The Ohio Court of Appeals recently vacated a portion of a sentence after it was determined the trial court judge failed to inform Defendant of the penalties at a sentencing hearing.

In Perrysburg v. Wells, 2019-Ohio-4620, Defendant was originally charged with OVI, but the case was amended to a lesser charge by the prosecutor. Defendant agreed to plead guilty to the reduced charge and appeared before the trial court judge to accept his sentence. The judge ordered the Defendant to complete a three-day Driver Intervention Program, pay a fine of $375.00 plus the court costs. The Defendant was also sentenced to 30 days in jail with all of the days suspended.

After the court hearing, the Defendant received a written memorandum of his sentence and the memorandum included a license suspension and a term of probation that the judge did not mention at the hearing. The Defendant appealed his sentence to the Court of Appeals.

OHIO CRIMINAL RULE 43: DEFENDANT IS ENTITLED TO BE PRESENT AT EVERY HEARING

Rule 43 of the Ohio Criminal Rules of Procedure states that a defendant is entitled to be present at every hearing in his or her case, and the state violates Rule 43 when terms of a sentence are added without giving a defendant the opportunity to be present when any terms are added to a sentence.

The Court of Appeals held in State v. Temple, 2019-Ohio-3503, that a court could not even impose the collection of court costs when the trial judge did not indicate court costs were to be paid on the record, but then later appeared on the sentencing memorandum.

COURT OF APPEALS VACATES ADDITIONAL PENALTIES NOT DISCUSSED AT THE SENTENCING HEARING

In the Wells case, Defendant argued the state violated Rule 43 when he was not present when the additional terms of probation and a license suspension were added to his sentence after he previously appeared in court to be sentenced by the judge. He argued that the portions of the sentence ordering probation and a license suspension should be vacated.

In the written ruling, the Court of Appeals stated, “the trial court’s judgment ordering the suspension of appellant’s driver’s license and placing appellant on probation should be modified as a matter of law. We hereby exercise our authority, and modify the court’s judgment to vacate that portion of the judgment ordering probation and license suspension.” Id.

The Court of Appeals determined it was not proper for the court to order probation and a driver’s license suspension in its sentencing judgment when the court did not mention probation and a license suspension to appellant during the sentencing hearing.

Written by Anthony Iori, Riddell Law Associate

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