State v. Kincaid

S
[Cite as State v. Kincaid, 2021-Ohio-583.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellant,              :
                                                            No. 109358
                 v.                                :

JAMES KINCAID,                                     :

                 Defendant-Appellee.               :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: REVERSED AND REMANDED
                 RELEASED AND JOURNALIZED: March 4, 2021


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-04-453846-A


                                             Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Anthony T. Miranda, Assistant Prosecuting
                 Attorney, for appellant.

                 Cullen Sweeney, Chief Public Defender, and John T.
                 Martin, Assistant Public Defender, for appellee.


SEAN C. GALLAGHER, P.J.:

                   This cause came to be heard upon the accelerated calendar pursuant

to App.R.11.1 and Loc.R. 11.1. Appellant the state of Ohio appeals the decision of the

trial court that granted defendant-appellee James Kincaid’s motion for limited
driving privileges over the state’s objection. Upon review, we reverse the decision of

the trial court and remand the matter.

      Background

               In September 2004, Kincaid was convicted on charges of failure to

comply with the order or signal of a police officer in violation of R.C. 2921.331, a

felony of the third degree, and driving while under the influence of alcohol or drugs

in violation of R.C. 4511.19, a felony of the fourth degree. The trial court sentenced

appellant to three years in prison and imposed a lifetime driver’s license suspension.

               From 2011 to 2015, Kincaid filed several motions seeking to obtain

limited driving privileges or to reinstate his driver’s license. Those motions were

denied. In some of the entries, the trial court indicated that Kincaid was not eligible

for consideration until 15 years after the initial license suspension pursuant to R.C.

4510.54 and that “no motion for privileges may be considered before 9/21/19.”

               On November 27, 2019, Kincaid filed a motion for limited driving

privileges pursuant to R.C. 4510.021. He requested limited driving privileges for

“occupational, educational, and emergency purposes.” In his supporting affidavit,

he averred that he had not consumed alcohol for approximately 15 years and was

currently active with Alcoholics Anonymous.         He set forth family and work

obligations for which he wished to have driving privileges. A supporting affidavit of

a personal friend also was attached to his motion. Kincaid did not specify the hours

during which he was requesting privileges and did not provide proof of insurance.
               The state opposed Kincaid’s motion and argued that Kincaid was

ineligible for limited driving privileges due to his conviction for failure to comply.

On December 12, 2019, the trial court granted Kincaid’s motion over the state’s

objection and without holding a hearing. The trial court ordered Kincaid to provide

proof of insurance, to install interlock, and to be issued special license plates. The

state timely appealed.

      Law and Analysis

               The state raises three assignments of error for our review. The state

claims the trial court’s decision to grant Kincaid limited driving privileges was

improper because (1) Kincaid is not eligible due to his underlying felony conviction

for failure to comply in violation of R.C. 2921.331, (2) he did not present proof of

auto insurance, and (3) the trial court’s order did not state the time or purposes of

the driving privileges.

               Under the first assignment of error, the state claims the trial court

erred in granting Kincaid driving privileges because he was convicted of a felony in

violation of R.C. 2921.331, failure to comply with an order or signal of a police officer,

which the state argues renders Kincaid ineligible for limited driving privileges under

R.C. 4510.021. The state further maintains that although the trial court can modify

a driver’s license suspension pursuant to R.C. 4510.54 under certain circumstances,
Kincaid neither requested a termination or modification of his suspension under

R.C. 4510.54, nor did he meet the requirements of that statute.1

               Generally, the decision whether to grant or deny limited driving

privileges is reviewed for an abuse of discretion. State v. Mormile, 8th Dist.

Cuyahoga No. 106573, 2018-Ohio-4858, ¶ 17. However, the interpretation of a

statute presents a question of law that we review de novo. State v. Jones, Slip

Opinion No. 2020-Ohio-6729, ¶ 17, citing State v. Vanzandt, 

142 Ohio St. 3d 223

,

2015-Ohio-236, 

28 N.E.3d 1267

, ¶ 6.

               As a result of his conviction for failure to comply with an order or

signal of a police officer in violation of R.C. 2921.331, Kincaid’s driver’s license was

suspended for life under a class two suspension. Pursuant to R.C. 2921.331(E), the

court was required to “impose a class two suspension from the range specified in

[R.C. 4510.02].” For a class two suspension, R.C. 4510.02(A)(2) mandates that the

court impose as “a definite period” of suspension from the range of “three years to

life.”

