[Cite as State v. Summers, 2020-Ohio-741.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                    JUDGES:
                                                 Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                       Hon. John W. Wise, J.
                                                 Hon. Earle E. Wise, Jr., J.
-vs-
                                                 Case No. 2019 CA 00041
BOBBY J. SUMMERS

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Municipal Court,
                                              19 TRC 2012


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                       March 2, 2020



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

JOSEPH M. SABO                                MICHAEL S. COX, JR.
ASSISTANT PROSECUTOR                          BURKETT & SANDERSON
136 West Main Street, Suite 101               738 East Main Street
Lancaster, Ohio 43130                         Lancaster, Ohio 43130
Fairfield County, Case No. 2019 CA 00041                                                   2


Wise, John, J.

         {¶1}   Appellant Bobby J. Summers appeals his sentence and conviction on one

count of Operating a Vehicle Under the Influence entered in the Fairfield County Municipal

Court following a no contest plea.

         {¶2}   Appellee is State of Ohio.

         {¶3} Preliminarily, we note this case is before this Court on the accelerated

calendar which is governed by App.R. 11.1. Subsection (E), determination and judgment

on appeal, provides in pertinent part: “The appeal will be determined as provided by

App.R. 11.1. It shall be sufficient compliance with App.R. 12(A) for the statement of the

reason for the court's decision as to each error to be in brief and conclusionary form.”

         {¶4} One of the important purposes of the accelerated calendar is to enable an

appellate court to render a brief and conclusory decision more quickly than in a case on

the regular calendar where the briefs, facts, and legal issues are more complicated.

Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th

Dist. 1983).

         {¶5} This appeal shall be considered in accordance with the aforementioned

rules.

                        STATEMENT OF THE FACTS AND CASE

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

         {¶7}   On March 9, 2019, in Fairfield County, Ohio, Trooper Muck with the Ohio

State Highway Patrol observed a vehicle driving erratically. (T. at 6). According to Trooper

Muck, the vehicle stopped suddenly at a red light and backed up in the roadway. Id. At

that point, Trooper Muck initiated a traffic stop on the vehicle and made contact with the
Fairfield County, Case No. 2019 CA 00041                                                   3


driver, who was later identified as Appellant Bobby J. Summers. Id. Based on the

observation of the odor of marijuana and alcohol coming from the vehicle, Appellant’s

admission to consuming two beers in Columbus, and Appellant's red, bloodshot, and

glassy eyes, Trooper Muck had Appellant exit the vehicle to perform field sobriety tests.

Id. at 6-7.

       {¶8}   While performing field sobriety tests on Appellant, Trooper Muck observed

six out of six clues on the HGN test, three out of eight clues on the walk and turn test, and

one out of four clues on the one-leg stand test. Id. at 7. Appellant was subsequently

placed under arrest for Operating a Motor Vehicle Under the Influence of Alcohol or Drugs

(hereinafter "OVI"). Id. Appellant submitted to a breath test, which revealed a .10 blood

alcohol content. Id.

       {¶9}   Appellant was charged with OVI under R.C. §4511.19(A)(1)(a) and R.C.

§4511.19(A)(1)(d), a third offense within ten years. Id.

       {¶10} On August 1, 2019, Appellant entered a plea of no contest to the charge of

OVI under R.C. §4511.19(A)(1)(a), and the trial court found him guilty based on the

recitation of the above facts by the Appellee.

       {¶11} In determining whether the violation constituted a third offense within ten

years, the State set forth that Appellant was previously arrested and charged with OVI on

January 31, 2012, in Case No. TRC 12108596, and again on March 7, 2012, in Case No.

TRC 12124316. Id. Appellant was convicted on those two separate OVI charges on June

25, 2012, in Franklin County Municipal Court. Id. at 7-8.

       {¶12} Appellant did not dispute the facts of the case as recited by the State. Id. at

8. Rather, Appellant argued that the instant offense, in TRC 1902012, should be classified
Fairfield County, Case No. 2019 CA 00041                                                   4


as a second offense within ten years due to Appellant’s prior two OVI convictions occurring

simultaneously on June 25, 2012. Id. at 8-9. After hearing the arguments from both parties,

the trial court found the instant offense in TRC 1902012 to constitute a third offense within

ten years. Id. at 9.

