author: TIMOTHY P. CANNON, J.

text:
    J.V. FERRARA, Appellant/Cross-Appellee, v. LIBERTY TOWNSHIP ZONING BOARD OF APPEALS, Appellee/Cross-Appellant.
    NOS. 2017-T-0075 2017-T-0077 2017-T-0078
    Court of Appeals of Ohio, Eleventh District, Trumbull County.
    Decided September 4, 2018
    Glenn R. Osborne and T. Scott Kamenitsa, Friedman & Rummell Co., L.P.A., 3801 Starrs Centre Drive, Canfield, OH 44406 (For Appellant/Cross-Appellee).
    Mark S. Finamore and Stephen A. Turner, Turner, May & Shepherd, 185 High Street, N.E., Warren, OH 44481-1219 (For Appellee/Cross-Appellant).
   TIMOTHY P. CANNON, J.

{¶ 1} On review before this court is the decision of the Trumbull County Court of Common Pleas, which affirmed in part and reversed in part a decision of the Liberty Township Zoning Board of Appeals ("BZA") denying J.V. Ferrara's applications for three conditional use permits.

The applications have been consolidated for hearing and review throughout the proceedings. Mr. Ferrara noticed an appeal from the trial court's July 12, 2017 judgment, which was followed by the BZA's cross-appeal.

{¶ 2} Following a cease and desist order issued by the Liberty Township Zoning Inspector, Mr. Ferrara submitted applications for three conditional use permits, seeking to operate a private club at three residential properties in Liberty Township, Trumbull County, Ohio. One residence is located on Logan Way/Mansell Drive ("the Logan Way property"); the other two are located on West Liberty Street ("the Liberty Street properties").

{¶ 3} The properties are zoned "single family," pursuant to the Liberty Township Zoning Resolution ("LTZR"). "Private clubs and parks" is an allowed use for single-family districts but requires a conditional use permit under LTZR Section 4:2.4.2. LTZR Section 2:2.24 defines "club" as "[a]n organization of persons for special purposes or for the promulgation of sports, arts, literature, politics, or the like, excluding churches, synagogues, or other houses of worship."

{¶ 4} The subject premises for the requested conditional use permits are three historic mansions owned in trust by Mr. Ferrara as the trustee; he seeks permission to rent the mansions to members of a Pine Lakes Club. According to Pine Lakes Club's "Stay and Play Mansion Policies and Procedures," the Club provides its members "access to the Club's Golf Course partnering courses and facilities as a social and recreation club for the pleasure and recreation of its members, families and friends."

{¶ 5} Mr. Ferrara's permit applications state the residences are "controlled by Pine Lakes Manor, Inc., a non-profit private club whose members are golf aficionados from outside the immediate area who use the Facility as lodging while they golf throughout the area."

{¶ 6} Two public hearings were held before the BZA, at which Mr. Ferrara and his attorney spoke in support of the applications. They stated the properties are not hotels or bed and breakfast facilities, but someone does check on the guests every day and gives them breakfast. Only Club members can utilize the properties, and only one "group leader" and his or her family and friends can stay at one of the properties at one time. They spoke as to how operating the Club enhances the local economic welfare by referring members to and partnering with 20 local golf courses, 10 local hotels, a lodge, and 4 mansions. Mr. Ferrara stated using the properties in this way, as opposed to rental properties, helps to control the amount of damage done to the historical residences. Mr. Ferrara indicated he has been operating the properties in this manner since 2008, but the private Club was formed in 2014. The properties are wooded and expansive, located on 10, 11.7, and 30 acres. A brochure was introduced as an exhibit that provides an overview of the Club, the properties, and the golf courses offered in conjunction with membership. The brochure states the three properties accommodate up to 16, 20, and 32 guests at a time; Mr. Ferrara stated he averages from 8 to 12 in a group. Prospective members must fill out an application form and sign a contract, as well as abide by the Club's "Stay and Play Mansion Policies and Procedures." There are approximately 300 members; dues are $10.00 payable by the group leader.

{¶ 7} Four participants at the public hearings spoke in support of Mr. Ferrara's applications: an abutting property owner stated he had no complaints; a renter who lives in a small house on one of the subject properties stated she feels very safe on the property and that it is a calm environment; the executive director of the Trumbull County Tourism Bureau spoke on the economic benefit of Mr. Ferrara's Club to the local area; and a representative of a local hotel stated the Club brings them a lot of business during the golf season.

{¶ 8} Seven area property owners or their designees expressed opposition to Mr. Ferrara's applications. Some expressed appreciation for the boost to the local economy but were concerned about the effect of operating a seemingly commercial enterprise in a residential area. The concerns related to increased traffic and noise at all hours, including fireworks, and the effect on the neighborhood by introducing transient guests to the area, who sometimes end up on the neighboring properties. Six of the seven residents or designees spoke in opposition to application for the Logan Way property; one designee spoke in opposition to the application for the Liberty Street properties.

{¶ 9} The BZA raised concerns regarding how the property is insured and taxed, guest safety issues, whether the guests are monitored for compliance with the Club's rules during their stay, the fact that the Club has paid staff, and why Mr. Ferrara never applied for a conditional use permit since 2008 when he began operating the properties as guest lodging. In response to questioning by the BZA, Mr. Ferrara indicated the Club was formed in 2014 to fall in line with the Township's zoning policies, yet he did not apply for conditional use permits at that time; breakfast is prepared for the guests in the properties' kitchens by paid staff; the Club does not currently pay a "bed tax" for the properties; the properties are insured as private residences; "do not use" signs are not posted on the decorative, non-working fireplaces; and there is no mechanism in place to enforce the Club's "policies and procedures," such as the prohibition on fireworks or the 10:00 p.m. curfew. There was also much discussion and debate between the members of the BZA and Mr. Ferrara and his attorney regarding whether this was actually a commercial enterprise operating in residential neighborhoods, specifically as a bed and breakfast facility.

{¶ 10} Mr. Ferrara presented the BZA with a letter, maps, and photographs detailing the relationship of the subject properties to the complaining neighbors' properties; arrangements for the Club's proposed conditional use in response to the neighbors' concerns; and police reports from the 911 call center, indicating the absence of any noise complaints.

{¶ 11} The BZA ultimately voted unanimously to deny all three applications. Mr. Ferrara filed an administrative appeal in the trial court, which was submitted on the briefs.

{¶ 12} The trial court reversed the BZA's decisions as to the two Liberty Street properties, finding they were "arbitrary, capricious and unreasonable as the decision was not supported by a preponderance of substantial, reliable and probative evidence." The trial court affirmed the BZA's decision as to the Logan Way property, deferring to the BZA because "there was at least some competent and credible evidence in the record to rebut the evidence put forth by Ferrara[.]"

{¶ 13} Mr. Ferrara's appeal and the BZA's cross-appeal from this decision are now before this court for review.

{¶ 14} Mr. Ferrara raises two assignments of error:

[1.] The Trial Court erred by failing to rule that the Liberty Township Zoning Ordinance in question is unconstitutional in its application to Appellant's proposed use, since the ordinance is vague and allows, upon reasonable construction, a golf club of the type operated by Appellant.
[2.] The Trial Court erred by ruling that the record contained competent, credible and substantial evidence to support the Township Board's denial of Plaintiff's conditional use to continue running his golf club at Mansell Drive in Liberty Township.

{¶ 15} The BZA also raises two assignments of error:

[1.] The Trial Court erred by ruling that the record did not contain competent, credible and substantial evidence to support the Township Board's denial of Plaintiff's conditional use of the Liberty Street properties in Liberty Township.
[2.] The Trial Court erred by ruling that the Township Board's denial of Plaintiff's conditional use of the Liberty Street properties was 'arbitrary, capricious and unreasonable.'

{¶ 16} Under his first assignment of error, Mr. Ferrara argues the trial court erred by failing to rule that the ordinance is unconstitutional as applied to a membership-based golf club because, reasonably interpreted as a whole, the ordinance allows this use in a residential district.