               After several unsuccessful attempts to regain driving privileges, in

November 2019 Kincaid filed a motion for limited driving privileges “pursuant to

R.C. 4510.021.” Obtaining limited driving privileges pursuant to R.C. 4510.021 is a

separate and distinct procedure from the termination or modification of the

suspension pursuant to R.C. 4510.54. As the Supreme Court of Ohio has recognized,


         1
       The state claims that Kincaid does not meet the requirements under R.C. 4510.54
because it argues he was convicted in 2014 of driving under suspension. Rather, his
motion for limited driving privileges was filed under R.C. 4510.021.
“[T]he General Assembly has carved out two procedures by which drivers under

license suspensions may seek to drive and has given them distinct labels. One

procedure allows limited driving privileges. R.C. 4510.021 and related statutes. The

other allows termination or modification of the suspension. R.C. 4510.54.” State v.

Manocchio, 

138 Ohio St. 3d 292

, 2014-Ohio-785, 

6 N.E.3d 47

, ¶ 18. Because Kincaid

sought to obtain limited driving privileges, R.C. 4510.021 and its related statutes

apply in this matter. Moreover, because Kincaid did not request the termination or

modification of the suspension pursuant to R.C. 4510.54, that procedure was not

invoked.

               The Supreme Court of Ohio has held that the process for obtaining

limited driving privileges is governed by R.C. 4510.021 and related statutes.

Manocchio at ¶ 18. R.C. 4510.02(A)(2) mandates that the court impose a definite

period of three years to life for a class two suspension. R.C. 4510.021 permits a court

to grant limited driving privileges for various purposes “[u]nless expressly

prohibited by * * * any other section of the Revised Code * * *.” R.C. 2921.331(E)

provides in relevant part:

      (E) In addition to any other sanction imposed for a violation of division
      (B) of this section, the court shall impose a class two suspension from
      the range specified in division (A)(2) of section 4510.02 of the Revised
      Code. * * * The court shall not grant limited driving privileges to the
      offender on a suspension imposed for a felony violation of this section.
      * * * No judge shall suspend the first three years of suspension under a
      class two suspension of an offender’s license, permit, or privilege
      required by this division * * *.
               Although R.C. 2921.331(E) precludes a trial court from granting

limited driving privileges to an offender such as Kincaid who is on a suspension

imposed for a felony violation of R.C. 2921.331, the statute also instructs that “[n]o

judge shall suspend the first three years of suspension under a class two suspension

* * * required by this division * * *.” The issue arises as to whether this language

permits a court to “suspend” a class two suspension for the purpose of granting

limited driving privileges.2

               Kincaid argues that the language in R.C. 2921.331(E) permits a trial

court to “suspend” a class two suspension after three years. In support of his

argument, Kincaid cites State v. Butler, 12th Dist. Warren No. CA2011-01-004,

2011-Ohio-4565, in which the Twelfth District found the language of R.C.

2921.331(E) permitted a trial court to suspend a suspension for the purpose of

granting limited driving privileges to a defendant who, like Kincaid, had been

convicted of a felony failure to comply in violation of R.C. 2921.331(B) and was

under a class two suspension.

Id. at ¶ 2-12.3

Therefore, Kincaid claims that the trial




       2 We note that in a comparable context involving a class two suspension for an OVI
conviction, R.C. 4510.13(A)(5)(g) specifically authorizes a court to “grant limited driving
privileges” after the first three years of a class two suspension imposed under R.C.
4511.19(G)(1)(d) or (e) for an OVI conviction, but it leaves the remainder of the period of
suspension intact. Similar language does not appear in R.C. 2921.331(E).

       3 In construing R.C. 2921.331(E), the Twelfth District determined that “[l]ogic
dictates * * * that a judge does have the authority to suspend the suspension of driving
privileges after the first three years of a class two suspension have been served.”

Id. at ¶ 10.

The court proceeded to hold that “the trial court was not acting outside the scope of
its authority when it granted limited driving privileges to [the defendant] more than three
years after the commencement of the suspension.”

