[Cite as State v. Antol, 2013-Ohio-5640.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                            SEVENTH DISTRICT

STATE OF OHIO,                                       )
                                                     )
        PLAINTIFF-APPELLEE,                          )
                                                     )             CASE NO. 12 MA 211
V.                                                   )
                                                     )                  OPINION
PAUL ANTOL,                                          )                   AND
                                                     )              JUDGMENT ENTRY
        DEFENDANT-APPELLANT.                         )

CHARACTER OF PROCEEDINGS:                            Criminal Appeal from Youngstown
                                                     Municipal Court of Mahoning County,
                                                     Ohio
                                                     Case No. 12TRC986Y

JUDGMENT:                                            Dismissed

APPEARANCES:
For Plaintiff-Appellee                               Dana Lantz
                                                     Prosecutor
                                                     Kathleen Thompson
                                                     Assistant Prosecutor
                                                     26 S. Phelps Street, 4th Floor
                                                     Youngstown, Ohio 44503

For Defendant-Appellant                              Attorney James E. Lanzo
                                                     4126 Youngstown-Poland Road
                                                     Youngstown, Ohio 44514




JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro


                                                     Dated: December 12, 2013
[Cite as State v. Antol, 2013-Ohio-5640.]
DONOFRIO, J.

        {¶1}     Defendant-appellant Paul Antol Jr. (Antol) appeals the decision of the
Youngstown Municipal Court suspending his driver’s license for a period of six
months following his conviction for operating a vehicle under the influence of alcohol
or drugs.
        {¶2}     On April 9, 2012, Antol was arrested for operating a vehicle under the
influence of alcohol or drugs, a violation of R.C. 4511.19(A)(1)(a). This is Antol’s third
OVI offense since 1996.
        {¶3}     At approximately 11 a.m. that morning, traveling on Interstate 680,
Antol lost control of his vehicle and twice collided into the median, bouncing off each
time into another driver’s vehicle. Thereafter, Antol tried to convince the other driver
to leave the scene of the accident, saying that he would “take care of it” because he
“has money.” When the other driver refused, Antol tried to convince the other driver
to say that someone ran him off the road. Antol acknowledged that he was “in a
mess” and was “going to get a DUI.” The other driver relayed this information to the
responding officer upon his arrival.
        {¶4}     Thereafter, Antol told the officer that someone cut him off and, as a
result, he lost control of his vehicle. The officer noticed an odor of alcohol and that
Antol’s speech was slurred, his eyes were glassy, and that he was pacing back and
forth on the freeway. For Antol’s safety, the officer placed Antol in his cruiser, at
which point he noted that the odor of alcohol became more pronounced.
        {¶5}     At this point, Antol refused medical treatment despite appearing to be in
pain because he feared that the paramedics would take a blood test and that he
would lose his job as a result.
        {¶6}     The officer then advised Antol that he believed he was operating a
vehicle under the influence of alcohol, and Antol maintained that he could not be
tested as he could not “go through this again.”
        {¶7}     The officer did not administer a field sobriety test at the scene of the
accident, but instead transported Antol to the police department for the administration
of a urine test. After being advised of the consequences of being tested and/or
                                                                               -2-


refusing the same, Antol refused the urine test and was arrested and charged with
refusing a chemical test while having a previous OVI conviction within the past twenty
years, a violation of R.C. 4511.19(A)(2); failure to control, a violation of Youngstown
City Ordinance 331.34; and OVI, a violation of R.C. 4511.19(A)(1)(a). Additionally, as
a result of his refusal, Antol’s driver’s license was automatically suspended pursuant
to R.C. 4511.191(B)(1)(a) for a period of up to one year, as specified by R.C
4510.02(B)(3).
       {¶8}   On April 11, 2012, Antol pleaded not guilty to all three charges and
waived his right to a speedy trial. The case then proceeded to discovery and other
pretrial matters.
       {¶9}   As an employee of St. Elizabeth’s Hospital, Antol requested and was
granted occupational driving privileges pursuant to R.C. 4511.191(I)(4).
       {¶10} On October 22, 2012, Antol withdrew his jury demand and pleaded no
contest to the sole charge of operating a vehicle while under the influence of alcohol
or drugs, a violation of R.C. 4511.19(A)(1)(a). As a result of this amended plea, the
administrative license suspension (ALS) imposed by the registrar was terminated
pursuant to R.C. 4511.191(B)(2). The State dismissed the charges of failure to
control and OVI Refusal.
       {¶11} Antol was found guilty of OVI and sentenced by the trial court to ten
days of incarceration, a $500 fine plus court costs, $100 reimbursement of
community control supervision, two years of intensive supervised probation,
continuance of mental health counseling, and an operator’s license suspension for a
period of six months commencing on the date of sentencing.
       {¶12} Thereafter, the trial court denied Antol’s request to stay the execution of
the sentence pending his appeal. Antol filed a separate motion in this Court
requesting a partial stay of that portion of the sentence imposing a license
suspension. This Court ordered a conditional stay to allow for a meaningful review
prior to the completion of the terms of Antol’s sentence, granting him occupational
privileges only for the duration of the license suspension.
                                                                                  -3-


