[Cite as State v. Garner, 2012-Ohio-3262.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 97948 and 97949
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TYRONE GARNER
DEFENDANT-APPELLANT
JUDGMENT:
SENTENCE VACATED;
REMANDED FOR RESENTENCING
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-532364 and CR-535585
BEFORE: Celebrezze, J., Stewart, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: July 19, 2012
ATTORNEY FOR APPELLANT
David P. Kraus
19333 Van Aken Boulevard
Suite 112
Shaker Heights, Ohio 44122
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Denise J. Salerno
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendant-appellant Tyrone Garner appeals from the trial court’s imposition
of mandatory consecutive sentences in case Nos. CR-532364 and CR-535585. After
careful review of the record and relevant case law, we reverse and remand for
resentencing in accordance with this opinion.
{¶2} On December 31, 2009, appellant was indicted in CR-532364 for failure to
comply, in violation of R.C. 2921.331(B) and (C)(5)(a)(ii), a felony of the third degree;
and possession of criminal tools, in violation of R.C. 2923.24(A), a felony of the fifth
degree. On January 15, 2010, he was arraigned and entered a plea of not guilty. On
March 9, 2010, he withdrew his previous plea of not guilty and pled guilty to attempted
failure to comply, in violation of R.C. 2923.02 and 2921.331(B) and (C)(5)(a)(ii), a
felony of the fourth degree.
{¶3} On March 26, 2010, appellant was indicted in CR-535585 for aggravated
robbery, in violation of R.C. 2911.01(A)(3), a felony of the first degree; and felonious
assault, in violation of R.C. 2903.11(A)(1), a felony of the second degree. On March 31,
2010, he was arraigned and entered a plea of not guilty. On May 19, 2010, he withdrew
his previous plea of not guilty and pled guilty to attempted aggravated robbery, in
violation of R.C. 2923.02 and 2911.01(A)(3), and aggravated assault, in violation of R.C.
2903.12, both felonies of the fourth degree.
{¶4} Appellant was sentenced on June 24, 2010, on both cases to an aggregate
term of two years of community control. The trial court advised him that it reserved the
imposition of an 18-month prison term on each charge in the event he failed to comply
with the terms and conditions of his community control sanctions.
{¶5} On August 22, 2011, the trial court found appellant to be in violation of his
community control and ordered him to complete the original term of his community
control sanction and serve seven days in the county jail. At that time, the trial court
advised appellant that a second violation could result in a maximum prison term of 54
months.
{¶6} On January 6, 2012, appellant was found to be in violation of his community
control sanctions for a second time. The trial court terminated appellant’s community
control sanctions and sentenced him to six months in prison on each count in CR-535585,
to run concurrently, and six months in prison on CR-532364, to run consecutively to the
sentence imposed in CR-535585.
{¶7} Appellant brings this timely appeal, raising one assignment of error for
review:
The trial court erred when it determined that it was mandated to impose a
consecutive sentence for a conviction of attempted failure to comply and
violated defendant’s rights under U.S. Constitution Amendments V and
XIV and Ohio Constitution Article I, Sections 10 and 16.
Law and Analysis
{¶8} In his sole assignment of error, appellant argues that the trial court erred
when it determined that it was mandated to impose a consecutive sentence for a
conviction of attempted failure to comply. Appellant asserts that because he was
convicted of attempted failure to comply, rather than failure to comply, the sentencing
provisions of R.C. 2921.331 do not apply to him, and the general sentencing statute, R.C.
2929.14(A)(4), controls the trial court’s sentencing options.
{¶9} As set forth above, appellant pled guilty to, and was convicted of, attempting
to commit a third-degree felony, in violation of R.C. 2921.331. Pursuant to R.C. 2923.02,
he is to be sentenced as though his offense was a fourth-degree felony. It is undisputed
that if appellant had been convicted of failure to comply, pursuant to R.C. 2921.331(A)
and 2921.331(C)(5), the trial court would have been required to impose a prison term
consecutive to any other prison term. See R.C. 2921.331(D). The question then
becomes whether the sentence for an attempted violation of R.C. 2921.331 is governed by
the specific sentencing provisions of R.C. 2921.331 or the general sentencing provisions
of R.C. 2923.02.
{¶10} The primary concern in the interpretation of a statute is legislative intent.
State v. Jordan, 89 Ohio St.3d 488, 491, 2000-Ohio-225, 733 N.E.2d 601. Courts will
look to the language of the statute itself in attempting to ascertain the legislative intent.
See Stewart v. Trumbull Cty. Bd. of Elections, 34 Ohio St.2d 129, 130, 296 N.E.2d 676
(1973). In examining the actual language of a statute, words should be given their
common, ordinary, and accepted meaning unless the legislature has clearly expressed a
contrary intention. Youngstown Club v. Porterfield, 21 Ohio St.2d 83, 86, 255 N.E.2d
262 (1970).
{¶11} Because this appeal involves the interpretation of two statutes, a closer look
at those statutes is in order.
{¶12} Attempt is governed by R.C. 2923.02. In relevant part, this statute
provides: “(E) Whoever violates this section is guilty of an attempt to commit an
offense. * * * An attempt to commit any [offense other than certain drug abuse
offenses] is an offense of the next lesser degree than the offense attempted. * * *.”
{¶13} The offense of failure to comply with the order or signal of a police officer
is codified under R.C. 2921.331, which states, in relevant part:
(B) No person shall operate a motor vehicle so as willfully to elude or flee a
police officer after receiving a visible or audible signal from a police officer
to bring the person’s motor vehicle to a stop.
