STATE OF OHIO v. LINNIE EDWARDS
No. 109104
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
March 12, 2020
[Cite as State v. Edwards, 2020-Ohio-927.]
FRANK D. CELEBREZZE, JR., J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-624623-A
JUDGMENT: MODIFIED AND REMANDED
RELEASED AND JOURNALIZED: March 12, 2020
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Anthony T. Miranda, Assistant Prosecuting Attorney, for appellee.
Richard E. Hackerd, for appellant.
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Defendant-appellant, Linnie Edwards, brings the instant appeal challenging her one-year prison sentence for theft. Specifically, appellant argues that the trial court exceeded the 90-day maximum sentence under
I. Factual and Procedural History
{¶ 2} On December 23, 2017, appellant was arrested for stealing items from a store at Beachwood Mall. On January 19, 2018, appellant was charged with theft, a fifth-degree felony in violation of
{¶ 3} The parties reached a plea agreement. On March 5, 2018, appellant pled guilty to the theft offense. The trial court ordered a presentence investigation report and set the matter for sentencing.
{¶ 4} On April 3, 2018, the trial court sentenced appellant to one year of community control sanctions, ordering appellant to serve the first 60 days of the sentence in jail. The court informed appellant at the sentencing hearing and in the sentencing journal entry that a violation of the terms of her community control “may result in more restrictive sanctions, or a prison term of 12 month(s) as approved by law.”
{¶ 5} On March 11, 2019, the trial court scheduled a probation violation hearing for April 3, 2019. The trial court issued a journal entry that provided, in relevant part, “court extends probation supervision until August 3, 2019 or until after hearing.” Appellant failed to appear for the probation violation hearing, and
{¶ 6} On August 6, 2019, the trial court held a hearing on the alleged community control violation. During the hearing, appellant waived probable cause and admitted to violating the terms of her community control. Appellant advised the trial court that she was convicted of a misdemeanor, disorderly conduct, on April 29, 2019, in Franklin County Municipal Court. The trial court found appellant to be in violation of her community control sanctions, terminated community control, and sentenced appellant to a prison term of one year at the Ohio Reformatory for Women. The trial court granted appellant 13 days of jail-time credit.
{¶ 7} Appellant filed a pro se motion for jail-time credit on September 23, 2019. Therein, she requested that the trial court grant her an additional 73 days of jail-time credit, bringing the total number of days of jail-time credit to 102. The trial court granted appellant‘s motion on October 4, 2019.
{¶ 8} On October 10, 2019, appellant filed a pro se appeal challenging the trial court‘s August 6, 2019 judgment terminating community control and imposing the one-year sentence. On the same day, appellant filed pro se motions for leave to file a delayed appeal and for appointment of counsel. On October 23, 2019, this court granted appellant‘s motion for leave and her motion for appointment of counsel.
{¶ 9} In this appeal, appellant assigns two errors for review:
- The trial court‘s sentence of twelve months is contrary to law where ORC 2929.15 limited the sentence to not more than ninety days.
- [Appellant‘s] counsel was ineffective.
II. Law and Analysis
{¶ 10} In her first assignment of error, appellant argues that the one-year sentence is contrary to law.
{¶ 11} This court reviews felony sentences under the standard set forth in
{¶ 12} When an individual violates the terms of community control sanctions,
{¶ 13} Pursuant to
{¶ 14}
If the conditions of a community control sanction are violated * * * the sentencing court may impose upon the violator one or more of the following penalties:
* * *
(c) A prison term on the offender pursuant to section 2929.14 of the Revised Code and division (B)(3) of this section, provided that a prison term imposed under this division is subject to the following limitations, as applicable:
(i) If the prison term is imposed for any technical violation of the conditions of a community control sanction imposed for a felony of the fifth degree or for any violation of law committed while under a community control sanction imposed for such a felony that consists of a new criminal offense and that is not a felony, the prison term shall not exceed ninety days.
(Emphasis added.)
{¶ 15} The term “technical” violation is not defined in
{¶ 16} In the instant matter, as noted above, appellant was convicted of fifth-degree felony theft. Furthermore, appellant‘s disorderly conduct conviction in
{¶ 17} On January 31, 2020, the state filed a notice of conceded error, pursuant to Loc.App.R. 16(B). Therein, the state acknowledges that (1) the disorderly conduct conviction in Franklin County Municipal Court was a misdemeanor, and (2) appellant‘s failure to appear for the probation violation hearing on April 3, 2019, was a “technical” violation. Accordingly, the state concedes that the 90-day limitation under
{¶ 18} After reviewing the record, we agree with the parties and find that the one-year sentence imposed by the trial court for appellant‘s fifth-degree felony theft conviction is contrary to law. It is undisputed that appellant‘s disorderly conduct conviction in Franklin County Municipal Court was a misdemeanor. As a result, the 90-day limitation under
{¶ 19} The trial court failed to comply with the 90-day limitation under
{¶ 20} Appellant‘s first assignment of error is sustained. Our resolution of appellant‘s first assignment of error renders her second assignment of error moot.
{¶ 21} This matter is remanded to the trial court for the purpose of modifying appellant‘s one-year prison term to a prison term of 90 days, in accordance with
{¶ 22} Appellant was sentenced on August 6, 2019. Notwithstanding the fact that the trial court granted appellant 102 days of jail-time credit on October 4, 2019, appellant did not post bond until January 8, 2020, after obtaining a stay of execution of the one-year sentence pending appeal.
{¶ 23} The matter is remanded to the trial court for purposes of modifying appellant‘s sentence in accordance with this opinion.
It is ordered that appellant recover of 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., JUDGE
ANITA LASTER MAYS, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR