[Cite as State v. McCoy, 2015-Ohio-4124.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                    JUDGES:
                                                 Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                       Hon. John W. Wise, J.
                                                 Hon. Patricia A. Delaney, J.
-vs-
                                                 Case No. 2014CA00235
MATTHEW WILLIAM MCCOY

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Appeal from Stark County Court of
                                              Common Pleas, Case No. 2012CR1931


JUDGMENT:                                     Affirmed, in part, Reversed, in part, and
                                              Final Judgment Entered


DATE OF JUDGMENT ENTRY:                        September 30, 2015


APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


JOHN D. FERRERO                               RODNEY A. BACA
Prosecuting Attorney,                         Schnars, Baca & Infantino, LLC
Stark County, Ohio                            610 Market Ave North
                                              Canton, Ohio 44702
By: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South - Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2014CA00235                                                          2

Hoffman, P.J.


         {¶1}   Defendant-appellant Matthew William McCoy appeals the December 3,

2014 Judgment Entry and January 7, 2015 Nunc Pro Tunc Judgment Entry entered by

the Stark County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.

                                    STATEMENT OF THE CASE1

         {¶2}   On January 18, 2013, Appellant was indicted by the Stark County Grand

Jury for operating a vehicle under the influence of alcohol, drugs or a combination of

both on December 9, 2012 in Stark County, Ohio in violation of R.C. 4511.19(A)(1)(a)

and/or (d); and, as Appellant had within the previous twenty years been convicted of or

plead guilty to five or more equivalent offenses, the state also indicted Appellant on a

repeat OVI offender specification, in violation of R.C. 2941.1413.

         {¶3}   Appellant entered a plea of guilty to the charges and was sentenced on

March 11, 2013.         The trial court sentenced Appellant to four years mandatory

incarceration, and advised him of post release control. The trial court also imposed a

mandatory fine and suspended Appellant's driver's license for ten years.

         {¶4}   On September 25, 2013, Appellant filed a motion to correct Sentencing

Order pursuant to Criminal Rule 36. Appellant's motion specifically requested the trial

court correct the clerical error in the sentencing order because the trial court did not

impose mandatory time against Appellant in open court. Appellant argued the trial court

did not notify Appellant at his change of plea hearing his sentence would or could be

mandatory.




1   A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Stark County, Case No. 2014CA00235                                                     3


       {¶5}   Via Nunc Pro Tunc Judgment Entry: Change of Plea and Sentence of April

2, 2014 the trial court stated, in pertinent part,

              IT IS THEREFORE ORDERED that the defendant be remanded to

       the Lorain Correctional Facility to serve a term of four (4) years in prison,

       pursuant to Ohio Revised Code Section 2929.13(F) on the charge of

       Operating a Vehicle Under the Influence of Alcohol, a Drug of Abuse or a

       Combination of Them (with repeat OVI offender specification), 1 ct. [R.C.

       4511.19(A)(1)(a) and/or (d)] (F3), and

              IT IS FURTHER ORDERED that the defendant shall pay a

       mandatory fine in the amount of $1,350.00,***

       {¶6}   On July 21, 2014, Appellant filed a motion to vacate void judgment of

sentence for good cause and memorandum of law in support.

       {¶7}   On July 24, 2014, Appellant filed a motion to withdraw guilty plea.

       {¶8}   On September 30, 2014, the State filed a reply to the motion to vacate

void judgment of sentence. On the same date, the State filed a reply to the motion to

withdraw guilty plea.

       {¶9}   On October 22, 2014, the trial court granted Appellant's motion to vacate

void sentence. The trial court found Appellant's April 2, 2014 sentence was contrary to

law because it did not sentence Appellant to any mandatory time and did not sentence

Appellant on the repeat OVI offender specification.

       {¶10} Via Judgment Entry filed October 22, 2014, the trial court denied

Appellant's motion to withdraw guilty plea.
Stark County, Case No. 2014CA00235                                                      4


       {¶11} On November 14, 2014, Appellant filed another motion to vacate void

judgment of sentence.

       {¶12} On December 3, 2014, the trial court resentenced Appellant, ordering in

pertinent part,

              IT IS THEREFORE ORDERED that the defendant be remanded to

       the Lorain Correctional Facility to serve a term of three (3) years in prison,

       pursuant to Ohio Revised Code Section 2929.13(F) on the charge of

       Operating a Vehicle Under the Influence of Alcohol, a Drug of Abuse or a

       Combination of Them (with repeat OVI offender specification), 1 ct. [R.C.

