State v. McClellan

[Cite as State v. McClellan, 2020-Ohio-5551.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY

State of Ohio Court of Appeals No. E-19-075

Appellee Trial Court No. 2019-CR-121

v.

Michael McClellan, Jr. DECISION AND JUDGMENT

Appellant Decided: December 4, 2020

*****

Kevin J. Baxter, Erie County Prosecuting Attorney, and
Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.

John M. Felter, for appellant.

*****

ZMUDA, P.J.

{¶ 1} Appellant, Michael McClellan, Jr., appeals the December 3, 2019 judgment

of the Erie County Court of Common Pleas sentencing him to 30 months in prison

following his conviction for operating a vehicle while intoxicated in violation of R.C.

4511.19(A)(1) and (G)(1)(d). For the reasons that follow, we reverse the trial court’s

judgment.
 I. Background

{¶ 2} On May 8, 2019, appellant was indicted on one count of operating a vehicle

while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a) and (G)(1)(d),

a fourth-degree felony; and one count of failing to submit to a chemical test in violation

of R.C. 4511.192(A), an unclassified misdemeanor. Appellant was arraigned on May 30,

2019. Appellant appeared at his arraignment with counsel and entered a not guilty plea to

both counts.

{¶ 3} Following negotiations with the state, appellant appeared before the trial

court on September 23, 2019 for a change of plea hearing. Pursuant to a plea agreement,

appellant entered a guilty plea to the fourth-degree felony OVI charge and the state

requested that the trial court dismiss the failure to submit to chemical testing charge. The

trial court accepted appellant’s guilty plea and dismissed the second count as requested.

The trial court ordered appellant to participate in a presentencing investigation and set a

sentencing for December 2, 2019.

{¶ 4} At sentencing, the trial court imposed a mandatory 30-month prison term for

appellant’s felony OVI conviction. The trial court also imposed a mandatory $7,500 fine

and ordered appellant to pay all court costs. Lastly, the trial court imposed a lifetime

suspension of appellant’s operator’s license.

{¶ 5} The trial court memorialized appellant’s sentence in its December 3, 2019

judgment entry. Appellant timely appealed and assigns the following error for our

review:

2.
 The trial court abused its discretion by sentencing appellant to 30

months in prison.

II. Law and Analysis

A. Felony sentences are reviewed pursuant to R.C. 2953.08(G)

{¶ 6} Appellant’s assignment of error alleges the trial court’s imposition of a 30-

month prison term was an abuse of its discretion. Felony sentences are not reviewed

under an abuse of discretion standard. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, 59 N.E.3d 1231, ¶ 10. Rather, we review felony sentences under R.C.

2953.08(G)(2). State v. Goings, 6th Dist. Lucas No. L-13-1103, 2014-Ohio-2322, ¶ 20.

We may increase, modify, or vacate and remand a judgment only if we clearly and

convincingly find either of the following: “(a) the record does not support the sentencing

court’s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4)

of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if

any, is relevant” or “(b) the sentence is otherwise contrary to law.” State v. Yeager, 6th

Dist. Sandusky No. S-15-025, 2016-Ohio-4759, ¶ 7, citing R.C. 2953.08(G)(2).

Appellant’s argument alleges that the trial court was not permitted to sentence him to a

prison term for his first felony OVI conviction under R.C. 4511.19 and 2929.13.

Therefore, we review appellant’s sentence pursuant to R.C. 2953.08(G)(2)(b) to

determine whether it is contrary to law.

3.
 B. Appellant’s sentence is contrary to law

{¶ 7} Appellant was convicted of operating a vehicle while intoxicated pursuant to

R.C. 4511.19(A)(1)(a). Appellant was previously convicted of five misdemeanor OVI

charges within 20 years prior to the conviction underlying this appeal. Because of his

prior conduct, the current violation constitutes a fourth-degree felony under R.C.

4511.19(G)(1)(b) which states “an offender who, within twenty years of the offense,

previously has been convicted of or pleaded guilty to five or more violations of that

nature is guilty of a felony of the fourth degree.” In his sole assignment of error,

appellant argues that because this is his first felony OVI conviction that his sentence is

contrary to law because he was “entitled to be sentenced local incarceration (sic) and was

not eligible for a prison sentence.”

{¶ 8} R.C. 4511.19(G)(1)(d) states that upon an offender’s fourth degree felony

OVI conviction:

{¶ 9} The court shall sentence the offender to all of the following:

(i) If the sentence is being imposed for a violation of division (A)(1)(a), (b),

(c), (d), (e), or (j) of this section, * * * in the discretion of the court, either a

mandatory term of local incarceration of sixty consecutive days in

accordance with division (G)(1) of section 2929.13 of the Revised Code or

a mandatory prison term of sixty consecutive days in accordance with

division (G)(2) of that section if the offender is not convicted of and does

not plead guilty to a [repeat offender specification established under R.C.

4.
 2941.1413]. If the court imposes a mandatory term of local incarceration, it

may impose a jail term in addition to the sixty-day mandatory term, the

cumulative total of the mandatory term and the jail term for the offense

shall not exceed one year, and, except as provided in division (A)(1) of

section 2929.13 of the Revised Code, no prison term is authorized for the

offense. If the court imposes a mandatory prison term, notwithstanding

division (A)(4) of section 2929.14 of the Revised Code, it also may

sentence the offender to a definite prison term that shall be not less than six

months and not more than thirty months and the prison terms shall be

imposed as described in division (G)(2) of section 2929.13 of the Revised

Code. If the court imposes a mandatory prison term or mandatory prison

term and additional prison term, in addition to the term or terms so

imposed, 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.

