[Cite as State v. Hamilton, 2015-Ohio-334.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-140290
TRIAL NO. B-1401419
Plaintiff-Appellee, :
vs. :
O P I N I O N.
CARMICHAEL HAMILTON, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, Sentences
Vacated, and Cause Remanded
Date of Judgment Entry on Appeal: January 30, 2015
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
J. Rhett Baker, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , Presiding Judge.
{¶1} Defendant-appellant Carmichael Hamilton appeals from the judgment
of the Hamilton County Court of Common Pleas convicting him, after his pleas of
guilty, of 13 theft offenses, all fourth- or fifth-degree felonies. The trial court
sentenced Hamilton to prison for each of the offenses, with some of the terms to run
consecutively and others concurrently, for an aggregate prison term of two years.
{¶2} In three assignments of error, Hamilton contends that the trial court
erred by imposing prison terms for the nonviolent fourth- and fifth-degree felonies
and by imposing consecutive terms, and that he was denied the effective assistance of
counsel at his sentencing hearing, because trial counsel failed to object to his
improper sentences. Because Hamilton’s assignment of error challenging the
imposition of the prison terms is meritorious, where the record demonstrates that
his sentences were clearly and convincingly contrary to the provisions of R.C.
2929.13(B)(1)(a) and (b), we sustain that assignment of error, vacate his sentences,
and remand the cause for resentencing in accordance with R.C. 2953.08(G)(2).
Background Facts
{¶3} Between December 31, 2013, and March 17, 2014, Hamilton stole air-
conditioning units from the residences of 13 separate individuals, eight of whom
were elderly. He was subsequently indicted for 13 counts of theft of property worth
$1000 or more but less than $7500, in violation of R.C. 2913.02(A)(1), with eight of
the counts containing a specification that the victim was elderly. The specification
elevated those eight counts from fifth-degree-felony offenses to fourth-degree-felony
offenses.
{¶4} Hamilton entered guilty pleas to the 13 counts. The trial court
accepted his pleas, ordered a presentence investigation (“PSI”), and continued the
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OHIO FIRST DISTRICT COURT OF APPEALS
case for sentencing.
{¶5} The sentencing hearing was held about a month later. Consistent with
the PSI, defense counsel informed the court that Hamilton had not previously been
convicted of a felony. The court sentenced Hamilton to one year in prison for each of
the five theft counts, to be served concurrently with each other, and further
sentenced him to one year in prison for each of the eight enhanced theft counts, to be
served concurrently with each other. Without making any findings, the trial court
then ordered that the theft sentences be served consecutive to the enhanced theft
sentences, for an aggregate sentence of two years. Defense counsel did not object to
the trial court’s imposition of prison terms, or to the court’s order that some of those
terms be served consecutively.
Standard of Review
{¶6} Hamilton’s first assignment of error challenges his sentences. We
review Hamilton’s sentences under the standard of review set forth in R.C.
2953.08(G). See State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 9 (1st Dist.).
Under that statute, we may modify or vacate a sentence only if we “clearly and
convincingly find” that the record does not support the sentencing court’s findings or
that the sentence is contrary to law. R.C. 2953.08(G)(2).
Analysis
{¶7} Hamilton contends that his sentences were contrary to law because the
trial court did not make “findings” in accordance with R.C. 2929.13(B)(1)(a) and (b)
before imposing prison terms. Alternatively, he argues that his sentences were
contrary to law because the record before the court demonstrated that community
control was mandatory under the provisions of R.C. 2929.13(B)(1)(a) and not
discretionary due to the existence of any of the factors set forth in R.C.
2929.13(B)(1)(b)(i)-(xi).
{¶8} We reject Hamilton’s first argument, because R.C. 2929.13(B)(1)(a)
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OHIO FIRST DISTRICT COURT OF APPEALS
and (b) do not require the trial court to make findings before imposing a prison term.
But we concur with Hamilton’s second argument. Therefore, we hold that his
sentences were contrary to law because the record does not support the court’s
imposition of prison terms for the nonviolent-fourth- and fifth-degree felonies.
{¶9} As this court recently noted, the legislature in 2011 enacted legislation
that “sharply limit[s] the circumstances” under which a court can sentence first-
time-felony offenders to prison when the offender has committed nonviolent crimes
and the offender’s most serious offense was a fourth- or fifth-degree felony. State v.
Jones, 1st Dist. Hamilton No. C-130625, 2014-Ohio-3345, ¶ 8, citing Am.Sub.H.B.
No. 86 (“H.B. 86”).
{¶10} As amended by H.B. 86 and subsequent legislation, R.C.
2929.13(B)(1)(a) provides that for a nonviolent fourth- or fifth-degree felony, a court
must impose a community-control sanction of a least a year’s duration if all of the
following are met: (1) the offender has not previously been convicted of or pleaded
guilty to a felony; (2) the most serious charge at the time of sentencing is a fourth- or
fifth-degree felony; (3) if, in a case where the court believes that no acceptable
community-control sanctions are available, the court requests a community-control
option from the department of rehabilitation and correction, and the department
identifies an appropriate program; and (4) the offender has not been convicted of or
pleaded guilty to a misdemeanor offense of violence committed during the two years
before the commission of the offense for which the court is imposing sentence. Jones
at ¶ 8.
