State v. McClellanState v. McClellan
DECISION AND JUDGMENT
Decided: December 4, 2020
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Kevin J. Baxter, Erie County Prosecuting Attorney, and Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.
John M. Felter, for
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ZMUDA, P.J.
{¶ 1} Appellant, Michael McClellan, Jr., appeals the December 3, 2019 judgment of the Erie County Court of Common Pleas sentencing him to 30 months in prison following his conviction for operating a vehicle while intoxicated in violation of
I. Background
{¶ 2} On May 8, 2019, appellant was indicted on one count of operating a vehicle while under the influence of alcohol in violation of
{¶ 3} Following negotiations with the state, appellant appeared before the trial court on September 23, 2019 for a change of plea hearing. Pursuant to a plea agreement, appellant entered a guilty plea to the fourth-degree felony OVI charge and the state requested that the trial court dismiss the failure to submit to chemical testing charge. The trial court accepted appellant‘s guilty plea and dismissed the second count as requested. The trial court ordered appellant to participate in a presentencing investigation and set a sentencing for December 2, 2019.
{¶ 4} At sentencing, the trial court imposed a mandatory 30-month prison term for appellant‘s felony OVI conviction. The trial court also imposed a mandatory $7,500 fine and ordered appellant to pay all court costs. Lastly, the trial court imposed a lifetime suspension of appellant‘s operator‘s license.
{¶ 5} The trial court memorialized appellant‘s sentence in its December 3, 2019 judgment entry. Appellant timely appealed and assigns the following error for our review:
II. Law and Analysis
A. Felony sentences are reviewed pursuant to R.C. 2953.08(G)
{¶ 6} Appellant‘s assignment of error alleges the trial court‘s imposition of a 30-month prison term was an abuse of its discretion. Felony sentences are not reviewed under an abuse of discretion standard. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 10. Rather, we review felony sentences under
B. Appellant‘s sentence is contrary to law
{¶ 7} Appellant was convicted of operating a vehicle while intoxicated pursuant to
{¶ 8}
{¶ 9} The court shall sentence the offender to all of the following:
(i) If the sentence is being imposed for a violation of division (A)(1)(a), (b), (c), (d), (e), or (j) of this section, * * * in the discretion of the court, either a mandatory term of local incarceration of sixty consecutive days in accordance with division (G)(1) of section 2929.13 of the Revised Code or a mandatory prison term of sixty consecutive days in accordance with division (G)(2) of that section if the offender is not convicted of and does not plead guilty to a [repeat offender specification established under
R.C. 2941.1413 ]. If the court imposes a mandatory term of local incarceration, it may impose a jail term in addition to the sixty-day mandatory term, the cumulative total of the mandatory term and the jail term for the offense shall not exceed one year, and, except as provided in division (A)(1) of section 2929.13 of the Revised Code, no prison term is authorized for the offense. If the court imposes a mandatory prison term, notwithstanding division (A)(4) of section 2929.14 of the Revised Code, it also may sentencethe offender to a definite prison term that shall be not less than six months and not more than thirty months and the prison terms shall be imposed as described in division (G)(2) of section 2929.13 of the Revised Code. If the court imposes a mandatory prison term or mandatory prison term and additional prison term, in addition to the term or terms so imposed, the court also may sentence the offender to a community control sanction for the offense, but the offender shall serve all of the prison terms so imposed prior to serving the community control sanction.
(Emphasis added.) The plain language of
{¶ 10}
{¶ 11} Despite the plain language of the statutes, appellant argues that trial courts are only permitted to impose a prison term under
{¶ 12} Appellant‘s argument regarding the trial court‘s imposition of a prison term for a first time felony conviction is incorrect. Nevertheless, we find that appellant‘s sentence is contrary to law pursuant to
{¶ 13} While the trial court was authorized to impose an aggregate 30-month prison term, only the first 60 days of that term were mandatory. Cunningham at ¶ 36-37. The trial court exceeded its authority by identifying the additional, non-mandatory prison term as a mandatory term. See State v. Hoselton, 6th Dist. Lucas No. L-09-1150, 2011-Ohio-1396, ¶ 9-12 (holding that the imposition of a mandatory prison term when the only term authorized by statute was non-mandatory was error); see also State v. Smaltz, 6th Dist. Ottawa No. OT-08-008, 2013-Ohio-5350, ¶ 10-11; State v. Burkhead, 12th Dist. Butler No. CA2014-02-028, 2015-Ohio-1085, ¶ 22-30; State v. Warren, 7th Dist. Mahoning No. 05 MA 91, 2006-Ohio-1281, ¶ 61. A trial court has “no inherent power to create sentences, and the only sentence that a trial judge may impose is that provided for by statute.” State v. Hitchcock, 157 Ohio St.3d 215, 2019-Ohio-3246, 134 N.E.3d 215, ¶ 18, citing State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 10, 12. By imposing a mandatory prison term when no such term is authorized by statute, the trial court erred and appellant‘s sentence is contrary to law. Therefore, appellant‘s sole assignment of error is well-taken.
III. Conclusion
{¶ 14} We find appellant‘s assignment of error well-taken. Pursuant to
Judgment reversed and remanded.
A certified copy of this entry shall constitute the mandate pursuant to
State v. McClellan
C.A. No. E-19-075
Arlene Singer, J. JUDGE
Christine E. Mayle, J. JUDGE
Gene A. Zmuda, P.J. JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.