this order and indicates Appellant was to be “taken into

custody to serve the sentence imposed on April 6, 2015.”

{¶5} The appealed from entry further notes the matter came on for

Appellant’s remand into custody on April 18, 2016, where the parties again

spoke to the issue of sentence. The defense argued that the sentence

originally imposed on April 6, 2015 was improper under Ohio law. The

State maintained that Appellant’s conviction had been directly appealed and

affirmed and that the trial court was without authority to modify the sentence

originally imposed on April 6, 2015. The Court found that it did not have

authority to amend the sentence originally imposed and ordered Appellant to
Washington App. No. 16CA18 4

serve the sentence imposed on April 6, 2015, 120-days mandatory, plus an

additional three years mandatory sentence, for an aggregate sentence of three

years and four months. Appellant was given credit for time served.

{¶6} This timely appeal followed.

ASSIGNMENTS OF ERROR

“I. APPELLANT CHANCEY’S SENTENCE IS VOID DUE
TO THE TRIAL COURT’S IMPOSITION OF A PRISON
SENTENCE BEYOND THE STATUTORY MAXIMUM IN
VIOLATION OF THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES
CONSTITUTION, OHIO CONSTITUTION, ARTICLE 1,
SECTION 10, AND R.C. 2929.14.

II. APPELLANT CHANCEY WAS DENIED THE
EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS
ATTORNEY FAILED TO FILE A MOTION FOR
RESENTENCING AND SPECIFICALLY ARGUE THAT
CHANCEY’S SENTENCE WAS VOID AND A VIOLATION
OF HIS RIGHTS UNDER THE FIFTH, SIXTH, AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE 1, SECTIONS 5, 10, AND
16 OF THE OHIO CONSTITUTION.

III. THE TRIAL COURT ERRED IN SENTENCING
CHANCEY TO THREE YEARS AND FOUR MONTHS IN
PRISON. THE SENTENCE IS NOT AUTHORIZED BY
STATUTE AND IS CONTRARY TO LAW. FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION; ARTICLE 1, SEC. 10 OF THE OHIO
CONSTITUTION.

A. STANDARD OF REVIEW
Washington App. No. 16CA18 5

{¶7} R.C. 2953.08(G)(2) specifies that an appellate court may

increase, reduce, modify, or vacate and remand a challenged felony sentence

if the court clearly and convincingly finds either that “the record does not

support the sentencing court's findings” under the specified statutory

provisions or “the sentence is otherwise contrary to law.” State v. Romine,

quoting State v. Pippen, 4th Dist. Scioto No. 14CA3595, 2014-Ohio-4454,

¶ 13. See State v. Brewer, 2014-Ohio-1903, 11 N.E.3d 317, ¶ 33 (4th Dist.).

Furthermore, a sentence that is void * * * may be reviewed at any time,

either on direct appeal or by collateral attack. State v. Billiter, 134 Ohio

St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960, ¶ 10.

B. LEGAL ANALYSIS

{¶8} Appellant was sentenced to a mandatory term of 120 days

imprisonment to be served first and consecutively to a three-year mandatory

prison sentence. Appellant argues that the Supreme Court of Ohio’s

decision in State v. South,144 Ohio St.3d 295, 2015-Ohio-3930, 42 N.E.3d

734, is directly applicable to his case and that the maximum sentence he can

be given for a felony of the third degree is 36 months. We initially note that

appellant did not raise any argument with regard to his sentence during his
Washington App. No. 16CA18 6

direct appeal.1 The first time appellant mentioned the sentencing error is in

the current appeal of the “Journal Entry: Defendant Taken Into Custody to

Serve Sentence,” filed May 4, 2016. Appellant also did not provide

supplemental authority, the South decision, while the direct appeal was

pending. Given the fact that Appellant failed to raise the sentencing issue in

his direct appeal, the usual application of the doctrine of res judicata would

bar consideration of his issue. However, Appellant now argues his sentence

is void, so we begin with a discussion of void jurisprudence.

