STATE OF OHIO, Plаintiff-Appellee, - vs - TERRANCE A. PRISBY, Defendant-Appellant.
CASE NO. 2017-P-0012
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
December 29, 2017
2017-Ohio-9340
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2016 CR 00503.
Judgment: Affirmed and remanded.
Victor V. Vigluicci, Portage County Prosecutor, and Kristina Reilly, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
John P. Laczko, Assistant Public Defender, 209 South Chestnut Street, #400, Ravennа, OH 44266, and Wesley C. Buchanan, Buchanan Law, Inc., 12 East Exchange Street, 5th Floor, Akron, OH 44308 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, P.J.
{¶1} Appellant, Terrance A. Prisby, appeals his mandatory three-year sentence in the Portage County Court of Common Pleas, following his no contest plea to Failure to Provide Notice of Change of Address, having previously been convicted of gross sexual imposition. For the reasons that follow, we affirm and remand.
{¶2} On July 18, 2016, appellant was indicted for Failure to Provide Notice of Change of Address, a felony of the third degree, in violation of
{¶3} On January 18, 2017, appellant pled no contest to the indictment, but challenged the mandatory nature of the three-year sentence. On February 27, 2017, the trial court heard argument on this issue. Appellant‘s counsel argued that because, in his view, the sentence was not mandatory, appellant was eligible for community control and “our position would be to ask the Court to grant him community control * * *.”
{¶4} After the parties briefed the issue, the court entered judgment, finding that “[t]he sentence under
{¶5} “The trial court imposed a sentence contrary to law.”
{¶6} Appellant argues that the trial court erred in imposing a mandatory three year sentence because, in his view,
{¶7} If the meaning of a statute is clear on its face, then it must be applied as written. Phillips, supra. A court can only interpret a statute if it is ambiguous. Id. at ¶12. An ambiguity exists if the language is susceptible to more than one reasonable interpretation. State v. Swidas, 11th Dist. Lake No. 2009-L-104, 2010-Ohio-6436, ¶17 (reversed on other grounds.). When a court must interpret a criminal statute, the language should be strictly construed against the state and liberally construed in favor of the accused.
{¶8} “‘It is well settled that the General Assembly has the plenary power to prescribe crimes and fix penalties.‘” State v. Barnes, 9th Dist. Lorain Nos. 13CA010502, 13CA010503, 2014-Ohio-2721, ¶7, quoting State v. Banks, 9th Dist. Summit No. 25279, 2011-Oiho-1039, ¶48. Further, specific sentencing provisions are controlling over general sentencing statutes dealing with the same subject. State v. Taylor, 113 Ohio St.3d 297, 2007-Ohio-1950, ¶14. In Taylor, the Ohio Supreme Court held that
{¶9} Appellant‘s argument is convoluted to say the least. He argues that because
{¶10}
{¶11} Pursuant to
{¶12} If the most serious sexually oriented offense * * * that was the basis of the * * * change of address notification * * * requirement that was violated * * * is a felony of the first, second, third, or fourth degree * * *, the offender is guilty of a felony of the same degree as the most serious sexually oriented offense * * * that was the basis of the * * * change of address * * * requirement that was violated * * *. (Emphasis added.)
{¶13} Since appellant‘s sexually oriented offense that was the basis of his notification requirement was gross sexual imposition, a felony of the third degree, his violation of
{¶14} Further, while
{¶15} In addition to any penalty or sanction imposed under division (A)(1)(b)(i), (ii), or (iii) of this section or any other provision of law for a violation of * * * [
R.C. ] * * *2950.05 * * *, if the offender previously has been convicted of * * * a violation of * * * [R.C. ] * * *2950.05 * * * when the most serious sexually oriented оffense * * * that was the basis of the requirement that was violated * * * is a felony * * *, the court imposing a sentence upon the offender shall impose a definite prison term of no less than three years. The definite prison term imposed under this section * * * shall not be reduced to less than three years pursuant tо any provision ofChapter 2967. or any other provision of the Revised Code. (Emphasis added.)
