State v. LoganState v. Logan
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: April 6, 2023
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Tasha L. Forchione, Assistant Prosecuting Attorney, for appellant.
Cullen Sweeney, Cuyahoga County Public Defender, and John T. Martin, Assistant Public Defender, for appellee.
EILEEN A. GALLAGHER, J.:
{¶ 1} Plaintiff-appellant the state of Ohio appeals the sentence that the trial court imposed on defendant-appellee Jadyn Logan (“Logan“) following Logan‘s guilty plea to one count of attempted having weapons while under disability with a
{¶ 2} On this appeal we must decide whether a defendant who is sentenced to one year of mandatory prison time for a firearm specification alleging possession of a firearm during the commission of a felony is eligible to receive community-control penalties for the felony underlying the specification. Our resolution of this question will have the collateral effect of determining, among other things, whether a prison sentence imposed on an underlying felony that carries mandatory prison time as a result of a firearm specification is a “mandatory prison term” without the opportunity for judicial release. See
{¶ 3} After a thorough consideration of the detailed briefing and argument presented by the parties on this important question, and for the reasons that follow, we affirm Logan‘s sentence.
{¶ 4} A Cuyahoga County Grand Jury indicted Logan in October 2021 for several firearm-related offenses. Logan pleaded guilty in April 2022 to one count of attempted having weapons while under disability, a fourth-degree felony. See
{¶ 5} During Logan‘s change-of-plea hearing, the trial court described the possible penalties for the proposed plea as follows, in relevant part:
Amended Count 1, attempted having weapons under disability, a felony of the fourth degree, punishable by a maximum of 18 months of incarceration and up to a $5,000 fine. There is also a one-year firearm specification, which is mandatory time, and that must be served prior to and consecutive to any time that may be imposed on the underlying charge. * * *
With regards to a felony of the fourth degree, it is a rebuttable presumption with regards to community control, and if you were to be placed on community control, there could be sanctions for up to five years instead of prison. * * *
The firearm specification for which you are pleading is regarded by law as an enhancement, and so therefore, the Court could consider, as well, placing you on community control on the felony of the fourth degree and still imposing that mandatory one-year firearm specification.
{¶ 6} The assistant prosecuting attorney then confirmed that she was satisfied that the trial court had complied with Crim.R. 11 in conducting its plea colloquy.
{¶ 7} On May 12, 2022, the trial court held a sentencing hearing. The parties made arguments to the сourt, with each agreeing that Logan “has turned her life
I don‘t have to belabor her history. You have that in front of you in the [presentence-investigation report]. We have a one-year firearm specification in this case. I think we all know how this is going to end here today. The State of Ohio would defer to the Court when it comes to the underlying charge, the having weapons under disability.
{¶ 8} The trial court sentenced Logan to one year in prison on the firearm specification and to two years of community control for the underlying felony. The trial court imposed mandatory prison term on the firearm specification prior and consecutive to the two yеars of community control, ordering that Logan be returned to the Cuyahoga County Corrections Center after she is released from prison for the court to hold a hearing to advise her of her community-control obligations “and make sure that she reports there and there are no lapses with regards to time.”
{¶ 9} After announcing its sentence, the trial court engaged in the following exchange with the assistant prosecuting attorney:
THE COURT: Anything further, [assistant prosecuting attorney]?
[ASSISTANT PROSECUTING ATTORNEY]: No, your Honor. Thank you.
{¶ 10} The court published a sentencing journal entry. The journal entry does not specify that the mandatory prison term is to be served prior and consecutive to the community-control term, an omission that should be corrected through a nunc pro tunc entry. The state appealed the sentence under
The Trial Court erred by not imposing a prison sentence for [a]ttempted [h]aving weapons while under disability wherе the offender had a firearm on or about the offender‘s person or under the offender‘s control while committing the felony.
