COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70626 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION ROBERT WILLIAMS : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MARCH 20, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Cleveland Municipal Court, Case No. 95-TRC-1240C. JUDGMENT: AFFIRMED IN PART AND REVERSED AND REMANDED FOR RESENTENCING. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Sharon Sobol-Jordan Director of Law Carolyn W. Allen Chief Prosecuting Attorney Ellainna Lewis-Bevel Assistant City Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Dean A. Colovas, Esq. 2200 The Illuminating Building 55 Public Square Cleveland, Ohio 44113 SWEENEY, JAMES D., C.J.: Defendant-appellant Robert Williams appeals from his convictions for driving under the influence of alcohol in violation of the Cleveland Codified Ordinances 433.01(A)(4), and failure to control his vehicle in violation of Cleveland Codified Ordinances 431.34(A). The appellant was sentenced to a six-month term of incarceration at the Work House, fined $500 for driving under the influence and fined $100 for failure to control his vehicle. In addition, the court suspended the appellant's driving privileges from February 17, 1995 to February 17, 1999. On May 12, 1995, the court denied the appellant's motion to mitigate his sentence of imprisonment. On June 23, 1995, the court denied the appellant's motion to mitigate the suspension of driving privileges. On April 4, 1996, the court once again denied the appellant's motion to mitigate the suspension of driving privileges. The appellant's counsel argued to the court that the appellant has sustained prior injuries which limited his sphere of employment to driving. At the time of this arrest, the appellant was employed as a Cleveland City School bus driver. The appellant sets forth two assignments of error. The first assignment of error: I THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A FOUR-YEAR DRIVER'S LICENSE SUSPENSION UPON DEFENDANT IN CONTRAVENTION OF O.R.C. SECTION 4507.16. - 3 - The appellant argues that since, pursuant to R.C. 4507.16(B)(1), the court was only permitted to impose a driver's license suspension of six months to three years, the trial court impermissibly suspended his driver's license for four years. The appellee agrees with this proposition. A review of R.C. 4507.16(B)(1) indicates that the parties are correct in their analysis. Since the trial court inadvertently failed to follow the statutory guidelines and imposed a void sentence, see State v. Beasley (1984), 14 Ohio St.3d 74, this court must remand for resentencing. The appellant's first assignment of error is well taken. The second assignment of error: II THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING SENTENCE AGAINST DEFENDANT IN THE WITHIN MATTER AND FURTHER HAS CONTINUED TO ABUSE ITS DISCRETION BY FAILING TO GRANT APPELLANT OCCUPATIONAL PRIVILEGES. The appellant argues that the trial court abused its discretion when it denied the appellant occupational driving privileges. The appellant posits that the court failed to consider the mitigating factors as required under R.C. 4507.16. The language of R.C. 4507.16(E) gives the trial court broad discretionary powers in granting occupational driving privileges. The statute states that "Upon satisfactory proof that there is a reasonable cause to believe that the suspension would seriously affect the person's ability to continue his employment, the judge - 4 - ... may grant the person occupational driving privileges during the period during which the suspension otherwise would be imposed..." In order for an appellate court to reverse a trial court's decision there must be a finding of an abuse of discretion. State v. Rumley (June 21, 1991), Gallia App. No. 90 CA 21, unreported. An abuse of discretion connotes more than an error of law or judgment, it implies the court's attitude is unreasonable, arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151. Generally, when a trial court's sentence is within the confines of a valid statute, the sentence will not be disturbed on appeal as the sentencing of a defendant is within the sound discretion of the trial court. Toledo v. Reasonover (1965), 5 Ohio St.2d 22; Cleveland Hts. v. Seastead (Oct. 12, 1995), Cuyahoga App. No. 68875, unreported. It is presumed that the trial court considered the factors contained in R.C. 2929.12 and R.C. 2929.22 in the sentencing process unless it appears from the record that the court unreasonably ignored them, or acted out of bias, prejudice and preconceptions. Cleveland Hts., supra, citing to State v. Adams (1988), 37 Ohio St.3d 295. The trial court herein possessed a probation report on the appellant. This court has repeatedly held that a presentence report or some evidence that the trial court considered the statutory factors withstands the foregoing abuse of discretion standard. State v. Turner (1987), 37 Ohio App.3d 38; Cleveland v. - 5 - Burich (July 3, 1991), Cuyahoga App. No. 58668, unreported; Cleveland v. Uveges (May 16, 1991), Cuyahoga App. Nos. 58498, 59501, unreported. Given the fact that the court possessed the appellant's probation report, the trial court did not abuse its discretion in refusing to grant occupational driving privileges, subsequent to a conviction for driving under the influence, to a man who drove a school bus for a living. The appellant's second assignment of error is overruled. Judgment affirmed as to the conviction, but reversed and remanded for resentencing. - 6 - This cause is affirmed in part and reversed and remanded for resentencing. The court finds there were reasonable grounds for this appeal. It is, therefore, considered that said appellant(s) and appellee(s) each pay one-half of the costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. ANN DYKE, J., and LEO M. SPELLACY, J., CONCUR. JAMES D. SWEENEY CHIEF JUSTICE 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 of decision by the .