[Cite as Toledo v. Molina, 2018-Ohio-1240.]




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


State of Ohio/City of Toledo                      Court of Appeals Nos. L-16-1293
                                                                        L-16-1294
        Appellee
                                                  Trial Court Nos. TRC-16-11140
v.                                                                 TRC-16-11139

John Molina                                       DECISION AND JUDGMENT

        Appellant                                 Decided: March 30, 2018

                                              *****

        David Toska, City of Toledo Chief Prosecutor, and
        Henry Schaefer, Assistant Prosecutor, for appellee.

        Laurell A. Kendall, for appellant.

                                              *****

        SINGER, J.

        {¶ 1} This is a consolidated appeal in which appellant, John Molina, challenges

the November 29, 2016 judgments of the Toledo Municipal Court, where he was

sentenced for violating R.C. 4511.19(A)(1)(a) and (A)(2). Because we find the trial court
failed to properly merge the offenses pursuant to R.C. 4511.19(C), we vacate the

sentences and remand.

                                  Assignments of Error

       {¶ 2} Appellant sets forth the following assignments of error:

              I. Did the court properly merge the two offenses for which appellant

       was convicted, and if so, which offense was used as a basis for sentencing?

              II. Did the court commit plain error when it sentenced appellant to

       (sic) pursuant to O.R.C. 4511.19(A)(1)(a), when the sentencing transcript

       says appellant was sentenced for R.C. 4511.19(A)(2)?

                                       Background

       {¶ 3} On April 23, 2016, at approximately 2:00 a.m., appellant was traveling on

Cherry Street in Toledo, Ohio. Trooper Casimir Vonsacken, the arresting officer, was

patrolling the area and noticed appellant weaving within the lane in which he was

driving. Appellant then stopped at a traffic light with his front wheels beyond the stop

bar. Upon accelerating through the light, appellant swayed into another lane almost

causing an accident.

       {¶ 4} The officer signaled for appellant to pull over, which he did. The officer

approached appellant’s window and made numerous observations that indicated appellant

was intoxicated. Appellant was arrested and taken to Lucas County Jail to be booked.




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       {¶ 5} The officer reported that at the jail he offered appellant a chemical test, and

that appellant was shown, read and advised regarding the consequences of refusing the

test. Appellant refused the test.

       {¶ 6} Appellant was booked and charged with driving under the influence (DUI)

in violation of R.C. 4511.19(A)(1)(a), committing marked-lane violations under R.C.

4511.33(A)(1), and operating a vehicle without a seatbelt under R.C. 4513.263(B)(1).

These charges were brought under case No. TRC-16-11140. Appellant was also charged

with refusing testing with a prior DUI within 20 years in violation of R.C. 4511.19(A)(2),

and this charge was brought under case No. TRC-16-11139. Appellant pled not guilty to

all charges.

       {¶ 7} After unsuccessful plea negotiations, the cases proceeded to a jury trial.

       {¶ 8} The jury reached a guilty verdict as to the DUI and chemical test refusal

charges. The court found appellant guilty of the driving-in-marked-lanes violation but

not guilty of the seatbelt violation. A presentence investigation report (PSI) was ordered

and sentencing was scheduled.

       {¶ 9} Appellant was sentenced on November 29, 2016. The sentence for case No.

TRC-16-11140 (the DUI violation) was stated in the docket as follows: “Defendant

sentenced to 180 days in [CCNO]. 180 days suspended. Sentenced is merged with TRC-

16-11139. Same incident, 2 separate citations.”

       {¶ 10} For case No. TRC-16-11139 (the refusal), the docket reflects as follows:

“Defendant sentenced to pay $525.00 fine and costs. Defendant sentenced to 180 days in




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[CCNO], to be served as follows: 10 days CCNO and 36 days EMU. Indigent for EMU.

Balance suspended.”

       {¶ 11} The corresponding sentencing entries were journalized on November 29,

2016, and appellant now timely appeals.

