[Cite as State v. South, 2014-Ohio-374.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                       C.A. No.       26967

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
EDWARD A. SOUTH                                     COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 13 01 0081

                                  DECISION AND JOURNAL ENTRY

Dated: February 5, 2014



        WHITMORE, Judge.

        {¶1}     Defendant-Appellant, Edward South, appeals from his convictions in the Summit

County Court of Common Pleas. This Court affirms in part and reverses in part.

                                                I

        {¶2}     Shortly before 10:00 p.m. on December 26, 2012, Brittany Washburn heard a loud

crash outside her house. The crash was the result of a car hitting a pole on the opposite side of

the street. Washburn called 911 to report the accident in case anyone was injured. Before the

police arrived, however, Washburn observed someone exit the car, walk to the back of the car,

bend over at the back of the car for a brief period, and walk away. Washburn believed that the

person had the car’s license plate in his hand as he walked away. Washburn then called 911

again to tell the operator that the person in the accident had left the scene. Washburn’s second

call was received at 9:58 p.m.
                                                2


       {¶3}    When the police arrived on scene, a canine unit was able to track footprints in the

snow to a nearby home. The police discovered that South lived at the house with his daughter

and entered the home with her permission. As the officers walked down to the basement where

South stayed, they observed a license plate propped up against the wall leading into the

basement. They then spoke with South. Officer Mickey Snyder testified that he could smell the

odor of alcohol as he spoke with South, but that South refused to answer any questions. He also

refused to undergo field sobriety testing. The police arrested South and placed him in the

cruiser. South entered the cruiser at 10:17 p.m., just about twenty minutes after he walked away

from the scene of the accident.

       {¶4}    Once the police arrived back at the station with South, he consented to a

breathalyzer test. The breathalyzer test took place at 11:18 p.m. The test results indicated that

South had a blood alcohol concentration (“BAC”) of .087. The police also discovered that South

had multiple prior OVI convictions and a suspended driver’s license.

       {¶5}    A grand jury indicted South on the following counts: (1) operating a vehicle under

the influence of alcohol (“OVI”), in violation of R.C. 4511.19(A)(1)(a); (2) OVI, in violation of

R.C. 4511.19(A)(1)(d); (3) driving under suspension, in violation of R.C. 4510.11; and (4)

failure to control, in violation of R.C. 4511.202. The first OVI count also contained an attendant

specification based on South’s previously having been convicted of five or more OVI offenses

within the last twenty years, in violation of R.C. 2941.1413. The matter proceeded to trial, and a

jury found South guilty on the two OVI counts, the specification, and the driving under

suspension count. The court then found South guilty on the failure to control count, a minor

misdemeanor. The court merged the two OVI counts for purposes of sentencing and sentenced

South to a total of eight years in prison.
                                                3


       {¶6}    South now appeals and raises two assignments of error for our review.

                                                II

                                 Assignment of Error Number One

       APPELLANT’S COUNSEL WAS INEFFECTIVE BY FAILING TO
       LITIGATE, PRIOR TO TRIAL, THE ADMISSIBILITY OF THE BAC
       DATAMASTER RESULTS AND THUS APPELLANT WAS DENIED
       EFFECTIVE COUNSEL IN VIOLATION OF HIS SIXTH AMENDMENT
       RIGHT.

       {¶7}    In his first assignment of error, South argues that he received ineffective

assistance of counsel because his counsel failed to seek the suppression of the BAC results the

State introduced. We disagree.

       {¶8}    To prove an ineffective assistance claim, South must show two things: (1) that

counsel’s performance was deficient to the extent that “counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that “the deficient

performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To

demonstrate prejudice, South must prove that “there exists a reasonable probability that, were it

not for counsel’s errors, the result of the trial would have been different.” State v. Bradley, 42

Ohio St.3d 136 (1989), paragraph three of the syllabus.         “An error by counsel, even if

professionally unreasonable, does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment.” Strickland at 691. Furthermore, this

Court need not address both Strickland prongs if an appellant fails to prove either one. State v.

Ray, 9th Dist. Summit No. 22459, 2005-Ohio-4941, ¶ 10.

       {¶9}    The “failure to file a suppression motion does not constitute per se ineffective

assistance of counsel.” (Alteration omitted.) State v. Madrigal, 87 Ohio St.3d 378, 389 (2000),

quoting Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). “However, the failure to file a
                                                   4


motion to suppress which possibly could have been granted and implicated matters critical to the

defense can constitute ineffective assistance of counsel, if such failure prejudices the defendant.”

