[Cite as State v. Taylor, 2012-Ohio-232.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-110295
TRIAL NO. B-0900555-B
Plaintiff-Appellee, :
vs. :
ERIC TAYLOR, : O P I N I O N.
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: January 25, 2012
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Cornelius Lewis and Michael J. Trapp, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
FISCHER, Judge.
{¶1} Defendant-appellant Eric Taylor appeals the judgment of the Hamilton
County Court of Common Pleas revoking Taylor’s judicial release and sentencing him
to six years in prison. Because we determine that the trial court lacked authority to
increase Taylor’s original sentence, we reverse the trial court’s judgment and remand
the matter for resentencing.
{¶2} In January 2009, Taylor was indicted on three counts of aggravated
robbery with specifications, three counts of robbery, two counts of having a weapon
while under a disability, carrying a concealed weapon, and improperly handling a
firearm in a motor vehicle. Taylor pleaded guilty in November 2009 to three counts
of robbery, one of which was accompanied by a firearm specification. The trial court
sentenced Taylor to concurrent two-year terms of incarceration on each of the
robbery offenses, which were imposed consecutively to a one-year term of
incarceration on the firearm specification, for an aggregate sentence of three years in
the department of corrections.
{¶3} Taylor filed a motion for judicial release pursuant to R.C. 2929.20 in
June 2010, requesting that the court place him on judicial release once he served his
mandatory one-year prison term on the firearm specification. The trial court granted
the motion in December 2010, after holding a hearing where the trial court warned
Taylor that the court would impose a total of 16 years’ incarceration on his original
offenses if he violated the community-control sanctions imposed as a condition of his
release. Taylor indicated at the hearing that he understood the risk. The trial court’s
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OHIO FIRST DISTRICT COURT OF APPEALS
entry suspending Taylor’s sentence and placing him on community control also
reflected the trial court’s admonition.
{¶4} In March 2011, a probation officer reported that Taylor had violated
the terms of his community control. The trial court revoked Taylor’s judicial release
after a hearing on the matter, and imposed concurrent five-year prison sentences on
each of the robbery offenses, which were made consecutive to a one-year prison
sentence on the firearm specification, for a total of six years’ imprisonment. Taylor
has appealed.
{¶5} In Taylor’s sole assignment of error, he contends that the trial court
erred by imposing a sentence contrary to law. R.C. 2929.20 allows a sentencing
court to reduce an eligible offender’s nonmandatory prison term by suspending the
balance of the offender’s prison term and imposing conditions on the offender’s
release. State v. McConnell, 143 Ohio App.3d 219, 223, 757 N.E.2d 1167 (3rd
Dist.2001). The trial court then reserves the right to reimpose the suspended prison
term if the offender violates a condition of release. Id.
{¶6} R.C. 2929.20(K) provides, in part:
If the court grants a motion for judicial release under
this section, the court shall order the release of the
eligible offender, shall place the eligible offender under
an appropriate community control sanction, under
appropriate conditions, and under the supervision of the
department of probation serving the court and shall
reserve the right to reimpose the sentence that it
reduced if the offender violates the sanction. If the court
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OHIO FIRST DISTRICT COURT OF APPEALS
reimposes the reduced sentence, it may do so either
concurrently with, or consecutive to, any new sentence
imposed upon the eligible offender as a result of the
violation that is a new offense.
{¶7} Generally, a trial court cannot modify a final criminal judgment. State
v. Carlisle, __ Ohio St.3d __, 2011-Ohio-6553, __ N.E.2d __. The judicial-release
statute can be viewed as an exception to this general rule, but the statute contains
parameters. Under R.C. 2929.20, if a court reimposes an offender’s prison sentence
after revoking judicial release, the court can only reimpose the offender’s original
sentence with credit for time served. See State v. Terry, 10th Dist. No. 11AP-127,
2011-Ohio-6666, ¶ 10, quoting State v. Darthard, 10th Dist. Nos. 01AP-1291, 01AP-
1292, and 01AP-1293, 2002-Ohio-4292, ¶ 11 (“ ‘[T]he trial court’s option in this
instance with respect to ordering incarceration is limited to the reinstatement, with
credit for time served, of the sentences that it suspended upon the granting of
judicial release.’ ”).
{¶8} Here, Taylor was sentenced originally to three years’ incarceration.
When the trial court revoked Taylor’s judicial release, the trial court, in effect,
modified Taylor’s original sentence by imposing a six-year prison term. The trial
court’s imposition of a greater prison sentence than that which had been suspended
at the time of the defendant’s release, and even greater than that which had been
originally imposed, was contrary to R.C. 2929.20 and amounted to prejudicial error.
See Terry at ¶ 13 (listing Ohio appellate court cases concluding that a trial court
erred where it revoked judicial release and imposed a greater or lesser prison
sentence than the remainder of the original sentence imposed).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} The state argues that Taylor waived the right to challenge his sentence
because, at the judicial-release hearing, the trial court had warned Taylor that he
would be sentenced to 16 years in prison if he violated the terms of his judicial
release, and Taylor had not objected. Waiver is the intentional relinquishment or
abandonment of a known right. State v. Payne, 114 Ohio St.3d 502, 506, 2007-Ohio-
4642, 873 N.E.2d 306. The state offers no support for its proposition, nor can we
locate any. Therefore, we cannot determine that Taylor waived application of R.C.
2929.2o.
{¶10} In conclusion, we reverse the judgment of the trial court and remand
the matter for resentencing in accordance with this opinion. Moreover, the record
demonstrates that the judgment entry from which Taylor appealed contains a clerical
error. The judgment entry indicates that Taylor was sentenced in count one on an
aggravated-robbery offense; however, our review of the record indicates that count
one of the indictment had been amended at the time of Taylor’s original sentencing
from aggravated robbery, a felony of the first degree, to robbery, a third-degree
felony. Therefore, on remand, the judgment entry should be corrected to reflect the
amended offense.
Judgment reversed and cause remanded.
HILDEBRANDT, P.J., and DINKELACKER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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