{¶9} In Colegrove v. Burns, 175 Ohio St. 437, 438, 195 N.E.2d 811

(1964), the court described the trial judge's role at sentencing: “Crimes are

statutory, as are the penalties therefor, and the only sentence which a trial

court may impose is that provided for by statute. A court has no power to

substitute a different sentence for that provided for by statute or one that is

either greater or lesser than that provided for by law.” See State v. Williams,

¶ 20. And applying this principle in State v. Beasley, 14 Ohio St.3d 74, 75,

471 N.E.2d 774 (1984), we stated that “[a]ny attempt by a court to disregard

1
App.R. 12(A)(b) provides that the court of appeals shall determine the appeal on its merits on the
assignments of error set forth in the briefs under App.R. 16. App.R. 16(A)(3) further provides that the brief
of appellant shall include a “statement of the assignments of error presented for review,” and subpart (A)(7)
specifies that there must be an “argument, containing the contentions of the appellant with respect to each
assignment of error presented for review and the reasons in support of the contentions,* * * and parts of the
record on which appellant relies.”
Washington App. No. 16CA18 7

statutory requirements when imposing a sentence renders the attempted

sentence a nullity or void.”

{¶10} Our jurisprudence on void sentences “reflects a fundamental

understanding of constitutional democracy” that the power to define criminal

offenses and prescribe punishment is vested in the legislative branch of

government, and courts may impose sentences only as provided by statute.

Williams, ¶ 22, quoting State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-

6238, 942 N.E.2d 332, ¶ 21-22. Because “[n]o court has the authority to

impose a sentence that is contrary to law,” Id. at ¶ 23, when the trial court

disregards statutory mandates, “[p]rinciples of res judicata, including the

doctrine of the law of the case, do not preclude appellate review. The

sentence may be reviewed at any time, on direct appeal or by collateral

attack.” Id. at ¶ 30.

{¶11} The currently appealed from entry emerged subsequent to the

March 14th and April 18th remand hearings when defense counsel argued

that, pursuant to the South decision, Appellant’s sentence was more than the

statutory maximum. Under the particular facts of this case, we construe

counsel’s arguments at the April 18th hearing as an oral motion to correct
Washington App. No. 16CA18 8

sentence.2 Generally, courts may recast irregular motions into whatever

category necessary to identify and to establish the criteria by which a motion

should be evaluated.3 As such, we proceed to consider Appellant’s

argument that his sentence is void.

{¶12} In South, supra, the Supreme Court of Ohio held that a trial

court must sentence a defendant convicted of a third-degree-felony

operating-a-vehicle-while-under-the-influence (OVI) and a repeat-offender

specification, pursuant to R.C. 2941.1413, to a mandatory prison term of

one- to five-year sentence for the repeat-offender specification, which must

be served prior to and consecutive to any additional prison term, and a

discretionary term of 9 to 36 months for the underlying OVI conviction. In

South, the trial court's imposition of a three-year mandatory prison term for

repeat-offender specification was not contrary to law, but a five-year

mandatory prison term imposed for defendant's underlying third-degree

felony OVI was contrary to law, requiring remand. Appellant points out

that, unlike South, he was not convicted of the specification, R.C.

2941.1314, and argues that under South, the maximum prison term that can

be imposed for a third-degree felony OVI, the underlying offense, is 36

2
Other courts have, in turn, construed irregular motions as petitions for post-conviction relief. State v.
Sanders, 4th Dist. Pickaway No. 13CA29, 2014-Ohio-2521, ¶ 6.
3
State v. Lett, 7th Dist. Mahoning No. 09MA131, 2010-Ohio-3167, at ¶ 15, citing State v. Schlee, 117 Ohio
St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, at ¶ 12.
Washington App. No. 16CA18 9

months. The State’s brief essentially argues that Appellant’s sentence was

affirmed in his direct appeal and there was nothing the trial court could have

done at the March 16th remand hearing other than remand Appellant into

custody to begin serving his sentence.4

{¶13} In the case sub judice, Appellant was convicted of R.C.