II. Law and Analysis
A. Standard of Review
{¶ 11} We review felony sentences under the standard of review set forth in
{¶ 12} The state did not object to Logan‘s sentence in the trial court, so we review the sentence only for plain error. See, e.g., State v. Dowdell, 8th Dist. Cuyahoga No. 111026, 2022-Ohio-2956, ¶ 8-9. That said, a sentence that fails to impose a mandatory provision is contrary to law and a sentence that is imposed contrary to law constitutes plain error. Id.
{¶ 13} The state argues that the trial court was required under
B. Relevant Legal Background
{¶ 14} Before turning to the parties’ arguments specific to this case, we consider the statutes and caselaw relevant to the question presented by this appeal.
1. Criminal Offenses and Firearms Specifications
{¶ 15} First, we contrast criminal offenses from specifications that enhance the penalty for those offenses.
{¶ 16} Attempting to have a weapon while under a disability is a criminal offense, since doing so violates statutes of the Revised Code that “state a positive prohibition * * * and provide a penalty for violation of such prohibition” — namely
{¶ 17} A firearm specification, on the other hand, is not a criminal offense. The statutes setting forth the specification and its punitive effect —
{¶ 18} With this distinction in mind, we now consider the trial court‘s discretion to craft felony sentences.
2. The Trial Court‘s Discretion to Craft Felony Sentences
{¶ 19} A trial court has the statutory authority, in crafting a felony sentence, to impose “any sanction or combination of sanctions that are provided in sections
{¶ 20} Attempted having weapons while under disability is a fourth-degree felony. See
{¶ 21} A trial court generally cannot, however, impose a term of imprisonment and a term of community control on an offender for the same offense, even when both types of penalties are authorized. State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 31 (“[W]hen a prison term and community control are possible sentences for a particular felony offense, absent an express exception, the court must impose either a prison term or a community-control sanction or sanctions.“).
{¶ 22} Under many circumstances,1 a trial court must impose a prison term on an offender who pleads guilty to a firearm specification described by
{¶ 23} Finally, we come to the statute the state relies upon for its argument that the specification required the trial court to impose a prison sentence on the underlying felony. The statute,
[T]he court shall impose a prison term * * * for any of the following offenses:
Any offense, other than [carrying concealed weapons], that is a felony, if the offender had a firearm on or about the offender‘s person or under the offender‘s control while сommitting the felony, with respect to a portion of the sentence imposed pursuant to division (B)(1)(a) of section
2929.14 of the Revised Code for having the firearm.
{¶ 24} Having set forth the relevant legal background, we turn to the parties’ positions on the legality of Logan‘s sentence.
C. The Parties’ Positions and Relevant Caselaw
{¶ 25} The parties agree that the trial court was required to sentence Logan to one year in prison as a result of the firearm specification. There also seems to be no dispute that in the absence of a firearm specification, the trial court would have had the authority to sentence Logan to two years of community control for attempting to have weapons while under disability. The question in this appeal is
{¶ 26} The state argues that
{¶ 27} Logan defends the sentence by arguing that
{¶ 29} In State v. Moore, 8th Dist. Cuyahoga No. 101658, 2015-Ohio-1026, ¶ 1, our court considered a defendant‘s argument that the trial court had failed to conduct an adequate Crim.R. 11(C) plea colloquy before the defendant entered his guilty plea to a charge of attempted felonious assault with a three-year firearm specification. The defendant argued, among other things, that the trial court failed to inform him that he was not eligible for community-control penalties on the underlying felony. Our court found that the trial court substantially complied with Crim.R. 11(C)(2) when it “told [the defendant] that he was ineligible for ‘probation’ with respect to a portion of his sentence [for the firearm specification], but eligible with respect to the underlying offense.” Id. at ¶ 16. Our court held that this information “can be described only as reasonably intelligible because [the defendant] expressed no confusion.” Id. Because the trial court had sentenced the defendant to one year in prison on the underlying offense, id. at ¶ 4, our court did not have occasion to consider the issue presented in this appeal. Our court found substantial compliance with Crim.R. 11(C) under similar circumstances in State v. Taylor, 8th Dist. Cuyahoga No. 101609, 2015-Ohio-1643 (defendant argued that the
{¶ 30} The reasoning of Moore implies support for Logan‘s position. See Moore at ¶ 14 (applying emphasis to portions of
{¶ 31} In State v. Sharpley, 8th Dist. Cuyahoga No. 106616, 2018-Ohio-4326, our court considered a similar fact pattern. The defendant pleaded guilty to an underlying felony and a firearm specification and the trial court imposed prison sentences on both the felony and specification. Id. at ¶ 4, 18. The defendant argued on appeal that his guilty plea was induced by the false promise
{¶ 32} The second issue presented in Sharpley, though, is directly applicable to the question presented by this appeal. The defendant in Sharpley argued on appeal that he should have been sentenced to community control on the underlying felony. Our court held that the defendant was not eligible for community control on the underlying felony by application of
{¶ 33} In State v. Galvan, 8th Dist. Cuyahoga No. 108658, 2020-Ohio-1285, our cоurt again considered a challenge to a trial court‘s Crim.R. 11(C) plea colloquy.
