2021 Ohio 1281
Ohio Ct. App.2021Background
- On May 23, 2018 McGarry was released on bond with a condition to attend all future court appearances.
- McGarry failed to appear at a bindover review hearing scheduled for September 12, 2018, and absconded; a bench warrant issued and he was arrested about a year later.
- On October 9, 2019 McGarry pleaded guilty to complicity to commit theft, a fifth-degree felony.
- On October 21, 2019 the trial court sentenced him to one year in prison (50 days credit) and stated a three-year postrelease control term.
- McGarry appealed only his sentence, arguing the court lacked discretion to impose prison because it found none of the R.C. 2929.13(B) factors applied and that the maximum term was improper given the State’s lack of opposition to community control.
- The appellate court affirmed the sentence as within statutory authority but sua sponte remanded for a limited resentencing to correct the improperly imposed mandatory postrelease control term.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court had discretion to impose a prison term for a fifth-degree felony under R.C. 2929.13(B)(1)(b) | The State: McGarry violated a bond condition (failure to appear) so R.C. 2929.13(B)(1)(b)(iii) authorizes imprisonment | McGarry: No judicial finding that he violated bond, so the court lacked discretion to impose prison absent an applicable R.C. 2929.13(B) factor | Court held McGarry violated his bond condition; R.C. 2929.13(B)(1)(b)(iii) provided discretion to impose prison. Trial court need not make additional specific findings on the record; appellate court presumed regularity given missing transcript. |
| Whether the maximum (one-year) sentence was improper given the State’s non-opposition to community control | The State: Court considered sentencing statutes and McGarry’s record and acted within its discretion | McGarry: Maximum sentence inappropriate because State did not oppose community control and he cooperated with investigation | Court held the sentence was within the statutory range and not contrary to law; appellate court will not reweigh R.C. 2929.11/2929.12 considerations. |
| Whether postrelease control was properly imposed | The State implicitly relied on the court’s statement imposing a three-year term | McGarry: Term was stated as mandatory although PRC is discretionary for this conviction | Court held the entry and oral statement improperly treated PRC as mandatory; remanded sua sponte for a limited resentencing hearing solely to impose postrelease control correctly. |
Key Cases Cited
- State v. Marcum, 146 Ohio St.3d 516 (2016) (standard for appellate review of felony sentences)
- Natl. City Bank v. Beyer, 89 Ohio St.3d 152 (appellate presumption of regularity when appellant fails to provide complete transcript)