       4511.19(A)(1)(a) and/or (d)] (F3), and

              IT IS FURTHER ORDERED that the defendant shall serve a stated

       term of one (1) year in prison on the repeat OVI offender specification to

       be served consecutive with and prior to the sentence for Operating a

       Vehicle Under the Influence of Alcohol, a Drug of Abuse or a Combination

       of Them, 1 ct. (F3), and

              IT IS FURTHER ORDERED that the defendant shall pay a

       mandatory fine in the amount of $1,350.00, ***

       {¶13} On January 7, 2015, the trial court issued a Nunc Pro Tunc entry which

revised the language to read, in pertinent part,

              IT IS THEREFORE ORDERED that the defendant be remanded to

       the Lorain Correctional Facility to serve a mandatory term of three (3)

       years in prison, pursuant to Ohio Revised Code Section 2929.13(F) on the

       charge of Operating a Vehicle Under the Influence of Alcohol, a Drug of
Stark County, Case No. 2014CA00235                                                     5


      Abuse or a Combination of Them (with repeat OVI offender specification),

      1 ct. [R.C. 4511.19(A)(1)(a) and/or (d)] (F3), and

             IT IS FURTHER ORDERED that the defendant shall serve a

      mandatory term of one (1) year in prison on the repeat OVI offender

      specification to be served consecutive with and prior to the sentence of

      Operating a Vehicle Under the Influence of Alcohol, a Drug of Abuse or a

      Combination of Them, 1 ct. (F3), and

             IT IS FURTHER ORDERED that the defendant shall pay a

      mandatory fine in the amount of $1,350.00, and***

      {¶14} Appellant appeals from the December 3, 2014 Judgment Entry and the

January 7, 2015 Nunc Pro Tunc Entry, assigning as error:

      {¶15} "I. THE SENTENCE THAT RESULTED FROM THE APPELLANT'S

CONVICTION OF OVI AND HABITUAL OFFENDER SPECIFICATION IS CONTRARY

TO LAW.

      {¶16} "II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

APPELLANT'S MOTION TO WITHDRAW HIS GUILTY PLEA."

                                                I.

      {¶17} Via the January 7, 2015 Nunc Pro Tunc Entry, Appellant was sentenced to

a mandatory term of three years on on the underlying OVI offense, in violation of R.C.

4511.19(A)(1)(a) and/or (d), and a mandatory term of one year in prison on the repeat

OVI offender specification, in violation of R.C. 2941.1413, to be served consecutive with

and prior to the sentence for operating a vehicle under the influence of alcohol.
Stark County, Case No. 2014CA00235                                                         6


       {¶18} Appellant states in his brief to this Court, "The issue before this Court is

the appropriate sentencing range for a third degree felony violation of R.C. 4511.19(A).

'There is currently a split amongst the Appellate Districts in Ohio regarding this issue.'"

The parties' briefs then discuss the split among Appellate Districts in Ohio, particularly

the Second, Ninth and Eleventh District Courts of Appeals regarding whether the range

of sentence is nine to thirty-six months, or twelve to sixty months. However, we do not

find the issues presented to those courts to be the issue presented herein as the trial

court's sentence for the underlying OVI offense was permissible under either position.

       {¶19} The appropriate sentencing range for a third degree felony OVI is not at

issue herein.     Rather, the issue presented to this Court is whether the mandatory

sentence imposed by the trial court on the underlying OVI violation of thirty-six months

mandatory incarceration is or is not required to be a mandatory term to run consecutive

to the sentence imposed for the separate term imposed for the repeat OVI offender

specification, which term is to be a mandatory term.

       {¶20} As set forth above, Appellant was sentenced to a mandatory term of three

years on the underlying OVI charge pursuant to R.C. 2929.13(F), for violating R.C.

4511.19(A)(1)(a) and /or (d), which reads, in pertinent part,

       {¶21} R.C. 4511.19(A)(1)(a) and (d) provide,

                (A)(1) No person shall operate any vehicle, streetcar, or trackless

       trolley within this state, if, at the time of the operation, any of the following

       apply:

                (a) The person is under the influence of alcohol, a drug of abuse, or

       a combination of them.
Stark County, Case No. 2014CA00235                                                       7


            ***

            (d) The person has a concentration of eight-hundredths of one

     gram or more but less than seventeen-hundredths of one gram by weight

     of alcohol per two hundred ten liters of the person's breath.

     {¶22} Subsection (G)(1)(e) of R.C. 4511.19 reads,

            (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
Stark County, Case No. 2014CA00235                                                      8


       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.

