STATE OF OHIO v. ERIC S. RYAN
No. 98005
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
November 1, 2012
[Cite as State v. Ryan, 2012-Ohio-5070.]
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-536369
BEFORE: E. Gallagher, J., Cooney, P.J., and Keough, J.
RELEASED AND JOURNALIZED: November 1, 2012
Rick L. Ferrara 2077 East 4th Street Second Floor Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor By: Melissa Riley Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
{1} Eric Ryan (“appellant“) appeals from his sentencing in the Cuyahoga County Court of Common Pleas. For the following reasons, we affirm.
{2} On April 20, 2010, a Cuyahoga County Grand Jury charged Ryan with kidnapping with one and three-year firearm specifications, notice of prior conviction and repeat violent offender specifications; aggravated robbery with one and three-year firearm specifications, notice of prior conviction and repeat violent offender specifications, two counts of carrying a concealed weapon, having weapons while under disability with one and three-year firearm specifications, two counts of drug possession with a one-year firearm specification, two counts of drug trafficking with a one-year firearm specification, possession of criminal tools and having weapons while under disability with a one-year firearm specification. Further, the state sought, through the indictment, the forfeiture of a firearm and/or a cellular telephone. It is noted that the dates that these alleged crimes were committed were March 26, 2010 and April 7, 2010.
{3} On September 26, 2011, appellant entered pleas of guilty to an amended charge of robbery with a one-year firearm specification (Count 2), two counts of drug possession, with one-year firearm specifications (Counts 5 and 7), two counts of drug trafficking with one-year firearm specifications (Counts 6 and 8), possession of criminal
{4} The parties agreed, prior to the plea, that the firearm specifications attendant to Counts 5-11 would “run concurrent to one another” but consecutive to the firearm specification on Count 2.
{5} On October 27, 2011, the trial court sentenced appellant to three years on the count of robbery with a one year term for the firearm specification to be served prior to and consecutive to the underlying sentence. The court sentenced Ryan to a one-year prison sentence on each of the two drug possession and the two drug trafficking charges to be served concurrent with each other but consecutive to the one-year term for the firearm specifications; one year each for possession of criminal tools and carrying a concealed weapon to be served concurrently; and three years for having weapons while under disability with a one-year sentence for the firearm specification. The court ordered the prison sentences for robbery and having weapons while under disability to run consecutively, in addition to the consecutive sentences imposed for the one-year firearm specification, for a total prison sentence of seven years.
{6} On that same date, the trial court sentenced appellant for a multitude of charges in CR-5363811 for which he was found to be guilty at the conclusion of trial. We will address this matter in a limited fashion as the trial court imposed a two-year
{7} The trial court noted, on the record, that the sentencing factors outlined in
{8} In his sole assignment of error, Ryan states as follows:
The trial court acted contrary to law when it imposed consecutive sentences without authority to do so under the Ohio Revised Code.
{9} Appellant argues that the trial court erred by imposing consecutive sentences in violation of
{10}
Except as provided in division (B) of this section, division (E) of section 2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a prison term, jail term, or sentence of imprisonment shall be served
concurrently with any other prison term, jail term, or sentence of imprisonment imposed by a court of this state, another state, or the United States. Except as provided in division (B)(3) of this section, a jail term or sentence of imprisonment for misdemeanor shall be served concurrently with a prison term or sentence of imprisonment for felony served in a state or federal correctional institution.
{11}
{12}
{13}
The court shall impose sentence upon the offender in accordance with section 2971.03 of the Revised Code, and Chapter 2971 of the Revised Code applies regarding the prison term or term of life imprisonment without parole imposed upon the offender and the service of that term of imprisonment if any of the following apply:
* * *
{15} Given that
{16} We must therefore resolve the apparent irregularity of
In amending division (E)(4) of section 2929.14 and division (A) of section 2929.41 of the Revised Code in this act, it is the intent of the General Assembly to simultaneously repeal and revive the amended language in those divisions that was invalidated and severed by the Ohio Supreme Court‘s decision in State v. Foster (2006), 109 Ohio St.3d 1. The amended language in those divisions is subject to reenactment under the United States Supreme Court‘s decision in Oregon v. Ice (2009), 555 U.S. 160, and the Ohio Supreme Court‘s decision in State v. Hodge (2010), ___ Ohio St.3d ___, Slip Opinion No. 2010-Ohio-6320 and, although constitutional under Hodge, supra, that language is not enforceable until deliberately revived by the General Assembly.
(Emphasis added.)
{18} We next turn to the as-drafted text of H.B. 86, which indicates what language the bill adds to the affected statutes (underlined text) and what it removes (struck-through text). The as-drafted copy of H.B. 86 indicates that the entire existing text of
{20} After reaching the conclusion that the legislature erred, the next question is whether we may apply the statute as the legislature intended it to be applied, rather than according to the literal text of the statute.
when the terms of the statute, as written, would never be applicable, and the simple substitution of one character would result in a term that would always be applicable, we must conclude that the statute contains an obviously typographical error, and we may correct the error and give effect to the obvious intent of the statute.
Id. at 574, citing Brim v. Rice, 20 Ohio App.2d 293, 295-296, 253 N.E.2d 820 (1st Dist.1969). Additionally, in State v. Gomez, 9th Dist. Nos. 25496 and 25501, 2011-Ohio-5475, ¶ 30, the court held that:
[w]hen it appears beyond a doubt that a statute, when read literally as printed, is impossible of execution, or will defeat the plain object of its enactment, or is senseless, or leads to absurd results or consequences, a court is authorized to regard such defects as the result of error or mistake, and to put such construction upon the statute as will correct the error or mistake by permitting the clear purpose and manifest intention of the Legislature to be carried out.
(Emphasis added and internal citation omitted.) Id. at ¶ 30.
{21} This court is further persuaded by the words of the United States Supreme Court in Chickasaw Nation v. United States, 534 U.S. 84, 122 S.Ct. 528, 151 L.Ed.2d 474 (2001). In that case, the court noted that “canons [of statutory interpretation] are not mandatory rules. They are guides that need not be conclusive” and are intended to assist courts in determining the legislative intent underlying a statute. (Internal quotation marks and
{22} The principles referenced in Chickasaw Nation and the precedents of Virasayachack and Gomez lead us to conclude that we are empowered to “correct” the typographical error caused by the amendments contained in H.B. 86 in order to effectuate the legislative intent of the General Assembly. In further support of this conclusion, we note that despite the legislative drafting error in H.B. 86, subsequent cases have recognized the connection between
{23} The only remaining consideration, then, is to determine whether the trial court correctly applied
If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following: * * *
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{24} At the sentencing hearing, the trial court clearly referenced appellant‘s criminal record, required by
{25} Appellant‘s sole assignment of error is overruled.
{26} The judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said lower court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
COLLEEN CONWAY COONEY, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR