[Cite as State v. Wilson,
2023-Ohio-830.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. William B. Hoffman, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
DENZIL E. WILSON JR., : Case No. CT2022-0042
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2022-0056
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 15, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RON WALSH CHRIS BRIGDON
Prosecuting Attorney 8138 Somerset Road
Muskingum County, Ohio Thornville, Ohio 43076
By: JOHN CONNOR DEVER
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702
Muskingum County, Case No. CT2022-0042 2
Baldwin, J.
{¶1} Appellant Denzil E. Wilson, Jr. appeals the trial court’s denial of his motion
to suppress in connection with one of his two OVI charges, and the sentence imposed by
the trial court. Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND THE CASE
{¶2} On October 15, 2021, Ohio State Highway Patrol Trooper Kyle Dickinson
was working the midnight shift when he observed the appellant operating his motor
vehicle through the intersection of Underwood and Zane Street in Muskingum County at
a slow rate of speed, and was leaning up on the steering wheel with his grip “locked [at]
10 and 2” on the wheel, which he testified was unusual. Trooper Dickinson ran the
appellant’s license plate through his MCI in-car computer and discovered that the
appellant was under an OVI suspension, and that his plates were expired, or suspended.
{¶3} Trooper Dickinson pulled the appellant over, and while interacting with him
noticed that his eyes were red, bloodshot, and glassy, and that his pupils were constricted
exceptionally small for that time of night. In addition, Trooper Dickinson noticed the smell
of alcohol coming from the interior of the car, and noticed that the appellant’s eyelids were
droopy and his speech was slurred. Finally, Trooper Dickinson observed the appellant
fumble as he sorted through his paperwork to provide the Trooper with requested
documentation. Trooper Dickinson testified that while he made these observations of the
appellant, not every single indicator of intoxication appears in his written report due to
time constraints: “. . . if I put every little detail in our reports, we’d - - we stop so many
cars. We don’t have enough time.”
Muskingum County, Case No. CT2022-0042 3
{¶4} Given the aforesaid indicators of intoxication, Trooper Dickinson
administered a number of standard field sobriety tests upon the appellant, including the
Horizontal Gaze Nystagmus (HGN) test, the Vertical Gaze Nystagmus test (VGN), the
walk-and-turn test, and the one-leg stand test, during which he observed a total of four
clues of intoxication. He testified that he observed three clues out of four during the one-
leg stand test, and only two clues from that test are needed for an arrest.
{¶5} In addition, he conducted a non-standard sobriety test called the Modified
Romberg Test in which the appellant was asked to stand with his feet together and his
head back, and estimate thirty seconds. Trooper Dickinson observed another clue of
intoxication during this test.
{¶6} Based upon a combination of all of the above, Trooper Dickinson placed the
appellant under arrest for operating a vehicle while under the influence of alcohol, drugs,
or a combination of them.
{¶7} Trooper Dickinson asked the appellant to submit to a chemical test, but the
appellant began to complain that he was getting dizzy, that his hands and legs were
numb, and that he wanted Trooper Dickinson to call EMS. Trooper Dickinson contacted
EMS, and the appellant was transported to the hospital. Trooper Dickinson followed the
appellant to the hospital, informed the appellant that the charge was going to involve a
felony OVI, and asked the appellant to provide a sample for a chemical test. The appellant
indicated that he was not going to provide one. Trooper Dickinson informed him that the
matter involved a felony, and if he refused to provide a sample they would go forward with
a warrant. The appellant thereafter provided a sample, three minutes past the three-hour
ALS suspension time.
Muskingum County, Case No. CT2022-0042 4
{¶8} At the time of the October 15, 2021 OVI arrest, the appellant had been
convicted of or pleaded guilty to five or more OVIs within the preceding twenty years.