       {¶23} Appellant asserts the trial court erred in imposing a mandatory three year

term of incarceration on the underlying OVI offense. Appellant cites State v. Burkhead,

12th Dist. 2014-02-028, 2015-Ohio-1085, arguing the trial court erred in imposing a

mandatory term of incarceration on the underlying OVI offense in addition to the

mandatory term imposed for the repeat OVI offender specification. In Burkhead the

Twelfth District held,

              Upon further reflection, we find that Sturgill was misguided and we

       hereby overrule Sturgill and its progeny to the extent it held that when an

       offender is convicted of a third-degree felony OVI and an accompanying

       habitual offender specification, R.C. 2929.13(G)(2), 2929.14(B)(4), and

       4511.19(G)(1)(e) permit a maximum five-year mandatory prison term for

       the OVI conviction and that R.C. 2941.1413 governs the sentence for

       conviction of the habitual offender specification. Although Sturgill

       concerned R.C. 4511.10(G)(1)(e)(i) and this case concerns R.C.

       4511.19(G)(1)(e)(ii), the pertinent language of each of those divisions is

       substantially similar in terms of sentencing for a third-degree felony OVI

       offender who is also convicted of the habitual offender specification.

       (Emphasis added) Instead, we find that when an offender is convicted of a

       third-degree felony OVI in violation of R .C. 4511.19(A)(2) and an

       accompanying habitual offender specification, R.C. 4511.19(G)(1)(e) and
Stark County, Case No. 2014CA00235                                                    9


     2929.13(G)(2) provides that a mandatory prison sentence of one, two,

     three, four, or five years shall be imposed for the specification and the

     additional sentence for the underlying OVI offense is governed under R.C.

     2929.14(A)(3) and (B)(4), which provide for a non-mandatory sentence of

     9, 12, 18, 24, 30, or 36 months. This view is in accord with several other

     appellate districts. E.g., South at ¶ 17–18; State v. Eckles, 173 Ohio

     App.3d 606, 2007-Ohio-6220 (7th Dist.), ¶. 64-66; State v. Smaltz, 6th

     Dist. Ottawa No. OT-08-008, 2013-Ohio-5350, ¶. 9-11; State v.

     Weideman, 11th Dist. Portage No. 2013-P-0100, 2014-Ohio-5768.

            R.C. 4511.19(G)(1) provides, in pertinent part:

            "Whoever violates * * * (A)(2) of this section is guilty of operating a

     vehicle under the influence of alcohol * * *. The court shall sentence the

     offender * * * under Chapter 2929. of the Revised Code, except as

     otherwise authorized or required by divisions (G)(1)(a) to (e) of this

     section."

            There are two items of significance in R.C. 4511.19(G)(1) for

     purposes of sentencing. First, the statute makes it clear that OVI

     sentencing is subject to the general sentencing provisions of R.C. Chapter

     2929. Second, reference is made to additional sentencing provisions in

     divisions (G)(1)(a) to (e).***

            R.C. 2929.13(G)(2), as relates to an offender convicted of a third-

     degree felony OVI offense and the habitual offender specification,

     provides that “the court shall impose upon the offender a mandatory term
Stark County, Case No. 2014CA00235                                                    10


     of local incarceration or a mandatory prison term * * * of one, two, three,

     four, or five years.” The offender shall serve this 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.” (Emphasis added in original.) R.C. 2929.13(G)(2).

     The emphasized language of this statute clearly provides that the one,

     two, three, four, or five-year mandatory sentence referred to is the

     sentence for the habitual offender specification and not the underlying OVI

     offense.

            In Sturgill, this court found that the defendant's sentence for the

     R.C. 2941.1413 habitual offender specification was authorized under R.C.

     2941.1413 and must be a mandatory prison term of one, two, three, four,

     or five years. Sturgill, 2013–Ohio–4648 at ¶ 44. This court then reasoned

     that the reference in R.C. 4511.19(G)(1)(e)(i) to the “mandatory prison

     term of one, two, three, four or five years” was relating to the sentence for

     the underlying OVI offense and not the specification. Id. at ¶ 43. As

     discussed above, the references in R.C 4511.19(G)(1)(e)(ii) and

     2941.1413 to the one, two, three, four, or five-year mandatory prison term

     are not references to different sentences (i.e., a sentence for the

     underlying OVI offense and a sentence for the habitual offender

     specification, respectively) as we held in Sturgill, but rather references the

     same sentence (i.e., the sentence for the habitual offender specification

     established by R.C. 2929.13(G)(2)).
Stark County, Case No. 2014CA00235                                                     11


            R.C. 4511.19(G)(1)(e)(ii) also provides discretion to the sentencing

     court to impose a prison term in addition to the mandatory prison term for

     conviction of the habitual offender specification. The additional prison term

     is governed under the general sentencing statute, R.C. 2929.14. See R.C.

     4511.19(G)(1) (sentence for an OVI offense shall be under R.C. Chapter

     2929). R.C. 2929.14(B)(4) provides that if an offender is being sentenced

     for a third-degree OVI felony under R.C. 2929.13(G)(2), “the sentencing

     court shall impose upon the offender a mandatory prison term in

     accordance with that division.”

            The statute goes on to provide,

            "In addition to the mandatory prison term, * * * and if the offender is

     being sentenced for a third-degree felony OVI offense, the sentencing

     court may sentence the offender to an additional prison term of any

     duration specified in division (A)(3) of this section. The total of the

     additional prison term imposed under division (B)(4) * * * shall equal one

     of the authorized prison terms specified in division (A)(3) of this section for

     a third degree felony OVI offense."

            R.C. 2929.14(B)(4). OVI is not a specified third-degree felony in

     R.C. 2929.14(A)(3)(a) and therefore any additional term for a third-degree

     OVI felony must be for 9, 12, 18, 24, 30 or 36 months. R.C.

     2929.14(A)(3)(b).

            Consequently, when an offender is convicted of a third-degree

     felony OVI offense under R.C. 4511.19(A)(2) and the habitual offender
Stark County, Case No. 2014CA00235                                                   12


      specification pursuant to R.C. 2941.1413, 4511.19(G)(1)(e) provides the

      offender's sentence for the habitual offender specification must be a

      mandatory term of one, two, three, four, or five years pursuant to R.C.

      2929.13(G)(2). The court may also impose an additional non-mandatory

      prison term for the underlying OVI offense of 9, 12, 18, 24, 30, or 36

      months under R.C. 2929.14(A)(3)(b) and (B)(4). The mandatory prison

      term must be served consecutively to and prior to the additional non-

      mandatory prison term pursuant to R.C. 2929.13(G)(2).

             In this case, appellant was sentenced to a mandatory prison term of

      four years for the habitual offender specification and a mandatory prison

      term of five years in regards to his underlying OVI conviction and was

      ordered to serve the sentences consecutively. Appellant's sentence to a

      mandatory prison term of four years for the R.C. 2941.1413 specification

      is within the permissible statutory range. However, appellant's sentence to

      a mandatory five-year prison term for the OVI offense is not within the

      permissible statutory range and is contrary to law. When an offender has

      been convicted of a third-degree felony OVI offense and also has been

      convicted of the habitual offender specification, the trial court may only

      impose an additional prison term of 9, 12, 18, 24, 30, or 36 months.

      Furthermore, the additional term is not a mandatory prison term.



      {¶24} In the case sub judice, Appellant was convicted of OVI, in violation of R.C.

4511.19(A)(1)(a) and/or (d). Further, Appellant had five or more convictions or guilty
Stark County, Case No. 2014CA00235                                                      13


pleas to OVI offenses within the previous twenty years. As such, we agree with the

Twelfth District's holding in Burkhead, supra,2 and find the trial court herein committed

error in imposing a three year mandatory term of incarceration on the underlying OVI

offense.

         {¶25} The first assignment of error is sustained.

                                              II.

         {¶26} In the second assignment of error, Appellant argues the trial court abused

its discretion in denying his motion to withdraw guilty plea.

         {¶27} Criminal Rule 32.1 provides,

               A motion to withdraw a plea of guilty or no contest may be made

         only before sentence is imposed; but to correct manifest injustice the court

         after sentence may set aside the judgment of conviction and permit the

         defendant to withdraw his or her plea.

         {¶28} Here, Appellant has failed to demonstrate a manifest injustice. Appellant

was initially sentenced on March 11, 2013.           Appellant argues his plea was not

knowingly, voluntarily and intelligently made as his counsel was ineffective in failing to

advise him of the possible maximum sentence.

         {¶29} Appellant bears the initial burden of demonstrating operative facts to

demonstrate the lack of competent counsel. State v. Kapper, 5 Ohio St.3d 36, 448 N.E.

2nd 823 (1983).       Appellant's own self-serving statements and affidavits alleging a

coerced guilty plea are insufficient to rebut the record on review. Id.




2   Appellee's brief makes no reference to Burkhead.
Stark County, Case No. 2014CA00235                                                 14


      {¶30} Here, Appellant has offered no evidence as to his assertion counsel

misadvised him of the possible maximum term, other than self-serving affidavits.

Rather, the guilty plea form Appellant reviewed with counsel, as well as discussed in

court, confirms Appellant was informed of the maximum potential penalty. Appellant did

not object to the plea form at the sentencing hearing.

      {¶31} Accordingly, Appellant has not demonstrated a manifest injustice, and the

second assignment of error is overruled.

By: Hoffman, P.J.

Wise, J. and

Delaney, J. concur
Stark County, Case No. 2014CA00235   15
