[Cite as State v. Kincade, 2010-Ohio-1497.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               WYANDOT COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 16-09-20

        v.

DANA LEE KINCADE,                                         OPINION

        DEFENDANT-APPELLANT.




                Appeal from Wyandot County Common Pleas Court
                           Trial Court No. 09-CR-0014

                       Judgment Reversed and Cause Remanded

                              Date of Decision: April 5, 2010




APPEARANCES:

        Cindy Wolph for Appellant

        Jonathan K. Miller for Appellee
Case No. 16-09-20


PRESTON, J.

      {¶1} Defendant-appellant, Dana Lee Kincade (hereinafter “Kincade”),

appeals the judgment of the Wyandot County Court of Common Pleas sentencing

him to a mandatory prison term of sixty (60) days, and an additional basic prison

term of four (4) years. For the reasons that follow, we reverse and remand for re-

sentencing.

      {¶2} In September 2009, Kincade was found guilty after a jury trial of one

count of felony operating a vehicle while under the influence of alcohol in

violation of R.C. 4511.19(A)(1)(a), and one count of felony operating a vehicle

while under the influence of alcohol and/or drugs of abuse in violation of R.C.

4511.19(A)(1)(c), both felonies of the third degree. For purposes of sentencing,

the trial court merged count one and count two.

      {¶3} The sentencing hearing was held on October 16, 2009, and

consequently the trial court sentenced Kincade to a mandatory prison term of sixty

(60) days and an additional basic prison term of four (4) years. In addition, the

trial court ordered Kincade to pay the mandatory minimum fine of $1,350.00,

suspended Kincade’s operator’s license for life, and ordered that he attend and

successfully complete an alcohol and drug addiction program.




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       {¶4} Kincade now appeals his sentence and raises two assignments of

error. For purposes of our discussion, we elect to address them out of the order

that they were presented in his brief.

                       ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT WHILE NOT ORDERING THE
       MAXIMUM     AMOUNT      OF   ADDITIONAL      PRISON
       SENTENCE TO BE SERVED, CONSIDERED APPELLANT’S
       HISTORY OF OFFENSES FOR THE “PROTECT THE
       PUBLIC” AND “INCAPACITATING THE OFFENDER”
       SENTENCING PURPOSES OF OHIO REVISED CODE
       SECTION 2929.11, BUT IT DID NOT FULLY CONSIDER
       THE “REHABILITATING THE OFFENDER” PURPOSE. BY
       SUPPLANTING A PORTION OF THE FOUR YEARS OF
       ADDITIONAL TIME TO BE SERVED UNDER COMMUNITY
       CONTROL    OR     COMMUNITY       NON-RESIDENTIAL
       SANCTIONS, AS AUTHORIZED BY OHIO REVISED CODE
       SECTIONS 2929.15(A)(1) AND 2929.13(G)(2), APPELLANT
       WOULD BE MORE LIKELY TO MAKE A MORE
       SUCCESSFUL TRANSITION TO LIVING DRUG-AND
       ALCOHOL-FREE IN SOCIETY ONCE HE IS RELEASED
       FROM STATE SUPERVISION.

       {¶5} In his second assignment of error, Kincade argues that the trial court

did not “fully consider” the need for “rehabilitating the offender” under the

purposes of felony sentencing in R.C. 2929.11(A), and requests a “re-structuring

of the non-mandatory, additional prison sentence to include both community non-

residential and community control sanctions.”

       {¶6} A trial court’s sentence will not be disturbed on appeal absent a

defendant’s showing by clear and convincing evidence that the sentence is



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Case No. 16-09-20


unsupported by the record; the sentencing statutes’ procedure was not followed or

there was not a sufficient basis for the imposition of a prison term; or that the

sentence is contrary to law. State v. Ramos, 3d Dist. No. 4-06-24, 2007-Ohio-767,

¶23 (the clear and convincing evidence standard of review set forth under R.C.

