[Cite as State v. Heidelberg, 2019-Ohio-2257.]




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


State of Ohio                                        Court of Appeals No. E-17-046

        Appellee                                     Trial Court No. 2016-CR-450

v.

Andre Heidelberg                                     DECISION AND JUDGMENT

        Appellant                                    Decided: June 7, 2019

                                                 *****

        Kevin J. Baxter, Erie County Prosecuting Attorney, and
        Anthony A. Battista III, Assistant Prosecuting Attorney,
        for appellee.

        Henry Schaefer, for appellant.

                                                 *****

        MAYLE, P.J.

        {¶ 1} Defendant-appellant, Andre Heidelberg, appeals the driver’s license

suspensions imposed by the Erie County Court of Common Pleas in its July 18, 2017

judgment, following his convictions of attempted failure to comply with an order or
signal of a police officer and operating a vehicle under the influence of alcohol, a drug of

abuse, or a combination of them. For the reasons that follow, we reverse the trial court

judgment, in part, and affirm, in part.

                                      I. Background

       {¶ 2} On November 8, 2016, Andre Heidelberg was charged in a four-count

indictment with (1) failure to comply with an order or signal of a police officer, a

violation of R.C. 2921.331(B) and (C)(5)(a)(ii), a third-degree felony; (2) operating a

vehicle under the influence of alcohol, a drug of abuse, or a combination of them, a

violation of R.C. 4511.19(A)(1)(a) and (G)(1)(b), a first-degree misdemeanor;

(3) operating a vehicle under the influence of alcohol, a drug of abuse, or a combination

of them, a violation of R.C. 4511.19(A)(2)(a), (A)(2)(b), and (G)(1)(b), a first-degree

misdemeanor; and (4) operating a vehicle under the influence of alcohol, a drug of abuse,

or a combination of them, a violation of R.C. 4511.19(A)(1)(f) and (G)(1)(b), a first-

degree misdemeanor. These charges arose from a June 12, 2016 incident in which

Heidelberg failed to stop in response to a signal from police officers, instead leading

them on a high-speed chase that ended when Heidelberg crashed his motorcycle into a

patrol car. Following the crash, officers detected the odor of alcohol on or about him.

       {¶ 3} On May 22, 2017, Heidelberg entered a plea of guilty to Count 1, amended

to attempted failure to comply with an order or signal of a police officer, a violation of

R.C. 2921.331(C)(4) and 2923.02(A), and Count 2. Counts 3 and 4 were dismissed, and




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the state agreed to remain silent at sentencing. The trial court made a finding of guilt,

ordered a presentence investigation report, and continued sentencing to July 13, 2017.

       {¶ 4} The court sentenced Heidelberg to 12 months in prison on Count 1 and 180

days in jail on Count 2, to be served concurrently; imposed a “mandatory” lifetime

driver’s license suspension on Count 1 and a three-year driver’s license suspension on

Count 2; and imposed a fine of $375. His conviction and sentence were memorialized in

a judgment entry journalized on July 18, 2017. Heidelberg appealed and assigns the

following two errors for our review:

              I. THE TRIAL COURT IMPOSED A SENTENCE CONTRARY

       TO LAW.

              II. THE COURT ABUSED ITS DISCRETION WHEN IT

       SENTENCED APPELLANT TO MAXIMUM LICENSE SUSPENSIONS.

                                  II. Law and Analysis

       {¶ 5} Heidelberg challenges only the driver’s license suspensions imposed for

Counts 1 and 2. He argues in his first assignment of error that the lifetime suspension

imposed for Count 1 was contrary to law. In his second assignment of error, he argues

that the trial court abused its discretion when it imposed maximum license suspensions

on both Counts 1 and 2. We consider each of these assignments in turn.

