[Cite as State v. McFarland, 2011-Ohio-3679.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                   :      JUDGES:
                                                :
                                                :      Hon. William B. Hoffman, P.J.
                       Plaintiff-Appellee       :      Hon. Sheila G. Farmer, J.
                                                :      Hon. Patricia A. Delaney, J.
-vs-                                            :
                                                :      Case No. 11-CA-39
DENNIS M. MCFARLAND                             :
                                                :
                                                :
                      Defendant-Appellant       :      OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Massillon Municipal Court
                                                    Case Nos. 10-TRC-2537; 10-TRC-4852


JUDGMENT:                                           AFFIRMED

DATE OF JUDGMENT ENTRY:                             July 18, 2011


APPEARANCES:

For Plaintiff-Appellee:                                For Defendant-Appellant:

ROBERT A. ZEDELL 0005136                               DARRELL W. HOLLAND 0022551
Massillon Law Department                               4808 Munson Street N.W.
Two James Duncan Plaza                                 Canton, Ohio 44718
Massillon, Ohio 44646
[Cite as State v. McFarland, 2011-Ohio-3679.]


Delaney, J.

        {¶1}    Defendant-Appellant, Mark McFarland, appeals from the judgment of the

Massillon Municipal Court, which denied his motion to modify his sentence. The State of

Ohio is Plaintiff-Appellee.

        {¶2}    On June 5, 2010, Appellant was charged with one count of Operating a

Vehicle Under the Influence, a violation of R.C. 4511,19(A)(1), a misdemeanor of the

first degree. He was also charged with a marked lanes violation, a minor misdemeanor,

in violation of R.C. 4511.33.

        {¶3}    On July 7, 2010, he entered a plea of no contest to the charges and was

found guilty and sentenced by the trial court. Appellant did not appeal his conviction or

sentence.

        {¶4}    On September 23, 2010, Appellant filed a Motion to Modify Sentence to

permit Appellant to serve his jail sentence under house arrest on an electronic monitor

device because he has a serious medical condition that requires extensive care. On

January 21, 2011, the trial court overruled his motion. It is from that decision that

Appellant now appeals.

        {¶5}    Appellant raises one Assignment of Error:

        {¶6}     “I.   THE TRIAL COURT’S DENIAL OF APPELLANT’S MOTION TO

MODIFY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

                                                I.

        {¶7}    In his sole assignment of error, Appellant argues that the trial court erred

in denying his motion to modify his sentence. We disagree.
Stark County, Case No. 11-CA-39                                                         3


       {¶8}   Appellant was convicted of OVI, in violation of R.C. 4511.19(A)(1). This

was Appellant’s second OVI conviction in a short period of time, therefore, under R.C.

4511.19(G)(1)(b)(ii), Appellant was subject to a mandatory minimum jail sentence of

twenty days. An exception is available to this mandatory minimum sentence only if the

trial court finds that the jail sentence cannot be served within sixty days due to jail

overcrowding. At that time, the court has discretion to modify the defendant’s sentence

to a period of house arrest.

       {¶9}   In the present case, no such argument was made in the trial court and the

trial court did not find that the jail was overcrowded and that jail space is unavailable,

and therefore that Appellant could not serve his sentence in the Stark County Jail.

       {¶10} Appellant failed to produce any evidence to establish that jail space was

not available in the Stark County Jail due to overcrowding.

       {¶11} Appellant’s assignment of error is overruled.
Stark County, Case No. 11-CA-39                                          4


      {¶12} The judgment of the Massillon Municipal Court is affirmed.

By: Delaney, J.

Hoffman, P.J. and

Farmer, J. concur.



                                      HON. PATRICIA A. DELANEY



                                      HON. WILLIAM B. HOFFMAN



                                      HON. SHEILA G. FARMER
[Cite as State v. McFarland, 2011-Ohio-3679.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                   :
                                                :
                       Plaintiff-Appellee       :
                                                :
                                                :
-vs-                                            :    JUDGMENT ENTRY
                                                :
DENNIS M. MCFARLAND                             :
                                                :
                      Defendant-Appellant       :    Case No. 11-CA-39
                                                :




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Massillon Municipal Court is affirmed. Costs assessed to Appellant.



                                                    _________________________________
                                                    HON. PATRICIA A. DELANEY


                                                    _________________________________
                                                    HON. WILLIAM B. HOFFMAN


                                                    _________________________________
                                                    HON. SHEILA G. FARMER