       {¶13} Antol appeals the trial court’s imposition of a six-month license
suspension. Antol’s sole assignment of error states:

              THE TRIAL COURT’S SENTENCING OF THE DEFENDANT-
       APPELLANT HEREIN IS VOID INASMUCH AS THE TRIAL COURT
       ERRED      IN     DIRECTING     THAT      HIS    SUSPENSION         UPON
       SENTENCING PURSUANT TO R.C.4511.19 AND 4510.02(A)(5)
       BEGIN UPON THE DATE OF SENTENCING THUS MAKING IT
       IMPOSSIBLE FOR THE REGISTRAR OF THE BUREAU OF MOTOR
       VEHICLES TO GRANT DEFENDANT-APPELLANT CREDIT FOR HIS
       PRETRIAL        SUSPENSION       TIME    AS     REQUIRED       BY     R.C.
       4511.191(B)(2).

       {¶14} Antol argues that Ohio’s statutes regarding OVI mandate both that a
pretrial suspension must be terminated upon conviction, and that any pretrial
suspension time must be credited against any suspension imposed at sentencing.
Antol contends that the trial court’s order that his suspension last for six months
beginning on the date of sentencing effectively precludes the BMV registrar from
crediting his pretrial ALS against the court-ordered six month suspension.
       {¶15} In support, Antol cites R.C. 4511.191(B)(2) (pertaining to administrative
pretrial license suspensions of the type at issue here) which provides in part:

              The registrar shall terminate a suspension of the driver’s or
       commercial driver’s license * * * imposed pursuant to division (B)(1) of
       this section upon receipt of notice that the person has entered a plea of
       guilty to, or that the person has been convicted after entering a plea of
       no contest to, operating a vehicle in violation of section 4511.19 of the
       Revised Code or in violation of a municipal OVI ordinance, if the
       offense for which the conviction is had or the plea is entered arose from
       the same incident that lead to the suspension or denial.
                                                                                -4-


             The registrar shall credit against any judicial suspension of a
      person’s driver’s or commercial driver’s license * * * imposed pursuant
      to section 4511.19 of the Revised Code, or pursuant to section 4510.07
      of the Revised Code for a violation of a municipal OVI ordinance, any
      time during which the person serves a related suspension imposed
      pursuant to division (B)(1) of this section.

      {¶16} For additional support, Antol cites R.C. 4511.196(C) (pertaining to
court-ordered pretrial license suspensions) which provides:

             Any time during which the person serves a suspension of the
      person’s license, permit, or privilege that is imposed pursuant to
      division (B)(1) or (2) of this section shall be credited against any period
      of judicial suspension of the person’s license, permit, or privilege that is
      imposed under division (G) of section 4511.19 of the Revised Code * *
      *.

      {¶17} Antol acknowledges that of the two statutes he cites, only R.C.
4511.191(B)(2) is applicable here. He argues that that part of the trial court’s
sentence imposing a license suspension precludes the registrar from complying with
R.C. 4511.191(B)(2), and is therefore void as not in accordance with statutorily
mandated terms.
      {¶18} In support, Antol cites to a line of post-release control cases that
addressed, on narrow grounds, a trial court’s non-compliance with post-release
control statutes: State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d
864; State v. Beasley, 14 Ohio St.3d 74, 471 N.E.2d 774 (1984), Woods v. Telb, 89
Ohio St.3d 504, 733 N.E.2d 1103 (2000). These cases have since been superseded
by a statute which establishes a remedial procedure for the correction of a sentence
that failed to properly impose post-release control. See generally State v. Singleton,
124 Ohio St.3d 173, 920 N.E.2d 958 (2009).
                                                                                   -5-