{¶ 17} Mr. Ferrara first asserts his proposed use of the properties is "specifically authorized" by the LTZR. This argument lacks merit, as the only permitted uses of single-family zoned properties are "one single-family dwelling unit per plotted lot" and "one-story attached garages that do not exceed the ground floor area of the residence to which it is attached." Section 4:2.2. Because Mr. Ferrara's proposed use is that of a "private club," it is subject to the BZA's approval as a conditional use; it is not specifically authorized.

{¶ 18} Pursuant to R.C. 519.14(C), the BZA "may" grant conditional zoning certificates "for the use of land, buildings, or other structures if such certificates for specific uses are provided for in the zoning resolution." The discretionary language indicates that, "[i]n matters concerning conditional use certificates, the statute does not require that the board shall do anything." Essroc Materials, Inc. v. Poland Twp. Bd. of Zoning Appeals , 117 Ohio App.3d 456, 461, 690 N.E.2d 964 (7th Dist.1997) (emphasis sic). " 'The inclusion of conditional use provisions in zoning legislation is based upon a legislative recognition that although certain uses are not necessarily inconsistent with the zoning objectives of a district, their nature is such that their compatibility in any particular area depends upon surrounding circumstances.' " Carrolls Corp. v. Willoughby Planning Comm. , 11th Dist. Lake No. 2005-L-112, 2006-Ohio-3209, 2006 WL 1725864, ¶ 18, quoting Gerzeny v. Richfield Twp. , 62 Ohio St.2d 339, 341, 405 N.E.2d 1034 (1980).

{¶ 19} The stated purpose of the LTZR is, in part, to "establish guidelines in order to protect, promote and improve the public health, safety, morals, convenience, order, appearance, prosperity and general welfare of the inhabitants of Liberty Township by protecting and conserving the character and social economic stability of residential, business, commercial, industrial and public use areas; [and] by securing the most appropriate use of land[.]" Section 1:2. Thus, Liberty Township is divided into districts that each have permitted and conditionally permitted uses. "Conditional use" is defined in LTZR Section 2:2.26 as "[t]hat use having some special uniqueness that requires a careful review of location, design, configuration and special impact to determine against fixed standards, the desirability of permitting its establishment on a specific site. It is considered provisional in nature and approved at the discretion of the Board of Zoning Appeals."

{¶ 20} LTZR Article 5 provides the general standards for conditional uses; there are no specific standards for "private clubs." The BZA is to use the general standards to determine whether "the proposed use is compatible with the intent of the underlying zoning district where the conditional use would be located." Section 5:1. Section 5:2 provides: "To ensure compatibility with the underlying zoning district and the Township community in general, the following general criteria shall be reviewed by the Zoning Inspector upon application for a conditional use permit. Conditional uses shall therefore:

5:2.1 Be harmonious and in accordance with the general and specific objective of Liberty Township's Comprehensive Plan and zoning regulations;
5:2.2 Be designed, constructed, operated, and maintained so as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity and that such use will not change the essential character of the same area.
5:2.3 Not be hazardous or disturbing to existing or future neighboring uses.
5:2.4 Be served adequately by essential public facilities such as highways, streets, police and fire protection, drainage structures, refuse disposal, water and sewers, and schools; or the persons or agencies responsible for the establishment of the proposed use shall be able to provide adequately any such services.
5:2.5 Not create excessive additional requirements at public cost for public facilities and services and will not be detrimental to the economic welfare of the community.
5:2.6 Not involve uses, activities, processes, materials, equipment and conditions of operation that will be detrimental to any persons, property, or the general welfare by reasons of excessive production of traffic, noise, smoke, fumes, glare or odors.
5:2.7 Have vehicular approaches to the property that shall be so designed as not to create an interference with traffic on surrounding public streets.
5:2.8 Not result in the destruction, loss, or damage of any natural, scenic, or historic feature of major importance.

{¶ 21} Mr. Ferrara asserts the LTZR is unconstitutionally vague as applied to him because his proposed conditional use "meets or exceeds every single test that the Township is required to follow by the express terms of its Ordinance." This argument lacks merit. While Section 5:2 does provide that the BZA "shall" consider the above criteria, it does not provide that a permit shall issue every time a proposed use satisfies that general criteria. Again, pursuant to R.C. 519.14, a board of zoning appeals has "the discretion to approve or deny conditional use permits, based on its evaluation of the unique circumstances of the petition[.]" Essroc , supra , at 461, 690 N.E.2d 964.

{¶ 22} The trial court did not err in failing to rule that the LTZR is unconstitutional as it was applied to Mr. Ferrara.

{¶ 23} Mr. Ferrara's first assignment of error is without merit.

{¶ 24} We consider the remaining three assignments of error in a consolidated analysis. Mr. Ferrara argues the trial court erred by finding the BZA's decision regarding the Logan Way property was supported by substantial, reliable, and probative evidence. The BZA argues the trial court erred by finding the BZA's decision regarding the Liberty Street properties was not supported by substantial, reliable, and probative evidence and by substituting its own judgment for that of the BZA.

{¶ 25} R.C. 2506.04 sets forth the standard of review regarding appeals from administrative decisions, including decisions issued by boards of zoning appeals. In construing this statutory provision, the Ohio Supreme Court has distinguished between the court of common pleas and the court of appeals standards of review. Henley v. Youngstown Bd. of Zoning Appeals , 90 Ohio St.3d 142, 147, 735 N.E.2d 433 (2000).

{¶ 26} In reviewing a decision of the BZA, the common pleas court "is bound by the nature of administrative proceedings to presume that the decision of the administrative agency is reasonable and valid." Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals , 66 Ohio St.3d 452, 456, 613 N.E.2d 580 (1993), citing C. Miller Chevrolet, Inc. v. Willoughby Hills , 38 Ohio St.2d 298, 313 N.E.2d 400 (1974). The common pleas court is to consider the entire record, including any new or additional evidence admitted under R.C. 2506.03, and determine "whether the administrative order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence." Henley , supra , at 147, 735 N.E.2d 433 (citations omitted). "A court of common pleas should not substitute its judgment for that of an administrative board, such as the board of zoning appeals, unless the court finds that there is not a preponderance of reliable, probative and substantial evidence to support the board's decision." Kisil v. Sandusky , 12 Ohio St.3d 30, 34, 465 N.E.2d 848 (1984) ; see also Dudukovich v. Lorain Metropolitan Hous. Auth. , 58 Ohio St.2d 202, 207, 389 N.E.2d 1113 (1979).

{¶ 27} "An appeal to the court of appeals, pursuant to R.C. 2506.04, is more limited in scope and requires that court to affirm the common pleas court, unless the court of appeals finds, as a matter of law, that the decision of the common pleas court is not supported by a preponderance of reliable, probative and substantial evidence." Kisil , supra , at 34, 465 N.E.2d 848. "In sum, the standard of review for courts of appeals in administrative appeals is designed to strongly favor affirmance. It permits reversal only when the common pleas court errs in its application or interpretation of the law or its decision is unsupported by a preponderance of the evidence as a matter of law." Cleveland Clinic Found. v. Cleveland Bd. of Zoning Appeals , 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161, ¶ 30.

{¶ 28} Here, the trial court took issue with the BZA's position that the Pine Lakes Club is a "guise" or a "pretext" created to fit the use of the properties into a conditionally permitted use. The trial court concluded that "[i]t seems the Zoning Board overstepped, at least in regard to the Liberty Street properties, and based its' entire decision on its unsupported opinion that the private club managed by Ferrara was pre-textual." This conclusion, however, appears to discount the evidence presented to the BZA by Mr. Ferrara and the discussions that occurred at the hearings.

{¶ 29} Mr. Ferrara sought permission to conditionally use his properties as "private clubs." As stated, "club" is defined in LTZR Section 2:2.24 as "[a]n organization of persons for special purposes or for the promulgation of sports, arts, literature, politics, or the like, excluding churches, synagogues, or other houses of worship." The evidence presented, however, established that Mr. Ferrara actually uses the properties to provide temporary lodging to groups of people who are participating in golf travel packages that Mr. Ferrara organizes and sells. Mr. Ferrara described the travel packages, which he organizes in conjunction with local golf courses; the lodging he provides is part of the package. Mr. Ferrara stated he has engaged in this "business" since 2008. He stated the Club was formed in 2014 to "fall in with the policies of the township," but that he did not apply for conditional use permits even at that time. Further support for pretext is that the annual membership dues are only $10.00, which is only paid by the "group leader," and the $10.00 is deducted from the entire cost of the purchased travel package. Additionally, Mr. Ferrara admitted that breakfast is prepared for the guests on-site every morning by paid staff, which is contrary to his assertion that these properties are not being used as bed and breakfast facilities.