       {¶13} The trial court then sentenced Appellant to a minimum fine of Eight Hundred

and Fifty ($850.00) Dollars, with a two year Ohio operator's license suspension back-

dated to March 9, 2019, as well as a thirty (30) day jail sentence to run concurrently with

a contemporaneous felony conviction. The trial court declined to place Appellant on

Community Control Supervision based on his current supervision through the Fairfield

County Common Pleas Court. (Sentencing Entry TRC 19-02012, filed August 1, 2019;

Sent. T. at 6-13).

       {¶14} Appellant now appeals, assigning the following errors for review:

                               ASSIGNMENTS OF ERROR

       {¶15} “I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN FINDING

THAT AT THE TIME OF SENTENCING THE DEFENDANT-APPELLANT HAD

COMMITTED TWO PRIOR OPERATING A VEHICLE UNDER THE INFLUENCE

VIOLATIONS IN TEN YEARS.”

                                             I.

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

finding that Appellant had committed two prior OVI violations. We disagree.

       {¶17} Appellant herein was convicted of an unclassified misdemeanor OVI, in

violation of R.C. §4511.19(A)(1)(a). The trial court imposed a mandatory jail sentence of

30 days, citing R.C. §4511.19(G)(1)(c), which states in pertinent part:
Fairfield County, Case No. 2019 CA 00041                                                   5


       {¶18} R.C. §4511.19 provides:

              ***

              (G)(1) Whoever violates any provision of divisions (A)(1)(a) to (i) or

       (A)(2) of this section is guilty of operating a vehicle under the influence of

       alcohol, a drug of abuse, or a combination of them. Whoever violates

       division (A)(1)(j) of this section is guilty of operating a vehicle while under

       the influence of a listed controlled substance or a listed metabolite of a

       controlled substance. The court shall sentence the offender for either

       offense under Chapter 2929. of the Revised Code, except as otherwise

       authorized or required by divisions (G)(1)(a) to (e) of this section:

              ***

              (c) Except as otherwise provided in division (G)(1)(e) of this section,

       an offender who, within ten years of the offense, previously has been

       convicted of or pleaded guilty to two violations of division (A) or (B) of this

       section or other equivalent offenses is guilty of a misdemeanor. …

              (i) If the sentence is being imposed for a violation of division (A)(1)(a)

       * * *, a mandatory jail term of thirty consecutive days. * * * The court may

       impose a jail term in addition to the thirty-day mandatory jail term.

       Notwithstanding the jail terms set forth in sections 2929.21 to 2929.28 of

       the revised code, the additional jail term shall not exceed one year, and the

       cumulative jail term imposed for the offense shall not exceed one year.

       {¶19} In accordance, the cited provision requires a mandatory 30-day jail term for

offenders with two prior OVI convictions within the last ten years.
Fairfield County, Case No. 2019 CA 00041                                                 6


       {¶20} Upon review, we find no ambiguity in the statute and no merit in Appellant’s

argument that his two prior convictions should be treated as one conviction because he

was sentenced on both cases during the same sentencing hearing.

       {¶21} In the present case, evidence was presented that Appellant had previously

been convicted of two prior violations of R.C. §4511.19 and that both of those convictions

occurred within ten years of the current offense. Said prior convictions were separate and

distinct incidents occurring on January 31, 2012, and March 7, 2012, and charged under

separate case numbers, TRC 121108596 and TRC 12124317, respectively. While,

Appellant was convicted and sentenced on both of these offenses on June 25, 2012, said

offenses remained separate, distinct convictions.

       {¶22} Based on the foregoing, we find no error in the trial court’s sentence in this

matter.

       {¶23} The judgment of the Municipal Court of Fairfield County, Ohio, is affirmed.


By: Wise, John, J.

Hoffman, P. J., and

Wise, Earle, J., concur.



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