State v. Oliver

[Cite as State v. Oliver, 2011-Ohio-3950.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO

Plaintiff-Appellee -vs- KEVIN OLIVER, II

Defendant-Appellant JUDGES:

Hon. William B. Hoffman, P.J.

Hon. Julie A. Edwards, J.

Hon. Patricia A. Delaney, J.

Case No. 11CAA020021 OPINION CHARACTER OF PROCEEDING: Appeal form the Delaware County Court of

Common Pleas, Case No. 09 CR I 09 0450 JUDGMENT: Reversed and Final Judgment Entered DATE OF JUDGMENT ENTRY: August 8, 2011 APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant CAROL HAMILTON O'BRIEN WILLIAM T. CRAMER Delaware County Prosecuting Attorney 470 Olde Worthington Road, Suite 200 GREGORY A. TAPOCSI Westerville, Ohio 43082 Assistant Prosecuting Attorney 140 N. Sandusky St., 3rd Floor Delaware, Ohio 43015 Hoffman, P.J.

{¶1} Defendant-appellant Kevin Oliver, II appeals the sentence entered by the Delaware County Court of Common Pleas, following his guilty plea to six counts of burglary, two counts of attempted burglary, and one count of grand theft. Appellant was ordered to serve a total of nine and one half years in prison in addition to other penalties. The trial court included the following in its Judgment Entry of Sentence entered January 28, 2011:

{¶2} “The Court does not approve the Intensive Prison Program or Transitional Control.”

{¶3} It is from his sentencing entry Appellant prosecutes this appeal assigning as error:

{¶4} “I. DEFENDANT’S STATE AND FEDERAL RIGHTS TO DUE PROCESS WERE VIOLATED WHEN THE TRIAL COURT DISAPPROVED TRANSITIONAL CONTROL UNDER R.C. 2967.26 AT SENTENCE.”1

{¶5} This Court has previously addressed this exact issue in State v. Spears, 2011-Ohio-1538. Upon review we adhere to our prior precedent.

{¶6} Appellant’s sole assignment of error is sustained. {¶7} The judgment of the trial court is reversed.

By: Hoffman, P.J.

Edwards, J. and Delaney, J. concur s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO :

:

Plaintiff-Appellee :

:

-vs- : JUDGMENT ENTRY

:

KEVIN OLIVER, II :

:

Defendant-Appellant : Case No. 11CAA020021 For the reason stated in our accompanying Opinion, the judgment of the

Delaware County Court of Common Pleas is reversed. This Court orders the Judgment Entry of Sentence entered by the trial court and filed on January 28, 2011, shall constitute the final judgment of sentence with the singular exception the first full paragraph on page three thereof, which reads, “The Court does not approve the Intensive Prison Program or Transitional Control” is ordered stricken therefrom. s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS s/ Patricia A. Delaney HON. PATRICIA A. DELANEY