State v. Pitts, 9th Dist. Summit No. 20976, 2002-Ohio-6291, ¶ 88. “In order to demonstrate that

trial counsel’s performance was deficient, a defendant must establish that a valid basis existed to

suppress the evidence.” State v. Flowers, 9th Dist. Summit No. 25841, 2012-Ohio-3783, ¶ 9.

       {¶10} Officer Mickey Snyder testified that he performed a breathalyzer test on South at

11:18 p.m., approximately 80 minutes after South was seen walking away from his car. Officer

Snyder administered the test using the BAC Datamaster and testified that, for the past 16 years,

he has been certified by the Ohio Department of Health to administer that test. Officer Snyder

testified that the BAC Datamaster self-calibrates before and after every test, but that the police

department also performs “an additional calibration and solution at least once every seven days.”

When South took the breathalyzer test, the test results indicated that he had a BAC of .087.

Officer Snyder testified that the legal limit in Ohio is .08.

       {¶11} On defense counsel’s cross-examination of Officer Snyder, the following

exchange took place:

       [DEFENSE COUNSEL:] So, Mr. South blew 7/1000 over the limit stated by law?

       [OFFICER SNYDER:] According to the machine, yes, sir.

       [DEFENSE COUNSEL:] Does the machine have a fudge factor in it?

       [OFFICER SNYDER:] It’s part of it, its internal standard check, it’s got to be
       within – I forget the exact percentage, but it’s like 003.

       [DEFENSE COUNSEL:] 3, okay. So, 3/1000?

       [OFFICER SNYDER:] Yes.

Snyder argues that, had his counsel filed a motion to suppress, he could have explored whether

the BAC Datamaster was properly calibrated and challenged the accuracy of the test results.
                                                  5


According to Snyder, “[a] hearing on a motion to suppress could have been used to flesh out the

impact this [.003] plus or minus factor had as it relates to the time of the consumption of the

alcohol, and whether or not this error factor had any relevance at all to this case.”

         {¶12} Officer Snyder specifically testified that the BAC Datamaster is incapable of

determining exactly when a person drank or how much they drank. He testified that BAC varies

from person to person and is affected by a variety of factors such as whether a person has eaten,

whether the person regularly drinks, and the type of alcohol at issue. He admitted that he did not

know when South had consumed alcohol or how much alcohol he had consumed. He testified,

however, that the .087 result he received when he performed South’s test was an accurate result

and that the BAC Datamaster was regularly calibrated for accuracy. When asked what he would

do if he ever performed a breathalyzer test that resulted in a .08 result, he testified that “[he]

would charge the person with prohibitive BAC.”

         {¶13} South has not shown that his counsel was ineffective for failing to file a motion to

suppress. Officer Snyder never testified that the “internal standard check” the BAC Datamaster

uses to self-calibrate means that the results that issue from the machine are inaccurate. In fact,

he testified that he would charge someone with a prohibitive BAC if the BAC Datamaster

indicated that the person had a concentration of exactly the legal limit.               Officer Snyder

specifically testified that the BAC Datamaster self-calibrates and also undergoes weekly

maintenance at the police department. There is nothing in the record to even suggest the BAC

Datamaster was improperly calibrated. Moreover, even if an error rate of .003 was applied to

South’s BAC result, his BAC would have been .084; a concentration still in excess of the legal

limit.
                                                 6


       {¶14} To the extent South claims that a suppression hearing could have fleshed out the

issue of how his BAC result “relate[d] to the time of the consumption of the alcohol,” Officer

Snyder explained that BAC results cannot pinpoint exactly when someone drank or how much

they drank. He averred that BAC is affected by a variety of factors and varies from person to

person. He also admitted that he did not know when South had been drinking; only that South

had a prohibitive BAC at the time he administered the test.          In light of Officer Snyder’s

testimony, it is not clear to this Court how a suppression hearing would have allowed South to

gain any additional information about how his BAC result “relate[d] to the time of the [alcohol]

consumption.”