{¶ 30} Although the BZA did not issue findings of fact or conclusions of law, nor was it required to do so, it is apparent from the transcript of the hearing that the BZA was not convinced Mr. Ferrara's enterprise is a "private club":

Q: You made reference to the Pine Lake's Club is a not-for-profit?
A: Yes, sir.
Q: And the revenues that are generated - - where do they go?
A: The dues are paid at a nonprofit, which gives them the ability to use the locations and play the golf courses, and they're getting the golf package through Pine Lakes.
Q: But there are the residual revenues that are derived from this activity that would be in some way to support or sustain those facilities - - would they not, sir?
A: Yes, sir - - that's true, through Pine Lakes.
Q: Would you acknowledge that it is - - or sounds like a commercial enterprise?
A: It's an enterprise that brings people into the area and gives them a two (2), three (3) days a week of staying in a facility that they normally wouldn't be into; and part of it - - as far as you're saying "commercial enterprise" - - they're paying money for golf, and they're paying money for their stay with us. So you can determine, I guess, which way you want to call it; but it's still a club just like Youngstown Country Club. They're a club, and they operate, you [know]. We're operating on acreage - - big acreages, and we're not a retail shopping coming in there and - - stay for a night, for one (1) person or ten (10) people in the same facility, that are not part of that group.
Q: I certainly am not adverse to the creation of revenue for the communities involved, but the concept here is residential areas versus commercial area.
A: Uh-huh.
Q: That's - - I mean, that's my interpretation here. It's a residential area is being converted into a commercial enterprise.
[MR. FERRARA'S ATTORNEY]: If I may, Members of the Board, I'd just like to add that regarding your observation of "commercial", conditional uses may be commercial enterprises. If you look at the conditional uses listed in your Ordinance, some of those are. So I don't' think that - - that making income - - revenue for the community is necessarily a dirty word in this connection or is counterproductive to a conditional use granted. What you look at is the other factors stated in your Ordinance - - look at the purpose, the preamble clause, about the overall benefit to the community, compared with the drain on the area in terms of burden on the residential neighborhood, but not necessarily to the extent - - to the extent of whether or not there is money generated by the enterprise.
Q: Well, I would agree that the monetary aspect of this is not the issue, but I would say that - - there are some conflict with the conditional use standards that are cited in Section 5 of the Ordinance.
[ATTORNEY]: I think it's a balancing task. You look at all the factors, and you balance it and make a determination. You do have a great deal of discretion, in that regard, Members of the Board; and I think so the goal would be to look at it, as a whole, in terms of its burdens on the community, which we have heard tonight. There are some - - versus its benefits to the community.
Q: Well, there's a - - there's an obligation, on the part of this Board, to give consideration to the Township, as a whole, and its residents.
[ATTORNEY]: I agree with that sir, yes.
* * *
Q: I would like to comment on that if I could, and address a little bit - - at least my questions regarding how it's operating, the revenue stream. * * * The question before us is - - is this place operating as a private club?

Whereupon the hearing was adjourned to a later time so that the BZA could consult with their attorney for assistance with answering that question.

{¶ 31} Based on Mr. Ferrara's testimony, the BZA's opinion that the Club is a "guise" or a "pretext" finds support in the record. The trial court appears to have improperly substituted its judgment in this regard for that of the BZA.

{¶ 32} As to the two Liberty Street properties, the trial court held the BZA's decision was "arbitrary, capricious and unreasonable as the decision was not supported by a preponderance of substantial, reliable and probative evidence." This conclusion was based, in part, upon the trial court's finding that there was no testimony in opposition to the Liberty Street properties. The trial court stated: "[o]ne witness spoke on behalf of a relative residing on a nearby street and it is not clear from the record which application would directly affect the relative's property."

{¶ 33} It appears from the record, however, that the witness was speaking about one of the Liberty Street properties. The witness to which the trial court refers, Martin Hume, was speaking in opposition on behalf of his aunt, Eleanor Katz. In the documents submitted to the BZA by Mr. Ferrara, he indicates Ms. Katz is a neighbor of "the Chalet," which is one of the Liberty Street properties. Thus, there was testimony in opposition to at least one of the Liberty Street properties.

{¶ 34} As to the Logan Way property, the trial court deferred to the BZA because "there was at least some competent and credible evidence in the record to rebut the evidence put forth by Ferrara[.]" The trial court drew this conclusion from the testimony that was presented to the BZA by the six opposing residents or their designees. While this testimony did rebut some of the evidence put forth by Mr. Ferrara regarding noise, traffic, and disruption to the neighborhood, we also note that the BZA's decision was supported by additional evidence offered by Mr. Ferrara, as referenced above.

{¶ 35} We conclude the trial court's decision as to the Logan Way property is supported by a preponderance of the evidence and the record as a matter of law. The trial court's decision as to the Liberty Street properties, however, is unsupported by a preponderance of the evidence and the record as a matter of law, and the trial court improperly substituted its own judgment for that of the BZA. The BZA's decision in an application such as this, where it exercises discretion concerning a conditional use of property that is not a permitted use, is entitled to great weight. While nothing prohibits the filing of another application for this use, appropriate conditions that govern the proposed use should be established before engaging in the activity.

{¶ 36} Mr. Ferrara's second assignment of error is without merit.

{¶ 37} The BZA's first and second assignments of error are well taken.

{¶ 38} The judgment of the Trumbull County Court of Common Pleas is affirmed in part and reversed in part. This matter is remanded to the trial court to enter judgment affirming the BZA's decisions for all three properties.

THOMAS R. WRIGHT, P.J.,

COLLEEN MARY O'TOOLE, J.,

concur.


source: Caselaw Access Project

author: FROELICH, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Keith A. FYFFE, Defendant-Appellant
    NO. 2016-CA-14
    Court of Appeals of Ohio, Second District, Greene County.
    Rendered on the day of January 12, 2018.
    NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecutor, 61 Greene Street, Xenia, Ohio 45385, Attorney for Plaintiff-Appellee
    APRIL F. CAMPBELL, Atty. Reg. No. 0089541, 545 Metro Place South, Suite 100, Dublin, Ohio 43017, Attorney for Defendant-Appellant
   FROELICH, J.

{¶ 1} Keith A. Fyffe pled guilty to three counts of unlawful sexual conduct with a minor, all third-degree felonies, for which he received consecutive sentences totaling nine years in prison. Fyffe appeals from his conviction, claiming that his plea was not made knowingly, intelligently, and voluntarily, and that his sentence is contrary to law and unsupported by the record. For the following reasons, the trial court's judgment will be affirmed.

I. Procedural History

{¶ 2} According to the presentence investigation report, in 2013, then 14-year-old M.E. (a male) met Fyffe when he (M.E.) was shoveling snow in his neighborhood. Fyffe approached M.E. and asked him if he would like to make money mowing yards in the summer months. The two exchanged contact information. M.E. assisted Fyffe, then 48-years-old, with mowing lawns, and M.E. began to go to Fyffe's home on a regular basis. On one occasion, while Fyffe and M.E. watched a pornographic movie in Fyffe's bedroom, Fyffe physically approached M.E. According to M.E., he and Fyffe performed oral and anal sex on each other on approximately three separate occasions. M.E. revealed the encounters to his mother and brother in June 2015, at which time the police were contacted.

{¶ 3} In September 2015, Fyffe was indicted on eight counts of unlawful sexual conduct with a minor, in violation of R.C. 2907.04(A). The State's bill of particulars alleged that Fyffe had engaged in sexual conduct with M.E. on two occasions between June 1, 2013 and September 15, 2013. Specifically, on the first occasion, Fyffe performed fellatio on M.E. (Count One), M.E. performed fellatio on Fyffe (Count Two), and the two engaged in anal intercourse (Counts Three and Four). The same conduct allegedly occurred on the second occasion (Counts Five through Eight).

