STATE OF OHIO v. GREGORY BARNES
C.A. Nos. 13CA010502, 13CA010503
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
June 23, 2014
[Cite as State v. Barnes, 2014-Ohio-2721.]
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE Nos. 11CR083896, 12CR085278
Dated: June 23, 2014
WHITMORE, Judge.
{¶1} Appellant, State of Ohio, appeals from the judgment of the Lorain County Court of Common Pleas. This Court reverses.
I
{¶2} In November 2011, Gregory Barnes was indicted for tampering with records, in violation of
II
Assignment of Error
THE TRIAL COURT ERRED IN SENTENCING GREGORY BARNES TO A COMMUNITY CONTROL SANCTION WHEN A PRISON TERM WAS MANDATORY PURSUANT TO
{¶4} In its sole assignment of error, the State argues that the court erred in finding
{¶5}
{¶6} Barnes pleaded guilty to failing to register and acknowledged that he had a prior conviction under
All statutes have a strong presumption of constitutionality. See Sorrell v. Thevenir, 69 Ohio St.3d 415, 418-419 (1994). Before a court may declare unconstitutional an enactment of the legislative branch, “it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.” State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142 (1955), paragraph one of the syllabus.
{¶7} In his sentencing memorandum to the trial court, Barnes argued that
{¶8} In a transcript of the sentencing hearing, the court found the statute to be unconstitutional. However, the court did not make any such finding in its sentencing entry. “It is axiomatic that a court speaks only through its journal entries, and not through mere oral pronouncements.” State v. Douglas, 10th Dist. Franklin No. 13AP-570, 2014-Ohio-317, ¶ 5, quoting State v. Huddleston, 10th Dist. Franklin No. 12AP-512, 2013-Ohio-2561, ¶ 7. Nevertheless, even reviewing the court‘s findings in the transcript, we conclude that the court erred in failing to apply
{¶9} The court found that the statute is unconstitutional because it is inconsistent with changes to various sentencing statutes made in September 2011, pursuant to H.B. 86. In particular, the court noted that the legislature changed the sentencing structure for felonies of the third degree by creating “tiers” and detailing permissible sentencing ranges in terms of months, not years. However,
{¶10} After reviewing the sentencing transcript, it is unclear which constitutional provision(s) the court found to be “clearly incompatible” with the statute. See Defenbacher, 164 Ohio St. at paragraph one of the syllabus. The court appeared to focus solely on legislative intent and disregarded the presumption of constitutionality. See State v. Noling, 136 Ohio St.3d 163, 2013-Ohio-1764, ¶ 25. “A statute will be upheld unless the challenger meets the burden of establishing beyond a reasonable doubt that the statute is unconstitutional.” Id. Barnes did not meet his burden of establishing beyond a reasonable doubt that the statute is unconstitutional, and the court erred in relying solely on legislative intent to make such a finding. Because it was not established that the statute is unconstitutional, the court was required to apply
{¶11} The State‘s sole assignment of error is sustained.
{¶12} The State‘s sole assignment of error is sustained. The judgment of the Lorain County Court of Common Pleas is reversed and the cause is remanded for further proceedings consistent with the foregoing opinion.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
BETH WHITMORE FOR THE COURT
CARR, J. CONCURS.
{¶13} I concur in the majority‘s judgment. The State has appealed asserting in its sole assignment of error that the trial court erred in sentencing Mr. Barnes to community control when a prison term was required pursuant to
{¶14} At the sentencing hearing, the trial court considered Mr. Barnes’ claims that the statute could not be applied to enhance his sentence because (1) he was not previously informed of the potential enhancement and (2) the statute was unconstitutional as applied to him. The trial court rejected Mr. Barnes’ first argument but agreed that
DENNIS P. WILL, Prosecuting Attorney, and ELIZABETH LINDBERG, Assistant Prosecuting Attorney, for Appellant.
JENNIFER BERKI, Attorney at Law, for Appellee.