STATE OF OHIO, Plаintiff-Appellee, v. JASON DIROCCO, Defendant-Appellant.
Case Nos. 21 MA 0116, 21 MA 0117
IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY
September 7, 2022
2022-Ohio-3221
Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio, Case Nos. 21 CR 460, 21 CR 155
BEFORE: David A. D‘Apolito, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT: Vacated and Remanded in part. Dismissed in part.
Atty. Paul J. Gains, Mahoning County Prosecutor, and Atty. Edward A. Czopur, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee and
Atty. Kathleen Evans, Assistant State Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215, for Defendant-Appellant.
{¶1} In these consоlidated appeals, Appellant, Jason N. Dirocco challenges a provision regarding his eligibility for an earned reduction of a minimum term, as well as an alleged misstatement regarding a prior conviction, in one of the sentencing entries in two consolidated criminal cases, Nos. 21 CR 155 (21 MA 117) and 21 CR 460 (21 MA 0116). The alleged errors regarding Appellant‘s eligibility for an earned reduction of a minimum term and the prior conviction aрpear exclusively in the sentencing entry in 21 CR 155. Although separate sentencing entries were issued in each case, the sentences were imposed at a consolidated sentencing hearing. There was no mention of the alleged prior conviction at the consolidаted sentencing hearing, however, the trial court did inform Appellant that he was ineligible for an earned reduction of a minimum term.
{¶2} In 21 CR 155, Appellаnt was sentenced to an agreed indefinite term of four-to-six years for one count of burglary, in violation of
{¶3} In 21 CR 460, Appellant was sentenced to agreed concurrent sentences of twelve months for each of the following: one count breaking and entering in violation of
{¶4} Appellant does not challenge the length of his sentences. Instead, he predicates the abоve-captioned appeals on a provision in the sentencing entry in 21 CR 155 which reads in relevant part, “The Defendant was advised that due to the nature of the offense, that he is not eligible to receive an ‘earned reduction of minimum term’ of five (5) to fifteen (15) percent fоr exceptional conduct or adjustment to incarceration as determined by the ODRC.” Appellant challenges the inclusion of the foregoing language in the 21 CR 155 sentencing entry because the trial court‘s conclusion regarding
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT DETERMINED THAT [APPELLANT] IS NOT ELIGIBLE FOR EARNED TIME CREDIT.
{¶5} Pursuant to
{¶6} At the consolidated sentencing hearing, the trial court inquired, “is burglary considered an offense of violence?” The state responded in the affirmativе and the trial court informed Appellant, “[s]o you‘re not eligible for earned credit pursuant to Revised Code 2963.1931 and are not recommended for risk reduction sentence [sic] pursuant to Revised Code 2929.143.” (11/10/21 Sentencing Hrg., p. 13.) Appellant does not challenge the trial court‘s conclusion with respect to a risk reduction sentence.
{¶7}
{¶8} In their appellate briefs, both parties address
{¶9} However, we need not address
{¶10} For the foregoing reasons, we find that Appellant‘s sole assignment of еrror has merit. Accordingly, the sentencing entry in 21 CR 155 (21 MA 117) is vacated, and this matter is remanded to the trial court to issue a nunc pro tunc order removing thе phrase “with a Notice of Prior Conviction Specification,
Waite, J., concurs.
Robb, J., concurs.
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.