[Cite as State v. Garner,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION Nos. 97948 and 97949

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

TYRONE GARNER DEFENDANT-APPELLANT

JUDGMENT: SENTENCE VACATED; REMANDED FOR RESENTENCING

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-532364 and CR-535585

BEFORE: Celebrezze, J., Stewart, P.J., and E. Gallagher, J.

RELEASED AND JOURNALIZED: July 19, 2012 ATTORNEY FOR APPELLANT

David P. Kraus 19333 Van Aken Boulevard Suite 112 Shaker Heights, Ohio 44122

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor BY: Denise J. Salerno Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., J.:

{¶1} Defendant-appellant Tyrone Garner appeals from the trial court’s imposition

of mandatory consecutive sentences in case Nos. CR-532364 and CR-535585. After

careful review of the record and relevant case law, we reverse and remand for

resentencing in accordance with this opinion.

{¶2} On December 31, 2009, appellant was indicted in CR-532364 for failure to

comply, in violation of R.C. 2921.331(B) and (C)(5)(a)(ii), a felony of the third degree;

and possession of criminal tools, in violation of R.C. 2923.24(A), a felony of the fifth

degree. On January 15, 2010, he was arraigned and entered a plea of not guilty. On

March 9, 2010, he withdrew his previous plea of not guilty and pled guilty to attempted

failure to comply, in violation of R.C. 2923.02 and 2921.331(B) and (C)(5)(a)(ii), a

felony of the fourth degree.

{¶3} On March 26, 2010, appellant was indicted in CR-535585 for aggravated

robbery, in violation of R.C. 2911.01(A)(3), a felony of the first degree; and felonious

assault, in violation of R.C. 2903.11(A)(1), a felony of the second degree. On March 31,

2010, he was arraigned and entered a plea of not guilty. On May 19, 2010, he withdrew

his previous plea of not guilty and pled guilty to attempted aggravated robbery, in

violation of R.C. 2923.02 and 2911.01(A)(3), and aggravated assault, in violation of R.C.

2903.12, both felonies of the fourth degree. {¶4} Appellant was sentenced on June 24, 2010, on both cases to an aggregate

term of two years of community control. The trial court advised him that it reserved the

imposition of an 18-month prison term on each charge in the event he failed to comply

with the terms and conditions of his community control sanctions.

{¶5} On August 22, 2011, the trial court found appellant to be in violation of his

community control and ordered him to complete the original term of his community

control sanction and serve seven days in the county jail. At that time, the trial court

advised appellant that a second violation could result in a maximum prison term of 54

months.

{¶6} On January 6, 2012, appellant was found to be in violation of his community

control sanctions for a second time. The trial court terminated appellant’s community

control sanctions and sentenced him to six months in prison on each count in CR-535585,

to run concurrently, and six months in prison on CR-532364, to run consecutively to the

sentence imposed in CR-535585.

{¶7} Appellant brings this timely appeal, raising one assignment of error for

review:

The trial court erred when it determined that it was mandated to impose a consecutive sentence for a conviction of attempted failure to comply and violated defendant’s rights under U.S. Constitution Amendments V and XIV and Ohio Constitution Article I, Sections 10 and 16. Law and Analysis

{¶8} In his sole assignment of error, appellant argues that the trial court erred

when it determined that it was mandated to impose a consecutive sentence for a conviction of attempted failure to comply. Appellant asserts that because he was

convicted of attempted failure to comply, rather than failure to comply, the sentencing

provisions of R.C. 2921.331 do not apply to him, and the general sentencing statute, R.C.

2929.14(A)(4), controls the trial court’s sentencing options.

{¶9} As set forth above, appellant pled guilty to, and was convicted of, attempting

to commit a third-degree felony, in violation of R.C. 2921.331. Pursuant to R.C. 2923.02,

he is to be sentenced as though his offense was a fourth-degree felony. It is undisputed

that if appellant had been convicted of failure to comply, pursuant to R.C. 2921.331(A)

and 2921.331(C)(5), the trial court would have been required to impose a prison term

consecutive to any other prison term. See R.C. 2921.331(D). The question then

becomes whether the sentence for an attempted violation of R.C. 2921.331 is governed by

the specific sentencing provisions of R.C. 2921.331 or the general sentencing provisions

of R.C. 2923.02.

{¶10} The primary concern in the interpretation of a statute is legislative intent.

State v. Jordan,

, 491,

,

. Courts will

look to the language of the statute itself in attempting to ascertain the legislative intent.

See Stewart v. Trumbull Cty. Bd. of Elections,

,

(1973). In examining the actual language of a statute, words should be given their

common, ordinary, and accepted meaning unless the legislature has clearly expressed a

contrary intention. Youngstown Club v. Porterfield,

,

(1970). {¶11} Because this appeal involves the interpretation of two statutes, a closer look

at those statutes is in order.

{¶12} Attempt is governed by R.C. 2923.02. In relevant part, this statute

provides: “(E) Whoever violates this section is guilty of an attempt to commit an

offense. * * * An attempt to commit any [offense other than certain drug abuse

offenses] is an offense of the next lesser degree than the offense attempted. * * *.”