{¶9} On January 1, 2022, the appellant was observed by an Ohio State Highway
Patrol Trooper driving on Adair Avenue near Maple Avenue in Muskingum County at 3:43
a.m. with no headlights. The appellant turned down an alley and behind a business that
resembled a residence, exited his vehicle, and told the Trooper he was parked behind his
friend’s house, oblivious to the fact that the building behind which he had parked was a
business and not a residence. The Trooper observed that the appellant had drooping
eyelids, and bloodshot eyes with very constricted pupils that did not react to light from the
flashlight. In addition, the appellant’s license was suspended and the plates on his vehicle
were fictitious. The Trooper put the appellant in his patrol vehicle, where he observed the
appellant nodding off throughout the interaction. The appellant refused all sobriety tests,
as well as a chemical test.
{¶10} On March 3, 2022, the Muskingum County grand jury indicted the appellant
on the following seven counts:
{¶11} Count 1 – operation of a motor vehicle on or about October 15, 2021 in
violation of R.C. 4511.19(A)(1)(a) (operating a motor vehicle while under the influence of
alcohol, a drug of abuse, or a combination of them), with the R.C. 2941.1413
Muskingum County, Case No. CT2022-0042 5
specification1 that he had been convicted of or pleaded guilty to five OVI offenses in the
preceding twenty years in 2004, 2007, 2011, 2013, and 2015;2
{¶12} Count 2 – operation of a motor vehicle on or about October 15, 2021 in
violation of R.C. 4511.19(A)(1)(j)(iii) (operating a motor vehicle while having a
concentration of at least one hundred fifty nanograms of cocaine metabolite per milliliter
of his urine or a concentration of at least fifty nanograms of cocaine metabolite per milliliter
of his whole blood or blood serum or plasma), with the R.C. 2941.1413 specification that
he had been convicted of or pleaded guilty to five OVI offenses in the preceding twenty
years in 2004, 2007, 2011, 2013, and 2015;
{¶13} Count 3 – operation of a motor vehicle on or about October 15, 2021 in
violation of R.C. 4511.19(A)(1)(j)(ix) (operating a motor vehicle while having a
concentration of at least five hundred nanograms of methamphetamine per milliliter of his
urine or a concentration of at least one hundred monograms of methamphetamine per
milliliter of his whole blood or blood serum or plasma), with the R.C. 2941.1413
specification that he had been convicted of or pleaded guilty to five OVI offenses in the
preceding twenty years in 2004, 2007, 2011, 2013, and 2015;
{¶14} Count 4 – operation of a motor vehicle on or about October 15, 2021 in
violation of R.C. 4511.19(A)(1)(j)(ii) (operating a motor vehicle while having a
concentration of at least one hundred fifty nanograms of cocaine per milliliter of his urine
1
R.C. 2941.1413 allows for the imposition of an additional prison term if the indictment
specifies that an offender has been previously convicted of or pleaded guilty to five or
more OVI offenses within the preceding twenty years.
2
The offenses with which the appellant was indicted also included a second
specification pursuant to R.C. 2941.1417 regarding forfeiture of his motor vehicle(s) he
was operating at the time of the offenses. The appellant has not appealed this issue.
Muskingum County, Case No. CT2022-0042 6
or a concentration of at least fifty nanograms of cocaine per milliliter of his whole blood or
blood serum or plasma), with the R.C. 2941.1413 specification that he had been convicted
of or pleaded guilty to five OVI offenses in the preceding twenty years in 2004, 2007,
2011, 2013, and 2015;
{¶15} Count 5 – operation of a motor vehicle on or about October 15, 2021 in
violation of R.C. 4511.19(A)(1)(j)(i) (operating a motor vehicle while having a
concentration of at least five hundred nanograms of amphetamine per milliliter of his urine
or a concentration of at least one hundred nanograms of amphetamine per milliliter of his
whole blood or blood serum or plasma), with the R.C. 2941.1413 specification that he had
been convicted of or pleaded guilty to five OVI offenses in the preceding twenty years in
2004, 2007, 2011, 2013, and 2015;
{¶16} Count 6 – operation of a motor vehicle on or about January 1, 2022 in
violation of R.C. 4511.19(A)(1)(a) (operating a motor vehicle while under the influence of
alcohol and/or drugs), with the R.C. 2941.1413 specification that he had been convicted
of or pleaded guilty to five OVI offenses in the preceding twenty years in 2004, 2007,
2011, 2013, and 2015; and,
{¶17} Count 7 – refusal to submit to a chemical test when requested following the
stop on or about January 1,2022 for operating a motor vehicle in violation of R.C.