       {¶15} South denied having consumed any alcohol prior to striking the pole. According

to South, he had a drink to calm his nerves after he walked home from the crash. The issue

regarding exactly when South had consumed alcohol (i.e., whether he drank it before or after the

crash) was simply a matter of credibility for the trier of fact to determine. See State v. Walters,

9th Dist. Medina No. 11CA0039-M, 2012-Ohio-2429, ¶ 7 (suppression argument rejected where

argument “attack[ed] the weight, not the admissibility of the evidence”).          South has not

established that his counsel was ineffective for failing to file a motion to suppress. His first

assignment of error is overruled.

                                Assignment of Error Number Two

       THE SENTENCE IMPOSED BY THE TRIAL COURT IN THIS CASE IS
       UNREASONABLE AND AN ABUSE OF DISCRETION.

       {¶16} In his second assignment of error, South argues that the trial court abused its

discretion by sentencing him to eight years in prison. We do not address South’s argument, as

our review of the record evidences that his sentence is contrary to law.
                                                 7


       {¶17} South was convicted of a third-degree felony OVI as well as a specification under

R.C. 2941.1413 for previously having been convicted of five or more OVI offenses within

twenty years of his current offense. His sentence, therefore, had to consist of a one to five year

mandatory prison term on his specification. R.C. 4511.19(G)(1)(e)(i). Additionally, the court

could impose a prison term on South’s underlying OVI offense. Id.; R.C. 2929.14(B)(4). The

mandatory prison term on the specification would be run “consecutively to and prior to the

prison term imposed for the underlying offense.” R.C. 2929.13(G)(2). The length of the prison

term imposed on the underlying offense could be “of any duration specified in division (A)(3) of

[R.C. 2929.14].” R.C. 2929.14(B)(4). South actually received a mandatory term of three years

on his specification, as well as a five-year prison term on his underlying OVI offense.

       {¶18}    Although Former R.C. 2929.14(A)(3) allowed for a prison term of one to five

years on all third-degree felonies, the statute was amended effective September 30, 2011. See

Am.H.B. No. 86, 2011 Ohio Laws File 29. The amended version of the statute, as well as the

current version of the statute (effective September 28, 2012), bifurcates third-degree felonies into

two subsets for purposes of sentencing.        Compare Former R.C. 2929.14(A)(3) with R.C.

2929.14(A)(3)(a)-(b). Because the current version of R.C. 2929.14 is applicable here, South’s

third-degree OVI felony was subject to a maximum of 36 months in prison.                       R.C.

2929.14(A)(3)(b). By sentencing South to five years on his underlying OVI conviction, the court

issued a sentence that was contrary to law. See State v. Vitt, 9th Dist. Medina No. 11CA0071-M,

2012-Ohio-4438, ¶ 21 (“Although neither party raised this issue below or on appeal, we raise it

sua sponte because [the appellant’s] sentence * * * is contrary to law.”).

       {¶19} “No court has the authority to impose a sentence that is contrary to law.” State v.

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 23. “R.C. 2953.08(G)(2) permits an appellate
                                                 8


court to ‘increase, reduce, or otherwise modify a [felony] sentence that is appealed under this

section’ or to ‘vacate the sentence and remand the matter to the sentencing court for

resentencing’ if the sentence is contrary to law.” State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-

1245, ¶ 4. Because “[a] sentence is the sanction or combination of sanctions imposed for each

separate, individual offense,” a reviewing court can remand one offense, of a multiple-offense

sentence, for resentencing without vacating the entire sentence. Saxon at paragraphs one, two,

and three of syllabus.

       {¶20}    The portion of South’s sentence related to his OVI conviction is contrary to law.

Accordingly, we vacate the portion of South’s sentence related to his OVI conviction and the

specification linked to that conviction. See id. The other portions of South’s sentence remain

intact. See Vitt at ¶ 23. We remand this matter to the trial court for it to resentence South on his

OVI conviction and specification so as to comply with the applicable sentencing guidelines

outlined above. South’s second assignment of error is sustained on that basis.

                                                III

       {¶21} South’s first assignment of error is overruled. His second assignment of error is

sustained for the reasons set forth above.      The judgment of the Summit County Court of

Common Pleas is affirmed in part, reversed in part, and the cause is remanded for further

proceedings consistent with the foregoing opinion.

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




       There were reasonable grounds for this appeal.
                                                 9


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     BETH WHITMORE
                                                     FOR THE COURT



HENSAL, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

LAWRENCE J. WHITNEY, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
