[Cite as Perrysburg v. Wells, 2019-Ohio-4620.]




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


State of Ohio/City of Perrysburg                     Court of Appeals No. WD-19-007

        Appellee                                     Trial Court No. TRC 1805498

v.

Raymone L. Wells, Jr.                                DECISION AND JUDGMENT

        Appellant                                    Decided: November 8, 2019

                                                 *****

        Gina M. Wasserman, for appellee.

        Blaise Katter, for appellant.

                                                 *****

        SINGER, J.

        {¶ 1} Appellant, Raymone L. Wells, Jr., appeals the January 10, 2019 judgment of

the Perrysburg Municipal Court with regard to its imposition of probation and a driver’s

license suspension following his conviction for a violation of R.C. 4511.194. For the

reasons that follow, we modify the judgment of the trial court.
       {¶ 2} Appellant sets forth one assignment of error:

              The Trial Court Erred by Reconsidering its Final Judgment of

       Sentence and Adding Terms of Sentence after the Sentencing Hearing was

       Concluded.


                                       Background

       {¶ 3} On September 3, 2018, appellant was charged with two counts of operating a

vehicle while intoxicated, violations of R.C. 4511.19(A)(1)(a) and (d), and one count of

traveling across marked lanes, a violation of Rossford Municipal Code 331.08.

       Following his initial not guilty plea on September 6, 2018, appellant appeared

before the Perrysburg Municipal Court on January 10, 2019, for a change of plea hearing.

At that hearing, the trial court accepted the prosecutor’s written recommendation that the

charge for a violation of R.C. 4511.19(A)(1)(a) should be amended to a violation of R.C.

4511.194, having physical control of a vehicle while under the influence of alcohol or

drugs.1 The court also accepted the prosecutor’s recommendation to dismiss the

remaining charges. After being fully advised of his rights, appellant entered a guilty plea

to the amended charge. The court found appellant guilty of the R.C. 4511.194 violation




1
  In its brief, the state acknowledges it was not represented at the January 10, 2019
hearing. The state’s request for amendment was submitted through written motion and
granted contemporaneously with the court’s sentencing judgment. The state’s lack of
representation at the sentencing hearing is not at issue in this appeal.




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and orally dismissed the remaining charges.2 Appellant and his counsel spoke in

mitigation, then the court proceeded to sentencing. The court orally imposed the

following sentence:

       I am going to give you 33 days in the Wood County Justice Center. I am

       going to allow you to do three of those days in the Driver Intervention

       Program, the remaining 30 days I am going to suspend. I am going to grant

       you limited driving privileges upon a proper motion by [appellant’s

       counsel] for to and from work, to and from school, so that you can continue

       to grow yourself, and this doesn’t put too much of a damper on that. I am

       going to assess a fine of $375 plus court costs.

When addressing appellant’s ability to pay the fine, the court stated “[w]e want to get

these paid too so we don’t have to suspend your license again.” The court concluded the

hearing with no further reference to appellant’s sentence.

       {¶ 4} Later that same day, the court’s sentencing judgment was journalized by the

clerk. The judgment reflected appellant’s sentence as 33 days in jail with 30 days

suspended and 3 days in a driver intervention program, a 12-month driver’s license

suspension with limited driving privileges, and 24 months of probation conditioned on




2
  Due to an apparent oversight, the remaining charges were not actually dismissed until
the trial court’s May 10, 2019 dismissal entry following leave from this court to
supplement the record to correct this omission.




3.
appellant being screened for substance abuse and complying with any recommended

substance abuse treatment. Appellant timely appealed.

                                     Law and Analysis

       {¶ 5} We review misdemeanor sentences under an abuse of discretion standard.

State v. Perz, 173 Ohio App.3d 99, 2007-Ohio-3962, 877 N.E.2d 702, ¶ 26 (6th Dist.).

An abuse of discretion indicates the court’s decision was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

       {¶ 6} Appellant challenges that portion of the trial court’s judgment which added

terms to his sentence after the sentencing hearing. Appellant contends the court’s

imposition of sentence at the hearing was a final order, which the court lacked

jurisdiction to modify in its sentencing judgment. Appellant also asserts the court

violated his Crim.R. 43(A) right to be present for imposition of sentence by adding terms

to the sentencing judgment which were not imposed at the hearing.

       {¶ 7} Crim.R. 43(A) provides “the defendant must be physically present at every

stage of the criminal proceeding and trial, * * * and the imposition of sentence[.]” We

recently found it was not sufficient, in regard to Crim.R. 43(A), for a trial court to order

the payment of costs in its sentencing judgment entry when the court did not mention the

imposition of costs during the sentencing hearing. State v. Temple, 6th Dist. Lucas No.

L-18-1070, 2019-Ohio-3503, ¶ 11-13. We therefore vacated the portion of the sentencing

judgment ordering the payment of certain costs. Id. at ¶ 14.




4.
       {¶ 8} Here, a review of the transcript of the sentencing hearing as well as the

sentencing judgment shows the transcript is devoid of any reference to probation, but the

judgment orders appellant to serve a term of 24 months of probation, with conditions.