4511.19(A)(1)(h) and (G)(1)(e). R.C. 4511.19(A)(1)(h) provides:

(A)(1) No person shall operate any vehicle, streetcar, or
trackless trolley within this state, if, at the time of the operation,
any of the following apply:

***

(h) The person has a concentration of seventeen-hundredths of
one gram or more by weight of alcohol per two hundred ten
liters of the person's breath.

{¶14} R.C. 4511.19(G)(1)(e) further provides:

(G)(1) Whoever violates any provision of divisions (A)(1)(a) to
(i) or (A)(2) of this section is guilty of operating a vehicle under
the influence of alcohol, a drug of abuse, or a combination of
them. Whoever violates division (A)(1)(j) of this section is
guilty of operating a vehicle while under the influence of a
listed controlled substance or a listed metabolite of a controlled
substance. The court shall sentence the offender for either

4
Appellant’s conviction was affirmed based on resolution of the assignments of error raised. This court
does have the authority to sua sponte consider plain error. See State v. Wharton, 4th Dist. Hocking No.
15CA9, 2-15-Ohio-5026. In Wharton, the defendant argued that the trial court erred by failing to merge the
offense of telecommunications fraud with the identity fraud offense. We found that the two offenses were
not allied and overruled the sole assignment of error. However, in conducting a de novo review of the trial
court’s merger determination, we discovered the trial court imposed a sentence that was contrary to law
and, sua sponte, vacated Wharton’s sentence, reversed, and remanded for proceedings consistent with the
opinion. In Wharton, we considered the record, from the outset, under the de novo standard of review, a
different circumstance than presented herein. Raising alleged errors to the attention of the court remains
the duty of the Appellant.
Washington App. No. 16CA18 10

offense under Chapter 2929 of the Revised Code, except as
otherwise authorized or required by divisions (G)(1)(a) to (e) of
this section:

***

(e) An offender who previously has been convicted of or
pleaded guilty to a violation of division (A) of this section that
was a felony, regardless of when the violation and the
conviction or guilty plea occurred, is guilty of a felony of the
third degree. The court shall sentence the offender to all of the
following:

***

ii) If the sentence is being imposed for a violation of division
(A)(1)(f), (g), (h), or (i) or division (A)(2) of this section, 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 one hundred twenty 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 one hundred twenty-day mandatory prison term and the
additional prison term for the offense shall not exceed five
years. In addition to the mandatory prison term or mandatory
prison term and additional prison term the court imposes, the
court also may sentence the offender to a community control
sanction for the offense, but the offender shall serve all of the
prison terms so imposed prior to serving the community control
sanction.

{¶15} Further, R.C. 2929.13(G)(2) provides:

(G) Notwithstanding divisions (A) to (E) of this section, if an
offender is being sentenced for a fourth degree felony OVI
Washington App. No. 16CA18 11

offense or for a third degree felony OVI offense, the court shall
impose upon the offender a mandatory term of local
incarceration or a mandatory prison term in accordance with the
following:

***

(2) If the offender is being sentenced for a third degree felony
OVI offense, or if the offender is being sentenced for a fourth
degree felony OVI offense and the court does not impose a
mandatory term of local incarceration under division (G)(1) of
this section, 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. Subject to
divisions (C) to (I) of section 2967.19 of the Revised Code, the
court shall not reduce the term pursuant to section 2929.20,
2967.19, 2967.193, or any other provision of the Revised Code.
The offender shall serve the one-, two-, three-, four-, or five-
year mandatory prison term consecutively to and prior to the
prison term imposed for the underlying offense and
consecutively to any other mandatory prison term imposed in
relation to the offense.

{¶16} In South, the Supreme Court of Ohio recognized that the

applicable statutes, R.C. 4511.19(A), R.C. 4511.19(G)(1)(e), R.C.

2941.1413, R.C. 2929.13(G)(2) and R.C. 2929.14(A)(3)(b) were thought to

be irreconcilable. However, the justices in South concluded that they could

harmonize the statutes and no one provision need prevail over the others.

The Eighth District Court of Appeals considered a similar sentencing issue
Washington App. No. 16CA18 12

in State v. Semenchuk, 8th Dist. Cuyahoga No. 102636, 2015-Ohio-5408,

decided December 24, 2015.

