COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70536 STATE OF OHIO, : VILLAGE OF CUYAHOGA HEIGHTS : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION MARK A. CAMPOY : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 9, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Garfield Heights Municipal Court Case Number 96 TRC 00768 AE JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: CHARLES T. RIEHL, Village Solicitor JONATHAN D. GREENBERG Walter & Haverfield P.L.L. 1300 Terminal Tower Cleveland, Ohio 44113 For Defendant-Appellant: PAUL B. DAIKER Zukerman & Daiker 2000 East Ninth Street Suite 700 Cleveland, Ohio 44115 - 2 - O'DONNELL, J.: Mark A. Campoy appeals from the judgment of the Garfield Heights Municipal Court finding him guilty of driving under the influence of alcohol and driving under suspension. The record in this case reveals that Campoy had been arrested on October 27, 1995 for driving under the influence of alcohol and the arresting officer imposed an administrative license suspension (ALS). Subsequently, the Medina Municipal Court granted Campoy limited driving privileges, but, on January 17, 1995, convicted him of driving under the influence of alcohol and suspended his license from the date of his arrest through October 26, 1996; however, the court continued his limited driving privileges on condition of an ignition interlock. Then, on January 17, 1996, the Medina Court removed Campoy's ignition interlock requirement and continued his limited driving privileges for employment, school, emergency or medical reasons but stated that the order was, "not valid if alcohol consumed." The instant matter arose eleven days after the court removed the ignition interlock requirement on Sunday, January 28, 1996 at 12:42 a.m., when Campoy while operating a friend's 1984 AMC westbound on Grant Avenue, suddenly turned left to enter I-77 in the path of Cuyahoga Heights Patrolman Frank Studio who was eastbound on Grant Avenue. The officer activated his emergency lights, stopped Campoy, administered several field sobriety - 3 - tests, and cited Campoy for failure to yield, driving under the influence of alcohol, driving under suspension, and for violating the ignition interlock requirement. In addition, because Campoy refused to take a chemical test, the patrolman administratively suspended his limited driving privileges pursuant to 4511.191(a)(1). Prior to trial, Campoy filed a motion to dismiss the case on the grounds that prosecution after imposition of an administrative license suspension constituted double jeopardy. The village opposed the motion, and the court found it not well taken and overruled it on March 11, 1996. Thereafter, on April 10, 1996, Campoy pleaded no contest to driving under the influence of alcohol and driving while his license was under suspension, the court found him guilty and nolled the remaining charges. The next day, the court sentenced him to consecutive terms of incarceration of 180 days on each offense; imposed fines of $1,000 on each offense, but suspended $500 on each fine; and also suspended his license for consecutive terms of five years on the DUI and one year on the DUS. Campoy now appeals his convictions for driving under the influence of alcohol and driving under suspension and assigns two errors for our review. The first assignment of error states: THE TRIAL COURT ERRED IN FINDING THAT A CRIMINAL PROSECUTION UNDER 4511.19 OF THE OHIO REVISED CODE - 4 - FOLLOWING AN ADMINISTRATIVE LICENSE SUSPENSION UNDER 4511.191 OF THE OHIO REVISED CODE DOES NOT CONSTITUTE MULTIPLE PUNISHMENTS FOR THE SAME OFFENSE IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSE IN THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. Campoy argues the court erred in denying his motion to dismiss because the administrative license suspension and the subsequent prosecution for driving under the influence of alcohol result in multiple punishments for the same offense, which violate constitutional protections against double jeopardy. The Village of Cuyahoga Heights, however, contends that the court properly denied the motion to dismiss because it argues the administrative suspension of one's driver's license does not constitute punishment for purposes of double jeopardy; that the two sanctions are imposed in a single coordinated proceeding; and also that they are not imposed for the same offense. Thus, the village asserts that no double jeopardy problem exists because the subsequent criminal proceeding for driving under the influence is the only form of punishment instituted for the offense. The issue then for our determination is whether the administrative license suspension and subsequent prosecution for driving under the influence of alcohol subjected Campoy to double jeopardy. The Ohio Supreme Court addressed this issue in State v. Gustafson (1996), 76 Ohio St.3d 425, and stated at 436, "an - 5 - administrative suspension of one's driver's license is not the type of proceeding to which double jeopardy protection attaches so as to preclude a subsequent criminal prosecution." Thus, in accordance with the holding in Gustafson, and the facts present in this case, we conclude the administrative license suspension and the subsequent prosecution for driving under the influence did not place appellant in double jeopardy. R.C. 4511.191(K), requires the registrar of motor vehicles to terminate appellant's administrative license suspension upon receipt of notice of his conviction after entering a plea of no contest to operating a vehicle while under the influence of alcohol. Accordingly, the trial court properly denied the motion to dismiss and this assignment of error is therefore overruled. The second assignment of error states: THE APPELLANT'S RIGHT TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT AS GUARANTEED BY THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND ARTICLE 1, SECTION 9 OF THE OHIO CONSTITUTION WAS VIOLATED BY THE EXCESSIVE SENTENCE IMPOSED BY THE TRIAL COURT. Campoy asserts that the sentences he received for driving under the influence and driving under suspension are disproportionate in comparison with sentences imposed by other courts for similar offenses and thus, violated constitutional prohibitions against imposition of cruel and unusual punishment. The village maintains, however, that since the imposed sentences were authorized by statute, the trial court did not subject Campoy to cruel and unusual punishment. - 6 - The issue then is whether the trial court imposed cruel and unusual punishment, thereby violating the United States and Ohio Constitutions. In McDougle v. Maxwell (1964), 1 Ohio St.2d 68, the Ohio Supreme Court stated: As a general rule, a sentence that falls within the terms of a valid statute cannot amount to a cruel and unusual punishment. (Citations omitted.)