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7th District reverses man’s four-wheeler OVI conviction
TRACEY BLAIR
Legal News Reporter
Published: February 22, 2017
A Belmont County trial court erred by sentencing a man to five years in prison for driving a four-wheeler while intoxicated when the maximum penalty was three years, the 7th District Court of Appeals ruled recently.
After a 2014 jury trial, Kenneth Eugene Cunningham appealed his conviction for an incident that occurred April 9, 2013 while driving a 1997 Honda TRX ATV.
According to case summary, Cunningham argued the state failed to prove the “under the influence” element. He also claimed the charge should have been a misdemeanor, despite a prior conviction for operating a motor vehicle under the influence.
Although the 7th District found no merit in those arguments, they agreed his five-year sentence exceeded the maximum sentence for a third-degree felony OVI because he did not have five or more prior OVI convictions within the past 20 years.
At trial, a Neffs Fire Department captain testified he found Cunningham lying in the middle of Pike Street around 11:30 p.m. in front of a bar with road rash, a concussion, a punctured lung and other injuries. Bystanders said he crashed his four-wheeler, which had rolled over after striking a metal newspaper box.
Both the fire captain and an Ohio Highway Patrol trooper detected a strong odor of alcohol and physical signs of being under the influence.
The state asked for five years in prison since this was Cunningham’s fourth felony OVI conviction. The defense argued the maximum sentence was only three years, despite the fact that it was his 10th OVI conviction overall.
In a 3-0 opinion, appellate Judge Carol Ann Robb found the five-year sentence was contrary to law because there was no specification under R.C. 2941.1413.
“Consequently, Appellant’s five-year sentence must be reversed,” Judge Robb wrote. “… We hereby exercise our authority under R.C. 2953.08(G)(2) to modify and reduce Appellant’s sentence to the statutory maximum. Specifically, Appellant’s sentence is modified to thirty-six months (sixty days of which was mandatory).”
Seventh District judges Gene Donofrio and Mary DeGenaro concurred.
Cunningham’s driver’s license was also suspended for life and he was ordered to pay a $1,350 fine.
The case is cited State v. Cunningham, 2017-Ohio-377.