{¶17} In Semenchuk, the defendant pleaded 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). The trial court sentenced him to a five-year term of

imprisonment and various other sanctions. Semenchuk appealed, arguing

several assignments of error, including that the maximum sentence for a

felony three OVI without the R.C. 2941.1413 specification was three years.

The appellate court agreed with his argument, holding:

“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.”

{¶18} Semenchuk was convicted of R.C. 4511.19(A)(1)(a). R.C.

4511.19(G)(1)(e)(i), provides:

“[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
Washington App. No. 16CA18 13

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. (Emphasis added.) 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.

{¶19} The Semenchuk court emphasized that 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. The appellate court further cited that subsection in paragraph

7:

“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 or and has
not pleaded guilty to a specification of that type R.C.
2929.14(G)(2).”

{¶20} The Semenchuk opinion clarified that if not convicted of the

specification, the offender was 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).
Washington App. No. 16CA18 14

{¶21} The Semenchuk opinion went on to explain that in addition to

the OVI specific statues, 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 statues

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

limit the maximum aggregate term. ¶ 8. R.C. 2929.14(B) provides in

pertinent part:

“(4) If the offender is being sentenced for a third or fourth
degree felony OVI offense under division (G)(2) of section
2929.13 of the Revised Code, the sentencing court shall impose
upon the offender a mandatory prison term in accordance with
that division. In addition to the mandatory prison term, if the
offender is being sentenced for a fourth degree felony OVI
offense, the court, notwithstanding division (A)(4) of this
section, may sentence the offender to a definite prison term of
not less than six months and not more than thirty months, and if
the offender is being sentenced for a third degree felony OVI
offense, the sentencing court may sentence the offender to an
additional prison term of any duration specified in division
(A)(3) of this section. In either case, the additional prison term
imposed shall be reduced by the sixty or one hundred twenty
days imposed upon the offender as the mandatory prison term.
(Emphasis added.) The total of the additional prison term
imposed under division (B)(4) of this section plus the sixty or
one hundred twenty days imposed as the mandatory prison term
shall equal a definite term in the range of six months to thirty
months for a fourth degree felony OVI offense and shall equal
one of the authorized prison terms specified in division (A)(3)
of this section for a third degree felony OVI offense. If the
court imposes an additional prison term under division (B)(4) of
this section, the offender shall serve the additional prison term
Washington App. No. 16CA18 15

after the offender has served the mandatory prison term
required for the offense.”5

{¶22} R.C. 2929.14(A)(3)(b) provides:

“For a felony of the third degree that is not an offense for which
division (A)(3)(a) of this section applies, the prison term shall
be nine, twelve, eighteen, twenty-four, thirty, or thirty-six
months.”

In Semenchuk’s case, the Eighth District Appellate Court held at ¶ 9:

“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); see also South.”

{¶23} Applying the reasoning set forth by the Eighth District, we find

Appellant’s argument that his sentence is void for failure to comply with

statutorily mandated terms has merit. His sentence is contrary to law.

Appellant, convicted of R.C. 4511.19(A)(1)(h), to which the mandatory 120

days pursuant to subsection (G)(1)(e)(ii) applies, without the accompanying

specification, should have been sentenced to a maximum aggregate sentence

of three years, reduced by the mandatory 120 days. We hereby sustain his

first assignment of error. And, as such, the second and third assignments of

error have become moot. Accordingly, we remand the matter for

resentencing consistent with this opinion.

5
The current version of the statute, cited above, became effective September 14, 2016. However, the
language of the statute was the same at the time Appellant was sentenced.
Washington App. No. 16CA18 16

JUDGMENT REVERSED
AND CAUSE REMANDED.
Washington App. No. 16CA18 17

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE REVERSED AND CAUSE
REMANDED. Appellant shall recover any costs herein from Appellee.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing
the Washington County Common Pleas Court to carry this judgment into
execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Harsha, J. & Hoover, J.: Concur in Judgment Only.

For the Court,

BY: ______________________________
Matthew W. McFarland, Judge

NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.