[Cite as State v. Ware,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellant, : CASE NO. 2013-P-0011 - vs - :

SHAWN A. WARE, :

Defendant-Appellee. :

Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2009 CR 0563.

Judgment: Reversed and remanded.

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellant).

Terry G.P. Kane, Kane & Kane, 111 East Main Street, Suite B, P.O. Box 167, Ravenna, OH 44266 (For Defendant-Appellee).

THOMAS R. WRIGHT, J.

{¶1} This accelerated-calendar appeal is from a final judgment of the Portage

County Court of Common Pleas, granting judicial release to appellee, Shawn A. Ware.

Appellant, the State of Ohio, seeks reversal contending that appellee is not eligible for

judicial release because his entire four-year prison term is mandatory.

{¶2} In September 2009, the Portage County Grand Jury indicted appellee on

six counts of trafficking in cocaine and one count of possession of cocaine. The fifth count alleged that, while in the vicinity of a juvenile, appellee sold, or offered to sell,

cocaine in an amount less than one gram. The sixth count alleged that appellant

prepared for distribution, or distributed, crack cocaine in an amount between ten grams

and twenty-five grams. These two crimes are felonies of the fourth and second degree,

respectively.

{¶3} Ultimately, appellee pled guilty to counts five and six, and the state

dismissed the remaining counts. The trial court accepted the guilty plea and referred

the case to the county adult probation department for preparation of a presentencing

report.

{¶4} At the outset of the April 2010 sentencing hearing, the trial court stated

that, because the second remaining trafficking charge was a second-degree felony, a

mandatory prison term was required. However, when the court orally pronounced

sentence, it did not refer to any mandatory term. Rather, the court said that appellee

would receive a stated term of eighteen months on the fourth-degree trafficking count, a

stated term of four years on the second-degree trafficking count, and the two terms

would be served concurrently. As to judicial release, the trial court expressly stated at

the end of the hearing that such relief would be considered if appellee could show that

he was trying to change his life.

{¶5} In its April 23, 2010 sentencing entry, the trial court again did not deem

any of the four-year prison term for the second-degree trafficking offense as mandatory.

Instead, the court imposed two concurrent stated, but not mandatory, prison terms of

eighteen months and four years on the respective counts. The state did not appeal.

{¶6} Over the next seventeen months, appellee twice moved for judicial

2 release. The first motion was filed in November 2010, approximately six months

following the imposition of sentence. After an oral hearing on the matter, the trial court

denied the first motion without addressing its substance. Three months later, in

September 2011, appellee submitted his second motion for judicial release.

{¶7} While the second motion remained pending, appellee filed a pro se letter

with the trial court, stating that he was confused as to the nature of his sentence on the

second-degree trafficking count. Specifically, he noted that, even though the court said

during the sentencing hearing that a mandatory term was required, the sentencing

judgment did not impose mandatory time. In light of this, appellee asserted that he was

uncertain as to when it would be permissible for him to move for judicial release.

{¶8} At approximately the same time appellee sent his pro se letter, his counsel

submitted a motion for “leave” raising the same issue as the letter: i.e., the proper

interpretation of the final sentencing judgment. The trial court did not issue a ruling on

this motion, but instead rendered a nunc pro tunc entry in December 2011. The

wording of the nunc pro tunc entry was virtually identical to that of the April 2010

sentencing judgment, with one significant exception. Regarding the second-degree

trafficking count, the nunc pro tunc entry sentenced appellee to a stated mandatory term

of four years, which would make him ineligible for judicial release.

{¶9} Through his trial counsel, appellee immediately requested the trial court to

reconsider the nunc pro tunc entry, arguing that the new mandatory term on the second-

degree trafficking count was inconsistent with the court’s oral pronouncement during the

sentencing hearing and her original sentencing entry. Citing the court’s statement as to

the potential for judicial release, appellee contended that the court intended to impose a

3 stated four-year term, with only the first two years being mandatory. He further argued

that if the trial court intended for all four years to be mandatory, he would never be

eligible for judicial release under the governing statutory law.

{¶10} The trial court did not render a written ruling on the motion to reconsider.

