COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72622 CITY OF LAKEWOOD : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION RHONDA HARTMAN : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : MAY 14, 1998 CHARACTER OF PROCEEDING : Criminal appeal from : Lakewood Municipal Court : Case No. 97 TRD 2489 JUDGMENT : VACATED IN PART AND : REMANDED FOR RESENTENCING. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: KEVIN SPELLACY Assistant Prosecuting Attorney City of Lakewood 12650 Detroit Avenue Lakewood, Ohio 44107 For defendant-appellant: BRENT L. ENGLISH Attorney at Law 310 Lakeside Avenue 795 Courthouse Square Cleveland, Ohio 44113-1021 KENNETH A. ROCCO, J.: -2- Defendant-appellant Rhonda Hartman appeals from the order of the Lakewood Municipal Court which, although it granted probation to appellant after sentencing her for violation of a city traffic ordinance, imposed certain conditions upon appellant's probation. Appellant contends the trial court lacked authority to impose those conditions. This court finds appellant's contention has merit and therefore vacates the trial court's order in part. Appellant originally received her traffic citation from a Lakewood police officer on April 5, 1997. The officer had stopped appellant at approximately 1:00 a.m. that morning for another traf- fic infraction. After requesting her driver's license, the officer obtained information from the Ohio Bureau of Motor Vehicles indi- cating appellant's driver's license privileges had been suspended indefinitely.The officer therefore cited appellant for violation of Lakewood Codified Ordinance Section 335.07(a), Driving Under Suspension. Subsequently,after discussions with appellant's counsel, the city prosecutor moved the trial court to amend the citation to violation of Section 335.01(a), Driving Without a Valid Operator's License. The trial court held a hearing on the motion. At the hearing, the city prosecutor explained the reason for the motion: Both he and appellant represented appellant had believed she actually was driving in compliance with an earlier order issued by the Oberlin Municipal Court. The Oberlin Municipal Court, after finding appellant guilty of driving under the influ- ence of alcohol, had granted appellant conditional driving privi- -3- leges for occupational, grocery and day-care purposes. Appellant thus agreed to enter a plea of no contest in this case in exchange for the amended citation. The trial court listened to the explanation and plea agree- ment, ascertained appellant's plea was voluntary, then accepted it and found appellant guilty of the amended citation, Driving Without a Valid Operator's License. This offense is defined in Lakewood Codified Ordinance Section 339(a)(6)(A) as a first degree misde- meanor. The penalty for such an offense is set forth in Section 303.99(b), which provides for a maximum term of imprisonment of six months and a maximum fine of $1000.00. Prior to imposing sentence in this case, the trial court first reviewed appellant's driving record. Appellant's driving record revealed numerous citations, most of which were for driving under the influence of alcohol. In view of appellant's record, there- fore, the trial court imposed the maximum sentence and the maximum fine. However, the trial court further ordered appellant's sentence suspended, suspended $750 of the fine, and placed appellant on three years of conditional probation as follows: (1) appellant was permitted driving privileges only for occupational purposes; and (2) appellant's driving privileges extended only to vehicles equipped with an ignition interlock system. In its order, the trial court thus indicated any driving privileges that previously had been permitted to appellant by the Oberlin Municipal Court were superceded by its more recent order. -4- Appellant thereafter filed a timely appeal of the trial court's order in this court. She presents two interrelated assignments of error for review, which will be addressed together and are set forth below. I. THE LAKEWOOD MUNICIPAL COURT COMMITTED REVERSIBLE ERROR WHEN IT UNLAWFULLY RE- QUIRED APPELLANT TO EQUIP HER VEHICLE WITH AN IGNITION INTERLOCK DEVICE AND UNLAWFULLY LIMITED HER DRIVING PRIVILEGES GRANTED BY ANOTHER COURT WHERE (A) SHE WAS NEITHER CHARGED WITH NOR CONVICTED OF AN ALCOHOL-RELATED OFFENSE AND (B) THE CHARGE FOR WHICH SHE WAS FOUND GUILTY (OPERATING A MOTOR VEHICLE WITHOUT A VALID DRIVER'S LICENSE) DID NOT PERMIT THE COURT TO IMPOSE ANY LICENSE SUSPEN- SION. II. THE LAKEWOOD MUNICIPAL COURT COMMITTED REVERSIBLE ERROR AND ABUSED ITS DISCRE- TION BY IMPOSING CONDITIONS OF PROBATION THAT