                                Assignment of Error No. I

       {¶ 12} Appellant first asserts appellee did not specify which charge it was

pursuing and, as a result, the court erred in failing to merge the convictions. Appellee

concedes it failed to specify which count it was pursuing and, in turn, that the court failed

to specify under which violation appellant was convicted and sentenced.

       {¶ 13} R.C. 4511.19(C) states “[i]n any proceeding arising out of one incident, a

person may be charged with a violation of division (A)(1)(a) or (A)(2) and a violation of

division (B)(1), (2), or (3) of this section, but the person may not be convicted of more

than one violation of these divisions.” See, e.g., State v. Mason, 5th Dist. Stark No. 2012

CA 00075, 2012-Ohio-5463, ¶ 31.

       {¶ 14} Further, R.C. 2941.25(A) provides that, “[w]here the same conduct by

defendant can be construed to constitute two or more allied offenses of similar import,

the indictment or information may contain counts for all such offenses, but the defendant

may be convicted of only one.” Id. at ¶ 32.

       {¶ 15} “R.C. 2941.25, the allied offense statute, is simply a sentencing vehicle.”

State v. Redman, 81 Ohio App.3d 821, 823, 612 N.E.2d 416 (12th Dist.1992). “The

prosecution sooner or later must elect as to which of the allied offenses it wishes to




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pursue.” Id. “The choice is given to the prosecution to pursue one offense or the other,

and it is plainly the intent of the general assembly that the election may be of either

offense.” Id.

       {¶ 16} “[A] trial court’s failure to merge allied offenses of similar import

constitutes plain error.” Mason at ¶ 36, quoting State v. Fairman, 2d Dist. Montgomery

No. 24299, 2011-Ohio-6489. “As a result, we ‘must reverse the judgment of conviction

and remand for a new sentencing hearing at which the [prosecution] must elect which

allied offense it will pursue against the defendant.’” Id., quoting State v. Whitfield, 124

Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182.

       {¶ 17} Here, we need not apply the usual analysis pursuant to R.C. 2941.25(A) to

determine if appellant was charged with allied offenses of similar import, triggering

merger, as R.C. 4511.19(C) has given direction for merger when both R.C.

4511.19(A)(1)(a) and (A)(2) are charged.

       {¶ 18} The record reflects appellee did not elect under which division it was

seeking to convict appellant as required by statute and appellee concedes this fact. The

sentencing transcript reveals the trial court recognized this issue, in open court, as

follows:

                As to TRC-16-11140, that is the (A)(1)(a) count. That merges with

       TRC-16-11139. I’m not sure why they charged you separate cases. As to

       this case, you are sentenced to 180 days in jail. Your days will be served as




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       follows: You will serve ten days at CCNO, followed by 36 days under

       house arrest; ankle monitor.

       {¶ 19} The trial court attempted to merge the violations at sentencing. See R.C

4511.19(C). However, appellant was sentenced for both violations. Thus, remand for

appellee’s election of charge and the trial court’s resentencing on that charge is

necessary. Appellant’s first assigned error is well-taken.

                               Assignment of Error No. II

       {¶ 20} As to appellant’s second assignment of error, we note a possible confusion

with the sentencing entries. However, we agree with appellee that this assigned error is

moot and need not be addressed because the first assigned error is well-taken.

                                        Conclusion

       {¶ 21} The November 29, 2016 judgments of the Toledo Municipal Court are

vacated. This consolidated matter is remanded for appellee to select the violation for

which appellant will be sentenced and, subsequently, for the trial court to properly merge

the cases and sentence appellant pursuant to R.C. 4511.19(G)(1)(b). Appellee is ordered

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


                                                                    Judgments vacated and
                                                             consolidated matter remanded.




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                                                                      Toledo v. Molina
                                                                      C.A. Nos. L-16-1293
                                                                                L-16-1294




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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