[Cite as State v. Shipman, 2012-Ohio-2377.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellant : Hon. Sheila G. Farmer, J.
: Hon. William B. Hoffman, J.
-vs- :
:
JUSTIN MICHAEL SHIPMAN : Case No. 2011CA00251
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2011CR0756
JUDGMENT: Dismissed
DATE OF JUDGMENT: May 29, 2012
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JOHN D. FERRERO BARRY T. WAKSER
Prosecuting Attorney 200 Tuscarawas Street West
Suite 200
By: RONALD MARK CALDWELL Canton, OH 44702
Assistant Prosecuting Attorney
110 Central Plaza South
Suite 510
Canton, OH 44702
Farmer, J.
{¶1} On June 28, 2011, the Stark County Grand Jury indicted appellee, Justin
Michael Shipman, on one count of possession of cocaine, a felony in the third degree,
and one count of possession of marijuana, a minor misdemeanor, in violation of R.C.
2925.11.
{¶2} A jury trial on the cocaine count commenced on August 15, 2011 as
appellant had pled guilty to the marijuana count. The jury found appellant guilty. By
judgment entry filed August 31, 2011, the trial court sentenced appellant to three years
in prison.
{¶3} On September 26, 2011, appellee filed a motion for judicial release. By
judgment entry filed October 25, 2011, the trial court granted the motion and placed
appellee on community control for three years.
{¶4} Appellant, the state of Ohio, filed an appeal and this matter is now before
this court for consideration. Assignment of error is as follows:
I
{¶5} "THE TRIAL COURT LACKS AUTHORITY TO IGNORE THE
IMPLEMENTATION PROVISIONS OF HOUSE BILL 86 AND APPLY ITS PROVISIONS
TO DEFENDANTS IN APPLICABLE DRUG CASES WHO WERE SENTENCED PRIOR
TO THE EFFECTIVE DATE OF HOUSE BILL 86, AND THEREFORE ERRED IN
GRANTING JUDICIAL RELEASE TO A DEFENDANT WHO WAS SERVING A
MANDATORY PRISON TERM."
I
{¶6} Appellant claims the trial court erred in granting appellee judicial release.
{¶7} First, we must address appellee's motion to dismiss the appeal which he
filed on December 27, 2011. In his motion, appellee argues because appellant did not
seek leave to appeal pursuant to App.R. 5(C), appellant did not properly perfect its
appeal. We note although appellant has a right to appeal a sentence that is contrary to
law under R.C. 2953.08(B)(2), subsection (B)(3) permits appeals to a sentence
modification under R.C. 2729.20 (judicial release) for felonies of first and second
degrees only. This case involved a sentence modification on a felony of the third
degree.
{¶8} In State v. Cunningham, 113 Ohio St.3d 108, 2007-Ohio-1245, paragraph
one of the syllabus, the Supreme Court of Ohio held, "R.C. 2953.08(B)(2) does not
authorize a prosecuting attorney to appeal the modification of a sentence granting
judicial release for a felony of the third, fourth, or fifth degree."
{¶9} In this case, appellee was granted judicial release on a third degree
felony, possession of crack cocaine in violation of R.C. 2925.11(A). At the time of
sentencing on August 31, 2011, appellee was sentenced to a three year prison term
pursuant to R.C. 2925.11(C)(4)(c) which stated the following:
{¶10} "(c) If the amount of the drug involved equals or exceeds ten grams but is
less than twenty grams of cocaine, possession of cocaine is a felony of the third degree,
and, except as otherwise provided in this division, there is a presumption for a prison
term for the offense. If possession of cocaine is a felony of the third degree under this
division and if the offender two or more times previously has been convicted of or
pleaded guilty to a felony drug abuse offense, the court shall impose as a mandatory
prison term one of the prison terms prescribed for a felony of the third degree.
(Emphasis added.)
{¶11} Admittedly, appellee's three year sentence did not qualify him for judicial
release.
{¶12} On September 30, 2011, H.B. No. 86 took effect which changed Ohio's
felony sentencing laws. Pertinent to this appeal are the amendments made to R.C.
2925.11 changing appellee's offense to a felony in the fourth degree with mandatory
community control under certain circumstances [R.C. 2929.13(B)]. After the effective
date of H.B. No. 86, the trial court granted appellee judicial release on October 25,
2011. Appellant filed an appeal on November 3, 2011 challenging the trial court's order.
{¶13} Upon review, we find this fact pattern to be analogous to the case of State
v. Sparks, 178 Ohio App.3d, 272, 2008-Ohio-4664. In Sparks, our brethren from the
Fourth District applied the Cunningham decision and granted a motion to dismiss the
appeal. Based upon Cunningham, we hereby grant appellee's motion to dismiss. The
assignment of error is moot.
By Farmer, J.
Delaney, P.J. and
Hoffman, J. concur.
/ Sheila G. Farmer_______________
s/ Patricia A. Delaney_____________
s/ William B. Hoffman_____________
JUDGES
SGF/sg 509
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
JUSTIN MICHAEL SHIPMAN :
:
Defendant-Appellee : CASE NO. 2011CA00251
For the reasons stated in our accompanying Memorandum-Opinion, this appeal
is dismissed. Costs to appellant.
/ Sheila G. Farmer_______________
s/ Patricia A. Delaney_____________
s/ William B. Hoffman_____________
JUDGES