On April 13, 2012, the court conducted an oral hearing on the second motion for judicial

release. According to the court’s subsequent judgment, appellee withdrew the second

motion at that time.

{¶11} In October 2012, appellee filed his third motion for judicial release, arguing

that he was now eligible for the requested relief. In support, he asserted that, since the

original sentencing judgment did not deem any of his stated term as mandatory in

regard to the second-degree trafficking count, the judgment should be interpreted to

have only imposed a two-year mandatory term. In making this argument, appellee did

not refer to the trial court’s nunc pro tunc entry.

{¶12} The state did not submit a written response to appellee’s third motion for

judicial release. On February 8, 2013, an oral hearing was held on the pending motion.

Appellant did not assert any challenge to appellee’s eligibility for judicial release.

Instead, the state only argued that the motion should be denied because the trial court

had already shown leniency to appellee by imposing a four-year term opposed to a

possible eight-year term. The trial court rejected this argument, stating on the record

that it would be in the best interest of society to release appellee early so that he could

have an opportunity to change his life for the better.

{¶13} On February 11, 2013, the trial court rendered its final judgment granting

appellee early judicial release. Two days later, and one day before the official date of

4 appellee’s release from the county jail, the trial court conducted a second hearing on the

third “release” motion. At the outset of this proceeding, the trial court informed appellee

that this court had recently issued an opinion on the issue of judicial release, and that

the state was now contesting whether he was eligible for the requested relief. The trial

court further indicated that, even though it agreed with the state concerning the proper

interpretation of our recent opinion, it was still going to allow appellee’s release because

its decision on appellee’s third motion was rendered before it had knowledge of the new

appellate precedent. In light of this, the court also overruled the state’s motion to stay

appellee’s release while it appealed.

{¶14} In contesting the “release” judgment, the state asserts two assignments of

error for review:

{¶15} “[1.] The Portage County Court of Common Pleas erred in finding an

inmate imprisoned on a mandatory four year sentence was eligible for judicial release

and erred in granting the same inmate judicial release.

{¶16} “[2.] Assuming arguendo Ware is an eligible offender, the Portage County

Court of Common Pleas erred in granting Ware judicial release without making the

findings required under R.C. 2929.20(J)(1)(a), (b) and (2).”

{¶17} Under its initial assignment, the state first challenges the legal propriety of

the sentence that the trial court imposed for the second-degree trafficking offense in its

original sentencing judgment of April 2010. The state maintains that, regardless of the

total length of the sentence given for the second-degree offense, the court was required

to make the entire prison term mandatory; i.e., according to the state, the trial court did

not have the discretion to make only a portion of the total term mandatory. Based on

5 this, the state not only concludes that the imposed sentence was technically flawed, but

that the third motion for judicial release should have been denied because, since

appellee’s entire term for the second-degree offense had to be mandatory, he was not

eligible for early release from prison.

{¶18} Three questions must be answered to properly dispose of the state’s first

assignment: (1) did the trial court originally intend to impose a “hybrid” sentence on the

second-degree felony, under which only two years of the stated four-year term would be

mandatory; (2) did the trial court ever issue a final judgment that employed the

necessary language to impose the intended sentence; and (3) is a hybrid sentence

permissible under Ohio’s sentencing scheme? As to the first two questions, we find

that, although the trial court wanted to impose a hybrid sentence on the second-degree

felony, it has never rendered a properly-worded judgment imposing such a sentence.

As to the third query, we hold that a hybrid sentence is permissible. Therefore, as part

of our final determination, this case must be remanded for the issuance of a proper final

sentencing judgment.

{¶19} The procedure for granting judicial release is set forth in R.C. 2929.20.

Division (B) of the statute generally provides that a sentencing court has the discretion

to reduce an inmate’s prison term if he is statutorily eligible for such relief. However,

one serving a mandatory prison term is not eligible for release until after serving the

mandatory portion of his term. R.C. 2929.20(A)(1)(a).