{¶ 4} In January 22, 2016, the trial court dismissed Counts Five through Eight at the request of the State. The same day, the State and Fyffe reached an agreement, which stated:

As of January 22, 2016, the negotiated plea is:
With the consent of law enforcement and the victim, the Defendant will plead guilty as charged to [Counts One, Two, and Three]. The State asks the Court to dismiss Count 4. Counts 5, 6, 7 & 8 previously have been dismissed. The Defendant will be classified as a Tier II Sex Offender. The Defendant, defense counsel and the State agree to a sentencing range of zero (0) to five (5) years in prison, with the State recommending five (5) years in prison. Defendant understands this is an agreement between he, the State and defense counsel and defendant faces a maximum sentence of 180 months.

{¶ 5} The trial court conducted a plea hearing, ultimately concluding that Fyffe's guilty plea was being entered knowingly, intelligently, and voluntarily. The court found that Fyffe "has been informed of all of his constitutional rights and he understands the nature of the charges, the effect of his guilty pleas, as well as the possible penalties which could be imposed." The court accepted Fyffe's guilty pleas and ordered a presentence investigation.

{¶ 6} During the presentence investigation, Fyffe informed the investigator that he "felt bad and take[s] complete responsibility for his actions," because he was the adult in the situation. However, he told the investigator that M.E. had expressed interest in "playing around" with him (Fyffe), that M.E. "came on to him" and "manipulated him." Fyffe asserted that "the kid" had initiated the sexual encounters and that he (Fyffe) let himself be seduced because he was vulnerable. Fyffe indicated that he had been molested as a child, and that he would seek counseling for his molestation if granted community control.

{¶ 7} At sentencing, the State recommended that Fyffe be sentenced to five years in prison, in accordance with the plea agreement. Defense counsel and Fyffe spoke on Fyffe's behalf. The trial court imposed sentences of 48 months, 30 months, and 30 months for Counts One through Three, respectively. The court further ordered that the sentences be served consecutively, for an aggregate term of 108 months in prison. The court stated that it "is cognizant of the State's recommendation, but does not find it appropriate in this case."

{¶ 8} Fyffe's original appellate counsel filed a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that he found no non-frivolous issues for appeal. Counsel raised one potential assignment of error, namely that the trial court failed to make the statutory findings before imposing consecutive sentences. Upon our independent review of the record, we concluded that a non-frivolous issue existed as to whether the trial court's imposition of consecutive sentences was clearly and convincingly unsupported by the record. We set aside the Anders brief and appointed new appellate counsel to act as Fyffe's advocate on appeal. We instructed that new counsel should review the entire record and raise any issues that counsel believed had arguable merit. Fyffe, with new counsel, now raises three assignments of error on appeal.

II. Plea Hearing

{¶ 9} In his first assignment of error, Fyffe claims that his plea was not knowingly, voluntarily, or intelligently entered, "because Fyffe was induced to plea[d] by an agreed sentencing range, but the trial court imposed a higher sentence than agreed, without allowing Fyffe to withdraw his plea."

{¶ 10} Crim.R. 11(C)(2) requires the court to address the defendant personally and (a) determine that the defendant is making the plea voluntarily, with an understanding of the nature of the charges and the maximum penalty, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions; (b) inform the defendant of and determine that the defendant understands the effect of the plea of guilty and that the court, upon acceptance of the plea, may proceed with judgment and sentencing; and (c) inform the defendant and determine that he or she understands that, by entering the plea, the defendant is waiving the rights to a jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses, and to require the State to prove guilt beyond a reasonable doubt at a trial at which he or she cannot be compelled to testify against himself or herself. State v. Brown , 2d Dist. Montgomery No. 21896, 2007-Ohio-6675, 2007 WL 4358473, ¶ 3.

{¶ 11} The Supreme Court of Ohio has urged trial courts to literally comply with Crim.R. 11. State v. Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 29. However, because Crim.R. 11(C)(2)(a) and (b) involve non-constitutional rights, the trial court need only substantially comply with those requirements. E.g., State v. Nero , 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). "Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving." Id. In contrast, the trial court must strictly comply with Crim.R. 11(C)(2)(c), as it pertains to the waiver of federal constitutional rights. Clark at ¶ 31.

{¶ 12} Furthermore, when non-constitutional rights are at issue, a defendant who challenges his plea on the basis that it was not knowingly, intelligently, and voluntarily made generally must show a prejudicial effect. State v. Veney , 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 17. Prejudice in this context means that the plea would otherwise not have been entered. Id. at ¶ 15.

{¶ 13} Fyffe claims that he did not knowingly, intelligently, and voluntarily enter his plea, because the trial court imposed a longer sentence than recommended by the State in accordance with the plea agreement. He argues that the trial court did not clearly inform him that he could receive more than five years in prison. (To the extent that Fyffe asserts in his first assignment of error that the trial court should have permitted him to withdraw his plea, we will address that argument in our discussion of his third assignment of error.)

{¶ 14} At the plea hearing, the trial court read the terms of the plea agreement, in which the parties had agreed to a sentencing range of zero to five years in prison, with the State recommending five years. As stated above, the plea agreement further read: "Defendant understands this is an agreement between he [sic], the State and defense counsel and defendant faces a maximum sentence of 180." The court asked Fyffe if he understood the plea agreement, and Fyffe indicated that he did. The trial court and Fyffe then had the following exchange:

THE COURT: Now you understand that's a plea agreement reached between you, your attorney, and the assistant prosecuting attorney and I don't have to follow any portion of it if I find it inappropriate?
MR. FYFFE: I do.
THE COURT: And knowing that you still want to go forward?
MR. FYFFE: Yes, sir.

{¶ 15} The trial court proceeded to inform Fyffe of the maximum sentence he faced for the offenses. Specifically, the court notified Fyffe that the three charges carried "a maximum potential imprisonment totaling 180 months, zero time of which is mandatory. These charges carry with them a maximum potential fine totaling $30,000.00, zero dollars of which is mandatory. These charges carry with them court costs, restitution, and other financial sanctions." The court further informed Fyffe about post-release control and that he would be classified as a Tier II sex offender. The court told Fyffe that he was eligible for community control, but "there's no guarantee you're going to be receiving Community Control." Fyffe indicated that he understood what the trial court had just told him and that he understood that a guilty plea was a complete admission of guilt. The court asked Fyffe, "Do you understand that if you plead guilty the Court may enter a judgment of guilt against you and proceed to sentence you in accordance with the law?" Fyffe responded, "Yes, sir."

{¶ 16} At the conclusion of the plea hearing, the trial court read the three charges to which Fyffe was entering a plea. Fyffe again indicated that he was pleading guilty to those charges. The court asked Fyffe if he was entering his guilty pleas "of [his] own free will," and separately asked if Fyffe was making his pleas knowingly, intelligently, and voluntarily. Fyffe responded "yes" to each of these questions.

{¶ 17} Upon review of the entire transcript of the plea hearing, the trial court complied with the requirements of Crim.R. 11. And as to the terms of the plea agreement, the plea hearing transcript reflects that Fyffe was informed (1) of the maximum penalty he faced under the law, (2) that the trial court was not bound by the sentencing agreement between the parties, and (3) that, upon the entering of a guilty plea, the trial court could proceed to sentence him "in accordance with the law." With this knowledge, Fyffe indicated that he wanted to enter guilty pleas to Counts One, Two, and Three, and that he was doing so knowingly, intelligently, and voluntarily.

{¶ 18} Fyffe's counsel asserted at oral argument that the use of term "agreement," as opposed to "recommendation," regarding the sentence range could have led Fyffe to believe that the trial court would impose a sentence within that range. In addition, it is unclear why the plea agreement phrased the agreed sentencing range in terms of years, whereas the maximum possible sentence was phrased in months. Indeed, it is difficult to understand what is meant by the "agreement" regarding the sentencing range. Since the maximum sentence was 180 months (15 years) in prison and the negotiated plea included the prosecutor's recommendation of five years in prison, the fact that "[t]he Defendant, defense counsel and the State agree to a sentencing range of zero (0) to five (5) years in prison" is, at best, an illusory non-sequitur; at worst, it may suggest, as Fyffe argues, that everyone (i.e., implicitly, the trial court) agrees on a range not exceeding five years, and that the State recommends five years, but pursuant to the agreement, the court could impose less.