2953.08(G)(2) remains viable with respect to those cases appealed under the

applicable provisions of R.C. 2953.08(A), (B), and (C) * * *); State v. Rhodes,

12th Dist. No. CA2005-10-426, 2006-Ohio-2401, ¶4; State v. Tyson, 3d Dist. Nos.

1-04-38; 1-04-39, 2005-Ohio-1082, ¶19, citing R.C. 2953.08(G). Clear and

convincing evidence is that “which will produce in the mind of the trier of facts a

firm belief or conviction as to the facts sought to be established.” Cross v. Ledford

(1954), 161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the syllabus; State v.

Boshko (2000), 139 Ohio App.3d 827, 835, 745 N.E.2d 1111. An appellate court

should not, however, substitute its judgment for that of the trial court because the

trial court is ‘“clearly in the better position to judge the defendant’s likelihood of

recidivism and to ascertain the effect of the crimes on the victims.”’ State v.

Watkins, 3d Dist. No. 2-04-08, 2004-Ohio-4809, ¶16, quoting State v. Jones

(2001), 93 Ohio St.3d 391, 400, 754 N.E.2d 1252.1



1
 We note that the Supreme Court of Ohio recently released a plurality opinion in State v. Kalish, 120 Ohio
St.3d 23, 2008-Ohio-4912, 869 N.E.2d 124, which established a two-part test utilizing both the clear and
convincing and abuse of discretion standard of review in reviewing felony sentencing decisions under R.C.
2953.08(G). While we cite to this Court’s precedential clear and convincing standard of review, which was
affirmed and adopted by three dissenting Justices in Kalish, we note that the outcome of our decision in this
case would be identical under the Kalish plurality’s two-part test as well.


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Case No. 16-09-20


       {¶7} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d

470, the Ohio Supreme Court declared unconstitutional those portions of the

felony sentencing statutes that required judicial fact-finding before the trial court

could impose a prison sentence. 2006-Ohio-856, at ¶100. Subsequently, the

Supreme Court excised those provisions that related to judicial fact-finding from

the sentencing statutes, specifically including R.C. 2929.14(E)(4) and R.C.

2929.41(A). Id. at ¶97. As a result of the excision of those unconstitutional

provisions, the Court ultimately held that, “[t]rial courts have full discretion to

impose a prison sentence within the statutory range and are no longer required to

make findings or give their reasons for imposing maximum, consecutive, or more

than the minimum sentences.” Id. at paragraph seven of the syllabus.

       {¶8} However, a trial court must still consider the overall purposes of

sentencing as set forth in R.C. 2929.11, as well as the factors relating to the

seriousness of the offense and recidivism of the offender under R.C. 2929.12,

when sentencing an offender. State v. Smith, 3d Dist. No. 2-06-37, 2007-Ohio-

3129, ¶26, citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d

1, ¶38. But, under R.C. 2929.12, a sentencing court is not required to use specific

language regarding its consideration of the seriousness and recidivism factors. Id.,

citing State v. Sharp, 10th Dist. No. 05AP-809, 2006-Ohio-3448; State v. Amett

(2000), 88 Ohio St.3d 208, 205, 724 N.E.2d 793; State v. McAdams, 162 Ohio



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Case No. 16-09-20


App.3d 318, 2005-Ohio-3895, 833 N.E.2d 373; State v. Patterson, 8th Dist. No.

84803, 2005-Ohio-2003. Further, there is no requirement in R.C. 2929.12 that the

trial court state on the record that it has considered the statutory criteria or even

discussed them. Id., citing State v. Polick (1995), 101 Ohio App.3d 428, 431, 655

N.E.2d 820; State v. Gant, 7th Dist. No. 04 MA 252, 2006-Ohio-1469 (nothing in

R.C. 2929.12 or the decisions of the Ohio Supreme Court imposes any duty on the

trial court to set forth its findings); State v. Hughes, 6th Dist. No. WD-05-024,

2005-Ohio-6405.