       {¶ 9} R.C. 2929.27(A)(5) and (6) provides that a court which is imposing a

sentence for a misdemeanor, may impose upon the offender a term of intensive probation

supervision or a term of basic probation supervision. We note the statute clearly reads the

court may, which means that it is discretionary upon the court, not mandatory, impose

probation on the offender.

       {¶ 10} Regarding the driver’s license suspension, the court indicated at the hearing

that it would grant appellant driving privileges for travel to and from school and work

upon filing of the appropriate motion.3 The state maintains this reference to granting

driving privileges is sufficient to inform appellant of the suspension.

       {¶ 11} R.C. 4511.194(D) provides the court “may impose on the offender a class

seven suspension of the offender’s driver’s license * * * from the range specified in

division (A)(7) of section 4510.02 of the Revised Code.” R.C. 4510.02(A)(7) limits this

discretionary suspension to “a definite period not to exceed one year.”



3
  Appellant’s license was initially subject to an administrative license suspension
pursuant to R.C. 4511.191. Appellant filed a written appeal of that suspension with the
court, in accordance with R.C. 4511.197, but requested a delay in those proceedings so
the administrative suspension could be addressed at the same time as any motions to
suppress appellant anticipated filing. The record does not reflect any proceedings related
to the R.C. 4511.197 procedure or resolution of the administrative license suspension and
these issues are not subject to this appeal.




5.
       {¶ 12} While the court’s reference to driving privileges at the sentencing hearing

may have put appellant on notice of the court’s intention to suspend his license, the court

made no mention of the length of any intended suspension, and did not actually impose a

suspension. Yet, in the sentencing judgment, appellant was given a 12-month driver’s

license suspension.

       {¶ 13} We find, in accordance with Temple, it was not sufficient for the court to

order probation and a driver’s license suspension in its sentencing judgment when the

court did not mention probation and a 12-month driver’s license suspension to appellant

during the sentencing hearing. We further find the court violated appellant’s Crim.R.

43(A) right to be present for sentencing and abused its discretion by ordering probation

and a driver’s license suspension in its sentencing judgment. Pursuant to App.R. 12(B),

we find the trial court’s judgment ordering the suspension of appellant’s driver’s license

and placing appellant on probation should be modified as a matter of law. We hereby

exercise our authority, under App.R. 12(B), and modify the court’s judgment to vacate

that portion of the judgment ordering probation and license suspension. Accordingly,

appellant’s assignment of error is well-taken.

                                       Conclusion

       {¶ 14} On consideration whereof, we modify the January 10, 2019 judgment of the

Perrysburg Municipal Court to vacate the imposition of probation and license suspension.




6.
We affirm the trial court’s judgment, as modified. Further, the stay of appellant’s

driver’s license suspension pending appeal is ordered terminated. Appellee is ordered to

pay the costs of this appeal pursuant to App.R. 24.


                                                           Judgment affirmed, as modified.




       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
Arlene Singer, J.
CONCUR.                                         _______________________________
                                                            JUDGE

Gene A. Zmuda, J.,
DISSENTS.



       ZMUDA, J.

       {¶ 15} Although I agree with the majority that the trial court improperly denied

appellant his Crim.R. 43(A) right to be present for the imposition of sentence, I do not

agree with their conclusion that the denial of that right permits this court to modify

appellant’s sentence as a matter of law under App.R. 12(B). Accordingly, I respectfully

must dissent.




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       {¶ 16} The issue before this court is whether the trial court denied appellant his

rights under Crim.R. 43(A) by imposing a 24-month term of probation and a 12-month

driver’s license suspension in its judgment entry when those terms were not imposed in

appellant’s presence at the sentencing hearing. Crim.R. 43(A) identifies a defendant’s

right to be “physically present at every stage of the criminal proceeding and trial,

including * * * the imposition of sentence[.]” This court has consistently held that when

a trial court imposes a sentence in the judgment entry which was not announced at the

sentencing hearing, it violates the defendant’s right to be present at sentencing. See State

v. Williams, 6th Dist. Lucas No. L-11-1084, 2013-Ohio-726, ¶ 49; State v. Robinson, 6th

Dist. Lucas No. L-10-1369, 2012-Ohio-6068, ¶ 81; State v. Pfeifer, 6th Dist. Ottawa No.

OT-10-013, 2011-Ohio-289, ¶ 8. The majority reaches the same conclusion here.

However, I dissent as it relates to the majority’s determination this court has authority to

vacate those additional sentencing terms as a matter of law rather than remanding this

matter for resentencing.

       {¶ 17} “[I]f there exists a variance between the sentence pronounced in open court

and the sentence imposed by a court’s judgment entry, a remand for resentencing is

required.” State v. Jones, 6th Dist. Lucas No. L-17-1010, 2018-Ohio-882, ¶ 7, citing

Williams at ¶ 49. Significant prior precedent reflects our adherence to this directive by

remanding matters for resentencing upon finding a violation of Crim.R. 43(A). See State

v. Jones, 6th Dist. Sandusky No. S-18-036, 2019-Ohio-2646; State v. Robinson, 6th Dist.

