[Cite as State v. Lange , 2019-Ohio-4687.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO Plaintiff-Appellee

-vsNICHOLAS J. LANGE Defendant-Appellant JUDGES: Hon. W. Scott Gwin, P. J. Hon. William B. Hoffman, J. Hon. John W. Wise, J. Case No. 19 CAC 03 0024

O P I N I O N

CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Cou rt, Case No. 18 TRC 11675

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 13, 2019

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant ELIZABETH MATUNE DOMINIC L. MANGO CITY PROSECUTOR MANGO LAW OFFICE CHRISTOPHER E. BALLARD 40 South Franklin Street ASSISTANT PROSECUTOR Suite 202 70 North Union Street Delaware, Ohio 43015 Delaware, Ohio 43015Delaware County, Case No. 19 CAC 03 0024 2
Wise, J. {¶1} Defendant-Appellant Nicholas J. Lange appeals his conviction on one count of R.C. §4511.19(A)(1(a) following a no contest plea in the Del aware Municipal Court. {¶2} Plaintiff-Appellee is the State of Ohio. STATEMENT OF THE CASE {¶3} The relevant facts and procedural history are as follows: {¶4} On August 5, 2018, Appellant Nicholas J. Lange was arrested and charged in the Delaware Municipal Court with four violations: operating under the influence, operating with a prohibited concentration of alcohol, marked la nes, and failing to signal. He entered pleas of not guilty and demanded a jury trial. {¶5} On September 21, 2018, Appellant filed a motion to dismiss/moti on to suppress the results of his breath alcohol test. {¶6} On December 5, 2018, a hearing was held on Appellant’s motion t o suppress. {¶7} By Decision and Judgment Entry filed December 28, 2018, the tri al court overruled Appellant’s motion to suppress. {¶8} On March 21, 2019, Appellant entered pleas of no contest to ope rating while impaired and with a prohibited concentration of alcohol in viol ation of R.C. §4511.19(A)(1)(a) and R.C. §4511.19(A)(3), respectively. Appell ant signed a written waiver of rights and was represented by counsel at this hearing . Appellee dismissed the two remaining minor infractions, R.C. §4511.25 and R.C. §4511.1 3., in exchange for the no contest pleas. There was no other written plea agreement.Delaware County, Case No. 19 CAC 03 0024 3
{¶9} When counsel was asked to explain plea negotiations on the reco rd, the following response was given: MS. MATUNE: Yes, Your Honor. It's my understanding there's goi ng to be no contest pleas to the two OVI charges. THE COURT: All right. Very well. And is that your understandin g, Mr. Mango? MR. MANGO: That is, Your Honor. Thank you. (T. at 3). {¶10} During the ensuing plea colloquy, the trial court explained the potential penalties for the two counts, and informed Appellant of the rig hts he was waiving. (T. at 4-6). The court then had the following discussion with Appellan t: THE COURT: And Mr. Lange, you're entering a plea of no contest to one charge of Operating a Vehicle While Under the Influence of Alcohol, and a related charge of Operating a Vehicle with a Prohibited A lcohol Concentration. Is that what your intention is? THE DEFENDANT: Yes, sir. THE COURT: And you understand that I can find you guilty of bo th of these charges if the evidence supports that, and- but I can only sentence you on one of them. And the State will be-will be required to e lect which one they want to proceed on for sentencing purposes. Do you underst and that? So it could be either charge. All right. (T. at 4). {¶11} The court further stated "...I'm well aware that there's gonna [sic] be some discussion about an appeal being taken, and I may be asked to s tay that."Delaware County, Case No. 19 CAC 03 0024 4
{¶12} The court accepted the change of plea, and then inquired of the State of Ohio as to which of the two charges they would elect to proceed on for sentencing purposes. Appellee elected the R.C. §4511.19(A)(1)(a) "impaired " charge. (T. at 6). {¶13} Appellant did not object at any point during the hearing. {¶14} During a statement in mitigati on, counsel for Appellant stated: As we noted in the memorandum that the Court may recall, it is a narrow issue, but we feel that it does have merit, had to do wi th the dates as to the calibration of the breath machine that was used in th is case. (T. at 10). {¶15} Following Appellee's explanation of the circumstances, the tria l court entered a guilty finding as to each of the charges, and proceed ed, without objection, to sentencing on the R.C. §4511.19(A)(1)(a) charge. (T. at 8-9). {¶16} For purposes of sentencing the cases merged and the trial court , in its judgment entry, imposed sentence on the R.C. §4511.19(A)(1)(a) charge. The trial court ordered Appellant to serve three (3) days in jail or seventy-tw o (72) hours in an alcohol education program, imposed a fine of $450, and ordered Appellan t to pay costs. The trial court also placed Appellant on community control for 1 year. In addition, Appellant's driver's license was suspended for 180 days. {¶17} Appellant moved for, and the court granted, a stay of execution of the sentence pending appeal. {¶18} Appellant now appeals, assigning the following errors for revie w:Delaware County, Case No. 19 CAC 03 0024 5