                      A. The lifetime driver’s license suspension.

       {¶ 6} The trial court sentenced Heidelberg under R.C. 2921.331(E) on the

attempted-failure-to-comply conviction, which requires the court to impose a class-two




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driver’s license suspension. A class-two driver’s license suspension is a suspension for a

definite period of three years to life. R.C. 4510.02(A)(2). Heidelberg argues that he

should not have been sentenced under R.C. 2921.331(E); he maintains that he should

have been sentenced under the general sentencing statute—R.C. 2929.14—which does

not provide for a driver’s license suspension.

       {¶ 7} We review a challenge to a felony sentence under R.C. 2953.08(G)(2). R.C.

2953.08(G)(2) provides that an appellate court may increase, reduce, or otherwise modify

a sentence or may vacate the sentence and remand the matter to the sentencing court for

resentencing if it clearly and convincingly finds either of the following:

              (a) That 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;

              (b) That the sentence is otherwise contrary to law.

       {¶ 8} In State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 15,

we recognized that State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124,

provides guidance in determining whether a sentence is clearly and convincingly contrary

to law for purposes of R.C. 2953.08(G)(2)(b). In Kalish, the Ohio Supreme Court held

that where the trial court expressly states that it considered the purposes and principles of

sentencing in R.C. 2929.11 and the seriousness and recidivism factors listed in R.C.

2929.12, properly applies postrelease control, and sentences the defendant within the




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statutorily-permissible range, the sentence is not clearly and convincingly contrary to

law. Kalish at ¶ 18.

       {¶ 9} Heidelberg was indicted for failure to comply under R.C. 2921.331(B) and

(C)(5)(a)(ii)—a third-degree felony; however, he entered a plea to attempted failure to

comply under R.C. 2921.331(C)(4)—a fourth-degree felony—and the attempt statute,

R.C. 2923.02(A). The reduction to an attempt offense rendered Count 1 a fifth-degree

felony under R.C. 2923.02(E)(1), which provides as follows:

              Whoever violates this section is guilty of an attempt to commit an

       offense. An attempt to commit aggravated murder, murder, or an offense

       for which the maximum penalty is imprisonment for life is a felony of the

       first degree. An attempt to commit a drug abuse offense for which the

       penalty is determined by the amount or number of unit doses of the

       controlled substance involved in the drug abuse offense is an offense of the

       same degree as the drug abuse offense attempted would be if that drug

       abuse offense had been committed and had involved an amount or number

       of unit doses of the controlled substance that is within the next lower range

       of controlled substance amounts than was involved in the attempt. An

       attempt to commit any other offense is an offense of the next lesser degree

       than the offense attempted * * *. (Emphasis added.)

       {¶ 10} The issue here is whether the trial court properly sentenced Heidelberg

under R.C. 2921.331(E)—which would require a class-two license suspension for a




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conviction of failure to comply—or whether it was limited to sentencing him under the

general sentencing statute, R.C. 2929.14, because the offense was reduced to an attempt.

R.C. 2929.14 permits the trial court to impose a prison term of six, seven, eight, nine, ten,

eleven, or twelve months for a fifth-degree felony, but makes no provision for suspending

an offender’s driver’s license. If Heidelberg was properly sentenced under R.C.

2921.331(E), this means that the trial court was authorized to suspend his driver’s license

on Count 1.

       {¶ 11} We considered this issue in State v. McIntosh, 6th Dist. Lucas No.

L-07-1208, 2008-Ohio-2881. In McIntosh, the defendant was indicted on one count of

failure to comply with an order or signal of a police officer, in violation of R.C.

2921.331(B) and (C)(5)(a)(ii), a third-degree felony. He ultimately entered a plea of

guilty to attempted failure to comply with an order or a signal of a police officer, in

violation of R.C. 2923.02 and 2921.331(B) and (C)(5)(a)(ii), a fourth-degree felony. The

trial court sentenced the defendant to five years’ community control and 90 days in a

work release program, and suspended his operator’s license for ten years. On appeal,

appellant argued that the trial court did not have statutory authority to issue the license

suspension for attempted failure to comply. He argued that although a class-two license

suspension is mandated by R.C. 2921.331(E), it is not authorized under R.C. 2923.02, the

attempt statute.