{¶16} Thus,
{¶17} “‘“[A] mandatory sentence renders the defendant ineligible for probation or community control sanctions.“‘” State v. Walters, 4th Dist. Adams No. 15CA1009, 2016-Ohio-5783, ¶13, quoting State v. Brigner, 4th Dist. Athens No. 14CA19, 2015-Ohio-2526, ¶14, quoting State v. Balidbid, 2d Dist. Montgomery No. 24511, 2012-Ohio-1406, ¶10. Further, “a mandatory sentence excludes an offender from judicial release.” Taylor, supra, at ¶11.
{¶18} Thus, while
{¶19} Significantly, appellant does not try to distinguish or even mention the provision in
{¶20} We note that Ohio Appellate Districts have repeatedly stated, albeit in dicta, that the three-year minimum sentence for repeat nonreporting violators is mandatory. Wilson, supra, (”
{¶21} Since the trial court is required to impose a definite sentence of “no less than three years” and that sentence cannot be reduced to less than three years pursuant to
{¶22} For the first time on appeal, the state argues that, in addition to the three year mandatory term, the trial court was also authorized to impose on appellant an additional prison term of 9, 12, 18, 24, 30, or 36 months pursuant to
{¶23} First, since
{¶24} Second,
{¶25} Third, while the phrase in
{¶26} Fourth, to support its argument, the state refers to the three-year term as a “specification.” However,
{¶27} Fifth, the state argues that courts have referred to the three-year sentence as a sentencing “enhancement” to the other prison term to be imposed per
{¶28} It is interesting to note that none of the trial courts in any of the cases cited herein involving the three-year sentence in
{¶29} We note that the state never raised this argument in the hearings on this issue held by the trial cоurt or in its sentencing memorandum. At sentencing, the state only asked the court to impose the three-year mandatory term. Moreover, on appeal, the state does not cite any cases holding that the trial court was authorized to impose an additional prison sentence. Nor did the state cross-appeal appellant‘s sentence pursuant to App.R. (3)(C)(1).
{¶30} In view of the foregoing analysis, we hold the trial court did not err in sentencing appellant to a mandatory term of three years in prison.
{¶31} We note, however, that, while counsel has not brought this to our attention, instead of indicаting in the sentencing entry that appellant pled no contest, the court indicated he “entered a Written Plea of Guilty of No Contest.” (Sic.) Further, we note that, while the court stated on the record at sentencing that appellant‘s three-year sentence was to be mandatory, the sentencing entry did not state the term was mandatory. Thus, on remand, the court shall prepare a nunc pro tunc sentencing entry correcting the sentencing entry in these two particulars. See
{¶32} At oral argument, appellant argued that because the three-year minimum mandatory sentence provided for at
{¶33} For the reasons stated in this opinion, the assignment of error is overruled. It is the order and judgment of this court that the judgment of the Portage County Court of Common Pleas is affirmed. The matter is remanded solely for the trial court to issue a nunc pro tunc sentencing entry stating that appellant pled no contest and providing that appellant‘s three-year sentence for Failure to Provide Notice of Change of Address is mandatory.
DIANE V. GRENDELL, J., concurs in judgment only,
THOMAS R. WRIGHT, J., concurs in part and dissents in part with Opinion.
THOMAS R. WRIGHT, J., concurs in part and dissents in part with Opinion.
{¶34} While I concur in the affirmance of the three-year prison term, I disagree with the lead‘s deсision to remand the case to the trial court for a nunc pro tunc sentencing entry. The lead cites
{¶35} “The failure of the court to nоtify the offender that a prison term is a mandatory prison term pursuant to division (B)(2)(a) of this section or to include in the
sentencing entry any information required by division (B)(2)(b) of this section does not affect the validity of the imposed sentence or sentences. If the sentencing court notifies the offender at the sentencing hearing that a prison term is mandatory but the sentencing entry does not specify that the prison term is mandatory, the court may complete a corrected journal entry and send copies of the corrected entry to the offender and the department of rehabilitation and corrеction, or, at the request of the state, the court shall complete a corrected journal entry and send copies of the corrected entry to the offender and department of rehabilitation and correction.” (Emphasis added).
{¶36} If the state requests a correction, which it has nоt, the trial court shall complete such a judgment. In contrast, when the state does not ask for a correction, the trial court “may” issue a corrected judgment. The decision, therefore, to issue a corrected judgment lies within the trial court‘s discretion.
{¶37} As the validity of the judgment is unaffected by the absence of the word “mandatory,” and misstatement as to the plea entered, no one is prejudiced and correction serves no purpose.