{¶ 19} However, the presentence investigation report indicates that Fyffe is a high school graduate with no diagnosed mental health issues. There was no reaction, let alone objection, when a sentence exceeding both the "agreement" and the "recommendation" was announced. Further, the record reflects that the express terms of the plea agreement indicated that the agreement was between the parties only, and the court explicitly told Fyffe, and Fyffe acknowledged, that it did not have to follow the agreement.

{¶ 20} On this record, Fyffe's first assignment of error is overruled.

III. Sentence Contrary to Law

{¶ 21} In his third assignment of error, Fyffe claims that his sentence is contrary to law, because the trial court "could not impose a sentence higher than [the] agreed sentencing range without allowing Fyffe the opportunity to withdraw his plea, without acting outside the confines of the law."

{¶ 22} Plea agreements are generally made between the State and a defendant. State v. Sage , 2d Dist. Montgomery No. 25453, 2013-Ohio-3048, 2013 WL 3776435, ¶ 23. Unless the court involves itself in the plea negotiations or agrees to the terms of the agreement, the trial court is not bound by the plea agreement, and the court may determine the appropriate sentence for the charges to which the defendant has pled guilty or no contest. Id. , citing State v. Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 28.

{¶ 23} We have repeatedly stated that, when the trial court promises a certain sentence at a plea hearing, that promise "becomes an inducement to enter a plea, and unless that sentence is given, the plea is not voluntary." E.g., State v. Anderson , 2d Dist. Montgomery No. 26056, 2014-Ohio-4699, 2014 WL 5409087, ¶ 9 ; State v. Gilroy , 195 Ohio App.3d 173, 2011-Ohio-4163, 959 N.E.2d 19, ¶ 22 (2d Dist.) ; State v. Layman , 2d Dist. Montgomery No. 22307, 2008-Ohio-759, 2008 WL 499280, ¶ 15, quoting State v. Bonnell , 12th Dist. Clermont No. CA2001-12-094, 2002-Ohio-5882, 2002 WL 31415406. On remand for a breach of a plea agreement by the trial court, two possible remedies are available, depending on the circumstances of the case: (1) the trial court must sentence the defendant in accordance with the plea agreement, or (2) if the trial court determines such a sentence is no longer appropriate, it must allow the defendant an opportunity to withdraw his or her guilty plea. Anderson at ¶ 10, quoting Bonnell at ¶ 23.

{¶ 24} Here, the terms of the plea agreement expressly indicated that the plea was between the State, defense counsel, and Fyffe. The trial court was not a party to the agreement, and the agreement further indicated that Fyffe remained subject to a maximum sentence of 180 months in prison. At the plea hearing, the trial court did not agree to sentence Fyffe within the agreed-upon range. To the contrary, the court informed Fyffe that it did not have to "follow any portion of it if I find it inappropriate." Under these circumstances, the trial court was not required to impose a sentence within the range to which the parties had agreed.

{¶ 25} Fyffe asserts that he should have been offered an opportunity to withdraw his plea when the trial court imposed a sentence greater than agreed-upon by the parties. In State v. Willey , 4th Dist. Washington No. 01CA37, 2002-Ohio-2849, 2002 WL 1299876, the parties and the court agreed at the plea hearing that concurrent sentences would be imposed, but the trial court, after reviewing the presentence investigation report, imposed consecutive sentences. The Fourth District affirmed, noting that the trial court had offered the defendant an opportunity to withdraw his plea, but the defendant declined. Id. at ¶ 10-14. In contrast to Willey , Fyffe's plea was not induced by a promise by the court of a particular sentence. Accordingly, the trial court was not required to provide Fyffe an opportunity to withdraw his plea when it imposed a sentence that was harsher than the parties' agreed-upon sentencing range.

{¶ 26} Finally, we note that, at the conclusion of the sentencing hearing, the trial court provided defense counsel an opportunity to raise any issues with the sentence. Fyffe did not object to his sentence or seek to withdraw his plea.

{¶ 27} Fyffe's third assignment of error is overruled.

IV. Consecutive Sentences

{¶ 28} Fyffe's second assignment of error states: "The trial court's sentencing decision should be reversed because the record clearly and convincingly fails to support the trial court's imposition of Fyffe's 108-month consecutive prison term." Fyffe appears to argue that the trial court did not adequately consider Fyffe's likelihood of recidivism ( R.C. 2929.12(D) and (E) ) and the seriousness of his offenses ( R.C. 2929.12(B) and (C) ) in determining that consecutive sentences were necessary.

{¶ 29} Fyffe did not object to consecutive sentences in the trial court. Accordingly, we review the trial court's imposition of consecutive sentences for plain error. State v. Brewer , 2017-Ohio-119, 80 N.E.3d 1257 (2d Dist.). In order to constitute plain error, the error must be an obvious defect in the trial proceedings, and the error must have affected substantial rights. State v. Norris , 2d Dist. Montgomery No. 26147, 2015-Ohio-624, 2015 WL 753346, ¶ 22 ; Crim.R. 52(B). Plain error should be noticed "with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus; State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 23.

{¶ 30} In reviewing felony sentences, appellate courts must apply the standard of review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing, only if it "clearly and convincingly" finds either (1) that the record does not support certain specified findings or (2) that the sentence imposed is contrary to law.

{¶ 31} "The trial court has full discretion to impose any sentence within the authorized statutory range, and the court is not required to make any findings or give its reasons for imposing maximum or more than minimum sentences." State v. King , 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial court must consider the statutory criteria that apply to every felony offense, including those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard , 194 Ohio App.3d 500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis , 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.

{¶ 32} R.C. 2929.11 requires trial courts to be guided by the overriding purposes of felony sentencing. Those purposes are "to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources." R.C. 2929.11(A). The court must "consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both." Id. R.C. 2929.11(B) further provides that "[a] sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing * * *, commensurate with and not demeaning to the seriousness of the offender's conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders."

{¶ 33} R.C. 2929.12(B) sets forth nine factors indicating that an offender's conduct is more serious than conduct normally constituting the offense; R.C. 2929.12(C) sets forth four factors indicating that an offender's conduct is less serious than conduct normally constituting the offense. R.C. 2929.12(D) and (E) each lists five factors that trial courts are to consider regarding the offender's likelihood of committing future crimes. Finally, R.C. 2929.12(F) requires the sentencing court to consider the offender's military service record.

{¶ 34} In general, it is presumed that prison terms will be served concurrently. R.C. 2929.41(A) ; State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 23 ("judicial fact-finding is once again required to overcome the statutory presumption in favor of concurrent sentences"). However, R.C. 2929.14(C)(4) permits a trial court to impose consecutive sentences if it finds that (1) consecutive sentencing is necessary to protect the public from future crime or to punish the offender, (2) consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and (3) any of the following applies:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

{¶ 35} Fyffe conflates the analysis for determining the individual sentences with the analysis for determining whether consecutive sentences are warranted. Although Fyffe claims that the trial court did not adequately consider the factors in R.C. 2929.12, the thrust of his argument appears to be that the trial court erred in imposing an aggregate 108-month sentence. Fyffe does not complain that the individual 48-month, 30-month, and 30-month sentences for Counts One, Two, and Three, respectively, were unsupported by the record.

{¶ 36} In imposing consecutive sentences, the court found, pursuant to R.C. 2929.14(C)(4), that (1) consecutive service was necessary to protect the public from future crime or to punish the defendant, (2) consecutive sentences were not disproportionate to the seriousness of the defendant's conduct and to the danger that he poses to the public, and (3) defendant's history of criminal conduct demonstrated that consecutive sentences were necessary to protect the public from future crime by defendant. The court added, "Due to the seriousness of the offense, the age of the victim, and the Defendant's four prior convictions-one being Gross Sexual Imposition, a felony of the third degree-consecutive sentences are necessary to protect the public and punish the Defendant in this case."