{¶ 35} Therefore, the state of the law from our district on the issue presented by this appeal is that a defendant is not eligible for community control on an underlying felony by application of
{¶ 36} We turn now to a consideration of cases from other appellate districts that have addressed this question. There is significant support for the state‘s position to be found in these opinions.
{¶ 37} In State v. Wofford, 1st Dist. Hamilton No. C-180411, 2019-Ohio-2815, ¶ 2, a panel of the First District Court of Appeals considered a sentence imposed on a defendant who had pleaded guilty to involuntary manslaughter with an accompanying three-year firearm specification. The trial court had sentenced the defendant to 11 years in prison on the underlying felony and
R.C. 2929.13(F)(8) requires the court to impose a prison term for any felony offense, except a violation ofR.C. 2923.12 (carrying a concealed weapon), during which the offender had a firearm on or about his person or under his control while committing the felony, with respect to a portion of the sentence imposed pursuant toR.C. 2929.14(B)(1)(a) . * * *[The defendant] admitted to committing a felony while having a firearm on his person or under his control. Therefore, pursuant to
R.C. 2929.13(F)(8) , the trial court was required to impose a prison sentence for the involuntary-manslaughter offense.
Id. at ¶ 8, 10.
{¶ 38} In State v. Shields, 2d Dist. Montgomery No. 28573, 2020-Ohio-3204, ¶ 3, a panel of the Second District Court of Appeals considered a defendant‘s argument that the trial court should have considered community-control penalties on an underlying aggravated robbery conviction notwithstanding that the defendant pleaded guilty to a firearm specification. The appellate court held that
{¶ 40} In State v. Culp, 2020-Ohio-5287, 162 N.E.3d 194, ¶ 3 (6th Dist.), a panel of the Sixth District Court of Appeals considered a criminal sentence imposed on a defendant who had pleaded no contest to third-degree robbery and a one-year firearm specification. The trial court sentenced the defendant to one year in prison on the firearm specification and four years of community control — including six months in a community-based correctional facility — on the
{¶ 41} The appellate panel reasoned as follows:
Under the plain language of the statute, when a defendant is convicted of committing any felony (with the exception of carrying concealed weapons) while having or controlling a firearm, the court is required to impose a prison term — not community control sanctions — in addition to the mandatory prison term for the firearm specification required by
R.C. 2929.14(B)(1)(a) . * * *A plea to or conviction of a firearm specification аutomatically meets the criteria in
R.C. 2929.13(F)(8) that triggers a mandatory prison term for the underlying offense — i.e., it shows that the “offender had a firearm on or about the offender‘s person or under the offender‘s control while committing the felony * * *.” See Shields at ¶ 11. Moreover (and particularly relevant to [the defendant‘s] case), a defendant who commits a crime while having or controlling a firearm — and is thus subject to a mandatory prison sentence underR.C. 2929.13(F)(8) — is not eligible for community control sanctions. The very first sentence of the community control statute states that a court may impose a sentence that “consists of one or more community control sanctions * * *” only if “the court is not required to impose a prison term, a mandatory prison term, or a term of life imprisonment on the offender.”R.C. 2929.15(A)(1) .
