State v. Stubbs , 2022 Ohio 2910 ( 2022 )

[Cite as State v. Stubbs, 2022-Ohio-2910.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio/City of Toledo Court of Appeals No. L-21-1230
Appellee Trial Court No. TRC-21-05856
v.
Kendra Stubbs DECISION AND JUDGMENT
Appellant Decided: August 19, 2022
*****
David L. Toska, City of Toledo Chief Prosecuting Attorney, and
Christopher D. Lawrence, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
*****
ZMUDA, J.
I. Introduction
{¶ 1} Appellant, Kendra Stubbs, appeals the judgment of the Toledo Municipal
Court, sentencing her to 180 days in jail, 157 of which were suspended, and placing her
on two years of active probation after she pled no contest and was found guilty of one
count of operating a vehicle under the influence of alcohol or drugs. Finding no error in
the proceedings below, we affirm.
A. Facts and Procedural Background
{¶ 2} On April 25, 2021, appellant was involved in an automobile accident in
which she struck a fence with her vehicle. When police responded to the accident,
appellant was stumbling and slurring her speech, had bloodshot eyes, and smelled of
alcohol. Upon questioning, appellant admitted to consuming alcohol. However, she
refused officers’ request to submit to a breathalyzer test, and was subsequently cited for
one count of failure to control in violation of R.C. 4511.202, a minor misdemeanor, and
one count of operating a vehicle under the influence of alcohol or drugs in violation of
R.C. 4511.19. The citation does not specify the particular degree of the OVI offense,
which varies according to a number of factors, including whether the offender has
previously been convicted of an OVI offense, under R.C. 4511.19.1
{¶ 3} Thereafter, on May 5, 2021, appellant appeared before the trial court for
arraignment. She entered a plea of not guilty to the aforementioned offenses. The matter
then proceeded through routine pretrial discovery and motion practice.
1
Appellant does not challenge the sufficiency of the complaint filed in this case.
2.
{¶ 4} On June 1, 2021, appellant returned to the trial court for a pretrial hearing on
appellant’s request for driving privileges during the pendency of the action. During the
hearing, the trial court indicated that this was appellant’s second OVI offense, the first of
which occurring in 2016. In response, appellant’s trial counsel stated: “Second offense,
Judge, but first refusal.” At a subsequent pretrial hearing on September 7, 2021, the trial
court reiterated its understanding that appellant’s OVI offense was “a second in 10.”
Appellant’s trial counsel lodged no objection to the trial court’s understanding
concerning appellant’s prior OVI offense.
{¶ 5} Following plea negotiations, on October 28, 2021, appellant appeared for a
change of plea hearing. At the hearing, appellant withdrew her plea of not guilty and
entered a plea of no contest to the OVI charge. In exchange for her plea, the state agreed
to dismiss the charge for failure to control.2
{¶ 6} After a plea colloquy, the trial court accepted appellant’s plea and found her
guilty of operating a vehicle while under the influence of alcohol in violation of R.C.
4511.19. The trial court then proceeded to sentencing and asked appellant’s trial counsel
if she wished to make a statement on behalf of appellant, prompting the following
response:
2
The record does not contain a written plea agreement.
3.
I do believe that our client’s issues, and the reason that she’s here a second
time, really it has more to do with mental health than anything. She had
services in the past. She is not in treatment currently. And that is why we
had suggested that she go back. Because in these conversations, it just
seemed pretty clear to me that that’s what was going on. (Emphasis
added.)
{¶ 7} Ultimately, the trial court ordered appellant to serve 180 days in jail,
suspending 157 of those days. Further, the court placed appellant on active probation for
a period of two years and electronic monitoring for 18 days, ordered appellant to submit
to mental health assessments and follow the resulting recommendations, imposed costs,
and suspended appellant’s driver’s license, with work and treatment privileges, for a
period of two years. In its subsequent sentencing entry, issued on December 15, 2021,
the trial court reiterated its finding that appellant violated R.C. 4511.19 without
indicating whether this was appellant’s second such violation in the past ten years.
{¶ 8} Thereafter, on January 7, 2022, appellant filed a timely notice of appeal.3
3
Appellant filed her initial notice of appeal on November 24, 2021, prior to the trial
court’s issuance of its sentencing entry. On December 9, 2021, we sua sponte directed
appellant to file an amended notice of appeal with the trial court’s sentencing entry
attached. Appellant perfected her appeal and filed the amended notice of appeal with the
sentencing entry attached thereto on January 7, 2022.