       {¶ 12} In resolving the issue, we looked to our own decision in State v. Johnson,

6th Dist. Lucas No. L-98-1144, 1999 Ohio App. LEXIS 795 (Mar. 5, 1999). In Johnson,




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the defendant was charged with possession of cocaine, but pled guilty to attempted

possession of cocaine. On appeal, we were presented with the question of whether the

trial court correctly sentenced appellant under R.C. 2925.11, or whether it should have

sentenced him under the general penalty provision of R.C. 2929.14(A)(2). We stated in

Johnson that “the attempt statute must always be read in conjunction with the statute

proscribing the crime attempted and in light of the other sentencing statutes.” Id. at *5.

We concluded that “the attempt statute provides that when a defendant is convicted of an

attempt to commit a stated offense, the court shall look to the sentencing provisions

applicable to that offense and then apply the sentence applicable to the offense of the next

lesser degree than the offense attempted.” Id. at *2. In other words, we concluded in

Johnson that because the defendant was convicted of an attempt to commit first-degree

felony drug possession, the defendant was required to be sentenced under R.C. 2925.11

as though she had committed second-degree felony drug possession.

       {¶ 13} Relying on Johnson, we held in McIntosh that “reading R.C. 2923.02 in

conjunction with the sentencing provisions set forth in R.C. 2921.331(E),” the trial court

properly suspended the defendant’s license for ten years. See also State v. Duncan, 8th

Dist. Cuyahoga No. 87518, 2006-Ohio-5024, ¶ 16 (rejecting defendant’s position that

trial court was authorized to impose lifetime license suspension only for an actual

violation of R.C. 2921.331, and not for an attempt to violate this statute).

       {¶ 14} But in relying on Johnson when we decided McIntosh, we overlooked an

important distinction. The defendant in Johnson was convicted of attempted possession




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of cocaine. Possession of cocaine is a drug abuse offense under R.C. 2925.01(G)(1).

Importantly, so is attempted possession of cocaine. See R.C. 2925.01(G)(4) (defining

“drug abuse offense” to include an “attempt to commit” any of the drug abuse offenses

enumerated in R.C. 2925.01(G)(1)). The Eighth District in State v. Garner, 8th Dist.

Cuyahoga Nos. 97948, 97949, 2012-Ohio-3262, explained why this is important.

       {¶ 15} In Garner, the defendant was indicted for failure to comply, in violation of

R.C. 2921.331(B) and (C)(5)(a)(ii), a felony of the third degree. He entered a plea of

guilty to attempted failure to comply, in violation of R.C. 2923.02 and 2921.331(B) and

(C)(5)(a)(ii), a felony of the fourth degree. After violating his initially-imposed

community-control sanctions, the trial court sentenced the defendant to six months in

prison, which it ran consecutively to a sentence imposed in another case. The trial court

determined that consecutive sentences were mandated under R.C. 2921.331. See R.C.

2921.331(D) (“If an offender is sentenced pursuant to division (C)(4) or (5) of this

section for a violation of division (B) of this section, and if the offender is sentenced to a

prison term for that violation, the offender shall serve the prison term consecutively to

any other prison term or mandatory prison term imposed upon the offender.”).

       {¶ 16} On appeal, the defendant insisted that the trial court incorrectly concluded

that consecutive sentences were required. He argued that because he was convicted of

attempted failure to comply, rather than failure to comply, the general sentencing statute,

R.C. 2929.14(A)(4), controlled the trial court’s sentencing options—not R.C.

2921.331(D).