{¶20} During the first hearing on the third “judicial release” motion, the state did

not assert any argument concerning appellee’s eligibility for judicial release under the

statutory definition. Although the state subsequently sought to raise this issue in the

6 second hearing on the motion, this did not occur until after the trial court had rendered

its written judgment ordering appellee’s early release. Under these circumstances, the

state waived the question of appellee’s eligibility for judicial release. Nevertheless,

given that a serious issue exists regarding whether the trial court has rendered a final

judgment that properly sets forth the intended sentence on the second-degree

trafficking offense, this court will address the merits of the state’s first assignment.

{¶21} Appellee was sentenced to two concurrent terms of four years and

eighteen months. The four-year term was predicated upon his conviction pursuant to

R.C. 2925.03(A)(2), which forbids a person from knowingly preparing for distribution, or

actually distributing, a controlled substance. According to the allegations under the

sixth count, the controlled substance distributed was crack cocaine, and the amount of

the substance involved was greater than ten grams, but less than twenty-five grams.

Under the version of R.C. 2925.03(C)(4)(e) in effect when appellee was sentenced in

April 2010, where the substance being distributed was crack cocaine at the prescribed

amount, a trial court is required to impose “as a mandatory term one of the prison terms

prescribed for a felony of the second degree.”

{¶22} Thus, the state submits that the trial court was required to impose a

mandatory term for appellee’s second-degree trafficking offense, and that the court

failed to fulfill this requirement in imposing the stated four-year term. In support, the

state refers solely to the trial court’s original sentencing judgment of April 2010.

{¶23} As noted above, the original sentencing judgment imposed a stated term

of four years for the second-degree trafficking offense; none of the term was deemed

mandatory despite the requirement for a mandatory term. In presenting its argument,

7 the state ignores the trial court’s nunc pro tunc entry, issued on December 29, 2011, in

which the entire four-year term for the second-degree offense is deemed mandatory.

Although this court ultimately concludes that the nunc pro tunc entry, like the original

sentencing judgment, is technically flawed, the wording of the nunc pro tunc imposes a

mandatory term in compliance with R.C. 2925.03(C)(4)(e). Therefore, the issue before

this court becomes whether, despite the imposition of the stated four-year mandatory

term, appellee is eligible for judicial release under R.C. 2929.20.

{¶24} Under the definition of “eligible offender” in R.C. 2929.20(A)(1)(a), a prison

inmate is not eligible for judicial release until after he has served the mandatory time

imposed. Accordingly, if an inmate’s entire prison term is mandatory, he will never be

eligible for judicial release. See State v. Warren, 11th Dist. Portage No. 2012-P-0069,

. Even though the trial court also imposed a nonmandatory eighteen-

month term for the fourth-degree trafficking offense, the court further ordered the shorter

term to run concurrently with the four-year term. As a result, pursuant to the specific

language used in the trial court’s nunc pro tunc entry, appellee’s entire four-year

sentence was mandatory.

{¶25} However, despite the express wording of the nunc pro tunc entry, the trial

court always intended for appellee to be eligible for judicial release. During the

sentencing hearing on April 19, 2010, the trial court twice informed appellee that he

would be subject to a mandatory prison term as a consequence of pleading guilty to a

second-degree felony. Nevertheless, at the end of the proceeding, the court also told

appellee that it would consider releasing him early if he made a true effort to alter his

way of life.

8 {¶26} At first blush, the foregoing statements by the trial court would appear to

be contradictory; i.e., how could the trial court conclude that appellee would be eligible

for judicial release if his entire four year stated term is mandatory? Although the trial

court did not attempt to provide any explanation for its various statements during the

April 2010 sentencing hearing, explanation was given as part of the second hearing on

appellee’s third “judicial release” motion in February 2013. Specifically, in discussing

the possible effect of this court’s recent holding in Warren, the trial court indicated that

its sentencing order was based upon the following logic:

{¶27} “My idea was if the mandatory minimum in a certain charge is two years

and I gave you four, that you would be eligible after the two year period because that

was the mandatory minimum.”

{¶28} Pursuant to R.C. 2929.14(A)(2), the permissible range of a prison term for

a second-degree felony is between two years and eight years. Hence, notwithstanding

the specific language used in the nunc pro tunc entry, the trial court appears to have

believed that, since two years was the shortest term that can be imposed for a second-

degree trafficking charge, only that amount of appellee’s sentence would be mandatory

regardless of whether a total of four years was imposed.