4.
B. Assignments of Error
{¶ 9} On appeal, appellant assigns the following errors for our review:
I. The trial court erred in sentencing Ms. Stubbs pursuant to R.C.
4511.19(G)(1)(b) and (G)(3) without so stating in the Sentencing Entry.
II. The trial court erred in granting Work/Driving Privileges at
sentencing without referencing the associated code section in the
Sentencing Entry.
II. Analysis
{¶ 10} In each of appellant’s assignments of error, she challenges the trial court’s
imposition of sentence.
{¶ 11} We review a misdemeanor sentence for an abuse of discretion.
State/Division of Wildlife v. Coll, 2017-Ohio-7270, 96 N.E.3d 947, ¶ 23 (6th Dist.), citing
State v. Cossack, 7th Dist. Mahoning No. 08 MA 161, 2009-Ohio-3327, ¶ 20. When
sentencing an offender for a misdemeanor offense, a trial court must consider the
principles and purposes of sentencing under R.C. 2929.21, as well as the sentencing
factors under R.C. 2929.22, and the failure to do so constitutes an abuse of discretion.
State v. Rush, 6th Dist. Fulton Nos. F-12-011, F-12-014, 2013-Ohio-727, ¶ 8, citing State
v. Dominijanni, 6th Dist. Wood No. WD-02-008, 2003-Ohio-792, ¶ 6. “[W]hen a
misdemeanor sentence is imposed within the statutory limits, a reviewing court will
presume that the judge followed the statutes, absent evidence to the contrary.” State v.
5.
Ostrander, 6th Dist. Fulton No. F-10-011, 2011-Ohio-3495, ¶ 28, citing Toledo v.
Reasonover, 5 Ohio St.2d 22, 213 N.E.2d 179 (1965), paragraph one of the syllabus.
{¶ 12} Appellant does not assert that the trial court failed to consider the principles
and purposes of sentencing or the sentencing factors applicable to this case. Rather,
appellant’s argument in her first assignment of error is narrowly framed as a challenge to
the trial court’s imposition of a sentence under R.C. 4511.19(G)(1)(b) without express
reference to that statutory subsection in its sentencing entry. Specifically, appellant
argues that “the court appears to have been aware that this infraction was Ms. Stubbs’
second OVI arrest in ten years, but that fact is obscured in the pretrial record and docket.
* * * The Sentencing Entry simply states that she was found guilty of violating R.C.
4511.19, and states the sentence.”
{¶ 13} R.C. 4511.19(G)(1)(b) classifies an OVI offense as a misdemeanor of the
first degree punishable by up to six months in jail if the “offender who, within ten years
of the offense, previously has been convicted of or pleaded guilty to one violation of
division (A) or (B) of this section or one other equivalent offense.” Further, under that
section, the trial court must suspend the offender’s driver’s license for a definite period of
one to seven years, and may grant limited driving privileges pursuant to R.C. 4510.021
and 4510.13.
{¶ 14} At the outset, we note that appellant acknowledges that her sentence is
“consistent with a finding that this offense was [her] second OVI offense in ten years,”
6.
and she does not contest the fact that this was, indeed, her second OVI offense in ten
years. Likewise, our review of the record confirms that the trial court understood this to
be appellant’s second offense in ten years.
{¶ 15} During appellant’s June 1, 2021 pretrial hearing, the trial court indicated its
understanding that appellant had previously been convicted of OVI in 2016. Appellant’s
trial counsel confirmed the trial court’s statement, but noted that this was the first time
appellant refused to submit to a breathalyzer test. The trial court then reiterated its
understanding that appellant’s OVI offense was “a second in 10” at a pretrial hearing on
September 7, 2021. Then, at sentencing, appellant’s trial counsel explained that appellant
was before the court “a second time” and insisted that her alcohol-related issues were the
product of mental health problems.
{¶ 16} Notwithstanding her concession that this is her second OVI offense,
appellant insists that “the court left open the possibility that [she] was sentenced
incorrectly, because there is no statement of fact to support the particular sentencing
scheme selected.”