4511.19(A)(1)(a), with the specification that he had been convicted of or pleaded guilty to
five OVI offenses in the preceding twenty years in 2004, 2007, 2011, 2013, and 2015.
{¶18} The appellant was arrested on March 7, 2022. He was arraigned on March
9, 2022, at which time he pleaded not guilty to all charges.
Muskingum County, Case No. CT2022-0042 7
{¶19} On April 5, 2022, the appellant filed a motion to suppress in which he moved
the trial court to suppress the following evidence obtained during the October 15, 2021
traffic stop:
1. Tests of [appellant’s] coordination and/or sobriety and/or alcohol and/or
drug level including, but not limited to, chemical tests of [appellant’s] alcohol
and/or drug level;
2. Statements taken from or made by the [appellant];
3. Observations and opinions of the police officer(s) who stopped the
[appellant] and/or arrested and/or tested the [appellant] regarding her [sic]
sobriety and/or alcohol and/or drug level;
4. Any and all evidence obtained as the result of the warrantless seizure of
the [appellant].
{¶20} The trial court conducted an evidentiary hearing on the motion to suppress
on May 9, 2022, after which it denied the motion.
{¶21} On May 17, 2022, the trial court conducted a plea and sentencing hearing
at which time the appellant withdrew his not guilty plea and entered a plea of guilty to
Counts 1 and 6. The parties’ plea agreement was summarized by the appellee as follows:
MS. MARTIN: Your Honor, we’re here in the matter of State of Ohio
versus Denzil E. Wilson, Jr., Case No. CR2022-0056. It’s my understanding
the defendant is here with counsel to withdraw his former plea of not guilty
and enter a plea of guilty to the following offenses: Count 1, OVI with five
prior convictions in 20 years with a forfeiture specification as amended, in
violation of 4511.19(A)(1)(a), and 2941.1417, a felony of the fourth degree.
Muskingum County, Case No. CT2022-0042 8
And Count 6, the same OVI with five prior convictions in 20 years with a
forfeiture specification as amended, again, in violation of 4511.19(A)(1)(a)
and 2941.417 [sic], a felony of the fourth degree.
In consideration of the defendant’s plea of guilty to Counts 1 and 6
as amended, the parties agree that the State will make no recommendation
as to sentencing leaving the same to the discretion of the Court. The
defendant agrees to forfeit the vehicle driven at the time of his arrest. The
State agrees to dismiss Counts 2, 3, 4, 5, and 7 of the indictment, and the
OVI specifications attached to Counts 1 and 6 of the indictment at the time
of sentencing.
…
MR. MELVIN: Thank you, Your Honor. Statements made by the
prosecutor are correct….
(Emphasis added.) Transcript of May 17, 2022 Plea and Sentencing Hearing at p. 3-4.
{¶22} Thus, the R.C. 2941.1413 OVI specifications contained in the March 3, 2022
Indictment were dismissed.
{¶23} The trial court addressed the appellant personally pursuant to Crim.R.
11(C)(2) prior to accepting his plea. The trial court’s discussion with the appellant
regarding his guilty plea included, but was not limited to, the following exchange:
THE COURT: And you’re offering to plead guilty to two counts, Count
1 and Count 6 are both OVI with five prior convictions, both with forfeiture
specifications, both being classified as felonies of the fourth degree?
THE DEFENDANT: Yes, sir.