{¶29} In the nunc pro tunc entry, the trial court employed the following language:

“IT IS THEREFORE ORDERED that the Defendant is sentenced * * * to a definite term

of eighteen (18) months to be served for the felony four and a mandatory four (4) years

to be served for the felony two, * * *.” (Emphasis sic.) Given the lack of reference to any

two-year minimum, the trial court’s language did not convey that which the court

intended: a four-year stated sentence of which the first two years are mandatory.

9 {¶30} This court was faced with a somewhat similar situation in Warren, 2013-

Ohio-443. Initially, the original trial judge in Warren verbally sentenced the defendant to

a stated four-year term for aggravated vehicular homicide, but only two of the four years

would be mandatory. However, the original final judgment imposed a mandatory four-

year term for aggravated vehicular homicide and a consecutive mandatory one-year

term for aggravated vehicular assault. As a result of the discrepancy, the Warren

defendant moved to vacate the final judgment. After conducting a separate

“resentencing” hearing, the original judge issued a second judgment in which the

defendant was ordered to serve a mandatory four-year prison term for aggravated

vehicular homicide and a consecutive one-year prison term for aggravated vehicular

assault. Approximately three years after her resentencing, the Warren defendant

moved for judicial release. During the ensuing “motion” hearing, the new trial judge

indicated that she had spoken to the original trial judge about the matter, and that the

original judge stated that he had intended for the defendant to be eligible for judicial

release at that time. Based upon this, the new judge ordered the defendant’s

immediate release.

{¶31} On appeal in Warren, the state asserted that the defendant was ineligible

for judicial release because the second sentencing judgment imposed a mandatory

prison term of at least four years. Id. at ¶9. In response, the defendant argued that the

new trial judge’s decision should be upheld because there was nothing in the record to

refute the possibility that the original trial judge did not order a four-year mandatory term

in open court during the “resentencing” hearing. Id. In reversing the trial court’s ruling

on the “eligibility” issue, this court concluded that, as to the imposition of the mandatory

10 term, the unequivocal language of the second sentencing judgment was controlling over

the new trial judge’s statements regarding the original trial judge’s intent. Id. at ¶14. As

to the defendant’s argument, we held that the lack of a transcript of the “resentencing”

hearing precluded her from arguing that the original trial judge had only intended for two

years of the four-year term to be mandatory. Id. at ¶15-16.

{¶32} The facts of our case are readily distinguishable from those in Warren.

First, the trial record in Warren did not contain a transcript of the “resentencing” hearing;

thus, it could not be determined whether the original trial judge’s oral pronouncement at

the “resentencing” hearing as to the length of the mandatory term conflicted with the

wording of the second sentencing judgment. Second, unlike the trial judge in our case,

the first trial judge in Warren was not present at the hearing on the motion for judicial

release, and thus could not provide a proper explanation concerning whether part or all

of the four-year term was intended to be mandatory.

{¶33} In our case, despite acknowledging during the sentencing hearing that a

mandatory prison term had to be imposed for the second-degree trafficking offense, the

trial court still indicated that appellee would be eligible to move for early judicial release.

It is clear that neither judgment entry captured the trial court’s intent: to impose a stated

four-year sentence, with the first two years mandatory. Under these circumstances, it

would be inequitable to deny appellee eligibility for judicial release simply because the

trial court did not order the intended sentence.

{¶34} More importantly, though, since neither the original sentencing judgment

nor the nunc pro tunc entry actually impose a stated four-year sentence with the first

two years mandatory, a second nunc pro tunc order is in order. First, the original

11 sentencing judgment is flawed because it does not impose any mandatory term, as the

trial court clearly intended and as is expressly mandated in R.C. 2925.03(C)(4)(e).

Second, the nunc pro tunc entry is flawed because it too does not state the sentence

the trial court intended to impose for the second-degree trafficking offense.