{¶13} The offense of failure to comply with the order or signal of a police officer

is codified under R.C. 2921.331, which states, in relevant part:

(B) No person shall operate a motor vehicle so as willfully to elude or flee a police officer after receiving a visible or audible signal from a police officer to bring the person’s motor vehicle to a stop.

(C)(1) Whoever violates this section is guilty of failure to comply with an order or signal of a police officer.

***

(5)(a) A violation of division (B) of this section is a felony of the third degree if the jury or judge as trier of fact finds any of the following by proof beyond a reasonable doubt:

***

(ii) The operation of the motor vehicle by the offender caused a substantial risk of serious physical harm to persons or property.

***

(D) If an offender is sentenced pursuant to division (C)(4) or (5) of this section for a violation of division (B) of this section, and if the offender is sentenced to a prison term for that violation, the offender shall serve the prison term consecutively to any other prison term or mandatory prison term imposed upon the offender. * * *. {¶14} In furtherance of his argument, appellant relies on this court’s decision in

State v. Hall, 8th Dist. No. 76374,

(June 29, 2000). In Hall, the

defendant was charged with first-degree felony drug possession offenses. He pled guilty

to attempted drug possession, a felony of the second degree, and was subsequently

sentenced to five years in prison. He appealed, arguing that he should have been

sentenced under the attempt statute. This court disagreed, holding that “attempted drug

possession is not a separate and distinct crime from possession of drugs, but rather it is

incorporated into the offense.” This court reasoned:

Pursuant to the terms of the plea bargain stated on the record, the attempt statute was incorporated into R.C. 2925.11. The appellant was originally indicted under R.C. 2925.11(C)(4)(f), which makes possession of one thousand grams or more of cocaine that is not crack cocaine, a felony of the first degree. By incorporating the attempt statute, the offense became a felony of the second degree. There was never any agreement to amend the indictment to delete R.C. 2925.11 so that the penalties provided for violations of that section would not apply.

{¶15} In State v. Taylor

,

,

, the

Supreme Court of Ohio addressed the issues raised in Hall. Specifically, the court was

asked to resolve the issue of “whether a conviction for an attempted drug offense that

would have been, if successfully completed, a first-degree felony, but which becomes a

second-degree felony by virtue of the fact that it is merely an attempt to commit an

offense, is subject to the mandatory prison term provisions in R.C. 2925.11.” Id. at ¶ 1.

{¶16} As this court did in Hall, the Ohio Supreme Court held that the sentencing

provisions in R.C. 2925.11, the “possession of drugs” statute — and not the general

felony sentencing statutes — applied, thereby subjecting Taylor to mandatory incarceration. Id. On review of the relevant statutes, the court upheld the holding in

Hall, determining that “an attempted possession of drugs is not a separate and distinct

crime from possession of drugs, but rather is incorporated into the possession offense.”

Id. at ¶ 16. The court noted that R.C. 2925.01(G)(4) defines a “drug abuse offense” to

include any attempt to commit a violation of R.C. 2925.11. Id. at ¶ 11. Thus, the court

reasoned that the crime of attempted possession was one of the crimes delineated in R.C.

2925.11, and therefore R.C. 2925.11 controlled the sentencing for that crime. Id. at

syllabus.

{¶17} On review of the applicable statutes, including R.C. 2921.331 and 2923.02,

we find the conclusions reached in Hall and Taylor to be distinguishable from the case at

hand. R.C. 2921.331 delineates the felony level and, in some instances, additional

penalties for defendants who violate R.C. 2921.331(C)(4) or (5). However, unlike the

statute governing “drug abuse offenses,” the crime of “attempted failure to comply” is not

one of the crimes delineated in R.C 2921.331. In fact, unlike the crime of “attempted drug

possession,” which was at issue in Hall and Taylor, R.C. 2921.331 does not include the

word “attempt” in any of its provisions or definitions. Thus, we find no basis to

conclude that the legislature intended “attempted failure to comply” to be a crime

incorporated in R.C. 2921.331. See State v. Wilson, 1st Dist. No. C-090436,

.

{¶18} We note that, as set forth in R.C. 2901.04(A), “sections of the Revised Code

defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused.” Accordingly, any ambiguities in R.C. 2921.331 and

2923.02 must be interpreted in appellant’s favor. With R.C. 2901.04(A) in mind, we

hold that the trial court erred in determining that it was mandated to impose a consecutive

prison term in this case pursuant to R.C. 2921.331(D).1

{¶19} Because the trial court should have applied the Revised Code’s general

felony sentencing provisions, we hold that appellant’s sentence is contrary to law.

Accordingly, appellant’s sole assignment of error is sustained.

{¶20} The sentence of the trial court is vacated, and this cause is remanded for

resentencing in accordance with law and this decision.

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

1 This point is further emphasized by the 1973 Legislative Service Commission comments attached to R.C. 2923.02: “This section is a general attempt statute which consolidates several specific attempt provisions in former law, and, with three exceptions, establishes an attempt to commit any offense as an offense in itself. The exceptions are an attempt to commit conspiracy, an attempt to commit a minor misdemeanor, and an attempt to commit any offense which in itself is defined as an attempt — in these cases, attempt is not an offense.” (Emphasis added.) FRANK D. CELEBREZZE, JR., JUDGE

MELODY J. STEWART, P.J., and EILEEN A. GALLAGHER, J., CONCUR