Muskingum County, Case No. CT2022-0042 9
THE COURT: You understand each of those offenses carry a
possible penalty of 60 days local incarceration up to one year or 60 days in
prison with an option of additional 6 to 30 months. Maximum fine of $1,350
to $10,500, an alcohol and drug addiction program is mandatory, license
suspension between 3 years to life. Driving privileges after three years,
plates are required if alcohol related, and the vehicle is to be forfeited if it is
registered to the defendant. Do you understand that?
THE DEFENDANT: Yes, sir.
…
THE COURT: You also understand you have a right to appeal your
case within 30 days of sentencing, but by pleading guilty you severely limit
the chances of any appeal being successful?
THE DEFENDANT: Yes, sir.
{¶24} The appellant pleaded guilty to Count 1, OVI with five prior convictions and
a forfeiture specification, a felony of the fourth degree; and, Count 6, OVI with five prior
convictions and the forfeiture specification, also a felony of the fourth degree.
{¶25} The trial court proceeded to sentence the appellant, ordering the forfeiture
of the appellant’s vehicles that he was driving at the time of the October 15, 2021 and
January 1, 2022 offenses, and a $1,350.00 fine. In addition, the trial court, “[b]ased upon
the fact that these two [offenses] occurred that close together, and that [appellant has]
these many priors, and that [appellant] created a substantial risk of harm to everybody
who was on the road,” sentenced the appellant to sixty (60) days in prison and an
Muskingum County, Case No. CT2022-0042 10
additional twenty (20) months on each count. The trial court further ordered that the
sentences to be served consecutively, stating:
The Court finds that consecutive sentences are necessary to protect
the public of future crime, that you have a number of these prior convictions
as well as these two committed that close together. I find that the sentences
are necessary to protect, punish you and they’re not disproportionate to the
seriousness of the conduct and danger posed to the public.
The fact that you’re using drugs and getting behind the wheel of a
vehicle driving with no lights in the middle of the night, it’s just way, way too
dangerous.
{¶26} The appellant filed a timely appeal and has submitted the following
Assignments of Error:
{¶27} “I. THE TRIAL COURT ERRED WHEN IT DENIED THE MOTION TO
SUPPRESS EVIDENCE BASED ON; THE APPELLANT DEMONSTRATING
INSUFFICIENT INDICIA OF INTOXICATION UPON WHICH A FIELD SOBRIETY TEST
THEN COULD HAVE BEEN REQUESTED.”
{¶28} “II. THE TRIAL COURT ERRED WHEN DENYING THE MOTION TO
SUPPRESS EVIDENCE; GIVEN THE TOTALITY OF THE CIRCUMSTANCES, THE
ARRESTING STATE TROOPER LACKED PROBABLE CAUSE FOR ARREST AFTER
THE APPELLANT PERFORMED THE STANDARD FIELD SOBRIETY TESTS.”
{¶29} “III. THE ARRESTING STATE TROOPER DID NOT CONDUCT THE
CHEMICAL TEST WITHIN THE THREE (3) HOUR TIME FRAME PRESCRIBED BY
O.R.C. §4511.19.”
Muskingum County, Case No. CT2022-0042 11
{¶30} “IV. THE TRIAL COURT ERRED WHEN SENTENCING THE APPELLANT
TO 60 DAYS PRISON AND AN ADDITIONAL 20 MONTHS OF PRISON ON EACH
COUNT.”
{¶31} “V. CONSECUTIVE SENTENCES WHERE UNLAWFUL AND A
VIOLATION OF THE APPELLANT’S RIGHT TO DUE PROCESS.”
ASSIGNMENTS OF ERROR NUMBERS I, II, & III
{¶32} The appellant argues in Assignments of Error Numbers I, II, and III that the
trial court erred in denying his motion to suppress tests of his coordination and/or sobriety
and/or alcohol and/or drug level including, but not limited to, chemical tests of his alcohol
and/or drug level; statements taken from or made by him; observations and opinions of
the officer who stopped him and/or arrested and/or tested him regarding his sobriety
and/or alcohol and/or drug level; and, any and all evidence obtained as the result of the
arrest.
