State v. Gregoire
| Decision Date | 10 February 2020 |
| Docket Number | CASE NO. CA2019-04-066 |
| Citation | 2020 Ohio 415 |
| Parties | STATE OF OHIO, Appellee, v. CHRISTOPHER J. GREGOIRE, Appellant. |
| Court | Ohio Court of Appeals |
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2015-09-1383
Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
Rittgers & Rittgers, Neal D. Schuett, 121 West High Street, Oxford, OH 45056, for appellant
{¶ 1} Appellant, Christopher Gregoire, appeals a decision of the Butler County Court of Common Pleas denying his motion for limited driving privileges.
{¶ 2} Gregoire was indicted in October 2015 on one count of operating a vehicle while under the influence of alcohol ("OVI"), a fourth-degree felony, and one count of driving under OVI suspension. At the time of the indictment, Gregoire had already been convicted of OVI on three prior occasions within the previous six years. On January 4, 2016, Gregoire pled guilty to the fourth-degree felony OVI; the driving under OVI suspension charge was dismissed. Following a sentencing hearing on February 17, 2016, the trial court sentenced Gregoire to 12 months in prison. The trial court further suspended Gregoire's driver's license for a period of six years that was to expire on February 16, 2022.1
{¶ 3} At the time Gregoire was convicted and sentenced, R.C. 4510.13(A)(3) prohibited a trial court from granting limited driving privileges to a person whose driver's license had been suspended pursuant to R.C. 4511.19(G) "if the offender, within the preceding six years, has been convicted of or pleaded guilty to three or more [OVI] violations." (Emphasis added.) R.C. 4510.13(A)(3) was amended by Sub.H.B. No. 388 ("H.B. 388") on April 6, 2017, and now prohibits a trial court from granting limited driving privileges to a person whose driver's license has been suspended pursuant to R.C. 4511.19(G) "if the offender, within the preceding ten years, has been convicted of or pleaded guilty to three or more [OVI] violations." (Emphasis added.)
{¶ 4} On March 4, 2019, Gregoire moved to terminate his driver's license suspension or, alternatively, for limited driving privileges. Gregoire argued that the trial court should apply the six-year look-back period set forth in the former R.C. 4510.13(A)(3) that was in effect at the time of his conviction, and not the ten-year look-back period set forth in the newly amended R.C. 4510.13(A)(3). Gregoire argued that applying the ten-year look-back period to convictions committed prior to the April 6, 2017 amendment of the statute would operate as an unconstitutional ex post facto application of the law in violation of the United States and Ohio Constitutions.
{¶ 5} On March 29, 2019, the trial court denied Gregoire's motion. The trial court found that applying the ten-year look-back period would not operate as an unconstitutional ex post facto application of the law because amended R.C. 4510.13(A)(3) was remedial, as opposed to substantive, in that "it has no effect on substantial rights, but rather provides a course of procedure for the enforcement of rights." In so holding, the trial court relied on this court's opinion in State v. Redman, 163 Ohio App.3d 686, 2005-Ohio-5474 (12th Dist.).
{¶ 6} Gregoire now appeals, raising one assignment of error:
{¶ 7} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED MR. GREGOIRE'S MOTION FOR DRIVING PRIVILEGES.
{¶ 8} Gregoire argues the trial court erred in denying his motion for limited driving privileges by applying the ten-year look-back period set forth in amended R.C. 4510.13(A)(3). Gregoire asserts that amended R.C. 4510.13(A)(3) was not intended to be applied retroactively by the General Assembly. Gregoire further asserts that the retroactive application of the ten-year look-back period amounts to an unconstitutional ex post facto law in violation of the United States and Ohio Constitutions.
{¶ 9} It is well settled that a statute is presumed to apply prospectively unless expressly declared to be retroactive. R.C. 1.48; State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, ¶ 9. Section 28, Article II of the Ohio Constitution, in turn, prohibits the General Assembly from passing retroactive laws. Applying these two provisions, the Supreme Court of Ohio has established a two-part test to determine whether a statute may be applied retroactively. Id. at ¶ 10.