{¶ 42} In State v. Christian, 7th Dist. Mahoning No. 02 CA 170, 2005-Ohio-1440, ¶ 1, a panel of the Seventh District considered a sentence imposed on a first-degree felonious assault conviction with a firearm specification. The defendant argued on appeal, among other things, that the trial court did not make sufficient findings to support the eight-year sentence it imposed in the case. Id. ¶ 2, 63. It does not appear that the defendant argued that the trial court could have imposed a community-control penalty on the underlying felony; he seems to have focused his argument on the trial court‘s finding that a minimum prison sentence would demean the seriousness of the offense. See id. at ¶ 72, 74. Nevertheless, the appeals court did state — without analysis — that the defendant‘s “conviction of felonious assault on a peace officer” “involves a mandatory prison term,” citing
{¶ 43} These out-of-district authorities, while not binding on us, strongly support the state‘s reading of
{¶ 44} Having set forth the parties’ positions and the authorities they have mustered in support, we turn at last to our own consideration of the matter.
D. Analysis
{¶ 45} To answer the question presented by this appeal, we must first consider whether
R.C. 2929.13(F)(8) Does Not Require the Imposition of a Mandatory Prison Term on the Underlying Felony Here
{¶ 46} After careful consideration, we conclude that
{¶ 47} The state emphasizes that
{¶ 48} Logan‘s argument rests on the final few words of
{¶ 49} The state offers us no real explanation about what this phrase means, if not that a mandatory prison term is only required for the portion of the sentence attributable to the specification. The state points out that a former version of
“[I]f an offender who is convicted of or pleads guilty to a felony is also convicted of or pleads guilty to [a firearm specification], the court, after imposing a prison term on the offender for the felony * * *[,] shall impose an additional [mandatory] prison term [for the firearm specification].”
(Alterations added.) State v. Kehoe, 133 Ohio App.3d 591, 616, 729 N.E.2d 431 (12th Dist.1999), quoting the former
{¶ 50} The state also directs us to the Legislative Service Commission Synopsis of House Amendments to S.B. 269, which states that the amending legislation “requires that a mandatory firearm term be served consecutively to (existing law) and prior to (new) the prison term imposed for the underlying felony and consecutively to any other prison term imposed on the offender.” Legislative Service Commission Synopsis of House Amendments, Am. Sub. S.B. 269, 121st General Assembly, p. 4. These citations do not persuade us to depart from the plain language of
{¶ 52} We find that the language of
{¶ 53} To read the statute in the way the state suggests would be to read the last phrase out of the statute. The statutory reference to “offenses,” as opposed to “specifications,” is logical; a specification is merely “a sentence enhancement that attaches to a predicate offense.” Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, at ¶ 16.4
{¶ 54} A consideration of the former version of
{¶ 55} We acknowledge that our holding conflicts with our court‘s holding in State v. Sharpley, 8th Dist. Cuyahoga No. 106616, 2018-Ohio-4326, ¶ 17, although we note that we were presented here with a fuller opportunity to consider
{¶ 56} Having concluded that
2. Community Control Was an Authorized Sentence for the Underlying Felony
{¶ 57} The state argues that the trial court‘s imposition of community control on the underlying felony, to be served after а mandatory term of imprisonment for the firearm specification, was an unlawful split sentence. It also argues that community control was not available under
{¶ 58} There is some support for the state‘s argument. In State v. Ervin, a panel of the Twelfth District considered a sentence imposed on a defendant for two second-degree felonies, one of which carried a firearm specification. State v. Ervin, 2017-Ohio-1491, 89 N.E.3d 1, ¶ 2 (12th Dist.). The trial court sentenced the defendant to a mandatory three-year prison term for the gun specification and five-
{¶ 59} Logan defends the sentence by arguing that the legislature specifically authorized the sentence imposed on her by only requiring mandatory prison time for the “portion” of a sentence attributable to a firearm specification. Logan‘s argument is essentially that the reference to a “portion” of a sentence in
