[Cite as State v. Lange, 2019-Ohio-4687.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 19 CAC 03 0024
NICHOLAS J. LANGE

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Municipal Court,
                                               Case No. 18 TRC 11675


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        November 13, 2019



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

ELIZABETH MATUNE                               DOMINIC L. MANGO
CITY PROSECUTOR                                MANGO LAW OFFICE
CHRISTOPHER E. BALLARD                         40 South Franklin Street
ASSISTANT PROSECUTOR                           Suite 202
70 North Union Street                          Delaware, Ohio 43015
Delaware, Ohio 43015
Delaware County, Case No. 19 CAC 03 0024                                                2


Wise, J.

       {¶1}   Defendant-Appellant Nicholas J. Lange appeals his conviction on one count

of R.C. §4511.19(A)(1(a) following a no contest plea in the Delaware Municipal Court.

       {¶2}   Plaintiff-Appellee is the State of Ohio.

                                  STATEMENT OF THE CASE

       {¶3}   The relevant facts and procedural history are as follows:

       {¶4}   On August 5, 2018, Appellant Nicholas J. Lange was arrested and charged

in the Delaware Municipal Court with four violations: operating under the influence,

operating with a prohibited concentration of alcohol, marked lanes, and failing to signal.

He entered pleas of not guilty and demanded a jury trial.

       {¶5}   On September 21, 2018, Appellant filed a motion to dismiss/motion to

suppress the results of his breath alcohol test.

       {¶6}   On December 5, 2018, a hearing was held on Appellant’s motion to

suppress.

       {¶7}   By Decision and Judgment Entry filed December 28, 2018, the trial court

overruled Appellant’s motion to suppress.

       {¶8}   On March 21, 2019, Appellant entered pleas of no contest to operating while

impaired and with a prohibited concentration of alcohol in violation of R.C.

§4511.19(A)(1)(a) and R.C. §4511.19(A)(3), respectively. Appellant signed a written

waiver of rights and was represented by counsel at this hearing. Appellee dismissed the

two remaining minor infractions, R.C. §4511.25 and R.C. §4511.13., in exchange for the

no contest pleas. There was no other written plea agreement.
Delaware County, Case No. 19 CAC 03 0024                                               3


      {¶9}   When counsel was asked to explain plea negotiations on the record, the

following response was given:

             MS. MATUNE: Yes, Your Honor. It's my understanding there's going

      to be no contest pleas to the two OVI charges.

             THE COURT: All right. Very well. And is that your understanding, Mr.

      Mango?

             MR. MANGO: That is, Your Honor. Thank you. (T. at 3).

      {¶10} During the ensuing plea colloquy, the trial court explained the potential

penalties for the two counts, and informed Appellant of the rights he was waiving. (T. at

4-6). The court then had the following discussion with Appellant:

             THE COURT: And Mr. Lange, you're entering a plea of no contest to

      one charge of Operating a Vehicle While Under the Influence of Alcohol,

      and a related charge of Operating a Vehicle with a Prohibited Alcohol

      Concentration. Is that what your intention is?

             THE DEFENDANT: Yes, sir.

             THE COURT: And you understand that I can find you guilty of both

      of these charges if the evidence supports that, and- but I can only sentence

      you on one of them. And the State will be-will be required to elect which one

      they want to proceed on for sentencing purposes. Do you understand that?

      So it could be either charge. All right. (T. at 4).

      {¶11} The court further stated "...I'm well aware that there's gonna [sic] be some

discussion about an appeal being taken, and I may be asked to stay that."
Delaware County, Case No. 19 CAC 03 0024                                               4


      {¶12} The court accepted the change of plea, and then inquired of the State of

Ohio as to which of the two charges they would elect to proceed on for sentencing

purposes. Appellee elected the R.C. §4511.19(A)(1)(a) "impaired" charge. (T. at 6).

      {¶13} Appellant did not object at any point during the hearing.

      {¶14} During a statement in mitigation, counsel for Appellant stated:

             As we noted in the memorandum that the Court may recall, it is a

      narrow issue, but we feel that it does have merit, had to do with the dates

      as to the calibration of the breath machine that was used in this case. (T. at

      10).

      {¶15} Following Appellee's explanation of the circumstances, the trial court

entered a guilty finding as to each of the charges, and proceeded, without objection, to

sentencing on the R.C. §4511.19(A)(1)(a) charge. (T. at 8-9).

      {¶16} For purposes of sentencing the cases merged and the trial court, in its

judgment entry, imposed sentence on the R.C. §4511.19(A)(1)(a) charge. The trial court

ordered Appellant to serve three (3) days in jail or seventy-two (72) hours in an alcohol

education program, imposed a fine of $450, and ordered Appellant to pay costs. The trial

court also placed Appellant on community control for 1 year. In addition, Appellant's

driver's license was suspended for 180 days.