       {¶9} Although Kincade acknowledges that the trial court clearly

considered the factors of R.C. 2929.11, 2929.12, and 2929.13, especially the

“punishing” and “protecting the public” factors, he argues that it failed to fully

consider the purpose of “rehabilitation.”        As Kincade stated in his brief,

“conventional sentencing has not worked for Appellant in the past – his lengthy

record of crimes directly and indirectly resulting from his substance abuse has

shown that the ‘punishment’ and ‘deterrent’ aspects of the sentencing is not

working as it has been implemented thus far.” (Appellant’s Brief at 12). As such,

he argues that the trial court should have imposed community control sanctions, or

at least a combination of community control sanctions with the prison term, in

order to fully deal with the purpose of “rehabilitation.”




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       {¶10} After a review of the record, we find that the trial court did fully

consider the principles and purposes of sentencing, including the factor of

“rehabilitation.” First of all, even though it was not required to state that it had

considered the purposes and principles of sentencing, the trial court specifically

stated on the record and in its judgment entry that it had considered the purposes

and principles of sentencing set forth in R.C. 2929.11 and that Kincade was not

amenable to community control. (Oct. 20, 2009 JE at 2); (Oct. 16, 2009 Tr. at 20).

Secondly, a review of the sentencing transcript and the trial court’s judgment entry

shows that the trial court explicitly considered the relevant statutory factors before

imposing its sentence. In particular, at the sentencing hearing the trial court

addressed Kincade’s “attitude,” addiction, prior juvenile and adult record:

             This Court notes Defendant’s addiction wasn’t his biggest
       problem, it is his attitude. It allowed Defendant to have at least
       twenty four offenses as a juvenile. Beginning at the age of
       fourteen Defendant’s attitude was responsible for his convictions
       for which there are dispositions reported in his Pre-sentence
       investigation report of: three underage consumption convictions;
       five resisting arrest convictions; one drug abuse conviction; one
       possession of drug paraphernalia conviction; six OMVI
       convictions, [sic] one assault conviction; three obstructing
       official business convictions; one public intoxication conviction;
       two failure to comply convictions; one criminal mischief
       convictions; one consuming liquor in a motor vehicle; one
       disorderly conduct conviction; one falsification conviction; one
       possession of a controlled substance conviction and now these
       offenses.
             After Defendant was charged in this case, approximately
       two months later, he was convicted of resisting arrest,



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Case No. 16-09-20


      obstructing official business and possession of a controlled
      substance.
           It is Defendant’s attitude, that despite having his driver’s
      license suspended, he has driven and been caught driving at least
      eleven times while under suspension or with no operator’s
      license.
           In this offense, Defendant chose to drive even though this
      Court had suspended his operator’s license for a previous O.V.I.
      This record smacks of an attitude that has complete indifference
      for the law and the safety of others.
           It was Defendant’s attitude that allowed him to violate
      program rules when he was in a Volunteers of America halfway
      house program, which got his release from prison revoked and
      return to prison. Defendant had also received an unfavorable
      final release when he was on post-release control because he
      made no good faith effort to make restitution to his victim in
      that case.
           Defendant has been in counseling with Community
      Counseling on three different occasions pursuant to Crawford
      County Court Orders. In 2006, despite being referred for
      therapy, individual therapy and counseling, Defendant failed to
      return for services.
           Defendant’s attitude allowed him to recently walk away
      from treatment at New Destiny Treatment Center against
      medical advice on August 10, 2009. The Court notes from
      Defendant’s exhibits there was some question about treatment
      and medications prescribed and that Defendant disagreed with
      taking Klonipin. However the pre-sentence investigation states
      this was prescribed after Defendant started experiencing
      seizures after running from the police, was tazed and hit his
      head. Again, the treating doctor recommended that the
      Defendant be referred to rehabilitation and to see a psychiatrist
      to plan a neuro-psychological evaluation for rehabilitation and it
      was that doctor’s belief, once again, Defendant did not follow
      through with that recommendation.
           Finally, Defendant’s attitude allowed this father of three on
      February 8, 2009 to get into a vehicle, to pick up two fellows,
      almost half of Defendant’s age, to party all night. Defendant’s
      actions resulted in one of his passengers suffering physical harm
      in an accident where any one of them could have been killed.