8.
       {¶ 17} In considering the defendant’s argument, the court reviewed its own

decision in State v. Hall, 8th Dist. Cuyahoga No. 76374, 2000 Ohio App. LEXIS 2915

(June 29, 2000), and the Ohio Supreme Court’s decision in State v. Taylor 113 Ohio

St.3d 297, 2007-Ohio-1950, 865 N.E.2d 37. In Hall, the defendant pled guilty to

attempted drug possession, a felony of the second degree. In addition to a prison term, he

was sentenced under R.C. 2925.11(E) to a $15,000 fine and a five-year driver’s license

suspension. He argued on appeal that he should have been sentenced under the attempt

statute. The Eighth District rejected his position. It held that “attempted drug possession

is not a separate and distinct crime from possession of drugs, but rather it is incorporated

into the offense.” Hall at *5. The defendant was, therefore, subject to the penalties

provided for drug possession offenses under R.C. 2925.11.

       {¶ 18} Similarly, in Taylor, the Ohio Supreme Court was asked to resolve the

issue of “‘whether a conviction for an attempted drug offense that would have been, if

successfully completed, a first-degree felony, but which becomes a second-degree felony

by virtue of the fact that it is merely an attempt to commit an offense, is subject to the

mandatory prison term provisions in R.C. 2925.11.’” Garner at ¶ 15, citing Taylor at ¶ 1.

The Ohio Supreme Court held that the sentencing provisions in R.C. 2925.11, the

“possession of drugs” statute, applied—and not the general felony sentencing statutes—

because an attempted possession of drugs is incorporated into the possession offense and

is not a separate and distinct crime from possession of drugs.




9.
       {¶ 19} The Eighth District observed that the legislative notes to R.C. 2923.02

explain that with three exceptions, the attempt statute “establishes an attempt to commit

any offense as an offense in itself.” Garner at fn. 1, quoting the 1973 Legislative Service

Comments attached to R.C. 2923.02. Those three exceptions are “an attempt to commit

conspiracy, an attempt to commit a minor misdemeanor, and an attempt to commit any

offense which in itself is defined as an attempt — in these cases, attempt is not an

offense.” Id.

       {¶ 20} Ultimately, the Eighth District found that Hall and Taylor were

distinguishable from the case before it because “unlike the statute governing ‘drug abuse

offenses,’ the crime of ‘attempted failure to comply’ is not one of the crimes delineated in

R.C 2921.331.” Garner at ¶ 17. Thus, it explained, there is “no basis to conclude that

the legislature intended ‘attempted failure to comply’ to be a crime incorporated in R.C.

2921.331.” See also State v. Wilson, 1st Dist. Hamilton No. C-090436, 2010-Ohio-2767,

¶ 7 (finding no basis to conclude that legislature intended “attempted failure to register”

to be a crime incorporated in R.C. 2950.99). The court concluded that the defendant

should have been sentenced under the general sentencing provisions of R.C. 2929.14—

not the specific provision of R.C. 2921.331.

       {¶ 21} We now reach the same conclusion as the Garner court. As Garner

recognized, the legislature did not incorporate attempted failure to comply with a signal

or order of a police officer into R.C. 2921.331. Compare with, e.g., R.C. 2925.01(G)(4)

(defining “drug abuse offense” to include “attempt to commit * * * any offense under




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division (G)(1), (2), or (3) of this section”) and R.C. 2901.01(A)(9)(d) (defining “offense

of violence” to include “attempt to commit * * * any offense under division (A)(9)(a), (b)

or (c) of this section.”). Attempted failure to comply with a signal of a police officer is

therefore a separate offense that is subject to the general sentencing provisions set forth in

R.C. 2929.14. R.C. 2929.14(B)(5) authorizes the trial court to impose a prison term of

six, seven, eight, nine, ten, eleven, or twelve months for the fifth-degree felony of which

Heidelberg was convicted, but it does not authorize a driver’s license suspension. To the

extent that we held otherwise in McIntosh, 6th Dist. Lucas No. L-07-1208, 2008-Ohio-

2881, we overrule that decision. And to the extent that the trial court here imposed a

lifetime driver’s license suspension, we find that this suspension was contrary to law.

       {¶ 22} We, therefore, find Heidelberg’s first assignment of error well-taken, and

we vacate the trial court sentence to the extent that it imposed a lifetime driver’s license

suspension.