(C)(1) Whoever violates this section is guilty of failure to comply with an
order or signal of a police officer.
***
(5)(a) A violation of division (B) of this section is a felony of the third
degree if the jury or judge as trier of fact finds any of the following by proof
beyond a reasonable doubt:
***
(ii) The operation of the motor vehicle by the offender caused a substantial
risk of serious physical harm to persons or property.
***
(D) If an offender is sentenced pursuant to division (C)(4) or (5) of this
section for a violation of division (B) of this section, and if the offender is
sentenced to a prison term for that violation, the offender shall serve the
prison term consecutively to any other prison term or mandatory prison term
imposed upon the offender. * * *.
{¶14} In furtherance of his argument, appellant relies on this court’s decision in
State v. Hall, 8th Dist. No. 76374, 2000 WL 868478 (June 29, 2000). In Hall, the
defendant was charged with first-degree felony drug possession offenses. He pled guilty
to attempted drug possession, a felony of the second degree, and was subsequently
sentenced to five years in prison. He appealed, arguing that he should have been
sentenced under the attempt statute. This court disagreed, holding that “attempted drug
possession is not a separate and distinct crime from possession of drugs, but rather it is
incorporated into the offense.” This court reasoned:
Pursuant to the terms of the plea bargain stated on the record, the attempt
statute was incorporated into R.C. 2925.11. The appellant was originally
indicted under R.C. 2925.11(C)(4)(f), which makes possession of one
thousand grams or more of cocaine that is not crack cocaine, a felony of the
first degree. By incorporating the attempt statute, the offense became a
felony of the second degree. There was never any agreement to amend the
indictment to delete R.C. 2925.11 so that the penalties provided for
violations of that section would not apply.
{¶15} In State v. Taylor 113 Ohio St.3d 297, 2007-Ohio-1950, 865 N.E.2d 37, the
Supreme Court of Ohio addressed the issues raised in Hall. Specifically, the court was
asked to resolve the issue of “whether a conviction for an attempted drug offense that
would have been, if successfully completed, a first-degree felony, but which becomes a
second-degree felony by virtue of the fact that it is merely an attempt to commit an
offense, is subject to the mandatory prison term provisions in R.C. 2925.11.” Id. at ¶ 1.
{¶16} As this court did in Hall, the Ohio Supreme Court held that the sentencing
provisions in R.C. 2925.11, the “possession of drugs” statute — and not the general
felony sentencing statutes — applied, thereby subjecting Taylor to mandatory
incarceration. Id. On review of the relevant statutes, the court upheld the holding in
Hall, determining that “an attempted possession of drugs is not a separate and distinct
crime from possession of drugs, but rather is incorporated into the possession offense.”
Id. at ¶ 16. The court noted that R.C. 2925.01(G)(4) defines a “drug abuse offense” to
include any attempt to commit a violation of R.C. 2925.11. Id. at ¶ 11. Thus, the court
reasoned that the crime of attempted possession was one of the crimes delineated in R.C.
2925.11, and therefore R.C. 2925.11 controlled the sentencing for that crime. Id. at
syllabus.
{¶17} On review of the applicable statutes, including R.C. 2921.331 and 2923.02,
we find the conclusions reached in Hall and Taylor to be distinguishable from the case at
hand. R.C. 2921.331 delineates the felony level and, in some instances, additional
penalties for defendants who violate R.C. 2921.331(C)(4) or (5). However, unlike the
statute governing “drug abuse offenses,” the crime of “attempted failure to comply” is not
one of the crimes delineated in R.C 2921.331. In fact, unlike the crime of “attempted drug
possession,” which was at issue in Hall and Taylor, R.C. 2921.331 does not include the
word “attempt” in any of its provisions or definitions. Thus, we find no basis to
conclude that the legislature intended “attempted failure to comply” to be a crime
incorporated in R.C. 2921.331. See State v. Wilson, 1st Dist. No. C-090436,
2010-Ohio-2767.
{¶18} We note that, as set forth in R.C. 2901.04(A), “sections of the Revised Code
defining offenses or penalties shall be strictly construed against the state, and liberally
construed in favor of the accused.” Accordingly, any ambiguities in R.C. 2921.331 and
2923.02 must be interpreted in appellant’s favor. With R.C. 2901.04(A) in mind, we
hold that the trial court erred in determining that it was mandated to impose a consecutive
prison term in this case pursuant to R.C. 2921.331(D).1
{¶19} Because the trial court should have applied the Revised Code’s general
felony sentencing provisions, we hold that appellant’s sentence is contrary to law.
Accordingly, appellant’s sole assignment of error is sustained.
{¶20} The sentence of the trial court is vacated, and this cause is remanded for
resentencing in accordance with law and this decision.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
1 This point is further emphasized by the 1973 Legislative Service
Commission comments attached to R.C. 2923.02: “This section is a general
attempt statute which consolidates several specific attempt provisions in former
law, and, with three exceptions, establishes an attempt to commit any offense as an
offense in itself. The exceptions are an attempt to commit conspiracy, an attempt to
commit a minor misdemeanor, and an attempt to commit any offense which in itself
is defined as an attempt — in these cases, attempt is not an offense.” (Emphasis
added.)
FRANK D. CELEBREZZE, JR., JUDGE
MELODY J. STEWART, P.J., and
EILEEN A. GALLAGHER, J., CONCUR