{¶ 37} The presentence investigation report reflects that Fyffe had three felony cases in the 1980s. In April 1982, when Fyffe was 17 years old, he pled guilty to possession of a Schedule II drug, a third-degree felony, for which he received a sentence of one to ten years in prison. In August 1985, when Fyffe was 20 years old, he was convicted of gross sexual imposition, for which he served one year in prison. According to Fyffe, that charge involved his then-girlfriend's 7-year-old son, "who was involved in their sexual life." Fyffe told the presentence investigator that "it was an accident" and that he had taken the blame so the mother would not lose her child. In August 1987, when Fyffe was 22 years old, Fyffe was convicted of two counts of drug abuse, both third-degree felonies; two additional drug charges (a fourth-degree felony and a first-degree misdemeanor) were dismissed. The court imposed consecutive two-year sentences, which were suspended, and Fyffe successfully completed probation. Since 1987, Fyffe has received five speeding tickets.

{¶ 38} When a trial court relies on R.C. 2929.14(C)(4)(c), the trial court must, in essence, find both (1) that the defendant has a criminal history, and (2) that the criminal history "demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender." If an offender has never been in trouble with the law, there is, by definition, no "history of criminal conduct," the analysis ends, and R.C. 2929.14(C)(4)(c) cannot apply. Here, the record reflects, and the trial court found, that Fyffe had prior felony convictions, including a prior conviction for gross sexual imposition. Fyffe has a "history of criminal conduct."

{¶ 39} Because Fyffe had a criminal history, the trial court was required to determine whether his history demonstrated that consecutive sentences were necessary to protect the public from future crime by him. In making this determination, the trial court must apply a calculus that considers, at least, the specific prior offenses, the number of prior offenses, the sentences imposed for those offenses, and the time between those offenses and the current ones.

{¶ 40} As stated above, Fyffe had four prior felonies, one of which was a felony sex offense. The fact that Fyffe had an approximately 26-year period without any other criminal conduct (without incarceration) undermines, to some extent, the trial court's finding that Fyffe's criminal history demonstrated that consecutive sentences were necessary to protect the public from future crime by him.

{¶ 41} However, unlike the federal sentencing guidelines, which seem to not "count" certain offenses or imprisonment older than 15 years, see Federal Sentencing Guidelines Manual 4A1.2(e)(1) (2016), there is generally no similar limitation in Ohio law. As one example, R.C. 2929.13(F)(6) requires a mandatory sentence for a first or second degree felony if the offender had been previously convicted of or pleaded guilty to any first or second degree felony, regardless of the whether the offender had been imprisoned or of the time between the offenses. Similarly, the offense of having weapons while under disability, R.C. 2923.13, has no temporal limit for the conviction creating the disability.

{¶ 42} Where, in contrast, the Ohio legislature has determined that the timing of convictions is significant, it has stated the temporal limitations. See, e.g., R.C. 4511.19 (making repeat OVI offenses within specific time periods more serious). Evid.R. 609(B) also limits evidence of a witness's prior conviction if more than 10 years have passed since the conviction or release from confinement for it, but the rule notably contains an exception allowing for the admission of evidence of the conviction if its probative value substantially outweighs its prejudicial effect.

{¶ 43} The specific facts of this case and of the prior sex offense, including that Fyffe's prior conviction for gross sexual imposition involved a young child, are significant. Also consequential are Fyffe's explanations of his prior gross sexual imposition conviction and his sexual encounters with M.E.; Fyffe described that gross sexual imposition as an "accident" for which he "took the blame," and, in the current offenses, he described himself as vulnerable to the seductions of M.E., not as a sex offender. In addition, the court was entitled to consider the fact that M.E. had alleged three separate occasions in which Fyffe engaged in sexual conduct with him and the substantial age difference.

{¶ 44} Although a close call due to the substantial time gap in Fyffe's criminal convictions, the trial court's imposition of consecutive sentences, based on a finding that Fyffe's "history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender," is not clearly and convincingly unsupported by the record. Fyffe's second assignment of error is overruled.

Conclusion

{¶ 45} The trial court's judgment will be affirmed.

WELBAUM, J., concurs.

{¶ 46} The fact is, it has been more than a quarter century since Fyffe has been convicted of a criminal offense. Had the legislature desired to carve out an exception for sex offenders and mandate those with a prior conviction face a presumption in favor of consecutive terms, it could have done so. It did not.

Where the degree of proof required to sustain an issue must be clear and convincing, a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.

Cross v. Ledford , 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954).

{¶ 47} In my view, Fyffe's criminal history does not constitute such sufficient evidence. I am firmly convinced that the consecutive term is contrary to law; accordingly I would reverse.


author: HALL, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Fate BURNETT, II, Defendant-Appellant
    No. 2017-CA-44
    Court of Appeals of Ohio, Second District, Clark County.
    Rendered on January 12, 2018
    ANDREW PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor's Office, Appellate Division, 50 E. Columbia Street, 4th Floor, Springfield, Ohio 45501, Attorney for Plaintiff-Appellee
    CHRIS BECK, Atty. Reg. No. 0081844, 1370 N. Fairfield Road, Suite C, Beavercreek, Ohio 45432, Attorney for Defendant-Appellant
   HALL, J.

{¶ 1} Fate Burnett appeals from his conviction and sentence on one count of operating a vehicle while intoxicated (OVI), a third-degree felony, and a repeat-offender specification.

{¶ 2} Burnett advances three assignments of error. First, he contends the trial court erred in not providing a requested jury instruction. Second, he alleges ineffective assistance of trial counsel. Third, he challenges the legal sufficiency of the evidence to convict him of OVI.

{¶ 3} The record reflects that Burnett's case proceeded to a jury trial on April 18, 2017. The first witness was Derek Smith, a Springfield police officer. He testified that he responded to 223 South York Street around 1:00 a.m. on January 12, 2017 to investigate a car crashed into the back yard of a house. Upon arriving, he saw a pick-up truck parked in the yard. "The vehicle's engine was revving. The rear wheels were spinning. The vehicle was just rocking." (Trial Tr. at 79). The spinning rear wheels were causing the rear of the vehicle to move from "side to side" and "back and forth" in the mud. (Id. at 81, 91, 115, 118, 124). Upon closer inspection, Smith noticed that the front, passenger-side wheel was "completely broken off." (Id. at 80). Tire tracks and marks in the yard made it appear to Smith as if the spinning wheels actually had caused the truck to change direction somewhat in the yard. (Id. at 92). The only occupant of the vehicle was appellant Burnett, who was in the driver's seat. After being ordered out of the vehicle, an obviously intoxicated Burnett "charged" toward Smith, who was able to restrain him with help from another officer. (Id. at 81-83, 113). Burnett admitted to Smith that he had been drinking at "Waldon's bar" that night. (Id. at 84). He claimed his aunt, Brenda Burnett, who lived at 223 South York Street, had been drinking with him at the bar. He also claimed that she had driven him home from the bar and that she then had asked him to remove the truck from her yard. (Id. at 84, 106). According to Smith, Burnett denied that anyone other than himself and his aunt had driven the truck that night. (Id. at 107). At another point, Burnett claimed his father had driven the truck and that someone named Cody Kizer had dropped him off. (Id. at 107, 116). After refusing a breath test and refusing to perform field-sobriety tests, Burnett was arrested for OVI. (Id. at 88-97, 109, 111).

{¶ 4} Sergeant James Byron testified that he arrived on the scene after Burnett's arrest. He observed the truck sunk in mud with "lots of tracks where the vehicle had been slipping and sliding around." (Id. at 133). Byron stated that "[t]here were obvious marks where the truck had gone off the road, and then where there were multiple attempts of trying to go back and forth to get it back on the road." (Id. at 136). It appeared to Byron as if the truck had moved in the yard based on "obviously multiple tire patterns where the truck had gone back and forth and slid around." (Id. at 138).

{¶ 5} The next witness was police officer Justin Lowe. He stated that he was on patrol with Smith at the time of the incident. Lowe provided testimony similar to Smith's. He testified that he saw Burnett in the truck, which was rocking back and forth in the yard. He also testified that Burnett was obviously intoxicated and had admitted drinking that night. (Id. at 147-150). In addition, Lowe confirmed that Burnett declined a breath test and declined to perform any field-sobriety tests. (Id. at 154-155).