                     B. The three-year driver’s license suspension.

       {¶ 23} In his second assignment of error, Heidelberg challenges the trial court’s

imposition of the “maximum” three-year driver’s license suspension on Count 2.1 “We

review a misdemeanor sentence under an abuse-of-discretion standard.” State v. Jones,

6th Dist. Lucas No. L-16-1014, 2017-Ohio-413, ¶ 8.




1
 Given our resolution of Heidelberg’s first assignment of error, we need not address the
maximum lifetime suspension in the context of his second assignment of error.




11.
       {¶ 24} Heidelberg entered a plea of guilty to—and was convicted of—Count 2 of

the indictment. The indictment and the plea form indicate that Heidelberg was charged

and convicted under R.C. 4511.19(A)(1)(a) and (G)(1)(b); (G)(1)(b) applies where the

offender has been convicted of or pleaded guilty to R.C. 4511.19(A) or (B) within ten

years of the present conviction. But the judgment entry entered after sentencing states

only that Heidelberg was found guilty of R.C. 4511.19(A)(1)(a); it does not reference

(G)(1)(b).

       {¶ 25} Operating under the presumption that he was sentenced as a first-time

offender under (G)(1)(a), Heidelberg claims that the trial court could impose a license

suspension ranging from six months to three years, but that the trial court mistakenly

believed that a three-year suspension was mandatory. He maintains that the trial court,

therefore, abused its discretion in imposing the maximum three-year suspension.

       {¶ 26} The state points out that under R.C. 4511.19(G)(1)(b), the trial court was

actually authorized to impose a license suspension of one to seven years. It argues that

the trial court did not err when it imposed a three-year suspension because it was within

the permissible range. The state maintains that any error here inured to Heidelberg’s

benefit if, in fact, the court sentenced him under (G)(1)(a), as Heidelberg contends. And

it insists that any potential error is harmless given that the three-year suspension was

ordered concurrent and is subsumed by the lifetime license suspension.

       {¶ 27} Given our resolution of Heidelberg’s first assignment of error, it is clear

that any error here would not be harmless. Having said that, reading the May 24, 2017




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“judgment entry of plea” together with the July 18, 2017 judgment entry, we conclude

that the penalties provided in R.C. 4511.19(G)(1)(b) applied to Heidelberg’s conviction.

R.C. 4511.19(G)(1)(b)(iv) required the court to impose a license suspension ranging from

one to seven years—i.e., a suspension was mandatory. Given Heidelberg’s extensive

criminal record and the circumstances giving rise to his conviction, we find no abuse of

discretion in the trial court’s imposition of a three-year license suspension, a period far

less than the maximum permitted under the statute.

         {¶ 28} Accordingly, we find Heidelberg’s second assignment of error not well-

taken.

                                       III. Conclusion

         {¶ 29} We find that attempted failure to comply with a signal or order of a police

officer is a separate offense not incorporated into R.C. 2921.331, thus it is subject to the

general sentencing provisions set forth in R.C. 2929.14—not those provided in R.C.

2921.331. We find Heidelberg’s first assignment of error well-taken.

         {¶ 30} We find that the trial court did not impose a maximum license suspension

for Heidelberg’s misdemeanor conviction of operating a vehicle under the influence of

alcohol, a drug of abuse, or a combination of them, and the trial court did not abuse its

discretion in imposing a three-year suspension. We find Heidelberg’s second assignment

of error not well-taken.




13.
       {¶ 31} We reverse the July 18, 2017 judgment of the Erie County Court of

Common Pleas and vacate the lifetime driver’s license suspension imposed on Count 1.

We otherwise affirm the trial court’s judgment. The state is ordered to pay the costs of

this appeal under App.R. 24.


                                                               Judgment reversed, in part,
                                                                    and affirmed, in part.




       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
Thomas J. Osowik, J.
                                               _______________________________
Christine E. Mayle, 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/.




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