{¶33} As set forth above, following the trial court’s lengthy and thorough Crim. R.
11 discussion with the appellant, he pleaded guilty to two counts of OVI, one for the
October 15, 2021 arrest and one for the January 1, 2022 arrest, with five OVI offenses in
the preceding twenty years, both felonies of the fourth degree.
{¶34} This court has held:
. . . A defendant who enters a plea of guilty waives the right to appeal all
non-jurisdictional issues arising at prior stages of the proceedings …. Ross
v. Auglaize Cty. Court of Common Pleas, 30 Ohio St.2d 323,
285 N.E.2d 25
(1972). Thus, by entering a guilty plea, a defendant waives the right to raise
on appeal the proprietary [sic] of a trial court's suppression ruling. State v.
Muskingum County, Case No. CT2022-0042 12
Elliott, 86 Ohio App.3d 792,
621 N.E.2d 1272 (12th Dist.1993); State v.
Harvey, 5th Dist. Stark No. 20074–CA–00335, 2008–Ohio–3654. By
entering his guilty plea in this case, appellant waived his right assert any
challenge to the trial court's ruling on his Motion to Suppress.
State v. Wooddell, 5th Dist. Fairfield No. 1-CA-14, 2016-Ohio-7752, ¶9. See, also, State
v. Hickman, 5th Dist. Licking No. 18-CA-116,
2019-Ohio-2819, ¶¶21-22.
{¶35} Based upon the foregoing, we find that by entering his guilty plea to Counts
1 and 6 the appellant waived his right to assert any challenge to the trial court’s ruling on
his motion to suppress. Accordingly, appellant’s Assignments of Error Numbers I, II, and
III are overruled.
ASSIGNMENTS OF ERROR NUMBERS IV & V
{¶36} The appellant argues in Assignments of Error Numbers IV and V that the
trial court erred in sentencing him to sixty (60) days plus twenty (20) months in prison per
count, and that the trial court erred in ordering that the sentences be served consecutively.
We disagree.
{¶37} Felony sentences are reviewed under R.C. 2953.08(G)(2). State v. Goings,
6th Dist. Lucas No. L-13-1103, 2014-Ohio-2322,
2014 WL 2480615, ¶ 20. An appellate
court may increase, modify, or vacate and remand a judgment only if it clearly and
convincingly finds either “(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,
2016 WL 3573887, ¶ 7, citing R.C. 2953.08(G)(2).
Muskingum County, Case No. CT2022-0042 13
{¶38} The appellant's argument alleges that the trial court’s sentence is unlawful
and in contravention of R.C. 4511.19 and R.C. 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.
{¶39} The appellant and appellee entered into a plea agreement in which the
appellee dismissed a number of the charges set forth in the March 3, 2022 Indictment in
exchange for the appellant’s plea of guilty, and the appellee declined to make a
sentencing recommendation. Specifically, the appellee dismissed Counts 2, 3, 4, 5, and
7, as well as the OVI specifications attached to Counts 1 and 6. Thus, the R.C. 2941.1413
OVI specifications contained in Counts 1 and 6 were dismissed.
{¶40} The appellant pleaded guilty to Count 1, OVI in violation of R.C.
4511.19(A)(1)(a) with five prior convictions, for the October 15, 2021 offense; and, Count
6, OVI in violation of R.C. 4511.19(A)(1)(a) with five prior convictions, for the January 1,
2022 offense. Both are felonies of the fourth degree. The trial court sentenced the
appellant to a term of sixty (60) days plus an additional twenty (20) months in prison on
Count 1, and sixty (60) days plus an additional twenty (20) months in prison on Count 6.
