COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68591 : ACCELERATED DOCKET CITY OF EUCLID : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION JOHN McGRAW : : : Defendant-Appellant : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 17, 1995 CHARACTER OF PROCEEDING : Criminal appeal from Euclid Municipal Court Case No. 81-TRC-3352 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: DAVID J. LOMBARDO PAUL MANCINO, JR. Prosecutor, City of Euclid 75 Public Square NEIL MYERS, Assistant Suite 1016 545 East 222nd Street Cleveland, Ohio 44113-2098 Euclid, Ohio 44123-9987 - 2 - PER CURIAM: Appellant John McGraw appeals from the January 17, 1995 order of the trial court overruling his motion to vacate the judgment permanently revoking his driver's license. For the reasons set forth below, we affirm. The history of the case reveals that on May 18, 1981, police arrested and cited appellant for the offense of operating a motor vehicle while under the influence of alcohol in violation of Euclid City Ordinance 333.01(A). On May 22, 1981, appellant, at arraignment, entered a plea of not guilty and filed a demand for trial by jury. The court scheduled the case for pretrial on June 3, 1981, but continued the matter to June 5, 1981 at the request of appellant's counsel. Thereafter, upon motion of the prosecutor and with the consent of appellant, the court amended the charge on July 5, 1981, to driving while under the influence of alcohol in violation of R.C. 4511.19, and scheduled the case for trial on July 20, 1981; because appellant failed to appear for trial, the court issued a capias for his arrest. Almost five years later, on March 14, 1986, the court again issued a second capias on this case for appellant. On March 5, 1992, almost eleven years from the time of arrest, appellant, with counsel, withdrew his plea of not guilty, and entered a plea of guilty to driving while - 3 - under the influence in violation of R.C. 4511.19. The judge thereafter journalized the following: "*** Defendant is sentenced to a fine of $1,000 and cost. Jail of 182 days in County jail, *** . Furthermore, defendant's driving rights are permanently revoked." Appellant since has paid the fine and costs in full and served the jail sentence. On March 7, 1994, however, appellant filed a pro se motion to vacate the judgment, challenging the imposition of the fine and permanent revocation of his driver's license. The court, on January 17, 1995, overruled the motion with the following journal entry: "The Court finds that defendant evaded trial for 11 years. During the pendency of this matter on one occasion a specially called jury was in place to hear defendant's case but defendant failed to appear. Defendant forfeited two (2) bonds. Defendant left the State of Ohio removing himself to South America. When brought into court the final time defendant was represented by prominent criminal defense attorney Thomas M. Shaughnessy. At the final Pre Trial, with Mr. Shaughnessy present, a Pre Trial agreement was arranged and as a result thereof defendant entered a plea to the original charge of DUI. Defendant was sentenced pursuant to the Pre Trial Agreement. Defendant's attorney never objected to the sentence. Defendant's sentence was carried out including Jail, payment of Fine and Costs and Drivers License revocation. Wherefore, defendant's pro se Motion is not well taken and is overruled." Appellant now appeals from that order and assigns three errors for our review, challenging the court's action in permanently revoking his driving privileges in the State of Ohio. - 4 - I and II. Appellant's first and second assignments of error share a common basis in law and fact and, therefore, will be addressed together. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT REFUSED TO CORRECT AN ILLEGAL SENTENCE WHICH EXCEEDED ITS STATUTORY AUTHORITY. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT IMPROPERLY AND ILLEGALLY PERMANENTLY REVOKED THE LICENSE OF THE DEFENDANT WHICH WAS UNAUTHORIZED BY LAW. Although appellant assigns denial of due process as error, the position he argues is that the trial court exceeded its authority in permanently revoking his driver's license because, he claims under R.C. 4507.16, the maximum period that a driver's license may be revoked is three years. Appellee urges that R.C. 4507.16 authorizes a trial court, in its discretion, to permanently revoke a person's driver's license or to suspend it for a period of up to three years. The issue then, presented to this court, is whether R.C. 4507.16 authorized the trial court to permanently revoke appellant's driver's license in this case. We begin by observing that appellant does not contest imposition of the fine or jail time in this appeal. Since appellant has paid the fine and served the jail time, those issues are now moot. See State v. Berndt (1987), 29 Ohio St.3d 3. Here, however, we choose to consider the permanent revocation of - 5 - driving privileges because we infer revocation as a collateral disability resulting from the conviction and sentence. Since appellant was charged with driving while under the influence of alcohol fourteen years ago in 