State v. Tolliver
2013 Ohio 3861
Ohio Ct. App.2013Background
- Tolliver pleaded no contest in 2009 to third-degree felony burglary and was placed on community control.
- In 2012 the trial court revoked community control and imposed a five-year prison term.
- Tolliver argues this five-year term exceeds the amended maximum of 36 months under HB 86 (amending R.C. 2929.14(A)).
- HB 86 amendments apply to Tolliver via R.C. 1.58(B), and Tolliver’s 2009 sentence did not actually impose a prison term at that time.
- The court treated the 2009 notification as not constituting an actual imposed term, so the 2012 term could be subject to the amended maximum.
- The court remanded for resentencing, rejecting res judicata and related challenges raised by the State.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the five-year term violates amended R.C. 2929.14(A). | Tolliver contends the term exceeds the amended maximum. | State argues the term was valid under prior law or res judicata. | Term is clearly and convincingly contrary to law; remand for resentencing. |
Key Cases Cited
- Kalish, 120 Ohio St.3d 23 (2008-Ohio-4912) (establishes two-step review for felony sentences)
- State v. Marshall, 2013-Ohio-1481 (6th Dist. Erie No. E-12-022) (clarifies when a prison term is actually imposed for community control violations)
- State v. Vlad, 2003-Ohio-2930 (7th Dist.) (explains that community control sanctions are not imposed as prison terms until revoked)
- State v. Wilis, 2005-Ohio-6947 (5th Dist. Fairfield No. 05CA42) (ripe for review of incarceration periods upon actual sentencing order)
- State v. Allbaugh, 2013-Ohio-2031 (4th Dist. Athens No. 12CA23) (distinguishes res judicata impact when direct appeal on review was not filed)