{¶ 6} Appellant Burnett's aunt, Brenda Burnett, also testified as a prosecution witness. She stated that she heard a banging noise outside her house followed, after about a ten-minute delay, by "an engine gunning like it was stuck, a car was stuck." (Id. at 164). Brenda Burnett explained that she had worked at Waldon's bar earlier in the evening, but her shift had ended at 10:00 p.m. She added that she had not seen appellant Burnett in the small bar that evening before she left. (Id. at 165-166). In fact, she testified that she had not seen him for two or three weeks prior to the incident in question. (Id. at 165). Brenda Burnett also stated that she had not seen Cody Kizer or appellant Burnett's father, Joel Luking, that evening. (Id. at 168). Brenda Burnett denied asking appellant Burnett to move the truck and denied driving the truck that evening. (Id. at 168-170).

{¶ 7} Brenda Burnett's husband, Charles Porter, also testified for the State. He explained that "commotion" outside awoke him from his sleep. (Id. at 179). He went outside and saw the truck in the mud. He then went back into the house and told his wife, "There's some kid out there stuck in my lot." (Id. at 179). Porter could not determine the identity of the person. Nor could he tell how many occupants were in the truck. (Id. at 179-180). It only took Porter a couple of minutes to go outside after hearing the commotion, and he did not see anyone exit the truck, which was "[m]oving back and forth." (Id. at 180). Porter also went back outside again before the police came, and he did not see anyone leave or arrive at the property. (Id. at 181). Porter eventually recognized appellant Burnett when he was removed from the truck and arrested. (Id. ).

{¶ 8} Following Porter's testimony, the parties stipulated to Burnett's prior OVI convictions. After the admission of its exhibits, the State rested. The trial court denied a Crim.R. 29 motion predicated on (1) a lack of evidence that Burnett drove the truck prior to it being observed in the yard and (2) the truck being inoperable in the yard due to the broken wheel. (Id. at 187-190).

{¶ 9} Defense counsel then called two witnesses. The first was Jade Carpenter. She testified that appellant Burnett was the half-brother of her fiancé, Cody Kizer. (Id. at 191-192, 201). According to Carpenter, she was home with Kizer in the early morning hours of January 12, 2017. She stated that between approximately 12:00 a.m. and 1:00 a.m., Kizer woke her and said he had to go pick up Burnett. (Id. at 193). Kizer then left, and Carpenter went back to sleep. (Id. at 195). After later receiving a call from Kizer, Carpenter said she went and picked him up at Brenda Burnett's house because the truck, which Kizer had been driving, was broken. (Id. at 196). Carpenter testified that after picking up Kizer, they both proceeded to "Jimmy T's bar," where they picked up appellant Burnett. (Id. at 197). Carpenter explained that the trio then returned to Brenda Burnett's house, where she and Kizer dropped off appellant Burnett at the truck. (Id. at 198). Carpenter claimed she and Kizer returned later in the morning to find the truck and appellant Burnett gone. (Id. at 200, 213-214).

{¶ 10} Cody Kizer also testified as a defense witness. He stated that an intoxicated Burnett called him from Jimmy T's bar and requested a ride. Kizer explained that he was driving the truck to get Burnett when a tie rod broke as he crossed a railroad track. Kizer happened to be going past Brenda Burnett's house at the time, so he pulled into her yard. (Id. at 221-222). He then called Carpenter to pick him up in her car. The two of them proceeded to Jimmy T's to get appellant Burnett. (Id. at 223). They then returned to the truck and dropped Burnett off there with the intention of borrowing a trailer to retrieve the vehicle. (Id. ). He returned hours later after sunrise to look for Burnett but did not find him there. (Id. at 224). He also discovered that the truck was gone. (Id. at 225). On cross examination, Kizer stated that he left Burnett alone with the broken truck and the keys to it for several hours before returning because Burnett was intoxicated and annoying. (Id. at 229-230).

{¶ 11} Based on the evidence presented, a jury found Burnett guilty of OVI in violation of R.C. 4511.19(A)(1) and (A)(2). With regard to both offenses, it also found that he previously had been convicted of felony OVI and that he had five or more OVI violations within the previous twenty years. (Doc. #19, 20). The trial court merged the two counts for sentencing, and the State elected to proceed on the R.C. 4511.19(A)(1) violation, a third-degree felony. The trial court imposed a three-year prison sentence for the OVI offense and a consecutive four-year prison term on a repeat-offender specification. (Doc. #21). It also suspended Burnett's driver's license for life, imposed a fine, and ordered him to pay court costs.

{¶ 12} In his first assignment of error, Burnett challenges the trial court's denial of his request for a special jury instruction regarding operation and operability of the truck.

{¶ 13} The statute under which Burnett was convicted, R.C. 4511.19(A), provides among other things that "[n]o person shall operate any vehicle * * * if, at the time of the operation," that person is under the influence of alcohol. Prior to trial, Burnett requested the following instruction on the issue of "operation" and "operability":

Operation of a motor vehicle within the contemplation of the statute is a broader term than mere driving and a person in the driver's position in the front seat with the ignition key in his possession indicating either his actual or potential movement of the vehicle while under the influence of alcohol or any drug of abuse can be found in violation of R.C. 4511.19(A)(1). However, inoperability is a defense where there is insufficient evidence to support the finding that at [the] time the defendant was in the driver's position in the front seat with the ignition key in his possession that the vehicle was immobile, not capable of movement or potential movement then the defendant was not at that time in operation of the motor vehicle and you must find him not guilty.

(Doc. #17).

{¶ 14} Burnett argued below that the foregoing instruction was warranted under State v. Mackie , 128 Ohio App.3d 167, 714 N.E.2d 405 (1st Dist.1998). The trial court disagreed. It found Mackie distinguishable. It also concluded that R.C. 4511.01(HHH), which was enacted subsequent to Mackie , adequately defined "operate" for purposes of the OVI statute. (Tr. at 245-246).

{¶ 15} "Requested jury instructions should ordinarily be given if they are correct statements of law, if they are applicable to the facts in the case, and if reasonable minds might reach the conclusion sought by the requested instruction. * * * An appellate court reviews a trial court's refusal to give a requested jury instruction for abuse of discretion." (Citations omitted.) State v. Adams , 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 240.

{¶ 16} We see no abuse of discretion here. The first sentence of Burnett's requested instruction is no longer a correct statement of law. "Potential movement" of a vehicle by an intoxicated person in the driver's seat with an ignition key does not constitute a violation of R.C. 4511.19(A)(1). Prior to 2004, no statutory definition of "operate" existed for purposes of OVI, and the Ohio Supreme Court had defined the term broadly to encompass " 'actual or potential movement of the vehicle' " by " 'a person in the driver's position in the front seat with the ignition key in his possession.' " State v. Anderson , 1st Dist. Hamilton No. C-160920, 2017-Ohio-8641, 2017 WL 5629570, ¶ 12, quoting State v. Cleary , 22 Ohio St.3d 198, 199, 490 N.E.2d 574 (1986). In 2004, however, the General Assembly defined the term "operate" as meaning "to cause or have caused movement of a vehicle[.]" R.C. 4511.01(HHH). The Mackie case cited by Burnett pre-dates the definition of "operate" in R.C. 4511.01(HHH). Under the statutory definition, an OVI conviction requires actual movement of a vehicle by an intoxicated person, not "potential movement." Therefore, the first sentence of Burnett's requested instruction misstated existing law.

{¶ 17} The second sentence of the requested instruction is faulty for multiple reasons. First, it is confusing and inaccurate. It reads that "inoperability is a defense where there is insufficient evidence to support the finding that at [the] time the defendant was in the driver's position * * * the vehicle was immobile, not capable of movement or potential movement[.]" This language is incorrect insofar as it continues to discuss "potential movement" in the context of an OVI offense. In addition, it literally states that "inoperability" is a defense where the evidence is insufficient to support a finding that the vehicle was immobile. But the logical result would be mobility , not immobility, if the evidence were insufficient to support a finding that the vehicle was immobile. The second sentence of the requested instruction also loosely resembles and relates to a new offense created by the General Assembly in 2004, having physical control of a vehicle while under the influence of alcohol. See R.C. 4511.194(B) (prohibiting being "in physical control of a vehicle" while under the influence of alcohol). For purposes of that offense, " '[p]hysical control' means being in the driver's position of the front seat of a vehicle * * * and having possession of the vehicle's * * * ignition key or other ignition device." R.C. 4511.194(A)(2). Here Burnett was charged with operating a vehicle while intoxicated, not having "physical control" of a vehicle while intoxicated. Therefore, the second sentence of the requested instruction was neither particularly pertinent nor necessary.