1981, we must examine the penalty as it existed at that time. R.C. 4507.16 read, in relevant part, as follows: "The trial judge of any court of record shall *** suspend for not less than thirty days nor more than three years or revoke the license of any person who is convicted or pleads guilty to any of the following: "(B) Operating a motor vehicle while under the influence of alcohol ***." (Emphasis added) It also contained the following language: " * * * The trial judge of any court of record shall, in addition to suspensions or revocations of licenses for periods of time not exceeding three years, * * *." Appellant believes that this quoted statutory language imposes a three year limit on the term of a license revocation and urges us to direct that the trial judge exceeded authority in refusing to vacate the permanent license revocation. Further, appellant cites Cincinnati v. Ryan (1968), 13 Ohio St.2d 83, as additional authority in support of his position. We find, however, the per curiam opinion issued in Cincinnati v. Ryan, supra states: "Under Section 4507.16, Revised Code, relating to the suspension or revocation of drivers' licenses, a driver's license may be revoked or it may be suspended for a maximum of three years for driving while intoxicated." (Emphasis added) - 6 - Thus, we conclude that the two actions of revocation and suspension mentioned in the code are disjunctive and the trial judge may exercise discretion to impose either sanction. Further, the Ohio Supreme Court, in State v. White (1987), 29 Ohio St.3d 39, stated in its syllabus of the case: "R.C. 4507.16(A) authorizes a trial court, in its discretion, to permanently revoke a person's operator's license." The court in White went on to state at page 40: "Furthermore, R.C. 4507.16(A) provides that a license suspension is explicitly limited to a minimum term of thirty days up to a maximum term of three years. No such limiting phrase, however, follows that conjunctive phrase 'or revoke.' It is thus apparent that the General Assembly left to the discretion of the trial judge the length of time for a license suspension under R.C. 4507.16(A) within certain parameters and further granted the trial court judge the discretion to revoke the license." (Emphasis added) And in State v. Kivell (1983), 11 Ohio App.3d 12, the court, in interpreting R.C. 4507.16 as it existed in 1981, and in dealing with a non-resident, found this section authorized the trial court to suspend or revoke that license. Our research further shows that on March 16, 1983, the legislature amended R.C. 4507.16 to delete some language upon which appellant relies from this section, but still authorized the trial judge to either revoke or suspend driving privileges. In this case, we conclude, based on the authority of Cincinnati v. Ryan, State v. White, and State v. Kivell, that the trial judge had the authority, pursuant to R.C. 4507.16, to permanently revoke appellant's driver's license. As such, - 7 - appellant's first and second assignments of error are not well taken and are overruled. III. THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL. Appellant argues he was denied due process when his trial counsel agreed, in a pretrial agreement, to permanent revocation of appellant's driver's license. Appellee believes appellant was not denied effective assistance of counsel because appellant was sentenced according to a pre-trial agreement and defense counsel did not object to the agreement. The issue for this court, then, is whether appellant was denied due process because of ineffective assistance of counsel. We begin our analysis of this issue with State v. Post(1987), 32 Ohio St.3d 380, which set forth the test to demonstrate a claim of ineffective assistance of counsel at page 388: "In Strickland v. Washington (1984), 466 U.S. 668, the United States Supreme Court enunciated the following two-pronged standard for determining whether counsel's assistance was ineffective: 'First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial ***." - 8 - In this case, defense counsel and appellant entered into a plea agreement, which included permanent revocation of appellant's driver's license as part of the sentence. The record before us does not reveal that appellant objected at the time to this penalty. We cannot conclude that counsel's actions constituted deficient performance, nor can we conclude that the attorney's conduct in any fashion prejudiced the defense. The journal entry of the trial court would suggest the absence of the appellant, the missed trial date, and the forfeiture of two bonds, inter alia may have influenced the sentence more than alleged ineffective assistance of counsel. Based on this record we do not find counsel was ineffective. Accordingly, this assignment of error is not well taken. Affirmed. - 9 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Euclid Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SARA J. HARPER, PRESIDING JUDGE DONALD C. NUGENT, JUDGE (Judge Nugent concurred in this Journal Entry and Opinion prior to his leaving office on July 4, 1995.) TERRENCE O'DONNELL, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .