Two cases from the 11th District, granting an appeal in one case after the trial court admitted into evidence a defendant's prior OVI convictions over his offer to stipulate to the prior convictions, and modifying a sentence in a second case after misapplication of the sentencing statutes.
Mr. Baird was charged with violating R.C. 4511.19(A)(2)(a) and (b), which make it a crime for someone who has been convicted of or pleaded guilty to an OVI within the past 20 years to refuse a chemical test. Baird offered to stipulate that he had a prior OVI conviction, but the prosecution refused and put the prior convictions into evidence.
Baird argued that Evidence Rule 403(A) was violated, which provides, ""Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice * * *." Baird argued that it was prejudicial to admit evidence of his prior OVI convictions because it was not needed after his offer to stipulate, and "it tended to show not merely that he is a repeat offender, but an habitual, chronic offender."
The 11th District agreed with Baird, finding the trial court had abused its discretion by admitting evidence of the prior convictions. Citing Old Chief v. United States, 519 U.S. 172 (1997), the 11th District concluded, "the admission into evidence of Mr. Baird's prior OVI conviction, when he was willing to stipulate he had a prior conviction, was unfairly prejudicial, as it gave the jury an improper basis for the instant verdict."
Norquest plead guilty to a count of R.C. 4511.19(A)(1)(a) with a repeat OVI offender specification under R.C. 2941.1413. The trial court, " sentenced appellant to 12 months plus 60 days imprisonment for the underlying OVI offense and 2 years imprisonment for the specification, to run consecutively to each other, for a total of 3 years and 60 days."
Norquest appealed the length of his sentence. The 11th District agreed with one of his arguments:
The trial court sentenced appellant to 12 months plus a mandatory 60 days on the underlying OVI offense. However, as provided in R.C. 4511.19(G)(1)(d)(i), a mandatory 60 days is only an option if the offender has not also been convicted of the repeat offender specification. Because appellant was convicted on the specification, the trial court's sentencing options for the underlying OVI offense were either one, two, three, four, or five years. Accordingly, the additional 60-day portion of appellant's sentence on the underlying offense exceeded the trial court's authority under R.C. 4511.19 and is clearly and convincingly contrary to law.
The 11th District did not agree with Norquest's other challenges to his sentence, however. In particular, his argument that the trial court did not follow sentencing guidelines was rejected because, "Appellant has not presented any evidence to rebut the presumption that the court considered the purposes and factors of felony sentencing in R.C. 2929.11 and R.C. 2929.12 before imposing appellant's sentence."
A court imposing a felony sentence is also required to consider seriousness and recidivism factors found in R.C. 2929.12. However, it is well established that a trial court "is not required to make findings of fact under the seriousness and recidivism factors in R.C. 2929.12." Further, "a trial court's failure to state on the record that it considered the factors in R.C. 2929.11 and R.C. 2929.12 raises a presumption that the trial court considered them." "[T]he burden is on the defendant to present evidence to rebut the presumption that the court considered the sentencing criteria."