[Cite as State v. Uliveto, 2018-Ohio-1364.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :       JUDGES:
                                              :       Hon. Patricia A. Delaney, P.J.
        Plaintiff - Appellee                  :       Hon. Craig R. Baldwin, J.
                                              :       Hon. Earle E. Wise, J.
-vs-                                          :
                                              :
TIMOTHY ULIVETO                               :       Case No. 2017CA00099
                                              :
        Defendant - Appellant                 :       OPINION

                                                      NUNC PRO TUNC

CHARACTER OF PROCEEDING:                              Appeal from the Stark County Court
                                                      of Common Pleas, Case No. 1997-
                                                      CR-0031




JUDGMENT:                                             Affirmed




DATE OF JUDGMENT:                                     April 9, 2018




APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

JOHN D. FERRERO                                       PETER HORVATH
Prosecuting Attorney                                  38294 Industrial Park Road
                                                      P.O. Box 501
By: KATHLEEN O. TATARSKY                              Lisbon, Ohio 44432
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza South- Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2017CA00099                                                  2

Baldwin, J.

       {¶1}   Appellant, Timothy Uliveto, appeals the decision of the Stark County Court

of Common Pleas denying, without a hearing, his motion under R.C. 4510.021 for driving

privileges. Appellee is the state of Ohio.

                           STATEMENT OF FACTS AND THE CASE

       {¶2}   In 1997 Appellant plead guilty to one count of driving under the influence,

R.C. 4511.19 (A)(1)(B) and one count of driving without an operator’s license, R.C.

4507.02 (M) [sic]. The trial court found appellant had been convicted of six (6) prior DUI

offenses and sentenced appellant to twelve (12) months in the Stark County jail. The court

also imposed a lifetime suspension of the appellant’s driver’s license, ordered that the

vehicle he was driving be forfeited and imposed a fine of $750 and assessed court costs.

       {¶3}   Appellant was incarcerated until January 21, 1998 when he was granted

early release and credit for time served. Since his release appellant has filed motions on

five (5) separate occasions seeking driving privileges. All of the motions have been denied

without a hearing and until the most recent denial, no appeal was taken.

       {¶4}   In response to a motion for driving privileges filed by the appellant in 2015,

the state submitted documentation showing that since the imposition of the lifetime

driver’s license suspension in 1997, appellant has been convicted of additional traffic

related charges including driving without a license, driving under the influence and driving

under suspension.     He has also been found guilty of criminal damaging, domestic

violence, and, as late as 2016, disorderly conduct.

       {¶5}   Appellant’s latest motion for driving privileges was filed April 21, 2017. In

support of the motion appellant contended that he had completed the reinstatement

requirements at the BMV and that he is fully employed. Submitted with the motion was
Stark County, Case No. 2017CA00099                                                 3


documentation from the Bureau of Motor Vehicles dated June 2, 2016 and a letter dated

March 19, 2015, purportedly from appellant’s employer, offered in support of granting

driving privileges. The employer’s letter suggests that the appellant will be traveling

throughout Ohio, Kentucky and Indiana, but the motion and attachments contain no

specific limitations or parameters for the driving privileges requested. The document from

the BMV describes the appellant’s license status as “SUSPENDED,” that he has no

driving privileges and that “SR-22 or Financial Responsibility Bond is no longer required.”

Appellant did not address the status of his sobriety in his motion and did not request a

hearing. Finally, the record shows that appellant has been employed with the same

employer since 2006 despite the lack of driving privileges.

       {¶6}   On May 18, 2017 the trial court denied the motion without a hearing.

Appellant now appeals that order and asserts one assignment of error:

       {¶7}   THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING THE

APPELLANT’S MOTION FOR DRIVING PRIVILEGES, WITHOUT A HEARING.

       {¶8}   Appellant argues that he is entitled to a hearing on his motion filed under

R.C. 4510.02, contending that without a hearing appellant and counsel are without

guidance as to the reason for the refusal and that the appellate court is without a record

to review. Appellant cites no precedent directly on point but urges this court to adopt the

standard applicable to civil actions when a defendant files a motion to dismiss a complaint

pursuant to Civ.R. 12 (B)(6). We cannot apply the Civil Rules to a criminal case and

therefore must reject appellant’s invitation to do so. Further, for the reasons set forth

below, we find that no hearing is required in this case.

       {¶9}   As noted by the Appellant, we review the trial court’s ruling under an abuse

of discretion standard.
Stark County, Case No. 2017CA00099                                                    4


             Absent an abuse of discretion, the trial court's decision denying a

      motion for occupational privileges will not be reversed on appeal. See State

      v. Neace, 3d Dist. Mercer No. 10–06–04, 2006–Ohio–3072, ¶ 6; State v.

