State v. Gatchel
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[Cite as State v. Gatchel, 2007-Ohio-1075.] THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO STATE OF OHIO, Plaintiff-Appellee, : OPINION : CASE NO. 2006-L-125 - vs : CHARLES E. GATCHEL, : Defendant-Appellant. Criminal Appeal from the Court of Common Pleas, Case No. 05 CR 000532. Judgment: Affirmed. Charles E. Coulson, Lake County Prosecutor, and Gregory J. Mussman, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For PlaintiffAppellee). R. Paul LaPlante, Lake County Public Defender, and Vanessa R. Clapp, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For DefendantAppellant). COLLEEN MARY O TOOLE, J. {¶1} Appellant, Charles E. Gatchel, appeals from the May 31, 2006 judgment entry of the Lake County Court of Common Pleas, in which he was sentenced for operating a vehicle under the influence of alcohol or drugs ( OVI ). {¶2} On December 2, 2005, appellant was indicted by the Lake County Grand Jury on one count of OVI, a felony of the third degree, in violation of R.C. 4511.19(A)(1)(a).1 On December 16, 2005, appellant filed a waiver of the right to be present at his arraignment and the trial court entered a not guilty plea in his behalf. {¶3} On February 16, 2006, appellant filed a motion to suppress.2 Appellee, the state of Ohio, filed a response on March 27, 2006. commenced on March 30, 2006. A suppression hearing Following the hearing, the trial court denied appellant s motion to suppress on April 5, 2006. {¶4} A change of plea hearing was held on April 13, 2006. Appellant withdrew his former not guilty plea, and entered a written plea of guilty. On April 24, 2006, the trial court accepted appellant s guilty plea, deferred sentencing, and referred the matter to the Adult Probation Department. {¶5} A sentencing hearing was held on May 25, 2006. Pursuant to its May 31, 2006 judgment entry, the trial court sentenced appellant to five years in prison, ordered him to pay a fine in the amount of $800, and suspended his driver s license for life. It is from that judgment that appellant filed a timely notice of appeal and makes the following assignments of error: {¶6} [1.] The trial court erred when it sentenced [appellant] to a more-than-the- minimum prison term in violation of the due process and ex post facto clauses of the Ohio and United States Constitutions. {¶7} [2.] The trial court erred when it sentenced [appellant] to a more-than-the- minimum prison term in violation of [appellant s] right to due process. 1. The charges stem from a July 20, 2005 stop. 2. In his motion, appellant moved the trial court to suppress the following: results of the field sobriety tests; statements taken from or made by him; observations and opinions of the Painesville Police Department; any tangible evidence found on his person or in his vehicle; and his privileged medical information. 2 {¶8} [3.] The trial court erred when it sentenced [appellant] to a more-than-the- minimum prison term based on the Ohio Supreme Court s severance of the offending provisions under Foster, which was an act in violation of the principle of separation of powers. {¶9} [4.] The trial court erred when it sentenced [appellant] to a more-than-the- minimum prison term contrary to the rule of lenity. {¶10} [5.] The trial court erred when it sentenced [appellant] to a more-than-theminimum prison term contrary to the intent of the Ohio legislators. {¶11} We note that the issues contained in appellant s five assignments of error have recently been addressed by this court in State v. Elswick, 11th Dist. No. 2006-L075, 2006-Ohio-7011. Thus, based on our decision in Elswick, appellant s assignments of error are without merit. {¶12} The judgment of the Lake County Court of Common Pleas is affirmed. CYNTHIA WESTCOTT RICE, P.J., MARY JANE TRAPP, J., concur. 3
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