{¶ 18} With regard to operability and whether Burnett operated the truck at issue, the trial court gave the jury the statutory definition of "operate" set forth in R.C. 4511.01(HHH). (Tr. at 273-274). Under that definition, Burnett correctly could not be convicted unless he caused movement of the truck. Upon review, we cannot say the trial court abused its discretion in instructing the jury as it did or in rejecting Burnett's requested instruction. The first assignment of error is overruled.

{¶ 19} In his second assignment of error, Burnett alleges ineffective assistance of trial counsel based on (1) his attorney's failure to request an instruction on the "lesser-included offense" of physical control under R.C. 4511.194(B) and (2) his attorney's "manner in * * * argu[ing] for the jury instruction on operability."

{¶ 20} We quickly may dispose of the second issue. Regardless of how defense counsel might have argued for the proposed instruction discussed above, it was an incorrect statement of law and unwarranted in the context of an OVI charge. Therefore, the trial court did not err in refusing to give it and, instead, instructing the jury consistent with R.C. 4511.01(HHH).

{¶ 21} The real issue raised by Burnett's second assignment of error concerns his attorney's failure to request an instruction on the offense of having physical control of a vehicle while under the influence of alcohol in violation of R.C. 4511.194(B).

{¶ 22} To prevail on an ineffective-assistance claim, a defendant must show deficient performance and resulting prejudice. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show deficiency, a defendant must show that trial counsel's representation fell below an objective standard of reasonableness. Id. Prejudice exists and a reversal is warranted only where a defendant shows a reasonable probability that but for counsel's deficient performance the result of the proceeding would have been different. State v. Bradley , 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989).

{¶ 23} We see no ineffective assistance here. As a threshold matter, at least one Ohio appellate district has held that a violation of the physical-control statute is not a lesser-included offense of OVI. See State v. Taylor , 9th Dist. Lorain No. 12CA010258, 2013-Ohio-2035, 2013 WL 2152634, ¶ 7 ("[W]hile a person could operate a bicycle in violating R.C. 4511.19(A)(1)(d), a person could not be in physical control of it for the purposes of R.C. 4511.194(B)(2). Therefore, it is possible to violate R.C. 4511.19(A)(1)(d) without also violating R.C. 4511.194(B)(2), meaning that R.C. 4511.194(B)(2) is not a lesser-included offense of R.C. 4511.19(A)(1)(d)."). We need not resolve that issue, however, because we find no ineffective assistance even assuming, arguendo, that a violation of the physical-control statute is a lesser-included offense of OVI.

{¶ 24} An instruction on the physical-control statute as a lesser-included offense of OVI would be proper only if the jury reasonably could have found Burnett not guilty of OVI and guilty of having physical control of a vehicle while under the influence of alcohol.

State v. Landers , 2d Dist. Greene No. 2015-CA-74, 2017-Ohio-1194, 2017 WL 1193799, ¶ 87-89 (finding no basis for a lesser-included offense instruction where the evidence was such that the jury reasonably could not have acquitted the defendant on the charged offense and convicted him on the lesser-included offense). To reach such a conclusion, the jury would have been required to find that Burnett, who was indisputably intoxicated, did not cause "movement" of the truck, but that he was in "physical control" of the truck because he was in the driver's seat and had possession of the vehicle's ignition key. Even viewing the evidence in the light most favorable to Burnett, as we must in the context of a lesser-included-offense instruction (see Landers at ¶ 87 ), the record fails to support a finding that he did not cause "movement" of the truck.

{¶ 25} We reach the foregoing conclusion for two reasons. First, as we will explain more fully in our analysis of the third assignment of error below, circumstantial evidence supports an inference that Burnett actually drove the vehicle on the road before it came to a stop in the yard. Second, even if the jury were to believe Burnett's witnesses' testimony, the record contains uncontroverted evidence that police saw him in the driver's seat "gunning" the engine and spinning the rear wheels, which caused the truck's rear end to slide around and to move from side to side. Photographs of multiple tire tracks in the mud indicate that the truck's rear end moved several feet. (Tr. at State's Exh. 4-6). As set forth above, the OVI statute makes it unlawful to "operate" a vehicle while under the influence of alcohol. The legislature has defined the term "operate," simply and unambiguously, as meaning "to cause or have caused movement of a vehicle[.]" R.C. 4511.01(HHH). Even under Burnett's version of events, he caused movement of the truck. Therefore, the jury reasonably could not have acquitted him of OVI and convicted him under the physical-control statute. That being so, there was no basis for a lesser-included offense instruction. The second assignment of error is overruled.

{¶ 26} In his third assignment of error, Burnett challenges the legal sufficiency of the evidence to sustain his OVI conviction. He cites the testimony of Carpenter and Kizer to support his claim that Kizer drove the truck to the yard where police observed it. He also argues that the truck was inoperable in the yard when police saw him in the driver's seat revving the engine and spinning the rear wheels. Based on this claim of inoperability, Burnett contends he cannot be convicted of OVI for his actions in the driver's seat.

{¶ 27} When a defendant challenges the sufficiency of the evidence, he is arguing that the State presented inadequate evidence on an element of the offense to sustain the verdict as a matter of law. State v. Hawn , 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d Dist.2000). "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 28} With the foregoing standards in mind, we find legally sufficient evidence to support Burnett's OVI conviction under either of two theories. First, circumstantial evidence supports an inference that an intoxicated Burnett drove the truck to the yard where police found it with a broken wheel. When questioned by police, Burnett gave seemingly conflicting stories about who had driven. He also claimed to have been with Brenda Burnett, but she refuted his assertion. She denied having been with him or seeing him that evening. Charles Porter also testified that it only took him a couple of minutes to go outside after hearing commotion. He did not see anyone exit the truck, which was moving back and forth. He also waited outside before police came and did not see anyone arrive or leave. The only person on the scene when police arrived was Burnett. The foregoing evidence, if believed, supports a reasonable inference that Burnett was driving the truck when it left the road and stopped in the yard. We note too that the testimony of Carpenter and Kizer reasonably could have been rejected by the jury. Having reviewed a transcript of their testimony, we find the credibility of these witnesses is questionable. Among other things, the jury reasonably could have rejected Kizer's claim that he and Carpenter dropped Burnett off at the truck and left him there with the keys, alone at night in January for several hours, before returning after daylight to look for him. Kizer's explanation for this seemingly implausible action was that Burnett was intoxicated and annoying. Contrary to Kizer's testimony, the jury reasonably could have concluded that Burnett drove himself to the location in the yard where police found him in the driver's seat revving the engine.

{¶ 29} Second, the jury reasonably could have found Burnett guilty based on the police officers' observation of him operating the truck. The OVI statute, R.C. 4511.19(A), provides among other things that "[n]o person shall operate any vehicle * * * if, at the time of the operation," that person is under the influence of alcohol. As set forth above, the term "operate" means "to cause or have caused movement of a vehicle[.]" R.C. 4511.01(HHH). The State presented uncontroverted evidence that Burnett caused the truck to move appreciably from side to side in the mud when he revved the engine and spun the rear wheels. Because the vehicle was able to move in the yard, it necessarily was operable within the meaning of R.C. 4511.19(A). Thus, we find legally sufficient evidence to support a finding that Burnett operated the vehicle in violation of the OVI statute. The third assignment of error is overruled.

{¶ 30} The judgment of the Clark County Common Pleas Court is affirmed.

WELBAUM, J., concurs.

{¶ 31} I agree that there was sufficient circumstantial evidence that appellant operated the vehicle on the road before it got stuck in the yard.

{¶ 32} I would not reach the issue as to whether the action of the truck's rear end constituted "operation" as defined in R.C.4511.01(HHH).