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Case No. 16-09-20


          Defendant’s life thus far, has been one of irresponsibility and
          lawlessness. Defendant does what he wants despite repeated
          negative consequences, despite who he might hurt, including his
          own children and despite other’s efforts to help him.

(Oct. 20, 2009 JE at 2-4); (Oct. 16, 2009 Tr. at 20-23). It is clear from the trial

court’s statements that not only did it fully consider all of the principles and

purposes of felony sentencing, but it specifically considered the rehabilitation

factor.     The trial court simply chose to give little weight to the purpose of

rehabilitation in Kincade’s sentence given the multiple unsuccessful attempts to

rehabilitate Kincade in the past.

          {¶11} Therefore, Kincade’s second assignment of error is overruled.

                         ASSIGNMENT OF ERROR NO. I

          THE TRIAL COURT FAILED TO PROPERLY CONSIDER
          AND APPLY THE SENTENCING GUIDELINES OF OHIO
          REVISED CODE SECTION 2929.14(D)(4) WHEN IT
          ORDERED THE ADDITIONAL PRISON SENTENCE OF
          FOUR YEARS WITHOUT REDUCING SAID TIME BY THE
          MANDATORY SIXTY DAYS APPELLANT WAS ALSO
          SENTENCED TO SERVE. (JUDGMENT ENTRY, PAGES 4
          AND 5).

          {¶12} Under his first assignment of error, Kincade argues that the trial

court failed to properly apply the sentencing guidelines of R.C. 2929.14(D)(4)

when it ordered an additional prison term of four (4) years without reducing it by

the sixty (60) days imposed upon Kincade as the mandatory prison term. In

response, the State acknowledges that there is a discrepancy between the language



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Case No. 16-09-20


used in R.C. 4511.19(G)(1)(e) and R.C. 2929.14(D)(4). While it asks this Court to

find that the trial court can impose the mandatory prison term of sixty (60) days

consecutive to a basic prison term based on the language in R.C. 4511.19(G)(1)(e),

it agrees that should we find otherwise, then the matter should be remanded for

purposes of re-sentencing. After reviewing the applicable statutory provisions

governing third degree felony OVI sentences, we find that the trial court erred in

imposing the mandatory sixty (60) day prison term consecutive to the four (4) year

basic prison term.

       {¶13} Overall, the trial court specifically ordered that “the Defendant shall

serve a mandatory prison term of sixty (60) days in the custody of the Ohio

Department of Rehabilitation and Correction. Defendant is further ORDERED in

accordance with the law to serve an additional basic prison term of four (4) years

in the custody of the Ohio Department of Rehabilitation and Corrections; said four

(4) years basic prison term shall be served consecutively to the mandatory sixty

(60) days prison term.” (Oct. 20, 2009 JE at 4-5); (Oct. 16, 2009 Tr. at 23).

       {¶14} For a third degree felony OVI offense, without a specification, R.C.

4511.19(G)(1)(e), in pertinent part, provides the following with respect to

sentencing:

       (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


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Case No. 16-09-20


       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
       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:

       (i) If the offender is being sentenced 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 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. 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.
       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.

(Emphasis added).        As cross-referenced in R.C. 4511.19(G)(1)(e), R.C.

2929.13(G) prescribes when a trial court must impose a mandatory sentence upon

the offender of a fourth or third degree felony OVI. R.C. 2929.13(G)(2) governs

third degree felony OVI, and in pertinent part states:


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Case No. 16-09-20


      (G) Notwithstanding divisions (A) to (E) of this section, if an
      offender is being sentenced for a fourth degree felony OVI
      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 * * * the court 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. The court shall
      not reduce the term pursuant to section 2929.20, 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. In no case shall
      an offender who once has been sentenced to a mandatory term of
      local incarceration pursuant to division (G)(1) of this section for
      a fourth degree felony OVI offense be sentenced to another
      mandatory term of local incarceration under that division for
      any violation of division (A) of section 4511.19 of the Revised
      Code.