{¶35} As to the latter point, the only function of a nunc pro tunc entry “is not to

correct or modify an existing judgment, but rather to make the record conform to that

which has already occurred.” State v. Zawitz, 8th Dist. Cuyahoga No. 99179, 2013-

Ohio-2540, ¶13. Based upon the trial court’s statements during the sentencing hearing

and the second hearing on appellee’s third “judicial release” motion, there is no dispute

that the court intended to impose a stated prison term of four years for the second-

degree trafficking offense, with only the first two years being mandatory. As noted

above, the wording of the nunc pro tunc entry does not impose this sentence, but rather

imposes a stated mandatory term of four years. To this extent, the nunc pro tunc does

not adequately reflect what the trial court intended.

{¶36} Accordingly, upon remand of this action, the trial court must issue a nunc

pro tunc entry which properly states its intended sentence for the second-degree

trafficking offense. Specifically, the court must state that it is imposing a total definite

prison term of four years for the offense, with the first two years mandatory.

{¶37} Given that the length of the mandatory term will not be equal to the total

stated prison term for the second-degree trafficking offense, the trial court intended to

impose a hybrid sentence. As part of its argument under its first assignment, the state

contends that a hybrid sentence is impermissible. According to the state, regardless of

how many years a trial court imposes for a second-degree felony, the entire term must

12 be mandatory in order to satisfy the statutory scheme.

{¶38} In support, the state submits that our Warren decision stands for the basic

proposition that a “hybrid” sentence cannot be imposed under Ohio law. However, the

state has clearly misinterpreted Warren, which does not even address the legal

propriety of a hybrid sentence. The basic issue in Warren concerned whether the new

trial judge could rely upon an off-the-record discussion with the original trial judge when

the wording of the second sentencing judgment was unequivocal in regard to the length

of the mandatory sentence.

{¶39} A review of the relevant case law indicates that the legality of hybrid prison

sentences has been considered by a few Ohio appellate courts. In State v. May, 5th

Dist. Morrow No. 2010 CA 2,

, the Fifth Appellate District concluded that

a trial court has the discretion to impose a mandatory term that is shorter in length than

the stated sentence for a specific offense. As the primary basis for its holding, the May

court noted that the statutory sentencing scheme has provisions differentiating between

a “stated prison term” and a “mandatory prison term.” Id. at ¶13. The principal example

is R.C. 2929.01(FF), which provides:

{¶40} “‘Stated prison term’ means the prison term, mandatory prison term, or

combination of all prison terms and mandatory prison terms imposed by the sentencing

court pursuant to section 2929.14, 2929.142, or 2971.03 of the Revised Code or under

2919.25 of the Revised Code, * * *.”

{¶41} The logic of the May court is that the language of R.C. 2929.01(FF) and

other statutes shows that the phrase “stated term” was not intended by the legislature to

be synonymous with the phrase “mandatory term.” Id. at ¶18. In turn, the length of a

13 mandatory term does not have to necessarily coincide with the total “stated” term for

one offense. In support of its holding, the May court also emphasized that the Ohio

sentencing scheme does not have any provision that expressly prohibits the use of

hybrid sentences. Id. Additionally, the May court emphasized that the allowance of a

hybrid sentence is consistent with the general tenet that criminal statutes must be

construed liberally in favor of the accused and strictly against the state. Id., citing State

v. Fanti,

(5th Dist. 2001).

{¶42} Although at least one appellate district has rejected the contention that a

hybrid sentence is permissible, see State v. Thomas, 3rd Dist. Allen No. 1-04-88, 2005-

Ohio-4616, this court finds the logic of May to be persuasive. In addition to the reasons

set forth in May, this court would indicate that the use of a hybrid sentence gives a trial

court a degree of flexibility which can aid in the rehabilitation of the offender. By

imposing a mandatory prison term which is shorter than the stated term for a particular

offense, thereby making the offender eligible for early judicial release, the trial court can

provide incentive to rehabilitate and modify behavior during the period of incarceration.

{¶43} In this case, the trial court sought to impose a mandatory term of two

years for the second-degree trafficking offense, while imposing a stated term of four

years. Given that a two-year term is a permissible sentence for a second-degree felony

under R.C. 2929.12(A)(2), the trial court would not exceed the scope of its discretion

should it impose the intended sentence. Furthermore, since appellee’s “stated prison

term” for the second-degree trafficking offense included a two-year nonmandatory term,

he would be an “eligible offender” for judicial release under R.C. 2929.20(A)(1)(a).