      {¶17} Appellant moved for, and the court granted, a stay of execution of the

sentence pending appeal.

      {¶18} Appellant now appeals, assigning the following errors for review:
Delaware County, Case No. 19 CAC 03 0024                                                 5


                                  ASSIGNMENTS OF ERROR

        {¶19} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND AN

ABUSE OF DISCRETION WHEN IT ACCEPTED APPELLANT'S NO CONTEST PLEAS,

MADE FINDINGS OF GUILT AND SENTENCED APPELLANT ON THE 4511.19(A)(1)(a)

CHARGE RATHER THAN THE 4511.19(A)(1)(d) CHARGE AFTER ACKNOWLEDGING

ON THE RECORD THAT THE APPELLANT'S PLEAS OF NO CONTEST WERE BEING

ENTERED FOR THE EXPRESSED PURPOSE OF APPEALING THE COURT'S

RULING ON THE SUPPRESSION MOTION; THEREBY, THE COURT UNDERMINED

THE LETTER AND SPIRIT OF THE PARTIES PLEA NEGOTIATIONS AND

EFFECTIVELY RENDERED THE APPELLANT'S INSTANT APPEAL OF THE

PRETRIAL RULING MOOT IN VIOLATION OF APPELLANT'S RIGHTS UNDER THE

FIFTH     AND     FOURTEENTH         AMENDMENTS         TO    THE     UNITED      STATES

CONSTITUTION AND OHIO CONSTITUTION ARTICLE I, SECTIONS 10 AND 14.”

                                                I.

        {¶20} In Appellant's sole assignment of error, he argues that the trial court erred

in sentencing him on the R.C. §.4511.19(A)(1)(a) charge. We disagree.

        {¶21} In this case, pursuant to the negotiated plea agreement, the State agreed

to dismiss the two lesser traffic offenses in exchange for Appellant’s plea to the OVI

counts. Appellant, pursuant to the plea agreement, therefore entered a plea of no contest

to both the driving under the influence charge of R.C. §4511.19(A)(1)(a) (impaired driving)

and R.C. §4511.19(A)(1)(d), (per se). A conviction under R.C. 4511.19(A)(1)(a) focuses

on the conduct of the defendant and observations of the arresting officers, rather than the

results of a chemical test or breathalyzer exam under R.C. § 4511.19(A)(1)(d).
Delaware County, Case No. 19 CAC 03 0024                                                   6


       {¶22} As the two OVI counts, R.C. §4511.19(A)(1)(a) which prohibits operating a

vehicle while under the influence and R.C. §4511.19(A)(1)(d) which prohibits operating a

vehicle with a prohibited blood alcohol concentration, are allied offenses of similar import,

the trial court was required to merge the two offense for purposes of sentencing. State v.

Schwartz, 5th Dist. Perry No. TRC0002759, 2002-Ohio-516.It

       {¶23} It is the prerogative of the State of Ohio to elect which allied offense to

pursue. The General Assembly has made clear that it is the state that chooses which of

the allied offenses to pursue at sentencing, and it may choose any of the allied offenses.

Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 16 and 43, citing Geiger,

45 Ohio St.2d at 244, 74 O.O.2d 380, 344 N.E.2d 133; Legislative Service Commission

Summary of Am.Sub.H.B. 511, The New Ohio Criminal Code (June 1973) 69. In

conferring that right on the state, the legislature did not specify when the state must make

that election. The Legislative Service summary states that “the prosecution sooner or later

must elect as to which offense it wishes to pursue” (emphasis added), id., thereby

implying that the state has latitude in determining when to decide which offense to pursue

at sentencing. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 20

(2010).

       {¶24} Here, the State elected to pursue the OVI charge under the R.C.

§4511.19(A)(1)(a) for sentencing. As stated above, Appellant did not object.

       {¶25} Appellant’s no-contest plea to the (A)(1)(a) charge rendered moot any

issues regarding suppression of the BAC results because the results of such test were

not necessary or required to sustain the conviction on the impaired-driving charge.
Delaware County, Case No. 19 CAC 03 0024                                            7


      {¶26} Based on the foregoing, we find no error on the part of the trial court in

accepting Appellant’s no contest plea and sentencing him in accordance therewith.

      {¶27} For the foregoing reasons, the decision of the Municipal Court, Delaware

County, Ohio, is affirmed.


By: Wise, J.

Gwin, P. J., and

Hoffman, J., concur.



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