State v. WigginsState v. Wiggins
Raymond J. Dundes, 7 South Mechanic Street, Lebanon, Ohio 45036, for defendant-appellant
RINGLAND, J.
{¶1} On April 20, 2009, the Warren County Grand Jury returned a 17-count indictment against Joseph Lester Wiggins for illegal manufacture of drugs and other crimes. On July 1, 2009, Wiggins was convicted of all charges, including: Count 1, illegal manufacture of drugs,
{¶2} In addition, the trial court ordered Counts 14 and 17 to be served concurrently to Count 1, and Counts 2 and 4 to be served consecutively to the other sentences.
{¶3} It is from this sentence that Wiggins now appeals, raising two assignments of error for review.
{¶4} Assignment of Error No. 1:
{¶5} “THE COURT ERRERED [sic] WHEN IT SENTENCED DEFENDANT/APPELLANT TO A SEVEN-YEAR CONCURRENT SENTENCE IN VIOLATION OF
{¶6} In his first assignment of error, Wiggins argues his sentence is contrary to law because the trial court “ordered a concurrent sentence of seven years on the combined counts [1 and 14] and then said it was mandatory seven years.”
{¶7} Appellate review of felony sentencing is controlled by the two-step procedure outlined by the Ohio Supreme Court in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. Under Kalish, this court must (1) examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law, and, if the first prong is satisfied, (2) review the sentencing court‘s decision for an abuse of discretion. Id. at ¶4; State v. Blanton, Butler App. No. CA2008-09-235, 2009-Ohio-3311, ¶18.
{¶8} In imposing sentence, the “court must be guided by statutes that are specific to the case itself.” State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶38. In reviewing whether a sentence is clearly and convincingly contrary to law, “the appellate court must ensure that the trial court has adhered to all applicable rules and statutes in imposing the sentence.” Kalish at ¶14.
{¶9} Wiggins’ first assignment of error is based on his misinterpretation of the trial court‘s use of the word “mandatory” in the sentencing entry. Upon review, it is clear the trial court was merely assembling the total “mandatory” years in prison associated with Counts 1, 2, 4, and 14. Thus, to the extent Wiggins misinterprets the sentencing entry, we overrule his argument. However, we agree that Wiggins’ sentence is contrary to law because the trial court misstated the number of “mandatory” years in prison associated with Count 1, illegal manufacture of drugs, a first-degree felony under
{¶10} In imposing sentence for Count 1, the trial court sentenced Wiggins to a total seven-year prison term. However, of these seven years, the trial court stated only three years were “mandatory.” In so stating, the trial court did not strictly comply with the language of the statute,
{¶11} “It is well established that a sentence which does not comply with the letter of the criminal statute which authorizes it is so erroneous that it may be set aside on appeal[.]” Bozza v. United States (1947), 330 U.S. 160, 166, 67 S.Ct. 645. See, also,
{¶12} Assignment of Error No. 2:
{¶13} “THE COURT ERRED WHEN IT STATED TO DEFENDANT/APPELLANT THAT POSTRELEASE CONTROL WAS AN OPTIONAL THREE YEARS ON A CONVICTION FOR
{¶14} In his second assignment of error, Wiggins argues the trial court erred in failing to properly notify him of postrelease control during his sentencing hearing. Specifically, Wiggins argues the trial court erred in advising him that postrelease control for his second-degree felonies was “optional,” rather than mandatory. See
{¶15} Wiggins argues because the trial court erroneously advised him of
{¶16} However, because Wiggins brought sentencing within the purview of this court, our prior conclusion does not end our sentencing inquiry. Our review of the sentencing entry reveals the trial court erred in attempting to impose mandatory postrelease control when it wrote, “[i]n addition a period of control or supervision by the Adult Parole Authority after release from prison is mandatory in this case. The control period may be a maximum term of 5 years.” (Emphasis added.) This language does not adequately indicate that the five-year term of postrelease control for Wiggins’ first-degree felony conviction was mandatory. Instead, we find this language analogous to the equally erroneous statements regarding postrelease control of “up to” five years (for a first-degree felony or felony sex offense) or three years (for a second-degree felony that is not a felony sex offense), all of which indicate an offender may be subject to less than five (or three) years, possibly even no years, of postrelease control. See State v. Williams, Belmont App. No. 09 BE 11, 2010-Ohio-2702, ¶10. But, see, State v. Keese, Marion App. No. 9-06-47, 2007-Ohio-3836.
{¶17} Because the trial court‘s statement that Wiggins’ postrelease control period “may be a maximum term of 5 years” was not definite on the mandatory nature and duration of postrelease control, this advisement was inadequate. Thus, while we find no merit in Wiggins’ second assignment of error, we find additional grounds to vacate and reverse his sentence.
{¶18} Accordingly, this matter is remanded for resentencing in accordance with the procedures set forth in
{¶19} Judgment reversed as to sentencing only and cause remanded for resentencing.
YOUNG, P.J., and POWELL, J., concur.