[Cite as State v. Jones,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-15-1308

Appellee Trial Court No. CR0201501155

v.

Shonta Jones, Jr. DECISION AND JUDGMENT

Appellant Decided: June 16, 2017

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Claudia A. Ford, Assistant Prosecuting Attorney, for appellee.

Mollie B. Hojnicki-Mathieson, for appellant.

*****

PIETRYKOWSKI, J.

{¶ 1} This matter is before the court sua sponte. On June 6, 2017, we granted the

state of Ohio’s motion for reconsideration of our January 27, 2017 decision and judgment

and affirmed the November 3, 2015 judgment of the Lucas County Court of Common Pleas based on the Supreme Court of Ohio’s reconsideration in State v. Aalim, Slip

Opinion No.

. Our decision, however, failed to address the assignment

of error in appellant’s appeal unrelated to Aalim, and now rendered decisional.

{¶ 2} On appeal, in a supplemental brief, appellant raised the following additional

assignment of error:

3) Appellant’s sentence is Contrary to Law.

{¶ 3} In this assignment of error, appellant argued that in sentencing him the

court erred in ordering his involuntary manslaughter sentence to be a mandatory sentence

under R.C. 2903.04(D), where there was no evidence that the basis of the violation was

an OVI. R.C 2903.04(D) provides:

(D) If an offender is convicted of or pleads guilty to a violation of

division (A) or (B) of this section and if the felony, misdemeanor, or

regulatory offense that the offender committed or attempted to commit, that

proximately resulted in the death of the other person or the unlawful

termination of another’s pregnancy, and that is the basis of the offender’s

violation of division (A) or (B) of this section was a violation of division

(A) or (B) of section 4511.19 of the Revised Code or of a substantially

equivalent municipal ordinance or included, as an element of that felony,

misdemeanor, or regulatory offense, the offender’s operation or

participation in the operation of a snowmobile, locomotive, watercraft, or

2. aircraft while the offender was under the influence of alcohol, a drug of

abuse, or alcohol and a drug of abuse, both of the following apply:

(1) The court shall impose a class one suspension of the offender’s

driver’s or commercial driver’s license or permit or nonresident operating

privilege as specified in division (A)(1) of section 4510.02 of the Revised

Code.

(2) The court shall impose a mandatory prison term for the violation

of division (A) or (B) of this section from the range of prison terms

authorized for the level of the offense under section 2929.14 of the Revised

Code.

{¶ 4} In sentencing appellant, the trial court’s November 3, 2015 judgment entry

references R.C. 2903.04(D)(2), as supporting its imposition of a “mandatory” prison

term. In its response brief, the state concedes this is in error.

{¶ 5} Accordingly, we find that the trial court erred in sentencing appellant and

that the sentence is contrary to law. Appellant’s third assignment of error is well-taken.

{¶ 6} On consideration whereof, we find that the November 3, 2015 judgment of

the Lucas County Court of Common Pleas is reversed and the matter is remanded for

resentencing in accordance with this decision. The costs of this appeal shall be assessed

equally between the parties pursuant to App.R. 24.

Judgment reversed.

3. State of Ohio v. Shonta Jones, Jr. L-15-1308

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ____________________________ JUDGE Thomas J. Osowik, J. ____________________________ James D. Jensen, P.J. JUDGE CONCUR. ____________________________ JUDGE

4.