       {¶19} In the same vain, State v. Bezak (to which Antol also points for support)
has been overruled by State v. Fischer. Fischer held that when a judge fails to
impose statutorily mandated post-release control as part of a defendant’s sentence,
that part of the sentence was void and must be set aside. State v. Bezak, 114 Ohio
St.3d 94, 2007-Ohio-3250, overruled by State v. Fischer, 128 Ohio St.3d 92, 2010-
Ohio-6238, 942 N.E.2d 332, ¶ 26.
       {¶20} While still good law, Fischer is not applicable here because R.C.
4511.191(B)(2), unlike the post-release control statutes at issue in Fischer, is not a
sentencing mandate that statutorily binds the trial court. Rather, R.C. 4511.191(B)(2)
requires that the registrar – not the trial court – credit the ALS against the judicial
license suspension.
       {¶21} In response, the State likewise acknowledges the applicability of R.C.
4511.191(B)(1)(2). However, the State highlights the language of the statute
requiring that, specifically, it is the registrar (and not the trial court) that must credit
the pretrial license suspension against the judicial suspension in order for such credit
to be granted.
       {¶22} Relying exclusively on the plain language of the statute, the State
contends that the judicial suspension simply has no bearing on the registrar’s
statutory duties because by its terms, the statute does not require the trial court to
perform any act at all or employ any special language in its sentencing in order for
pretrial suspension credit to be given. The State asserts that Antol’s position is
misguided; the six month license suspension does not prevent the registrar from
granting Antol pretrial credit. Accordingly, the State concludes, the sentence of the
trial court should be affirmed.
       {¶23} Our review of this matter reveals that Antol’s argument in this appeal is
not yet ripe for review. “Ripeness is ‘peculiarly a question of timing.’” State ex rel.
Elyria Foundry Co. v. Indus. Comm. of Ohio, 82 Ohio St.3d 88, 89, 694 N.E.2d 459
(1989), quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 140, 95 S.Ct.
335 (1974). Therefore, in order “for a cause to be justiciable, there must exist a real
                                                                                -6-


controversy presenting issues which are ripe for judicial resolution and which will
have a direct and immediate impact on the parties.” State v. Stambaugh (1987), 34
Ohio St.3d 34, 38, citing Burger Brewing Co. v. Liquor Control Comm. (1973), 34
Ohio St.2d 93, 97-98. Generally, a claim is not ripe if it depends on “future events that
may not occur as anticipated, or may not occur at all.” Texas v. U.S., 523 U.S. 296,
300, 118 S.Ct. 1257 (1998).
       {¶24} In this instance, because Antol’s claim relates primarily to a right
created by R.C. 4511.191(B)(2), a provision pertaining exclusively to the registrar, the
claim must first be pursued through the registrar before it may become ripe for
judicial review. See Consolo v. Cleveland, 103 Ohio St.3d 362, 2004-Ohio-5389, 815
N.E.2d 1114, at ¶ 24 (holding that because the claims asserted relate to rights
created by R.C. Chapter 4117, they must be pursued through the SERB before any
judicial decision could be made). Antol has failed to refer to any place in the record
indicating that he has undertaken the requisite procedural steps with the registrar to
receive the ALS credit to which he is entitled. Nor has Antol demonstrated that such
credit has not yet been granted. Thus, the record itself does not indicate that Antol
has exhausted his administrative remedies by first pursuing his claim through the
registrar.
       {¶25} Additionally, the statutory scheme does not indicate in any way that the
registrar is necessarily precluded from granting ALS credit where a Court suspension
takes effect upon sentencing. See generally R.C. 4511.191(B)(2). Thus, amidst the
silence of the record, principles of statutory interpretation are equally futile here;
neither allow for a determination as to whether the registrar has granted ALS credit or
as to whether Antol has even pursued his claim through the registrar.
       {¶26} As no facts yet exist as to either Antol’s or the registrar’s action or
inaction, it is presently too speculative as to whether the issue Antol raises needs, or
ever will need, solving. Texas v. U.S., 523 U.S. 296, 300, 118 S.Ct. 1257, 1260
(1998). Thus, the issue is not fit for this Court’s consideration at present as it is not
ripe for adjudication.
                                                                           -7-


      {¶27} Appeal dismissed. Costs taxed against Antol. Final order. Clerk to serve
notice as provided by the Civil Rules.

Donofrio, J. concurs.
Vukovich, J. concurs.
DeGenaro, P.J. concurs.
