Appeals Court Examines DUI / OVI Sentence Changed After Hearing


Raymond Wells walked out of court thinking he knew his sentence and was probably surprised when he later learned it included more than what the judge told him in the courtroom. There is a common saying in the law that “the court speaks through its entries”. What happens if the judge says one thing in open court but another in the sentence entry? A recent case from the Sixth District Court of Appeals gives us an answer.

The case is State v. Wells. Wells was originally charged with OVI ‘per se’, OVI ‘impaired’, and Marked Lanes. His lawyer negotiated with the prosecutor and reached a plea agreement. According to the plea agreement, the prosecutor would dismiss the charge of Marked Lanes, dismiss one charge of OVI, and amend the other charge of OVI to a charge of Physical Control Under the Influence.

The Judge Told The Defendant The Sentence
Wells appeared before the judge for a plea hearing. The prosecutor did not appear but did provide the judge with a written motion containing the plea agreement. Wells pled guilty to Physical Control, and the judge verbally announced the sentence. The announced sentence was: (1) 33 days in jail with three to be served in a driver intervention program and 30 suspended; and (2) a fine of $375 plus court costs. The judge also made reference to granting driving privileges and imposing a license suspension if the fine weren’t paid.


After The Defendant Left, The Judge Increased The Sentence
Later that day, the judge’s sentencing entry was filed with the clerk of court office. The sentencing entry had two additional elements of the sentence which were not announced in open court. The first was 24 months of probation with substance abuse counseling, and the second was a 12-month driver license suspension.

The Defendant Appealed The Sentence
Wells appealed the sentence to the Sixth District Court of Appeals. The Court of Appeals cited to the requirement in Rule 43 of the Ohio Rules of Criminal Procedure, which requires the defendant’s physical presence at every stage of the proceedings, including the imposition of sentence. It is arguable the judge implicitly referenced probation during the sentence hearing because the judge said 30 days of the jail sentence were suspended, and suspended sentences are often associated with the imposition of probation. It could also be argued the judge intended to impose a driver license suspension, as the judge indicated driving privileges could be granted.

The Appeals Court Examined The Sentence
The Court of Appeals concluded the references by the judge to a suspended jail sentence and driving privileges were not sufficient to make probation and a driver license suspension part of the sentence. The appellate court found the added sentencing violated the defendant’s Criminal Rule 43 right to be present and amounted to an abuse of discretion by the judge.

The Appeals Court Modified The Sentence
The Court also found the additional penalties after-the-fact amounted to an abuse of discretion by the judge. Accordingly, the Court of Appeals modified the sentence entry to vacate the portions ordering probation and a license suspension.  Modifying the sentence was found to be the appropriate remedy by this particular panel of the Sixth District Court of Appeals. This case illustrates the importance of hiring good DUI defense lawyers who pay attention to all the details.

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