[Cite as State v. Gregoire , 2020-Ohio-415.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, Appellee,

- vs -

CHRISTOPHER J. GREGOIRE, Appellant. :

:

:

:

:

: CASE NO. CA2019-04-066

O P I N I O N

2/10/2020

CRIMINAL APPEAL FROM BUTLER C OUNTY 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 45 011, for appellee Rittgers & Rittgers, Neal D. Schuett, 121 West High Street, Oxf ord, OH 45056, for appellant

M. POWELL, J. {¶ 1} Appellant, Christopher Gregoire, appeals a decision of the Butl er County Court of Common Pleas denying his motion for limited driving pr ivileges. {¶ 2} Gregoire was indicted in October 2015 on one count of operating a vehicle while under the influence of alcohol ("OVI"), a fourth-degree f elony, and one count of driving under OVI suspension . At the time of the indictment, Gregoire had alr eady been convictedButler CA2019-04-066

- 2 - 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 suspe nded Gregoire's driver's license for a period of six years that was to expire on Februar y 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 privileg es 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 suspende d 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 a dded.) {¶ 4} On March 4, 2019, Gregoire moved to terminate his driver's lice nse suspension or, alternatively, for limited driving privileges. Gregoire argued that the trial court should apply the six-year look-back period set forth in t he former R.C. 4510.13(A)(3) that was in effect at the time of his conviction, and not the t en-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 appl ication of the law in violation

of the United States and Ohio Constitutions.

1. At sentencing, the trial court suspended Gregoire's driver' s license for a period of six years. However, the trial court's original sentencing entry erroneously suspended G regoire's driver's license for a period of six months. The trial court corrected the clerical error via a nun c pro tunc entry on August 8, 2018.Butler CA2019-04-066

- 3 - {¶ 5} On March 29, 2019, the trial court denied Gregoire's motion. T he trial court found that applying the ten-year look-back period would not ope rate 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 substantia l rights, but rather provides a course of procedure for the enforcement of rights." In so hold ing, 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 furthe r asserts that the retroactive application of the ten-year look-back period amounts to an unco nstitutional 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 prospect ively 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 Consti tution, 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 determ ine whether a statute may be applied retroactively. Id. at ¶ 10. {¶ 10} Under this test, a court must first determine as a threshold ma tter whether the General Assembly expressly intended the statute to apply retroa ctively. 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 orButler CA2019-04-066

- 4 - remedial in nature. Consilio at ¶ 8. A retroactive statute is unconstitutional if it retro actively impairs vested substantive rights, but not if it is merely reme dial in nature. Id. at ¶ 9; Hyle at ¶ 7. A reviewing court does not address the question of con stitutional retroactivity unless and until it determines that the General Assembly expressly mad e 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 b e applied only prospectively."

Consilio at ¶ 10. {¶ 11} We first determine whether the General Assembly expressly made the 2017 amendments to R.C. 4510.13(A)(3) retroactive. Gregoire asserts the General Assembly did not clearly proclaim that amended R.C. 4510.13(A)(3) was to apply retroactively, and thus, the trial court erred in retroactively applying the statu te. The amended version of R.C. 4510.13(A)(3) provides that No judge or mayor shall grant limited driving privileges to an offender whose driver's or commercial driver's license or permi t or nonresident operating privilege has been suspended under division (G) or (H) of section 4511.19 of the Revised Code, under division (C) of section 4511.191 of the Revised Code, or under section 4510.07 of the Revised Code for a municipal OVI conviction if the offender, within the preceding ten years, has been convicted of or pleaded guilty to three or more violations of one or more of the Revised Code sections, municipal ordinances, statutes of the United States or another state, or municipal ordinances of a municipal corporation of another stat e that are identified in divisions (G)(2)(b) to (h) of section 29 19.22 of the Revised Code. {¶ 12} "In order to overcome the presumption that a statute applies pr ospectively, 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 "ambig uous language is not sufficient to overcome the presumption of prospective applicati on." Id. at ¶ 13. "If theButler CA2019-04-066

- 5 - retroactivity of a statute is not expressly stated in plain ter ms, 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 languag e of the statute implies retroactivity. However, as the supreme court unequivocally hel d, the mere suggestion or inference of retroactivity is not sufficient to overcome the pr esumption of prospective application; instead, the statute must "clearly proclaim" its r etroactive 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 langua ge 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 retr oactive. 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 includ e expressly retroactive language to create that effect." Consilio , 2007-Ohio-4163 at ¶ 15. "In drafting prior legislative enactments and amendments, the General Assemb ly certainly has demonstrated its ability to incl ude 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 o f a comparable declaration in amended R.C. 4510.13(A)(3). {¶ 16} For instance, a statute expressly applying to any action pendin g 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 an y prior statute or rule of law"Butler CA2019-04-066

