What is the Court’s Discretion in Sentencing in OVI Cases?

Historically, courts have normally sentenced defendants to the minimum sentence upon conviction or plea to an OVI, i.e. three days for a first time offender, ten days to a second offense, and so on, depending upon the number of prior convictions within a six year period. With the enactment of the “look-back rule” and the recent Hoover decision, more and more defendants are looking at sentences exceeding the minimum.

A recent case from Clermont County is typical of this trend. The case, State v. Elliott, 2009 Ohio 5926, involved a multiple offender. Since the defendant had refused the breathalyzer, the look back rule was imposed and it was found that this offender had been convicted more that 5 times for OVI. In fact, he had 15 convictions in his lifetime. The court sentenced the defendant to the maximum 30 months in jail. Additionally, because the defendant was on community control sanctions at the time of his arrest, the judge sentenced the defendant to an additional 12 months in jail to run consecutively with his sentence on the OVI. In total, the defendant was given 42 months in jail (3½ years).

The defendant appealed his sentence claiming the court abused it discretion in imposing such a draconian sentence. He appealed on two grounds. First, he claimed the sentence imposed was not supported by the record and is contrary to law. Second, he claimed the sentence imposed was excessive and failed to achieve the overriding purposes of felony sentencing.

The court disposed of the first issue by stating “Trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences," State v. Foster, 109 Ohio St.3d 1, 2006 Ohio 856, P100, 845 N.E.2d 470. In applying Foster appellate courts must apply a two-step approach. First, they must examine the sentencing court's compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court's decision shall be reviewed under an abuse-of-discretion standard," State v. Kalish, 120 Ohio St.3d 23, 2008 Ohio 4912, P4, 896 N.E.2d 124.

The court went on to say, “A sentence is not clearly and convincingly contrary to law, where the trial court consider[s] the purposes [of the sentencing guidelines], ...properly applie[s] post-release control, and ... sentence[s] [appellant]...within the permissible range." In addition, so long as the trial court gives "careful and substantial deliberation to the relevant statutory considerations" the court's sentencing decision is not an abuse of discretion.

The appellate court found that the judge, on the record. had reviewed the sentencing guidelines, balanced the seriousness and recidivism factors set forth in the guidelines, and as, required, informed the appellant he could be subjected to three years of post release controls.

The court addressed the appellant second claim by reviewing the appellant’s record. The record clearly showed that the appellant had 15 prior convictions for OVI, the he was ordered into treatment that failed, and that the defendant’s license had been suspended several times but he continued to drive.

Therefore, the court concluded that the judge did comply with the law by applying the sentencing guidelines set forth in the Ohio Revised Code. Further, addressing the second prong of the sentencing review, found that the lower court did not violate the abuse-of-discretion standard.

As a result, in applying this court’s opinion, a court’s sentence will not be overturned if the record on appeal shows:

1. That the court balanced the seriousness and recidivism factors set forth in the statute.

2. Told the defendant of the possibility of post relief control (if applicable), and

3. The record of the defendant justified the sentence being imposed (abuse- of-discretion standard).