*** It is generally accepted that punishments which are prohibited by the Eighth Amendment are limited to torture or other barbarous punishments, degrading punishments unknown at common law, and punishments which are so disproportionate to the offense to shock the moral sense of the community. (References delated.) Our court has consistently followed these principles in 1 numerous unreported cases. Further, in State v. Chaffin (1972), 30 Ohio St.2d 13, the Ohio Supreme Court stated in paragraph three of its syllabus: "***a punishment does not violate the constitutional prohibition against cruel and unusual punishments, if it be not so greatly disproportionate to the offense as to shock the sense of justice of the community. A trial court, when imposing sentence on a driving under the influence conviction pursuant to R.C. 4511.19 must conform its sentence to R.C. 4511.99, R.C. 2929.21, and R.C. 4507.16. R.C. 4511.99 provides, in relevant part: 1 See State v. Lazada (Nov. 6, 1995), Cuyahoga App. No. 67147, unreported; City of Cleveland Heights v. Seastead (Oct. 12, 1995), Cuyahoga App. No. 68875, unreported; State v. Rogers (June 8, 1995), Cuyahoga App. No. 68024, unreported; State v. Robinson (March 3, 1994), Cuyahoga App. No.64734, unreported. - 7 - (2)(a) If, within the five years of the offense, the offender has been convicted of or pleaded guilty to one violation of section 4511.19 of the Revised Code***the offender is guilty of a misdemeanor of the first degree and***the court shall sentence the offender to a term of imprisonment of ten consecutive days and may sentence the offender pursuant to section 2929.21 of the Revised code to a longer term of imprisonment ***. In addition, the court shall impose upon the offender a fine of not less than three hundred and not more than one thousand five hundred dollars ***. R.C. 2929.21 states, in part: (B) Terms of imprisonment of misdemeanor shall be imposed as follows: (1) For a misdemeanor of the first degree, not more than six months. Finally, R.C. 4507.16 provides, in part: (B)(2) If the offender has been convicted, within five years of the offense and before or after March 16, 1983, of a violation of section 4511.19 of the Revised Code***the judge shall suspend the offender's driver's or commercial driver's license or permit or nonresident operating privilege for not less than one year not more than five years. In this case the trial court in the exercise of its discretion, imposed a 180 day jail term; a $1,000 fine, and a five year license suspension; all of which conforms to the above statutes. The trial court, when sentencing on a driving under suspension conviction pursuant to R.C. 4507.02(C), must conform its sentence to R.C. 4507.99(A) and R.C. 2929.21. R.C. 4507.99 states, in part: - 8 - (A) ***Whoever violates division (C) of section 4507.02 of the Revised Code is guilty of driving without paying a license reinstatement fee, a misdemeanor of the first degree.*** the court, in addition to or independent of all other penalties provided by law, may suspend for a period not to exceed one year the driver's or commercial driver's license or permit or nonresident operating privilege of any person who pleads guilty to or is convicted of a violation of division (B)(2), (C), or (D)(1) of section 4507.02 of the Revised Code. R.C. 2929.21 provides, in part: (B) Terms of imprisonment for misdemeanor shall be imposed as follows: (1) For a misdemeanor of the first degree, not more than six months. *** (C) Fines for misdemeanor shall be imposed as follows: (A) For a misdemeanor of the first degree, not more than one thousand dollars. On this charge, the trial court again in the exercise of its discretion, sentenced Campoy to 180 days in jail, a $1,000 fine, and a one year license suspension, which conforms to R.C. 4507.99 and R.C. 2929.21. Although appellant received maximum sentences, for these offenses, nonetheless, they conform to the applicable penalty sections of the code, and no abuse of discretion has been demonstrated by appellant. Further, the record before us reflects that appellant has had three previous driving under the influence convictions and other traffic violations; he failed to comply with the motor vehicle laws of the State of Ohio on the - 9 - morning of January 28, 1995; he violated the terms and conditions of the limited driving privileges afforded him by the Medina Municipal Court; and significantly, that court had relieved him of the ignition interlock requirement only days before his arrest on the instant offenses. The sentencing court could have properly considered these matters in imposing its sentence. Thus, since each case must be sentenced in accord with the unique facts it presents, we conclude that the sentences imposed here do not shock the sense of justice in the community, where the interest is to remove drunk drivers from the roadways. Accordingly, the trial court did not impose cruel and unusual punishment in this case and this assignment of error is overruled. Judgment affirmed. - 10 - 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 Garfield Heights 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. MATIA, P.J., and McMONAGLE, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .