[Cite as State v. Peagler, 2012-Ohio-737.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                        :

        Plaintiff-Appellee                           :            C.A. CASE NO.       24426

v.                                                   :            T.C. NO.   10TRC14288

SUBRINA PEAGLER                                      :            (Criminal appeal from
                                                                   Municipal Court)
        Defendant-Appellant                   :

                                                     :

                                             ..........

                                             OPINION

                          Rendered on the     24th       day of    February , 2012.

                                             ..........

AMY B. MUSTO, Atty. Reg. No. 0071514, Assistant City Prosecutor, 335 W. Third Street,
Room 372, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

JOYCE M. DEITERING, Atty. Reg. No. 0005776, 8801 N. Main Street, Suite 200, Dayton,
Ohio 45415
      Attorney for Defendant-Appellant

                                             ..........

DONOVAN, J.

                 {¶ 1} This matter is before the Court on the Notice of Appeal of Subrina

Peagler, filed January 6, 2011. Peagler appeals from her conviction and sentence, in Dayton

Municipal Court, following a bench trial, on three counts of non-compliance suspension in
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violation of R.C. 4510.11(A); one count of operating a vehicle while under the influence

(“OVI”) in violation of R.C. 4511.19(A)(1); one count of failure to control, in violation of

R.C. 4511.20; and one count of operating a motor vehicle without a valid license, in

violation of   R.C. 4510.12(A).       On her OVI conviction, Peagler was sentenced by

judgment entry to 180 days in jail, with 177 suspended, she was given a Class 5 license

suspension for 180 days, and she was fined $375.00. The municipal court sentenced Peagler

by judgment entry to non-reporting community control for 5 years. The record reflects that

Peagler elected to serve three days in jail in lieu of the three day intervention program. She

was also sentenced by judgment entry to 180 days in jail for each non-compliance

suspension and for operating a vehicle without a valid license, with 180 days suspended for

each offense, all to be served concurrently. We note that the State’s assertion in its brief,

that “[o]n the three driving under suspension charges as well as on the driving without a

license charge, the Appellant was sentenced to 180 days in jail, 176 were suspended and 1

day credit was given,” is not consistent with the court’s judgment entries.

       {¶ 2}     Peagler asserts one assignment of error as follows:

       “THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSITION OF

SENTENCE.”

       {¶ 3}     We apply an abuse of discretion standard of review to a suggestion that

misdemeanor sentences are excessive. State v. Grove, 2d Dist. Montgomery No. 24037,

2010-Ohio-6101, ¶ 61.

               “Abuse of discretion” has been defined as an attitude that is

       unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is
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       to be expected that most instances of abuse of discretion will result in

       decisions that are simply unreasonable, rather than decisions that are

       unconscionable or arbitrary.

               A decision is unreasonable if there is no sound reasoning process that

       would support that decision. It is not enough that the reviewing court, were

       it deciding the issue de novo, would not have found that reasoning process to

       be persuasive, perhaps in view of countervailing reasoning processes that

       would support a contrary result.         AAAA Enterprises, Inc. v. River Place

       Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

       {¶ 4}     R.C. 4511.19(G)(1)(a) governs penalties for driving under the influence,

and it provides in relevant part that the offender is guilty of a misdemeanor of the first

degree and is subject to sentence as follows:

               (i) If the sentence is being imposed for a

                              violation of division (A)(1)(a) *

                              * * of this section, a mandatory

                              jail term of three consecutive

                              days. * * * The court may

                              sentence an offender to both an

                              intervention program and a jail

                              term. The court may impose a

                              jail term in addition to the

                              three-day          mandatory   jail
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                              term or intervention program.

                              However, in no case shall the

                              cumulative jai term imposed for

                              the offense exceed six months.

               The court may suspend the execution of the three-day jail term under

       this division if the court, in lieu of that suspended term, places the offender

       under a community control sanction pursuant to section 2929.25 of the

       Revised Code and requires the offender to attend, for three consecutive days,

       a drivers’ intervention program certified under section 3793.10 of the Revised

       Code. * * *

               ***

               (iii) In all cases, a fine of not less than three hundred seventy-five and

       not more than one thousand seventy-five dollars;

               (iv) In all cases, a class five license suspension of the offender’s

       driver’s license * * * from the range specified in division (A)(5) of section

       4510.02 of the Revised Code.      * * *.

       {¶ 5} R.C. 4510.02(A)(5) provides for a class five suspension of a definite period

of “six months to three years.”

       {¶ 6}    Peagler directs our attention to R.C. 2929.22 and R.C. 2929.12.             R.C.

2929.22 enumerates factors for a court to consider in determining an appropriate

misdemeanor sentence.      “‘Ohio courts will presume that the trial court considered the

factors set forth in R.C. 2929.22 when the sentence is within the statutory limits in the
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absence of an affirmative showing to the contrary.’ (Citations omitted).” State v. Jackson,

2d Dist. Montgomery No. 20819, 2005-Ohio-4521, ¶ 13.

       {¶ 7} R.C. 2929.12 governs felony sentencing and does not apply herein.

       {¶ 8}    Peagler elected to serve three days in jail on the OVI conviction and her

minimum sentence and fine is within the statutory scheme. Further, presuming the trial court

considered the factors set forth in R.C. 2929.22, the court did not abuse its discretion in

sentencing Peagler to concurrent, suspended terms for the non-compliance suspensions and

operating a vehicle without a valid license convictions.    Since an abuse of discretion is not

demonstrated, Peagler’s sole assigned error is overruled.

       {¶9} The judgment of the trial court is affirmed.

                                         ..........

FAIN, J. and HALL, J., concur.

Copies mailed to:

Amy B. Musto
Joyce M. Deitering
Hon. Daniel G. Gehres