{¶11} R.C. 2929.13(B)(1)(a), however, is subject to the exceptions listed in
R.C. 2929.13(B)(1)(b), which provides the sentencing court with “discretion” to
impose a prison term for a fourth- or fifth-degree felony if one of 11 criteria listed in
R.C. 2929.13(B)(1)(b)(i) through (xi) applies. Id. at ¶ 9.
{¶12} In this case, the requirements of R.C. 2929.13(B)(1)(a) were met, such
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OHIO FIRST DISTRICT COURT OF APPEALS
that Hamilton was presumptively ineligible for a prison term for the fourth- and
fifth-degree felonies, which were not “offense[s] of violence” or “qualifying assault
offense[s].” To that end, the record is devoid of evidence that Hamilton had a prior
felony conviction or a conviction for a misdemeanor offense of violence within the
past two years. And the most serious charge at the time of sentencing was a fourth-
degree felony. Further, it is not demonstrated in the record that the trial court made
a request to the department of rehabilitation and correction regarding the availability
of community-control sanctions, as contemplated by the third provision of R.C.
2929.13(B)(1)(a). Therefore, the trial court was required to impose community
control for each of the offenses unless one of the 11 criteria set forth in R.C.
2929.13(B)(1)(b)(i-xi) applied. See Jones, 1st Dist. Hamilton No. C-130625, 2014-
Ohio-3343, at ¶ 10.
{¶13} Upon our review of the record, we concur with Hamilton that none of
the criteria set forth in R.C. 2929.13(B)(1)(b)(i-xi) applied.
{¶14} The state asserts that it discovered information demonstrating that
Hamilton committed the offenses while released from custody on a bond issued in at
least one other case, circumstances that would satisfy the criterion set forth in R.C.
2929.13(B)(1)(b)(xi). According to its brief, however, the state discovered this
information when responding to Hamilton’s motion requesting this court for a stay
and an appellate bond, and long after Hamilton’s sentencing hearing.
{¶15} It is well settled that “a reviewing court cannot add matter to the
record before it, which was not a part of the trial court’s proceedings, and then decide
the appeal on the basis of the new matter.” State v. Ishmail, 54 Ohio St.2d 402, 377
N.E.2d 500 (2001), cited in RNG Props., Ltd. v. Summit Cty. Bd. of Revision, 140
Ohio St.3d 455, 2014-Ohio-4036, 19 N.E.2d 906, ¶ 23. Because this information was
not presented below, it cannot serve as a basis for upholding the trial court’s
decision.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} On the state of the proper record before us, we conclude that the trial
court was not permitted to impose a prison term for the offenses and, instead, was
required to impose a community-control term of at least one year for the 13 offenses,
in accordance with R.C. 2929.13(B)(1)(a) and (b). Thus, the sentences were contrary
to law. Accordingly, we sustain the first assignment of error.
{¶17} Hamilton further argues, citing to Jones, that in addition to vacating
the prison terms, this court must remand the case “with instructions to the trial court
to impose community control” for all of the offenses. We disagree.
{¶18} In Jones, this court vacated the prison sentences imposed on several
counts involving nonviolent fifth-degree-felony offenses. See Jones, 1st Dist
Hamilton No. C-130625, 2014-Ohio-3343, at ¶ 21. We held that based on the record
before the trial court “a community control term of at least one year was mandatory”
for those offenses. Id. at ¶ 11. We remanded the case “so that the court may impose
community control for those counts.” Id. at ¶ 21. By using this language, including
the word “may,” we intended only to announce that those sentences were contrary to
law, and that the defendant had to be resentenced in accordance with R.C.
2953.08(G)(2). And we now clarify that we did not remand the case to the trial court
with instructions to impose a community-control sanction. Thus, we reject
Hamilton’s request that we remand the case with instructions for the trial court to
impose a community-control sanction for the offenses. Rather, on remand, the trial
court should conduct a de novo sentencing hearing, which in this case will involve all
of the offenses. See State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d
381, ¶ 14-15.
{¶19} Hamilton also presents assignments of error challenging the trial
court’s imposition of consecutive terms, and claiming that he was denied the
effective assistance of counsel at his sentencing hearing. Our resolution of the first
assignment of error renders moot these remaining assignments of error. Thus, we
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OHIO FIRST DISTRICT COURT OF APPEALS
decline to address them. See App.R. 12(A)(1)(c).
Conclusion
{¶20} We affirm the findings of guilt related to each of the 13 counts. But
because the trial court imposed prison terms in contravention of R.C.
2929.13(B)(1)(a) and (b), we vacate those prison terms and remand for resentencing,
consistent with the law and this opinion.
Judgment accordingly.
HENDON and DEWINE, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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