The trial court further ordered that the sentences be served consecutively, for an
aggregate prison sentence of forty (40) months plus one-hundred twenty (120) days.
{¶41} R.C. 4511.19(G)(1) provides: “[w]hoever 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. … The court shall sentence the
offender for either offense under Chapter 2929. of the Revised Code, except as otherwise
authorized or required by divisions (G)(1)(a) to (e) of this section.”
{¶42} R.C. 4511.19(G)(1)(d)(i) provides:
Muskingum County, Case No. CT2022-0042 14
Except as otherwise provided in division (G)(1)(e) of this section, 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. The court shall sentence the offender to all
of the following:
If the sentence is being imposed for a violation of division (A)(1)(a),
(b), (c), (d), (e), or (j) 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, 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 specification of that type. 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
Muskingum County, Case No. CT2022-0042 15
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.)
{¶43} In this case, the appellee dismissed the R.C. 2941.1413 OVI specifications.
Accordingly, the appellant was not convicted of the specifications, nor did he plead guilty
to the same. Thus, the trial court’s sentence falls within the parameters set forth in R.C.
4511.19(G)(1)(d).
{¶44} R.C. 2929.13(G)(2) provides in pertinent part:
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
Muskingum County, Case No. CT2022-0042 16
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.)
{¶45} Again, the appellant was not convicted of nor did he plead guilty to the R.C.
2941.1413 specifications, as those specifications were dismissed by the prosecutor
during the May 17, 2022 Plea and Sentencing Hearing. Thus, the trial court’s sentence of
a mandatory prison term of sixty (60) days per Count is within the parameters of R.C.
2929.13(G)(2).
{¶46} In addition, R.C. 2929.14(B)(4) provides:
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. The total of the additional prison
term imposed under division (B)(4) of this section plus the sixty or one
Muskingum County, Case No. CT2022-0042 17
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 after the
offender has served the mandatory prison term required for the offense….
(Emphasis added.)
{¶47} The total of the additional twenty-month prison term plus the sixty days the
trial court imposed as the mandatory prison term for each count equals a definite term of
twenty-two months per count, which is within the six to thirty month range set forth in R.C.
2929.14(B)(4). Thus, the trial court’s sentence is within the parameters of R.C.
2929.14(B)(4).
{¶48} Finally, R.C. 2929.14(C)(4) provides:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness
of the offender's conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
Muskingum County, Case No. CT2022-0042 18
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶49} The trial court found that the imposition of consecutive sentences upon the
appellant was necessary to protect the public from future crime and to punish the offender,
and that consecutive sentences were not disproportionate to the seriousness of the
appellant's conduct and to the danger the appellant posed to the public. In addition, the
trial court found that the appellant’s history of criminal conduct, that is, his multiple prior
OVI convictions, demonstrated that consecutive sentences were necessary to protect the
public from future crime by the appellant. Accordingly, the trial court’s order that the
appellant’s sentences be served consecutively falls within the parameters of R.C.
2929.14(C)(4).
{¶50} This court has held that a trial court is vested with the discretion to impose
a prison term within the statutory range. State v. Rutter, 5th Dist. Muskingum No. 2006-
CA-0025, 2006-Ohio-4061, ¶11, citing State v. Mathis,
109 Ohio St.3d 54,
846 N.E.2d 1,
2006-Ohio-855, ¶36. In the case sub judice, the trial court imposed a prison term for each
Muskingum County, Case No. CT2022-0042 19
count that was within the statutory range. Further, the trial court’s finding that the
sentences be served consecutively falls within the parameters of R.C. 2929.14(C)(4).
Accordingly, appellant’s Assignments of Error Numbers IV and V are overruled.
CONCLUSION
{¶51} Based upon the foregoing, appellant’s Assignments of Error Numbers I, II,
III, IV, and V are overruled, and the judgment of the Muskingum County Court of Common
Pleas is affirmed.
By: Baldwin, J.
Gwin, P.J. and
Hoffman, J. concur.
