In the Matter of:
Ian Neinast
:
:
:
Case No. TR20080510
PETITION FOR POST-CONVICTION RELIEF
Ian A. Neinast
Robert A. Neinast (father)
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601
I. INTRODUCTION
Defendant-Petitioner Ian Neinast respectfully petitions this Court for Post-Conviction Relief to enable this Court to correct its obvious error and vacate the sanctions in his sentence requiring traffic school and writing an essay. Both In re Kirby, 2008-Ohio-876 (Ohio App. Dist. 5, Feb. 29, 2008), and the Ohio Revised Code Section 2152.21 make it abundantly clear that neither traffic school nor an essay are lawful sentences for juvenile traffic offenders; sentences are specifically limited to those listed in the statute. Ian's due process rights are violated by an unlawful sentence.
II. CASE HISTORY
On September 19, 2008, before Magistrate Carl McCoy, Ian admitted to a violation of O.R.C. § 4513.02(A), Operation of an Unsafe Vehicle. Ian was then sentenced to a fine of $11, writing a 500-word essay on “3 major concerns of a driver,” traffic school, and a 30-day license suspension. Ian's father objected to the sentence at that time.
Ian and his father filed an Objection to the Magistrate's Order on September 22, 2008. That Objection raised the issue of the unauthorized nature of the sentence on page 8. After a misunderstanding in which Judge Williams made an Entry, dated October 3, 2008, permitting Ian to withdraw his plea and try the case, Ian and his father made a motion that clarified the issue. Judge Williams made a final Entry, on October 20, 2008, in which he overruled the Objection and adopted the orders of the Magistrate.
III. STATEMENT OF FACTS
On July 29, 2008, the brakes on Ian's vehicle malfunctioned, causing a slow-speed collision in which no one was injured. Ian admitted to a violation of operating an unsafe vehicle; his “plea provide[d] the necessary proof of the elements of the crime and sufficient evidence to support the conviction.” State v. Isbell, 2004-Ohio-2300 (Ohio App. Dist. 12, May 10, 2004) at ¶16. “Consequently, there is no evidence to consider.” Id. This was Ian's first offense.
IV. GROUNDS FOR RELIEF
Two sanctions within Ian's sentence are unlawful and unauthorized: traffic school,* and the 500-word essay. O.R.C. § 2152.21 is quite specific as to the allowable dispositions for juvenile traffic offenders. Those are 1) costs and fines; 2) license suspension; 3) community control; 4) restitution (for non-minor misdemeanors—not applicable); or 5) detention (for drug offenses). Neither traffic school nor essays are on that list, and hence they are not authorized.
In re Kirby, 2008-Ohio-876 (Ohio App. Dist. 5, Feb. 29, 2008), notably here in the Fifth District, is directly on point:
Appellant, in his second assignment of error, argues that, in Case No.2005-TR-00810, the trial court erred when it imposed sanctions on him that are not provided for in R.C. 2152.21. We agree. We note that appellee State of Ohio, in its brief, concedes that the trial court erred in imposing the challenged sanctions on appellant.
Id., at ¶30. (Emphasis added.) The Kirby court also invalidated another of the sanctions, for the same reason:
Finally, while the trial court, in its December 19, 2005, Judgment Entry, ordered appellant to submit to random urine screens, we note that there is no such sanction authorized by R.C. 2152.21. We further note that the trial court did not place appellant on community control and, therefore, could not have ordered random urine screens as a condition of community control.
Id., at ¶40. (Emphasis added.) A copy of In re Kirby is attached to this Petition.
In the instant case, the two sanctions complained about are clearly not authorized by O.R.C. § 2152.21, and cannot be allowed to stand.
IV. CONCLUSION
Defendant-Petitioner respectfully prays that this Court correct its obvious error in adopting the Magistrate's order, and grant the requested relief by vacating the two unlawful sanctions within Ian's sentence.
Respectfully submitted,
/s/ Ian A. Neinast
Ian A. Neinast
/s/ Robert A. Neinast
Robert A. Neinast (father)
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601
Footnotes:
* While traffic school is authorized under O.R.C. § 4510.31 under certain circumstances, none of the requisite conditions are present here. [Back]