State v. Randall , 2013 Ohio 5130 ( 2013 )

[Cite as State v. Randall, 2013-Ohio-5130.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99721
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
WILLIAM RANDALL, IV
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-569347
BEFORE: Celebrezze, P.J., E.A. Gallagher, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: November 21, 2013
ATTORNEY FOR APPELLANT
David L. Doughten
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Erin Stone
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Defendant-appellant, William Randall, IV, appeals his sentence. After
careful review of the record and relevant case law, we reverse and remand for
proceedings consistent with this opinion.
I. Factual and Procedural History
{¶2} On December 18, 2012, appellant was indicted in Cuyahoga C.P. No.
CR-569347 on one count of theft in violation of R.C. 2913.02(A)(3), a felony of the fifth
degree. The theft charge arose out of a contract for roofing services that appellant
entered into with West Bethel Baptist Church (“the Church”) in Cleveland, Ohio. In
furtherance of the parties’ agreement, the Church paid appellant $3,600 in advance of any
work being performed. However, appellant never performed the agreed-upon roofing
work and did not return numerous requests to complete the work or return the paid funds.
Based on appellant’s failure to respond to the Church’s requests, the Church reported
appellant to the police and this case ensued.
{¶3} On January 29, 2013, appellant entered a plea of guilty to a charge of theft, as
charged in the indictment. On March 7, 2013, the trial court sentenced him to a prison
term of ten months. On March 8, 2013, appellant filed a motion for relief from judgment
or reconsideration of sentence. On March 19, 2013, the trial court denied appellant’s
motion.
{¶4} Appellant now brings this timely appeal, raising one assignment of error for
review.
II. Law and Analysis
A. R.C. 2929.13(B)(1)(a)
{¶5} In his sole assignment of error, appellant argues that his sentence was
contrary to law. Specifically, he contends that, pursuant to R.C. 2929.13(B)(1)(a), “the
trial court is required to sentence a defendant who pleads guilty to a fourth- or
fifth-degree felony that was not an offense of violence to a community control sanction of
at least one year.”
{¶6} At the time of appellant’s sentencing, R.C. 2929.13(B)(1)(a) provided:1
Except as provided in division (B)(1)(b) of this section, if an offender is
convicted of or pleads guilty to a felony of the fourth or fifth degree that is
not an offense of violence, the court shall sentence the offender to a
community control sanction of at least one year’s duration if all of the
following apply:
(i) The offender previously has not been convicted of or pleaded guilty to a
felony offense or to an offense of violence that is a misdemeanor and that
the offender committed within two years prior to the offense for which
sentence is being imposed.
(ii) The most serious charge against the offender at the time of sentencing is
a felony of the fourth or fifth degree.
(iii) If the court made a request of the department of rehabilitation and
correction pursuant to division (B)(1)(c) of this section, the department,
within the forty-five-day period specified in that division, provided the
court with the names of, contact information for, and program details of one
1 The current version of R.C. 2929.13(B)(1)(a) restates former R.C.
2929.13(B)(1)(a)(i) as two separate conditions: “(i) The offender previously has not
been convicted of or pleaded guilty to a felony offense,” and “(iv) The offender
previously has not been convicted of or pleaded guilty to a misdemeanor offense of
violence that the offender committed within two years prior to the offense for which
sentence is being imposed.” See 2012 Am.Sub.S.B. 160, effective March 22, 2013.
or more community control sanctions of at least one year’s duration that are
available for persons sentenced by the court.
{¶7} This court has determined that, under former R.C. 2929.13(B)(1)(a), if all
three subsections are satisfied, the trial court is required to impose a term of community
control sanctions and lacks the discretion to sentence the offender to a prison term. State
v. Johnson, 8th Dist. Cuyahoga No. 98245, 2013-Ohio-575, ¶ 59.
{¶8} The parties do not dispute that subsections (ii) and (iii) are satisfied in this
case. However, with respect to subsection (i), the state contends that R.C.
2929.13(B)(1)(a) does not apply because appellant had a prior felony conviction despite
the fact that it predated his sentencing by more than two years.
{¶9} Based on this court’s holding in Johnson, we find no merit to the state’s
position. In Johnson, this court rejected the same argument raised by the state, holding
that “R.C. 2929.13(B)(1)(a)(i) is satisfied where a defendant has previously been
convicted of or pleaded guilty to a felony offense, but that conviction or guilty plea
occurred more than two years before the current sentence is imposed.” Id. at ¶ 60
(finding that the state’s position would have us effectively read the word “and” out of
R.C. 2929.13(B)(1)(a)(i)).
{¶10} Here, it is undisputed that appellant had not been convicted of a felony or
pleaded guilty to a felony in the two years preceding this underlying theft offense.
Therefore, R.C. 2929.13(B)(1)(a)(i) applied. Because there is no dispute that R.C.
2929.13(B)(1)(a)(ii)-(iii) applied, the trial court was required to sentence appellant to a
community control sanction. Accordingly, the trial court committed clear error when it
failed to comply with the applicable statute and sentenced appellant to a term of
imprisonment. Johnson, at ¶ 61.
{¶11} We acknowledge that Am.Sub.S.B. No. 160 took effect on March 22, 2013,
which changed, or clarified, the ambiguous provisions of R.C. 2929.13(B)(1)(a). Under
the current version of the law, the mandatory community control provisions do not apply
if the offender has previously pled guilty to, or has previously been convicted of, a felony,
regardless of the date. See R.C. 2929.13(B)(1)(a)(i). Thus, we agree that had the
current version of R.C. 2929.13(B)(1)(a) existed at the time of appellant’s sentencing, the
trial court would not have been mandated to sentence him to community control sanctions
based on his previous felony conviction in 2008.
{¶12} Nevertheless, appellant was sentenced before the effective date of S.B. 160.
Accordingly, we find our examination of the prior version of the law in Johnson to be
applicable herein and find that any ambiguity existing in R.C. 2929.13(B)(1)(a)(i) at the
time of appellant’s sentence requires us to construe the language in appellant’s favor and
against the state. State v. Coleman, 8th Dist. Cuyahoga Nos. 98557 and 98558,
2013-Ohio-1658.
{¶13} Based on the foregoing, we find the trial court erred in sentencing appellant
to a ten-month term of imprisonment. Appellant’s sole assignment of error is sustained,
and the matter is reversed and remanded so that community control sanctions can be
imposed.
{¶14} Judgment is reversed and remanded for further proceedings consistent with
this opinion.
It is ordered that appellant recover from appellee 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.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
EILEEN T. GALLAGHER, J., CONCUR