(Emphasis added.) The plain language of R.C. 4511.19(G)(1)(d)(i) grants the trial court

the discretion to impose either a mandatory term of local incarceration or a mandatory

prison term on appellant following his conviction under R.C. 4511.19(A)(1)(a).

{¶ 10} R.C. 2929.13(G) likewise establishes the trial court’s discretion to impose

“a mandatory term of local incarceration or a mandatory prison term” for a fourth-degree

felony OVI offense. (Emphasis added.) Notably absent from either sentencing statute is

5.
language supporting appellant’s suggestion that he was “entitled” to be sentenced to local

incarceration because this was his first felony OVI conviction. Therefore, the statutes

permit a trial court to impose either a mandatory term of local incarceration or a

mandatory prison term for a fourth-degree felony OVI conviction without regard to

whether the conviction is appellant’s first felony. See State v. Rabe, 12th Dist. Clermont

No. CA2013-04-027, 2013-Ohio-4867, ¶ 20; State v. Kennedy, 2d Dist. Champaign No.

2011-CA-3, 2011-Ohio-4291, ¶ 26-32.

{¶ 11} Despite the plain language of the statutes, appellant argues that trial courts

are only permitted to impose a prison term under R.C. 4511.19(G)(1)(b) and

2929.13(G)(2) if the offender has served a term of local incarceration for a previous

felony OVI conviction. In support of his argument, appellant relies on State v. Wilton,

133 Ohio App.3d 575, 729 N.E.2d 420 (6th Dist.1999), where we held that the imposition

of local incarceration was required on an offender’s first felony OVI conviction. The

holding in Wilton was based on a previous version of the statute, the language of which

warranted such a result. Id. at 577-578. The language requiring the imposition of local

incarceration for a first time felony OVI conviction was eliminated through subsequent

amendments to the statute. State v. Lowe, 7th Dist. Columbiana No. 08 CO 37,

2010-Ohio-2788, ¶ 39-51. Therefore, the authority appellant cites is inapplicable to this

appeal. The current version of the statute does not preclude the imposition of a prison

term for appellant’s first felony conviction and the trial court’s decision to impose a

prison term is not contrary to law.

6.
 {¶ 12} Appellant’s argument regarding the trial court’s imposition of a prison term

for a first time felony conviction is incorrect. Nevertheless, we find that appellant’s

sentence is contrary to law pursuant to R.C. 2953.08(G)(2)(b). When a trial court

chooses to impose a prison term for an offender’s conviction on a fourth-degree felony

OVI, it must impose a mandatory prison term of 60 days. R.C. 4511.19(G)(1)(d). After

imposing the mandatory prison term, the statute also permits the trial court to impose an

additional prison term ranging from 6 to 30 months. R.C. 4511.19(G)(1)(d). The

additional term is a separate, non-mandatory prison term to be served after the 60-day

mandatory term. State v. Cunningham, 2017-Ohio-377, 83 N.E.3d 328, ¶ 36-37 (7th

Dist.). The duration of the additional term is limited in that it “shall be reduced by the

sixty * * * days imposed upon the offender as the mandatory prison term.” R.C.

2929.14(B)(4). The aggregate length of the mandatory prison term and the additional,

non-mandatory term “shall equal a definite prison term in the range of six months to

thirty months for a fourth degree felony OVI offense[.]” R.C. 2929.14(B)(4).

{¶ 13} While the trial court was authorized to impose an aggregate 30-month

prison term, only the first 60 days of that term were mandatory. Cunningham at ¶ 36-37.

The trial court exceeded its authority by identifying the additional, non-mandatory prison

term as a mandatory term. See State v. Hoselton, 6th Dist. Lucas No. L-09-1150, 2011-

Ohio-1396, ¶ 9-12 (holding that the imposition of a mandatory prison term when the only

term authorized by statute was non-mandatory was error); see also State v. Smaltz, 6th

Dist. Ottawa No. OT-08-008, 2013-Ohio-5350, ¶ 10-11; State v. Burkhead, 12th Dist.

7.
Butler No. CA2014-02-028, 2015-Ohio-1085, ¶ 22-30; State v. Warren, 7th Dist.

Mahoning No. 05 MA 91, 2006-Ohio-1281, ¶ 61. A trial court has “no inherent power to

create sentences, and the only sentence that a trial judge may impose is that provided for

by statute.” State v. Hitchcock, 157 Ohio St.3d 215, 2019-Ohio-3246, 134 N.E.3d 215,

¶ 18, citing State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512,

¶ 10, 12. By imposing a mandatory prison term when no such term is authorized by

statute, the trial court erred and appellant’s sentence is contrary to law. Therefore,

appellant’s sole assignment of error is well-taken.

III. Conclusion

{¶ 14} We find appellant’s assignment of error well-taken. Pursuant to R.C.

2953.08(G)(2), we vacate appellant’s sentence and remand this matter for resentencing in

accordance with this decision. The state is ordered to pay the costs of this appeal

pursuant to App.R. 24.

Judgment reversed
and remanded.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

8.
 State v. McClellan
C.A. No. E-19-075

Arlene Singer, J. _______________________________
JUDGE
Christine E. Mayle, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

9.