      Gambill, 3d Dist. Auglaize No. 2–11–28, 2012–Ohio–5437, ¶ 9; State v.

      Rumley, 4th Dist. Gallia No. 90–CA–21, 1991 Ohio App. LEXIS 2891, 1991

      WL 110005 (June 21, 1991) (“The decision of a trial court to grant or deny

      driving privileges will not be disturbed absent an abuse of discretion.”). An

      abuse of discretion constitutes more than an error of law or judgment and

      implies   that   the   trial   court   acted   unreasonably,   arbitrarily,   or

      unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

      N.E.2d 1140 (1983).

State v. Dzurilla, 8th Dist. Cuyahoga No. 101960, 2015-Ohio-1954, ¶ 14

      {¶10} Any person whose driver's or commercial driver's license or permit or

nonresident operating privilege has been suspended pursuant to section 4511.19 or

4511.191 of the Revised Code or under section 4510.07 of the Revised Code for a

violation of a municipal OVI ordinance may file a petition for limited driving privileges

during the suspension. (R.C. 4510.13). The trial court is granted discretion to consider

that petition within the parameters described in R.C. 4510.021:

      (A)    Unless expressly prohibited by section 2919.22, section 4510.13, or

      any other section of the Revised Code, a court may grant limited driving

      privileges for any purpose described in division (A) of this section during

      any suspension imposed by the court. In granting the privileges, the court

      shall specify the purposes, times, and places of the privileges and may
Stark County, Case No. 2017CA00099                                                   5


       impose any other reasonable conditions on the person's driving of a motor

       vehicle. The privileges shall be for any of the following limited purposes:

       (1)    Occupational, educational, vocational, or medical purposes;

       (2)    Taking the driver's or commercial driver's license examination;

       (3)    Attending court-ordered treatment;

       (4)    Attending any court proceeding related to the offense for which the

offender's suspension was imposed;

       (5)    Transporting a minor to a child care provider, day-care, preschool,

school, or to any other location for purposes of receiving child care;

       (6)    Any other purpose the court determines to be appropriate.

R.C. 4510.021(A)

       {¶11} Neither this Code section nor the cases cited by the appellant contain a

mandatory hearing requirement. The Code does clearly grant the trial court substantial

discretion regarding whether to grant privileges.

       {¶12} The record in this case reveals a history of traffic and misdemeanor

offenses preceding appellant’s incarceration in 1997 and subsequent to his release in

1998, including additional alcohol related charges and convictions. Appellant has not

provided any documentation that would serve as evidence he has addressed his

difficulties with alcohol abuse aside from his personnel assurances. His petitions for

driving privileges focus instead on how he and his employer might benefit from the grant,

but omit any comment on whether the threat to the public has been resolved. As late as

2016 Appellant was charged with Domestic Violence and plead guilty to a reduced charge

of Disorderly Conduct. Considering this offense and the balance of the information in the
Stark County, Case No. 2017CA00099                                                 6


record, we cannot conclude that the trial court’s decision denying the request for driving

privileges was unreasonable, arbitrary or unconscionable.

      {¶13} The decision of the Stark County Court of Common Pleas is affirmed.

Costs assessed to Appellant.

By: Baldwin, J.

Delaney, P.J. and

Earle Wise, J. concur.
[Cite as State v. Uliveto, 2018-Ohio-1364.]




                     IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                   :
                                                :        NUNC PRO TUNC
        Plaintiff - Appellee                    :
                                                :
-vs-                                            :        JUDGMENT ENTRY
                                                :
TIMOTHY ULIVETO                                 :
                                                :
        Defendant - Appellant                   :        CASE NO. 2017CA00099


        The opinion previously issued in this case adopted a citation to the Revised Code

Section that appears in the trial court’s entry of May 5, 1997. The trial court cited to R.C.

4507.02(M) and we incorporated that citation in our opinion in paragraph 2. Upon review

of the trial court record from 1997, we have determined that while the description of the

charge is correct, the citation to the code section is erroneous as R.C. 4507.02(M) did not

exist in 1997. We conclude the “M” included in the citation refers to the fact that the

violation was a misdemeanor and not a reference to a subsection of the Revised Code.

We have issued a nunc pro tunc opinion and entry retaining the incorrect citation, but

added the notation “sic” to indicate the cite appears in the record, but the form of the

citation is not accurate.