(Emphasis added).     Finally, although neither R.C. 2929.13 nor R.C. 4511.19

specifically cross-reference it, if the trial court wishes to impose an additional

basic prison term on an offender who commits a third degree felony OVI, R.C.

2929.14(D)(4) governs, and in pertinent part, prescribes:

      (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, * * * and if
      the offender is being sentenced for a third degree felony OVI


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Case No. 16-09-20


      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 (D)(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 (D)(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). R.C. 2929.14(A)(3) further states that the trial court shall

impose a “definite prison term” and that for a felony of the third degree, “the

prison term shall be one, two, three, four, or five years.” After reviewing the

above applicable sentencing provisions for third degree felony OVI convictions,

we find that the trial court should have reduced the additional four (4) year basic

prison term by the mandatory sixty (60) days.

      {¶15} R.C. 4511.19(G)(1) specifies that “[t]he 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.”

(emphasis added). Thus, unless R.C. 4511.19(G)(1) specifically states otherwise,

a trial court must sentence under Chapter 2929 for a third degree felony OVI. We

admit that in isolation the language in R.C. 4511.19, in particular the “in addition



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Case No. 16-09-20


to” and “the cumulative total of” language, is confusing and could be interpreted

to mean that the mandatory prison term can be made consecutive to any basic

prison term imposed. Despite this isolated language, the language under R.C.

4511.19(G)(1)(e) does not clearly address the issue of whether the mandatory

prison term is to run consecutively or concurrently to any additional prison terms

imposed, and it is not of a nature that we could find that it was “as otherwise

authorized” under R.C. 4511.19(G)(1). On the other hand, R.C. 2929.14(D)(4) is

explicit and very clear as far as the treatment of the mandatory sixty (60) day

prison term with respect to any additional prison term imposed for a third degree

felony OVI conviction. R.C. 2929.14(D)(4) specifically states that “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,” and that “[t]he total of

the additional prison term imposed under division (D)(4) of this section plus the

sixty * * * shall equal one of the authorized prison terms specified in division

(A)(3) of this section for a third degree felony OVI offense.” (emphasis added).

Because R.C. 2929.14(D)(4) clearly addresses the issue regarding the imposition

of both a mandatory prison term and an additional prison term for a third degree

felony OVI conviction, and R.C. 4511.19(G)(1)(e) does not address the issue, or at

a minimum is confusing and misleading, we find that the trial court erred in

imposing the sixty (60) day mandatory prison term run consecutively to the four



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Case No. 16-09-20


(4) year basic prison term. See State v. Garrett, 8th Dist. No. 92349, 2009-Ohio-

5363, ¶¶44-50, citing R.C. 1.51 (statutory construction requires that specific

statutory provisions prevail over conflicting general statutes).

       {¶16} Kincade’s first assignment of error is, therefore, sustained.

       {¶17} Although having found no error prejudicial to the appellant herein in

the particulars assigned and argued as to appellant’s second assignment of error,

we find error prejudicial to the appellant herein in the particulars assigned and

argued as to appellant’s first assignment of error; therefore, we reverse the

judgment of the trial court and remand for further proceedings consistent with this

opinion.

                                                            Judgment Reversed and
                                                                 Cause Remanded

SHAW J., concurs.

/jlr


WILLAMOWSKI, P.J., concurring separately.

       {¶18} I concur fully with the majority opinion, however write separately to

emphasize that the appropriate standard of review was applied. In his assignments

of error, Kincade alleges that the trial court failed to properly consider the

sentencing guidelines of R.C 2929.11 and R.C 2929.14(D)(4). Kincade’s appeal

of his felony sentence did not raise issue with the application of the factors set



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forth in R.C. 2929.12, which in my opinion would require an abuse of discretion

standard. Thus, the clearly and convincingly standard used to review this case, as

set forth in R.C. 2953.08(G)(2) is the proper standard of review herein.




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