{¶ 17} Appellant correctly asserts that the trial court made no explicit mention of
R.C. 4511.19(G)(1)(b) at sentencing or in its sentencing entry. However, while it may
have been a better practice for the trial court to reference the precise statutory subsections
that govern appellant’s OVI sentence, it does not follow that the failure to do so
7.
constitutes reversible error, especially where there is no dispute that this was, in fact,
appellant’s second OVI offense in less than ten years.
{¶ 18} Appellant argues that the trial court’s judgment should be reversed based
upon a speculative contention that the trial court perhaps imposed an incorrect sentence
by imposing a sentence under a different statutory subsection than the one that
undeniably applies, namely R.C. 4511.19(G)(1)(b). She cites no authority to support this
argument.
{¶ 19} Moreover, the Eighth District has previously considered, and rejected, a
related argument in which the city of Parma argued that a defendant’s sentencing entries
were ambiguous, and thus not final and appealable, because they did not identify the
statutory subsection of R.C. 2905.05 under which the defendant was convicted. City of
Parma v. Horky, 2019-Ohio-4886, 149 N.E.3d 1000, ¶ 5 (8th Dist.). In Horky, the court
explained that Crim.R. 32(C) governs what must be contained in a sentencing entry,
which includes “‘(1) the fact of the conviction, (2) the sentence, (3) the judge’s signature,
and (4) the time stamp indicating the entry upon the journal by the clerk.’” Id. at ¶ 6,
quoting State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph
one of the syllabus. Because the defendant’s sentencing entries indicated that he was
convicted of criminal child enticement, “[t]he fact that they do not contain the code
subsection of the charge upon which Horky was found guilty does not make the judgment
8.
entries not final nor unappealable.”4 Id. at ¶ 7, citing State v. Baker, 119 Ohio St.3d 197,
2008-Ohio-3330, 893 N.E.3d 163 (finding that a journal entry of conviction was final and
appealable where it identified the names of the offenses the defendant was convicted of,
but not the applicable code section).
{¶ 20} In light of the lack of authority cited by appellant to support her argument,
and consistent with the reasoning articulated by the Eighth District in Horky, we find no
merit to appellant’s contention that the trial court’s sentencing entry is deficient for lack
of citation to the particular statutory subsection under which she was convicted.
Additionally, we reject the assumption that underlies appellant’s argument, namely that
the trial court’s sentence would have been contrary to law if it was sentencing her under
the subsection applicable to first-time OVI offenders, R.C. 4511.19(G)(1)(a), instead of
the subsection applicable to second-time OVI offenders, R.C. 4511.19(G)(1)(b).
Regardless of which subsection applies, the trial court’s sentence, including the jail term,
fine, driver’s license suspension and limited driving privileges, falls within the
parameters set forth in each subsection. Therefore, even if the trial court endeavored to
sentence appellant under R.C. 4511.19(G)(1)(a), the sentence it imposed was not contrary
to law.
4
The court in Horky went on to vacate the defendant’s convictions after finding that the
defendant’s due process rights were violated, because he was convicted of a statute that
was previously declared unconstitutional. No such constitutional issue is present in this
appeal.
9.
{¶ 21} Similarly, in her second assignment of error, appellant argues, without
citing to any supporting authority, that the trial court erred at sentencing by granting her
limited driving privileges without expressly referencing either R.C. 4510.021 or 4510.13
in its entry. Appellant complains that the trial court’s failure to specify the particular
statutory subsection under which it was granting her driving privileges creates confusion
as to whether the 45-day waiting period is applicable in this case under R.C.
4510.13(A)(5)(e).
{¶ 22} Under R.C. 4510.13(A)(5)(e), driving privileges may not be granted during
“[t]he first forty-five days of a suspension imposed under division (G)(1)(b) of section
4511.19 of the Revised Code or a comparable length suspension imposed under section
4510.07 of the Revised Code.” As we explained above, appellant does not dispute the
fact that this is her second OVI offense in less than ten years. By operation of law, she
was sentenced under R.C. 4511.19(G)(1)(b) and is consequently subject to the 45-day
waiting period under R.C. 4510.13(A)(5)(e). The trial court is under no obligation to
separately delineate this fact, and its failure to do so does not create confusion in this case
or constitute reversible error.
{¶ 23} Accordingly, we find appellant’s assignments of error not well-taken.
10.
III. Conclusion
{¶ 24} In light of the foregoing, the judgment of the Toledo Municipal Court is
hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R.
24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Gene A. Zmuda, 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/.
11.