- 6 - was found to clearly indicate a legislative intent that it be a pplied 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 convicte d of or pleaded guilty to a sexually oriented offense prior to the effective date of this s ection, if the person was not

sentenced for the offense on or after" that date was found to c learly proclaim its retroactive application. State v. Cook , 83 Ohio St.3d 404 (1998). 2 See also Bielat , 87 Ohio St.3d 350 (finding that the General Assembly expressed a clear intent tha t a statute would be applied retroactively where the statute specifically stated that it app lied to conduct done "prior to, on, or after" the effective date of the statute); State v. Ferguson , 120 Ohio St.3d 7, 2008- Ohio-4824, ¶ 16 (finding that the General Assembly intended a s tatute be applied retroactively where the statute stated "that it applies to offe nders who were sentenced to prison for offenses against children" regardless of when the of fenses were committed). {¶ 17} Amended R.C. 4510.13(A)(3) is likewise vastly different from th e statute at issue in this court's opinion in Redman and the trial court's reliance on Redman is misplaced. The trial court denied Gregoire's motion for limite d driving privileges on the ground that similar to the statute at issue in Redman , amended R.C. 4510.13(A)(3) "falls

within the definition of 'remedial' because it has no effect on substantial rights, but rather provides a course of procedure for the enforcement of rights." However, the two statutes significantly differ in that the General Assembly expressed a c lear intent that the statute at

2. In its brief, the state does not address whether the Genera l Assembly expressly intended amended R.C. 4510.13(A)(3) to apply retroactively. Instead, the state only addresses whether the application of the ten-year look back period constitutes an unconstitutional ex post facto law. In doing so, the state relies upon the "intenteffects" test used by the Ohio Supreme Court in State v. Cook , 83 Ohio St.3d 404 (1998). The state's reliance on the "intent-effects" test is misplaced. In Cook , the supreme court applied this test when it addressed whether the statute at issue violated the Ex Post Facto Clause of the United States Constitution. Such analysis, however, came only after the supreme court found that the statute was constitutionally retroactive under the Ohio Constitution because the General Assembly specif ically intended that the statute apply retroactively and the statute was remedial in nature. However, as stated above, the question of constitutional retroactivity "does not arise unless there has been a prior det ermination that the General Assembly specified that the statute so apply." Id. at 410.Butler CA2019-04-066

- 7 - issue in Redman was to apply retroactively to conduct that was committed prior to the

statute's effective date. Redman , 163 Ohio App.3d at 693 (noting that the statute at issue expressly stated that it was to "apply to conduct or an offense committed prior to" the statute's effective date). Curiously, such crucial difference was noted, but ultimately ignored, by the trial court: "The statute at issue in Redman is distinguishable from the statute at bar because [R.C.] 4510.54 * * * did explicitly provide that the statute applied to offenses committed prior to the effective date of the statute, which [R. C.] 4510.13 does not." Despite the foregoing finding, the trial court improperly resolved the issue of retroactivity upon whether amended R.C. 4510.13(A)(3) was remedial or substantive in nature. {¶ 18} Because amended R.C. 4510.13(A)(3) lacks express language makin g it retroactive, our inquiry ends and we do not address whether the statute is substantive or remedial in nature. In other words, our conclusion that amende d R.C. 4510.13(A)(3) was not expressly made retroactive precludes us from addressing the constitutional prohibition against retroactivity. Hyle , 2008-Ohio-542 at ¶ 24. 3 It follows that amended R.C. 4510.13(A)(3) may be applied only prospectively and the trial c ourt erred in applying the ten-year look-back period of the statute when ruling upon Grego ire's motion for limited driving privileges. {¶ 19} We therefore reverse the trial court's decision denying Gregoir e's motion for limited driving privileges and remand this matter for the trial court to rule upon the merits of Gregoire's motion for limited driving privileges by applying th e six-year look-back period set forth in former R.C. 4510.13(A)(3) in effect at the time Gregoi re was convicted. {¶ 20} Judgment reversed and remanded.

