[Cite as State v. Weber,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellant Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 12CA85, 12CA93 RICHARD TODD WEBER

Defendant-Appellee OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case Nos. 2011-CR-407H and 2011-CR-636H

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: April 25, 2013

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

JAMES J. MAYER, JR. GEORGE R. KEYSER PROSECUTING ATRORNEY 44 Park Ave. West, Suite 202 RICHLAND COUNTY, OHIO Mansfield, Ohio 44902

By: J. BRANDON PIGG Assistant Prosecuting Attorney 38 South Park Street Mansfield, Ohio 44902 Richland County, Case No. 12CA85, 12CA93 2

Hoffman, P.J.

{¶1} Plaintiff-appellant the state of Ohio appeals the August 10, 2012 Judicial

Release Order entered by the Richland County Court of Common Pleas. Defendant-

appellee is Richard T. Weber.

STATEMENT OF THE CASE1

{¶2} On October 13, 2011, Appellee entered a plea of guilty to three counts of

forgery, in violation R.C. 2913.31(A)(1), in Richland County Case Number 2011CR0407.

In exchange for the plea, the State agreed to dismiss two counts and recommend

community control at sentencing. Via Sentencing Entry of November 10, 2011, the trial

court sentenced Appellee to six months in prison on each count to run consecutively, all

suspended. The court sentenced Appellee to thirty-six months of community control,

informing Appellee a violation of the terms of community control would lead to a prison

term of 18 months and a five year term of post release control.

{¶3} Also on October 13, 2011, Appellee entered a plea of guilty to one count

of theft from the elderly, in violation of R.C. 2913.02(A)(1), in Richland County Case

Number 2011CR0636. In exchange for the plea, the State agreed to recommend

community control at sentencing. Via Sentencing Entry of November 10, 2011, the trial

court sentenced Appellee to twelve months in prison, suspended. The trial court

sentenced Appellee to thirty-six months of community control, informing Appellee a

violation of the terms of his community control would lead to the imposition of a twelve

month prison term and five years of community control.

1 A rendition of the underlying facts is unnecessary for our resolution of this appeal. Richland County, Case No. 12CA85, 12CA93 3

{¶4} On May 2, 2012, the trial court issued a Community Control Violation

Journal Entry in both Case Number 2011CR0407 and 2011CR0636, accepting

Appellee's admission to community control violations and sentencing Appellee to six

months on each count in Case Number 2011CR0407, to run consecutively, and twelve

months in Case Number 2011CR0636. The trial court ordered the sentences in

2011CR0407 and 2011CR0636 to run consecutively.

{¶5} On June 11, 2012, Appellant filed a motion for judicial release in

2011CR0407. On July 10, 2012, the State filed a response to the motion. Appellee

filed a motion for judicial release in Case Number 2011CR0636 on July 31, 2012. Via

Judicial Release Order of August 10, 2012, the trial court found Appellee was serving a

non-mandatory prison term of less than 10 years and had served all mandatory portions

of the sentence; therefore, suspending Appellee's prison term by judicial release to

community control for a period of two and one-half years.

{¶6} Appellant the state of Ohio now appeals, assigning as error:

{¶7} “I. THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANT-

APPELLEE JUDICIAL RELEASE, AS HE WAS INELIGIBLE FOR JUDICIAL RELEASE

ACCORDING TO R.C. 2929.20(C)(2).”

{¶8} R.C. 2929.20(C)(2) reads,

{¶9} "(C) An eligible offender may file a motion for judicial release with the

sentencing court within the following applicable periods:

{¶10} "(1) If the aggregated nonmandatory prison term or terms is less than two

years, the eligible offender may file the motion not earlier than thirty days after the

offender is delivered to a state correctional institution or, if the prison term includes a Richland County, Case No. 12CA85, 12CA93 4

mandatory prison term or terms, not earlier than thirty days after the expiration of all

mandatory prison terms.

{¶11} "(2) If the aggregated nonmandatory prison term or terms is at least two

years but less than five years, the eligible offender may file the motion not earlier than

one hundred eighty days after the offender is delivered to a state correctional institution

or, if the prison term includes a mandatory prison term or terms, not earlier than one

hundred eighty days after the expiration of all mandatory prison terms.