{¶44} Even though the trial court intended to impose a hybrid sentence on the

14 second-degree trafficking offense, the trial court has not issued a sentencing order

imposing such a sentence. Thus, to the extent that this case must be remanded so that

the trial court can render a new nunc pro tunc entry with the necessary language for a

hybrid sentence, the state’s first assignment has merit. However, to the extent that the

state has challenged the trial court’s authority to impose a hybrid sentence, its first

assignment is not well-taken.

{¶45} Under its second assignment, the state contends that the decision to grant

appellee judicial release must be reversed because the trial court failed to make certain

findings of fact. Citing R.C. 2929.20(J), the state asserts that appellee’s release could

not be justified unless the trial court made specific findings regarding the likelihood of

recidivism and the seriousness of appellee’s two convictions.

{¶46} R.C. 2929.20(J)(1) states that if an eligible offender’s incarceration stems

from a conviction for a first or second-degree felony, he cannot be given relief under the

statute unless the trial court finds both of the following:

{¶47} “(a) That a sanction other than a prison term would adequately punish the

offender and protect the public from future criminal violations by the eligible offender

because the applicable factors indicating a lesser likelihood of recidivism outweigh the

applicable factors indicating a greater likelihood of recidivism;

{¶48} “(b) That a sanction other than a prison term would not demean the

seriousness of the offense because factors indicating that the eligible offender’s conduct

in committing the offense was less serious than conduct normally constituting the

offense outweigh factors indicating that the eligible offender’s conduct was more serious

than conduct normally constituting the offense.”

15 {¶49} In relation to these two findings, R.C. 2929.20(J)(2) states that, in granting

judicial release to an eligible offender covered under division (J)(1), the trial court must

“specify on the record both findings required in [division (J)(1)] and also shall list all the

factors described in that division that were presented at the hearing.”

{¶50} As previously discussed, one of the two trafficking counts covered under

appellee’s guilty plea was a second-degree felony under R.C. 2925.03(C)(4); thus, the

requirements of R.C. 2929.20(J) had to be met before appellee’s third motion for judicial

release could be granted. During the first hearing on the third motion, the trial court only

made two findings in support of its decision: (1) appellee had tried to change his way of

life while incarcerated; and (2) it would be in the best interest of the community to grant

appellee early release. While these two points may have been relevant to the ultimate

ruling on the third motion, no required findings were made either orally or in the trial

court’s final judgment on the third motion. Hence, the trial court did not comply with

R.C. 2929.20(J) in rendering its decision.

{¶51} By including division (J) in the judicial release statute, the state legislature

clearly intended to place a burden upon eligible offenders who were convicted of first or

second-degree felonies. Accordingly, even if other factors weighed in favor of releasing

appellee prior to the completion of his entire term, he still would not be entitled to the

requested relief unless the trial court also made findings in his favor on the two specific

factors listed in division (J). For this reason, this case must be remanded so that a new

oral hearing can be held if the trial court concludes additional evidence or arguments is

needed on the two statutory factors. Based upon that proceeding, the trial court must

render findings on the two listed factors in division (J), and render a new determination

16 regarding appellee’s judicial release.

{¶52} As the trial court failed to make the necessary findings for granting judicial

release to a second-degree felon, the state’s second assignment is well-taken.

{¶53} Pursuant to the foregoing discussion, the state’s second assignment has

merit, and its first assignment has merit in part.

{¶54} The judgment of the Portage County Court of Common Pleas is reversed,

and the case is hereby remanded for further proceedings. Specifically, the trial court

shall first issue a new nunc pro tunc entry which correctly states the nature of the

sentence the court intended to impose for the second-degree trafficking offense: i.e., a

total stated prison term of four years, only two of which are mandatory. Second, the trial

court shall make the necessary findings of fact under R.C. 2929.20(J), holding a new

hearing if necessary, and then render a new judgment on the merits of appellee’s third

motion for judicial release.

TIMOTHY P. CANNON, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.

17