3. It is upon this point that our dissenting colleague miscons trues our holding. It is of no consequence whether amended R.C. 4510.13(A)(3) implicates Section 28, Article II of the Ohio Constitution as impairing a vested right or is merely remedial because the General Assembly did no t expressly declare the statute to have retroactive application.Butler CA2019-04-066

- 8 - PIPER, J., concurs. S. POWELL, P.J., dissents

S. POWELL, dissenting. {¶ 21} I respectfully disagree with my colleagues that R.C. 4510.13(A) (3) has improper retroactive effect. Nor would I find that the statute impacts a vested right. Consequently, I would find the stat ute constitutional as applie d and affirm the trial court. {¶ 22} As a preliminary matter, Ohio sta tutes are entitled to a strong presumption of constitutionality. Wilson v. AC&S, Inc. , 169 Ohio App.3d 720, 2006-Ohio-6704, ¶ 62 (12th Dist.), citing State v. Cook , 83 Ohio St.3d 404, 409 (1998). A regularly enacted statute enjoys the benefit of every presumption of constitutionality. This court must find "clear conflict" between the statute in question and some particular p rovision of the Constitution.

Id

. {¶ 23} "Section 28, Article II of the Ohio Constitution prohibits the General Assembly from passing retroactive laws and protects vested rights from n ew legislative

encroachments." Wilson at ¶ 65, citing Vogel v. Wells , 57 Ohio St.3d 91, 99 (1991). Impermissible retroactive laws are those that impose "new dutie s and obligations upon a person's past conduct and transactions* * *." Personal Serv. Ins. Co. v. Mamone , 22 Ohio St.3d 107, 109 (1986). {¶ 24} Amended R.C. 4510.13(A)(3) does not impose new "duties or "obli gations" upon Gregoire. The statute does not impose a new penalty or in crease the prior penalties imposed for any of Gregoire's past OVI convictions. It does no t impose new driving restrictions. It does not require him to take any additional a ctions based upon his past conduct. The effect of the statute is that he simply ceased to qualify for limited driving privileges after the effective date of the act. Had Gregoire a pplied for privileges prior to theButler CA2019-04-066

- 9 - amendment, he would have qualified to have the court consider h is petition. {¶ 25} Were I to find that the statute had retroactive impact, I would not find that it extinguished any vested right. "A 'vested right' may be create d by common law or statute and is generally understood to be the power to lawfully do cert ain actions or possess certain things; in essence, it is a property right." Washington Cty. Taxpayers Assn. v. Peppel , 78 Ohio App.3d 146, 155 (4th Dist.1992). "It has been described a s a right 'which it is proper for the state to recognize and protect, and which an individual cannot be deprived of arbitrarily without injustice.'" State ex rel. Jordan v. Indus. Comm. , 120 Ohio St.3d 412, 2008-Ohio-6137, ¶ 9, quoting State v. Muqdady , 110 Ohio Misc.2d 51, 55 (M.C.2000). A right cannot be considered "vested" unless it amounts to someth ing more than a "mere expectation or interest based upon an anticipated continuance o f existing laws." Roberts

v. Treasurer , 147 Ohio App.3d 403, 411 (10th Dist.2001), quoting In re Emery , 59 Ohio App.2d 7, 11 (1st Dist.1978). {¶ 26} In Ohio, a license to operate a motor vehicle is a privilege, n ot an absolute property right. Doyle v. Ohio BMV , 51 Ohio St.3d 46 (1990), paragraph two of the syllabus. Thus, it goes without saying that the limited driving privilege s that Gregoire sought were not his property right. {¶ 27} That Gregoire had no vested right in limited driving privileges is also reinforced by the fact that the Revised Code required him to pe tition the court for privileges. In other words, Gregoire had no automatic right to limited driv ing privileges. And even if Gregoire was otherwise qualified to file a petition does not me an that the court was required to grant the petition. The court's decision whether to grant o r deny limited driving privileges is discretionary. R.C. 4510.021(A); R.C. 4510.13(B); State v. Butler , 12th Dist. Warren No. CA2011-01-004, 2011-Ohio-4565, ¶ 8. {¶ 28} All that Gregoire possessed prior to the effective date of amen ded R.C.Butler CA2019-04-066

- 10 - 4510.13(A)(3) was a "mere expectation" that the look-back perio d set forth in that section would remain the same. However, Gregoire's mere expectation th at the law would not change is not a vested right. For these reasons, I do not find "clear conflict" between this

statute and the Ohio Constitution and would affirm the trial co urt.