Lucas No. L-10-1369, 2012-Ohio-6068, ¶ 79; State v. Zell, 6th Dist. Erie No. E-12-066,




8.
2013-Ohio-5354, ¶ 13; State v. Hunter, 6th Dist. Lucas No. L-12-1101, 2013-Ohio-

4738, ¶ 33; State v. Pfeifer, 6th Dist. Ottawa No. OT-10-013, 2011-Ohio-289, ¶ 8; State

v. Hardison, 6th Dist. Lucas No. L-10-1282, 2011-Ohio-4859, ¶ 9. I see no reason to

diverge from this long-standing precedent in this matter.

       {¶ 18} Rather than remand this matter for resentencing, however, the majority

vacated appellant’s probation and driver’s license suspension as a matter of law. The

majority relies on App.R. 12(B) which states, in relevant part:

       When the court of appeals determines that the trial court committed error

       prejudicial to the appellant and that the appellant is entitled to have

       judgment or final order rendered in his favor as a matter of law, the court of

       appeals shall reverse the judgment or final order of the trial court and

       render the judgment or final order that the trial court should have

       rendered[.] * * * In all other cases where the court of appeals determines

       that the judgment or final order of the trial court should be modified as a

       matter of law it shall enter its judgment accordingly.

This court has previously invoked App.R. 12(B) to modify trial court decisions as a

matter of law. See Toledo v. Williams, 6th Dist. Lucas No. L-17-1120, 2018-Ohio-1954,

¶ 29-31 (holding the record’s silence as to “any proof of the elements of the charge” was

insufficient as a matter of law to convict defendant following a no contest plea); State v.

Fizer, 6th Dist. Lucas No. L-15-1307, 2016-Ohio-8384, ¶ 7-14 (holding the trial court’s

order that defendant’s misdemeanor sentence be served consecutive to a




9.
contemporaneous felony sentence and consecutive to a future sentence to be imposed in

another jurisdiction was contrary to statute and constituted error as a matter of law); State

v. Nimocks, 6th Dist. Lucas No. L-14-1115, 2015-Ohio-394, ¶ 3-6 (holding the trial

court’s imposition of 6-month jail term following a misdemeanor conviction exceeded

the 180-day statutory limit for misdemeanor incarceration as a matter of law); State v.

Leach, 6th Dist. Lucas No. L-09-1327, 2011-Ohio-866, ¶ 5-8 (holding trial court’s

sentencing defendant to serve 6 months in prison instead of jail following a misdemeanor

conviction was contrary to existing statutes and error as a matter of law). In each of these

instances, we explained why either the conviction itself or the sentences imposed were

not supported under existing law. As a result, those respective defendants were entitled

to judgment in their favor which we rendered in accordance with App.R. 12(B).

       {¶ 19} In relying on App.R. 12(B) here, the majority necessarily had to conclude

appellant was entitled to have the probation and driver’s license suspension vacated as a

matter of law. However, the majority did not cite any reasons or authority for its

conclusion beyond the appellate rule of procedure establishing the standard for when

modification is appropriate. Without additional rationale, I find no reason to abandon

prior authority requiring a remand for resentencing. The lack of authority is particularly

notable as the trial court was in fact statutorily authorized to impose the disputed terms of

sentence notwithstanding the Crim.R. 43(A) violation.

       {¶ 20} At his change of plea hearing, appellant pleaded guilty to having physical

control of a vehicle while under the influence of drugs or alcohol in violation of R.C.




10.
4511.194, a first-degree misdemeanor. R.C. 4511.194(D). The trial court found

appellant guilty and proceeded immediately to sentencing.

       {¶ 21} When imposing a sentence for a first-degree misdemeanor, a trial court is

granted statutory authority to impose probation pursuant to R.C. 2929.25 and 2929.27.

Additionally, a trial court is authorized to impose a driver’s license suspension for a

definite period not to exceed one year following conviction for a violation of R.C.

4511.194(B). R.C. 4511.194(D) and 4510.02(A)(7). No argument has been made, and I

see no authority to suggest, that these terms in and of themselves are contrary to law

which might warrant modification of appellant’s sentence.

       {¶ 22} The error in this case is that the trial court imposed these terms outside

appellant’s presence in violation of Crim.R. 43(A). The denial of appellant’s right to be

present for sentencing was a violation of his right to due process. State v. Williams, 6

Ohio St.3d 281, 286, 452 N.E.2d 1323 (1983). That violation, however, does not render

the terms of appellant’s sentence defective as a matter of law. It is merely the procedure

under which the otherwise lawful sentence was imposed that was defective. Appellant is

not entitled to a sentence which does not include probation or a driver’s license

suspension as a matter of law. Instead, appellant is entitled to a sentencing hearing in

which his due process rights are protected through his presence in accordance with

Crim.R. 43(A). Remanding this matter for resentencing comports with existing precedent

and protects appellant’s clearly defined rights. Therefore, I dissent from the majority in




11.
its conclusion that App.R. 12(B) provides authority to make such a modification. I would

reverse the trial court’s judgment and remand this matter for resentencing.




           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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