{¶12} "(3) If the aggregated nonmandatory prison term or terms is five years, the

eligible offender may file the motion not earlier than four years after the eligible offender

is delivered to a state correctional institution or, if the prison term includes a mandatory

prison term or terms, not earlier than four years after the expiration of all mandatory

prison terms.

{¶13} "(4) If the aggregated nonmandatory prison term or terms is more than five

years but not more than ten years, the eligible offender may file the motion not earlier

than five years after the eligible offender is delivered to a state correctional institution or,

if the prison term includes a mandatory prison term or terms, not earlier than five years

after the expiration of all mandatory prison terms.

{¶14} "(5) If the aggregated nonmandatory prison term or terms is more than ten

years, the eligible offender may file the motion not earlier than the later of the date on

which the offender has served one-half of the offender's stated prison term or the date

specified in division (C)(4) of this section."

{¶15} In State v. Norman, 2nd Dist. No. 24445,

, the Second

District Court of Appeals held, Richland County, Case No. 12CA85, 12CA93 5

{¶16} "R.C. 2929.01(BB)(1) defines 'prison term' to include a stated prison term.

R.C. 2929.01(FF) defines 'stated prison term' as, among other things, the combination

of all prison terms imposed by the sentencing court pursuant to R.C. 2929.14. We have

previously construed the definition of 'stated prison term,' albeit in conjunction with the

R.C. 2929.20(B)(1) provision for judicial release, as expressly providing that a

combination of prison terms, such as a series of consecutive sentences, be treated as

one stated prison term, not as multiple terms. State v. Anderson–Melton (Nov. 9, 2001),

Montgomery App. No. 18703. That same interpretation applies here, and means that

Defendant's stated prison term is twenty years, not multiple, separate prison terms

consisting of eight years, five years, five years, and two years. Defendant will not

complete serving his sentence in this case until he has served all twenty years." We

agree with the Norman Court’s analysis.

{¶17} The trial court sentenced Appellee to six months each on the three forgery

counts to be served consecutively for a total of eighteen months in prison. The court

ordered the sentence to run consecutively to Appellee's twelve month sentence on the

theft charge for a total of thirty months in prison. Accordingly, Appellee's "stated prison

term" is thirty months in prison. Richland County, Case No. 12CA85, 12CA93 6

{¶18} Pursuant to R.C. 2929.20(C)(2) set forth above, Appellee was ineligible for

judicial release until having served at least 180 days in prison. The August 10, 2012

judgment of the trial court is therefore reversed and the matter remanded to the trial

court for further proceedings in accordance with the law and this opinion.

By: Hoffman, P.J.

Wise, J. and

Baldwin, J. concur

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ John W. Wise _____________________ HON. JOHN W. WISE

s/ Craig R. Baldwin ___________________ HON. CRAIG R. BALDWIN Richland County, Case No. 12CA85, 12CA93 7

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellant : : -vs- : JUDGMENT ENTRY : RICHARD TODD WEBER : : Defendant-Appellee : Case No. 12CA85

For the reason stated in our accompanying Opinion, the August 10, 2012

judgment entered by the Richland County Court of Common Pleas is reversed and the

matter is remanded to that court for further proceedings in accordance with the law and

our Opinion. Costs to Appellee.

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ John W. Wise _____________________ HON. JOHN W. WISE

s/ Craig R. Baldwin ___________________ HON. CRAIG R. BALDWIN IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellant : : -vs- : JUDGMENT ENTRY : RICHARD TODD WEBER : : Defendant-Appellee : Case No. 12CA93

For the reason stated in our accompanying Opinion, the August 10, 2012

judgment entered by the Richland County Court of Common Pleas is reversed and the

matter is remanded to that court for further proceedings in accordance with the law and

our Opinion. Costs to Appellee.

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ John W. Wise _____________________ HON. JOHN W. WISE

s/ Craig R. Baldwin ___________________ HON. CRAIG R. BALDWIN