WERE (A) NOT RELATED TO REHABILITA- TION OF THE APPELLANT; (B) NOT RELATED TO THE OFFENSE FOR WHICH SHE WAS FOUND GUIL- TY; AND (C) NOT RELATED TO EITHER THE OFFENSE TO WHICH SHE PLEAD GUILTY OR TO FUTURE CRIMINALITY AND DID NOT SERVE THE STATUTORY ENDS OF PROBATION. In these assignments of error, appellant essentially argues the trial court exceeded its authority when it withdrew her driving privileges granted by the Oberlin Municipal Court and required her to install an ignition interlock device on her vehicle as condi- tions of probation since the conditions had the effect of improp- erly increasing the penalty for her offense. Appellee, the City of Lakewood, responds to appellant's argument by contending that since the Oberlin Municipal Court's -5- order improperly ignored the mandate of R.C. 4507.16(G) cretionary authority granted to it by R.C. 1 ( s otherwise provided in this1, the trialcourt merely section, f record and the mayor of a mayor's court, in addition to or independent of all other penalties provided by law or ordinance, shallE) Except aR.C. 4507.16 s suspend for not less than sixty days nor more than two years the driver's or commercial driver's license or permit or nonresident operating privilege of any person who is convicted of or pleads guilty to a violation of division (B) or section 4511.19 of the Revised Code or of a municipal ordinance substantially equivalent to that division relating to operating a vehicle with a pro- hibited concentration of alcohol in the blood, breath, or urine. (F) If a person's driver's or commercial driver's license or permit or nonresident operation privilege has been suspended *** the judge of the court or mayor of the mayor's court may grant the person occupational driving privileges during the period during which the suspension otherwise would be imposed, except that the judge or mayor shall not grant occupational driving privileges without requiring the use of a certified igni- tion interlock device. (G) If a person's driver's or commercial driver's license or permit or nonresident operating privilege has been suspended under division (E) of this section, and the person, within the preceding seven years, has been convicted of or pleaded guilty to three or more violations of division (A) or (B) of section 4511.19 of the Revised Code, a muni- cipal ordinance relating to operating a vehi- cle while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse, a municipal ordinance relating to operating a vehicle with a prohibited concentration of alcohol in the blood, breath, or urine,***the person is not entitled to request, and the judge or mayor shall not grant to the person, occupational driving privileges under this division. (Emphasis added.) -6- 2929.51 and 2951.022 to impose restrictions on appellant's driving privileges "in an attempt" to bring them "within the bounds of the law." Appellee cites State v. Jones (1990), 49 Ohio St.3d 51 at 53 in support of its contention. Nevertheless, this court finds appellant's argument to be more persuasive. It must first be noted that the Lakewood Codified Ordinances provide no direct statutory authority permitting the trial court to 2The relevant portions of R.C. 2929.51 and 2951.02 state: S2929.51 Modification of sentence. sentencing when imprisonment is imposed for a misdemeanor, the court may do any of the following: (A) At the time of sentencing and after (1) Suspend the sentence and place the offender on probation pursuant to section 2951.02 of the Revised Code; *** S 2951.02 Criteria for and against probation or suspension of sentence; condition. * * * (C)(1)(a) When an offender who has been convicted of or pleaded guilty to a misdemeanor is placed on probation or the sentence of that type of offender otherwise is suspended pursuant to division (A) of section 2929.51 of the Revised Code, the probation or other suspension shall be at least on con- dition that, during the period of probation or other suspension, the offender shall abide by the law, *** and shall not leave the state without the permission of the court or the offender's probation officer. In the inter- ests of doing justice, rehabilitating the offender, and ensuring the offender's good behavior, the court may impose additional requirements on the offender, including but not limited to, requiring the offender to make restitution ***. ***Compliance with the additional re- quirements also shall be a condition of the offender's probation or other suspension. (Emphasis added.) -7- impose conditions on appellant's driving privileges for the offense of driving without a valid license. See, e.g., State v. Pessefall (1993), 87 Ohio App.3d 222; State v. Foureman (1990), 68 Ohio App.3d 162; State v. Bede (Sep. 27, 1996), Lake App. Nos. 95-L-130 and 95-L-131, unreported; State v. Lorenzo (Jan. 6, 1989), Lake App. No. 13-108, unreported. Rather, the term of imprisonment and fine originally imposed by the trial court are the maximum penalty permitted. Moreover, even if the offense for which appellant was found guilty were an alcohol-related offense, which obviously it is not, R.C. 4507.16(G) does not give the trial court discretion to permit driving privileges of anykind to appellant. State v. Krug (1993), 89 Ohio App.3d 595 (jurisdictional motion not allowed [1993], 68 Ohio St.3d 1406); State v. Sanner (Nov. 22, 1996), Montgomery App. Nos. 15142, 15143, 15206, 15216 and 15275, unreported; City of Columbus v. Davis (May 30, 1991), Franklin App. No. 90AP-1423, unreported. Therefore, for appellee to insist that the trial court was acting "within the bounds of the law" seems disingenuous. Secondly, as the court stated in City of Columbus v. Davis, supra, "[a] trial court is not permitted to exceed its jurisdic- tional limits through the addition of probation conditions which have no basis in law." Thus, although a trial court is permitted the authority to suspend a sentence and to place a defendant on probation with appropriate additional requirements, in a case with similar facts as those presented in the case sub judice, this court has held "a -8- trial court may not use conditional probation as a means to exceed the statutory maximum penalty." City of Independence v. Tector (Dec. 5, 1996), Cuyahoga App. No. 70202, unreported. That is precisely what the trial court meant to do in this case. In its order denying appellant's motion to stay sentence pending appeal, the trial court stated in relevant part as follows: While the defendant seeks a stay of this Court's restrictions upon her driving privi- leges, there is a question of whether the defendant may legally have any driving privi- leges. *** The defendant in the present case had four (4) [D.U.I.] convictions between March 20, 1991 and October 2, 1995. As such, the defendant would be ineligible for driving privileges as a matter of law. * * * The purpose of the ignition interlock device is to prevent a person who has been consuming alcoholic beverages from starting an[d] oper- ating a vehicle. The use of the device is sanctioned by Section 4511.83 of the Ohio Revised Code. The defendant has been con- victed [of] four (4) separate offenses of driving under the influence of alcohol in a four year period. As such, she is an alco- holic, as that term is defined by Section 4501:1-1-16(A) of the Ohio Administrative Code. The requirement of the ignition inter- lock system is to reduce the risk that the defendant will again drive a vehicle under the influence of alcohol. * * * *** The broad scope of driving privileges in the present case permits almost unlimited driving privileges and leads to abuse by the defendant, such as in the present case in which the defendant drove to a convenient store at 1:12 in the morning to get a soda under the guise of grocery shopping. *** The limitations on the defendant's driving privileges avoid the situation in which the -9- defendant may have virtually unlimited driving privileges [while] under a mandatory period of suspension. From a review of the trial court's reasoning set forth above, it is clear the trial court's purpose in imposing the conditions was neither related to the offense for which appellant was found guilty nor intended to rehabilitate appellant. Instead, its pur- pose was to enhance appellant's penalty for violation of Lakewood Codified Ordinance Section 335.02(a), Driving Without a Valid License. Under these circumstances, the trial court's action was improper. City of Independence v. Tector, supra; City of Columbus v. Davis, supra. The trial court was well within its discretion, however, in imposing both the maximum sentence and the maximum fine upon appellant and, in view of appellant's abysmal driving record, would have remained so had it refused to suspend any portion of them. Accordingly, appellant's assignments of error are sustained. The sentencing order of the trial court is vacated, and this case is remanded to the trial court for resentencing. -10- This cause is remanded to the lower court for resentencing. It is, therefore, considered that said appellant recover of said appellee her 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. JOSEPH J. NAHRA, P.J. and TERRENCE O'DONNELL, J. CONCUR JUDGE KENNETH A. ROCCO 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 .