STATE OF OHIO, Plaintiff-Appellee, v. JEREMY THOMAS LILLY, Defendant-Appellant.
CASE NOS. CA2017-06-029, CA2017-06-030
COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
3/19/2018
2018-Ohio-1014
HENDRICKSON, J.; PIPER and M. POWELL, JJ., concur.
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case Nos. 2016 CR 00616, 2016 CR 00733. D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, for plaintiff-appellee. W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, for defendant-appellant.
HENDRICKSON, J.
{¶ 1} Defendant-appellant, Jeremy Thomas Lilly, appeals his sentence in the Clermont County Court of Common Pleas. For the reasons set forth below, we affirm his sentence.
{¶ 2} On November 8, 2016, the Clermont County Grand Jury returned a 16-count indictment charging Lilly with 9 fourth-degree felony counts of grand theft of a motor vehicle, two fifth-degree felony counts of arson, one fifth-degree felony count of theft from a person in
{¶ 3} Lilly pled guilty to 9 fourth-degree felony counts of grand theft of a motor vehicle, one fifth-degree felony count of theft from a person in a protected class, and three fifth-degree felony counts of breaking and entering. On February 15, 2017, the trial court found community control sanctions inconsistent with the principles and purposes of felony sentencing and sentenced Lilly to an aggregate 60-month prison term. However, prior to journalizing a sentencing entry, the trial court continued the sentence so that it could comply with
{¶ 4} The trial court, concerned that
{¶ 5} Lilly now appeals from his sentence.
{¶ 6} Assignment of Error No. 1:
{¶ 8} Assignment of Error No. 2:
{¶ 9} THE TRIAL COURT ERRED IN APPLYING A “PURPOSES AND PRINCIPLES OF SENTENCING” TEST TO THE PROGRAMS IDENTIFIED BY THE ODRC[.]
{¶ 10} Assignment of Error No. 3:
{¶ 11} PROVISIONS OF
{¶ 12} Lilly contends the trial court did not have the discretion to sentence him to a prison term because
{¶ 13}
{¶ 14} A sentence is not “clearly and convincingly contrary to law where the trial court considers the principles and purposes of
{¶ 15}
Except as provided in division (B)(1)(b) of this section, if an offender is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence or that is a qualifying assault offense, the court shall sentence the offender to a community control sanction of at least one year‘s duration if all of the following apply:
(i) The offender previously has not been convicted of or pleaded guilty to a felony offense.
(ii) The most serious charge against the offender at the time of sentencing is a felony of the fourth or fifth degree.
(iii) If the court made a request of the department of rehabilitation and correction pursuant to division (B)(1)(c) of this section, the department, within the forty-five-day period specified in that division, provided the court with the names of, contact information for, and program details of one or more community control sanctions of at least one year‘s duration that are available for persons sentenced by the court.
(iv) The offender previously has not been convicted of or pleaded guilty to a misdemeanor offense of violence that the offender committed within two years prior to the offense for which sentence is being imposed.
Thus, ”
{¶ 16}
believes that no community control sanctions are available for its use that, if imposed on the offender, will adequately fulfill the overriding principles and purposes of sentencing, the court shall contact the department of rehabilitation and correction and ask the department to provide the court with the names of, contact information for, and program details of one or more community control sanctions of at least one year’s duration that are available for persons sentenced by the court.
Then, “[n]ot later than forty-five days after receipt” of such a request from a court, the ODRC “shall provide the court with the names of, contact information for, and program details of one or more community control sanctions of at least one year’s duration that are available for persons sentenced by the court, if any.”
{¶ 17} Specifically,
(b) The court has discretion to impose a prison term upon an offender who is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence or that is a qualifying assault offense if * * *:
* * *
(iv) The court made a request of the department of rehabilitation and correction pursuant to division (B)(1)(c) of this section, and the department, within the forty-five-day period specified in that division, did not provide the court with the name of, contact information for, and program details of any community control
sanction of at least one year‘s duration that is available for persons sentenced by the court.
{¶ 18} In consideration of the 45-day period described above, it is clear
{¶ 19} On April 19, 2017, the ODRC provided the trial court with a list of possible community control sanctions. Therefore, 50 days had passed before the ODRC provided the trial court with such possible sanctions. Thus, pursuant to
{¶ 20} In consideration of our finding that the sentence imposed by the trial court was not clearly and convincingly contrary to law, we find Lilly‘s remaining arguments regarding
{¶ 21} Accordingly, Lilly‘s first, second, and third assignments of error are overruled.
{¶ 22} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.