{¶ 10} Under this test, a court must first determine as a threshold matter whether the General Assembly expressly intended the statute to apply retroactively. Id.; Hyle v. Porter, 117 Ohio St.3d 165, 2008-Ohio-542, ¶ 8; Bielat v. Bielat, 87 Ohio St.3d 350, 353 (2000). If a statute is clearly retroactive, the court must then determine whether it is substantive orremedial in nature. Consilio at ¶ 8. A retroactive statute is unconstitutional if it retroactively impairs vested substantive rights, but not if it is merely remedial in nature. Id. at ¶ 9; Hyle at ¶ 7. A reviewing court does not address the question of constitutional retroactivity unless and until it determines that the General Assembly expressly made the statute retroactive. Hyle at ¶ 10. In other words, "[t]he General Assembly's failure to clearly enunciate retroactivity ends the analysis, and the relevant statute may be applied only prospectively." Consilio at ¶ 10.
{¶ 12} "In order to overcome the presumption that a statute applies prospectively, a statute must 'clearly proclaim' its retroactive application." Hyle, 2008-Ohio-542 at ¶ 10; Consilio, 2007-Ohio-4163 at ¶ 15. "Text that supports a mere inference of retroactivity is not sufficient to satisfy this standard; we cannot infer retroactivity from suggestive language." (Emphasis sic.) Hyle at ¶ 10. Likewise, a statute's "ambiguous language is not sufficient to overcome the presumption of prospective application." Id. at ¶ 13. "If theretroactivity of a statute is not expressly stated in plain terms, the presumption in favor of prospective application controls." Consilio at ¶ 15.
{¶ 13} Upon reviewing amended R.C. 4510.13(A)(3) and H.B. 388, we find that neither expressly proclaim retroactivity. At most, the language of the statute implies retroactivity. However, as the supreme court unequivocally held, the mere suggestion or inference of retroactivity is not sufficient to overcome the presumption of prospective application; instead, the statute must "clearly proclaim" its retroactive application. Consilio at ¶ 15; State v. Thacker, 5th Dist. Fairfield No. 07 CA 38, 2008-Ohio-2746, ¶ 19.
{¶ 14} In support of the trial court's retroactive application of the statute, the state argues that amended R.C. 4510.13(A)(3) "is devoid of any language indicating an intent to * * * have prospective application only." However, that is not the test. Rather, the question is whether the General Assembly expressly made the statute retroactive. Furthermore, notwithstanding the state's assertion, a look-back period does not "expressly or even implicitly make a statute retroactive." Carney v. Shockley, 7th Dist. Jefferson No. 14 JE 9, 2014-Ohio-5830, ¶ 40.
{¶ 15} "[T]he General Assembly is presumed to know that it must include expressly retroactive language to create that effect." Consilio, 2007-Ohio-4163 at ¶ 15. "In drafting prior legislative enactments and amendments, the General Assembly certainly has demonstrated its ability to include retrospective language when it so desires." State v. Lasalle, 96 Ohio St.3d 178, 2002-Ohio-4009, ¶ 15. Several cases serve as examples of clear expressions of retroactivity and underscore the absence of a comparable declaration in amended R.C. 4510.13(A)(3).
{¶ 16} For instance, a statute expressly applying to any action pending on the effective date of the statute, which included causes of action which arose prior to the statute's effective date, "notwithstanding any provisions of any prior statute or rule of law"was found to clearly indicate a legislative intent that it be applied retroactively. Van Fossen v. Babcock & Wilcox Co., 36 Ohio St.3d 100, 106 (1988). Likewise, in a case cited by the state, a statute expressly applying to anyone who "was convicted of or pleaded guilty to a sexually oriented offense prior to the effective date of this section, if the person was not sentenced for the offense on or after" that date was found to clearly proclaim its retroactive application. State v. Cook, 83 Ohio St.3d 404 (1998).2 See also Bielat, 87 Ohio St.3d 350 (); State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, ¶ 16 (...
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