ASSIGNMENTS OF ERROR {¶19} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND AN ABUSE OF DISCRETION WHEN IT ACCEPTED APPELLANT'S NO CONTEST PLE AS, MADE FINDINGS OF GUILT AND SENTENCED APPELLANT ON THE 4511.19(A )(1)(a) CHARGE RATHER THAN THE 4511.19(A)(1)(d) CHARGE AFTER ACKNOWLEDG ING ON THE RECORD THAT THE APPELLANT'S PLEAS OF NO CONTEST WERE BEI NG ENTERED FOR THE EXPRESSED PURPOSE OF APPEALING THE COURT'S RULING ON THE SUPPRESSION MOTION; THEREBY, THE COURT UNDERMINED THE LETTER AND SPIRIT OF THE PARTIES PLEA NEGOTIATIONS AND EFFECTIVELY RENDERED THE APPELLANT'S INSTANT APPEAL OF THE PRETRIAL RULING MOOT IN VIOLATION OF APPELLANT'S RIGHTS UNDER T HE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND OHIO CONSTITUTIO N ARTICLE I, SECTIONS 10 AND 1 4.”
I. {¶20} In Appellant's sole assignment of error, he argues that the tri al court erred in sentencing him on the R.C. §.4511.19(A)(1)(a) charge. We dis agree. {¶21} In this case, pursuant to the negotiated plea agreement, the St ate agreed to dismiss the two lesser traffic offenses in exchange for Appe llant’s plea to the OVI counts. Appellant, pursuant to the plea agreement, therefore en tered a plea of no contest to both the driving under the influence charge of R.C. §4511.19 (A)(1)(a) (impaired driving) and R.C. §4511.19(A)(1)(d), (per se). A conviction under R.C. 4 511.19(A)(1)(a) focuses on the conduct of the defendant and observations of the arresti ng officers, rather than the results of a chemical test or breathalyzer exam under R.C. § 45 11.19(A)(1)(d).Delaware County, Case No. 19 CAC 03 0024 6
{¶22} As the two OVI counts, R.C. §4511.19(A)(1)(a) which prohibits o perating a vehicle while under the influence and R.C. §4511.19(A)(1)(d) wh ich prohibits operating a vehicle with a prohibited blood alcohol concentration, are alli ed offenses of similar import, the trial court was required to merge the two offense for purpo ses of sentencing. State v. Schwartz , 5 th Dist. Perry No. TRC0002759, 2002-Ohio-516.It {¶23} It is the prerogative of the State of Ohio to elect which allie d offense to pursue. The General Assembly has made clear that it is the st ate that chooses which of the allied offenses to pursue at sentencing, and it may choose any of the allied offenses. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 16 and 4 3, citing Geiger, 45 Ohio St.2d at 244, 74 O.O.2d 380, 344 N.E.2d 133; Legislativ e Service Commission Summary of Am.Sub.H.B. 511, The New Ohio Criminal Code (June 19 73) 69. In conferring that right on the state, the legislature did not spe cify when the state must make that election. The Legislative Service summary states that “the prosecution sooner or later must elect as to which offense it wishes to pursue” (emphasis a dded), id ., thereby implying that the state has latitude in determining when to dec ide which offense to pursue at sentencing. State v. Whitfield , 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 20 (2010). {¶24} Here, the State elected to pursue the OVI charge under the R.C. §4511.19(A)(1)(a) for sentencing. As stated above, Appellant di d not object. {¶25} Appellant’s no-contest plea to the (A)(1)(a) charge rendered mo ot any issues regarding suppression of the BAC results because the res ults of such test were not necessary or required to sustain the conviction on the impa ired-driving charge.Delaware County, Case No. 19 CAC 03 0024 7
{¶26} Based on the foregoing, we find no error on the part of the tri al court in accepting Appellant’s no contest plea and sentencing him in acc ordance therewith. {¶27} For the foregoing reasons, the decision of the Municipal Court, Delaware County, Ohio, is affirmed.

By: Wise, J. Gwin, P. J., and Hoffman, J., concur.

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