Id. at ¶ 11.

court had the ability under R.C. 2921.331(E) to “suspend” his driver’s license

suspension after three years. Kincaid further argues that this relief is available solely

as a function of R.C. 2921.331(E), without implicating R.C. 4510.54, which precludes

the “modification” and/or “termination” of a lifetime suspension for at least 15 years.

               The problem with Kincaid’s argument is that he never sought to

suspend his class two suspension pursuant to R.C. 2921.331(E), nor was any such

relief granted by the trial court. Rather, Kincaid sought limited driving privileges

solely pursuant to R.C. 4510.021. The trial court did not have any adversarial

briefing on this issue, and no hearing was requested to present additional

arguments. Therefore, the trial court had no opportunity to consider the application

of R.C. 2921.331(E) to Kincaid’s request for limited driving privileges. Moreover,

because the issue was never presented, the trial court’s order did not suspend

Kincaid’s suspension for the purpose of granting limited driving privileges.

               This court should not decide issues that are not properly before us.

See State v. Tate, 

140 Ohio St. 3d 442

, 2014-Ohio-3667, 

19 N.E.3d 888

, ¶ 21.4 We

recognize that the parties have briefed the issue on appeal; however, the trial court

never granted any relief pursuant to R.C. 2921.331(E). “‘[J]ustice is far better served

when it has the benefit of briefing, argument, and lower court consideration before

making a final determination.’” (Emphasis added.) Risner v. Ohio Dept. of Natural



      4  In Tate, the Supreme Court of Ohio held that “appellate courts should not decide
cases on the basis of a new, unbriefed issue without ‘giv[ing] the parties notice of its
intention and an opportunity to brief the issue.’”

Id., quoting State v.

1981 Dodge Ram
Van, 

36 Ohio St. 3d 168

, 170, 

522 N.E.2d 524

(1988).
Resources, 

144 Ohio St. 3d 278

, 2015-Ohio-3731, 

42 N.E.3d 718

, ¶ 28, quoting

Sizemore v. Smith, 

6 Ohio St. 3d 330

, 333, 

453 N.E.2d 632

(1983), fn. 2.

              Accordingly, we decline to review this issue and remand the matter to

the trial court for consideration of whether the court may “suspend” Kincaid’s class

two suspension pursuant to R.C. 2921.331(E) for the purpose of granting limited

driving privileges pursuant to R.C. 4510.021 and, if so, whether such relief is

warranted.

              For the reasons stated above, we sustain the first assignment of error.

              Because the second and third assignments of error are related, we

shall address them together. The state argues that the trial court erred in granting

driving privileges without Kincaid first having provided proof of financial

responsibility.5 Although the trial court ordered Kincaid to provide proof of

insurance, this is not consistent with R.C. 4510.021(E), which provides: “Before

granting limited driving privileges under this section, the court shall require the

offender to provide proof of financial responsibility pursuant to [R.C. 4509.45].”

Thus, R.C. 4510.021(E) requires the defendant to provide the trial court with proof

of financial responsibility “before” the trial court grants the defendant limited

driving privileges. Mormile, 8th Dist. Cuyahoga No. 106573, 2018-Ohio-4858, ¶ 22.

              The state also argues that the trial court did not specify the time and

purposes of the driving privileges as required by R.C. 4510.021. As stated by the



      5 Because R.C. 4510.54 is not applicable, we do not address the state’s argument
regarding proof of insurance under that provision.
Supreme Court of Ohio, “[R.C. 4510.021(A)] requires the court granting limited

driving privileges to ‘specify the purposes, times, and places of the privileges’ and

restricts the permissible purposes” to those specified thereunder. Manocchio, 

138 Ohio St. 3d 292

, 2014-Ohio-785, 

6 N.E.3d 47

, at ¶ 20, quoting R.C. 4510.021(A).

Therefore, a trial court must comply with R.C. 4510.021(A) when granting limited

driving privileges. See Manocchio at ¶ 20-21.

              The trial court’s order did not comply with the statute in either regard.

Accordingly, we sustain the second and third assignments of error.

              Judgment reversed, and case remanded.

      This cause is reversed and remanded to the lower court for further

proceedings consistent with this opinion.

      It is ordered that appellee and appellant share the costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.


__________________________________
SEAN C. GALLAGHER, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
LISA B. FORBES, J., CONCUR

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