[Cite as State v. Weber, 2013-Ohio-1700.]
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, 2011-Ohio-5969, 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