{¶ 60} Our court has previously held that a trial court may impose community-control sanctions on an underlying offense that does not require imprisonment while imposing prison on an accompanying specification that does
{¶ 61} The panel in Hamm, which included then-Judge Melody J. Stewart, disagreed with the exact argument put forth by the state here: because a trial court must impose “either a prison term or community control sanctions on each count” — (emphasis added) Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, at ¶ 23 — and because a specification is completely dependent on the existence of an underlying offense, “the offense plus the specification constitute ‘the entire count‘” and the trial court cannot impose both community control and imprisonment for the same оffense. Hamm at ¶ 6-8. In rejecting this argument, the panel concluded that “imposing community control on an underlying offense and prison on an accompanying specification does not implicate the ‘split sentence’ prohibition precisely because a specification is not part of the underlying offense but merely a sentencing enhancement to that offense.” Id. at ¶ 9. Thus, “where a trial court is not required to impose a prison sentence on the underlying felony, even where prison is mandatory for the accompanying specification, a trial court may impose community control sanctions on the underlying felony.” Id. at ¶ 16.
{¶ 62} The state acknowledges Hamm but argues that it is distinguishable because it did not involve an offense for which a mandatory term was required under
{¶ 63} The Supreme Court in Anderson noted that in the mid 1990s the legislature ended the “regular practice” among trial courts of imposing and then suspending prison sentences in favor of probation; since that legislative overhaul of the sentencing statutes, prison terms and community-control sanctions are now “alternative sanctions.” See Anderson at ¶ 21-23, 28. Therefore, “as a general rule, when a prison term and community control are possible sentences for a particular felony offense, absent an express exception, the court must impose either a prison term or a community-control sanction or sanctions.” Id. at ¶ 31. Our court described the line of Supreme Court cases addressing the “split-sentence doctrine” since Anderson as follows:
A court may also not impose a community-control sanction on one count consecutive to a prison term on another count absent statutory authority. State v. Hitchcock, 175 Ohio St.3d 215, 2019-Ohio-3246, 134 N.E.3d 164, ¶ 25. However, the Supreme Court of Ohio has held that a court may impose both a prison term for one offense and a community-control term for another offense in the same case. State v. Paige, 153 Ohio St.3d 214, 2018-Ohio-813, 103 N.E.3d 800, ¶ 9. The Paige Court went on to hold that the trial court could not impose what amounted to a consecutive term of commitment to a community-based correctional facility after release from prison. Id. at ¶ 13.
State v. Robinson, 8th Dist. Cuyahoga No. 110467, 2022-Ohio-3033, ¶ 12.
{¶ 65} The final question we must address in this appeal is whether community control is authorized under
{¶ 66}
If in sentencing an offender for a felony the court is not required to impose a prison term, a mandatory prison term, or a term of life imprisonment upon the offender, the court may directly impose a sentence that consists of one or more community control sanctions authorized pursuant to [
R.C. 2929.16 ,2929.17 , or2929.18 ].
{¶ 68} Having found that (1)
III. Conclusion
{¶ 69} Having overruled the state‘s sole assignment of error for the reasons stated above, we affirm. Having noted a clerical error in the court‘s sentencing journal entry, we remand this matter for the trial court to enter a corrected journal entry nunc pro tunc that correctly identifies that the mandatory prison term imposed for the firearm specification is to be served prior, and consecutive, to the
{¶ 70} Judgment affirmed and remanded.
It is ordered that the appellee recover from the appellant the 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 Cuyahoga County Court of Common Pleas to carry this judgment into execution.
EILEEN A. GALLAGHER, JUDGE
ANITA LASTER MAYS, A.J., CONCURS;
MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY