[Cite as State v. Brown, 2016-Ohio-310.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO : APPEAL NO. C-130120
TRIAL NO. B-1201362
Plaintiff-Appellee, :
vs. :
O P I N I O N.
MARQUES BROWN, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Sentence Vacated in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: January 29, 2016
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Office of the Ohio Public Defender, and Stephen P. Hardwick, Assistant Public
Defender, 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} In this reopened appeal, defendant-appellant Marques Brown presents
three assignments of error, challenging the trial court’s authority to limit his
participation in the earned-credits program, the transitional-control program, and
the judicial-release program as part of his sentence, which was jointly recommended
by the parties. Because we conclude that the trial court may not limit Brown’s
participation in the earned-credits program as a part of the sentence, even though
that condition was agreed upon, we vacate the offending portion of Brown’s sentence
and remand this matter to the trial court for the limited purpose of correcting the
judgment entry.
Background Facts and Procedure
{¶2} Brown was convicted in January 2013 upon his guilty plea to voluntary
manslaughter with a firearm specification. As part of his plea agreement, Brown and
the state agreed to a recommended nine-year prison term for the voluntary
manslaughter and a three-year prison term for the firearm specification, and that as
conditions of this aggregate 12-year term, nine years of which was nonmandatory,
Brown would not be eligible for earned days of credit, transitional control, or judicial
release, or any other sentence reduction or modification programs in prison.
{¶3} The trial court imposed the jointly-recommended aggregate 12-year
sentence and, consistent with the plea agreement, stated on the record that Brown
would be ineligible for earned days of credit, transitional control, judicial release,
and any other sentence reduction or modification programs in prison, and inserted
language to that effect into its judgment entry.
{¶4} Brown unsuccessfully challenged his conviction in a direct appeal to
this court. See State v. Brown, 1st Dist. Hamilton No. C-130120 (Nov. 5, 2014). But
in April 2015, we granted Brown’s App.R. 26(B) application to reopen his appeal.
We reopened the appeal upon our determination that Brown’s appellate counsel had
2
OHIO FIRST DISTRICT COURT OF APPEALS
been ineffective in failing to present an assignment of error, based upon State v.
Livington, 2014-Ohio-1637, 9 N.E.3d 1117 (1st Dist.), challenging the trial court’s
statutory authority to limit his eligibility to earn days of credit under R.C. 2967.193
as a part of its sentence.
{¶5} Brown advances that assignment of error in his reopened appeal. In
addition, he advances two others, challenging the trial court’s authority to limit his
eligibility for transitional control under R.C. 2967.26, and his eligibility for judicial
release under R.C. 2929.20, as a part of its sentence.
Standard of Review
{¶6} This case involves the review of an agreed-upon sentence as
contemplated by R.C. 2953.08(D)(1), because the trial court imposed the sentence
with the now challenged conditions after both Brown and the state had
recommended it. R.C. 2953.08(D)(1) bars appellate review of a sentence that was
jointly recommended by the state and defendant unless the sentence is not
“authorized by law.” See Livingston at ¶ 4, citing State v. Underwood, 124 Ohio
St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 14-16.
{¶7} R.C. 2953.08(D)(1) bars appeals that challenge the trial court’s
discretion in imposing sentence, and sentences that are merely “contrary to law.”
Underwood at ¶ 21-22. Such sentences are protected from appellate review
“ ‘precisely because the parties agreed that the sentence is appropriate.’ ”
Underwood at ¶ 27, quoting State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095,
829 N.E.2d 690, ¶ 25.
{¶8} But “[j]udges have no inherent power to create sentences,” State v.
Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 22, cited in State v.
Taylor, 138 Ohio St.3d 194, 2014-Ohio-460, 5 N.E.3d 612, ¶ 12. Therefore, a court
may only impose a sentence that is provided for by the legislature—by statute. Id.
An agreed sentence is not authorized by law, and thus exempt from the restriction of
3
OHIO FIRST DISTRICT COURT OF APPEALS
R.C. 2953.08(D)(1), if “no statute instructs or permits it,” Livingston, 2014-Ohio-
1637, 9 N.E.3d 1117, at ¶ 6, or if it fails to “comport[] with all mandatory sentencing
provisions.” Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, at
paragraph two of the syllabus.
{¶9} The issue in this appeal is whether the now challenged but jointly
recommended provisions in Brown’s sentence were permitted or instructed by
statute, and thus, authorized by law.
Earned-Credits Program
{¶10} Ohio’s earned-credits program, governed by R.C. 2967.193, allows
eligible offenders as defined by statute to participate in Department of Rehabilitation
and Correction (“DRC”) programs so that they can earn days of credit “towards
satisfaction of their stated prison term.” The legislature vested DRC with the
authority to deny eligible offenders the right to earn credits. See R.C. 2967.193;
Livingston at ¶ 7. Brown would be eligible for consideration with respect to the
prison term imposed for voluntary manslaughter.
{¶11} In State v. Livingston, this court recognized that the statutory scheme
of R.C. 2967.193 does not provide the trial court with any discretion to determine
eligible offenders or to limit an eligible offender’s ability to earn days of credit.
Livingston, 2014-Ohio-1637, 9 N.E.3d 1117 at ¶ 8-10. We held that the trial court’s
lack of sentencing power over Livingston’s participation in the earned-credits
program rendered that part of the sentence unauthorized, even though the
restriction was part of an agreed sentence. Id. at ¶ 9. As a result, we entertained
Livingston’s challenge and vacated that part of his sentence prohibiting his
participation in the earned-credits program. Id. at ¶ 9-10.
{¶12} The relevant facts of this case are indistinguishable from those in
Livingston, and the state concedes that appellate counsel’s representation was
deficient for failing to raise this issue in Brown’s direct appeal. Based upon
4
OHIO FIRST DISTRICT COURT OF APPEALS
Livingston, we hold that the trial court lacked authority to impose the part of the
sentence limiting Brown’s ability to earn days of credit, and sustain Brown’s first
assignment of error.
Transitional-Control Program
{¶13} The legislature authorized DRC under R.C. 2967.26 to create a
transitional-control program for eligible prisoners nearing the end of their prison
terms to “closely monitor[]” the prisoners’ “adjustment to community supervision.”
Under this program, DRC selects the eligible offenders for participation. R.C.
2967.26(A)(1). But the trial court has the ultimate control over which eligible
offenders participate in the program.
{¶14} Specifically, by statute, DRC must notify the trial court of a prisoner’s
impending transfer to the program. At that time, the court has full discretion to
disapprove the transfer. R.C. 2967.26(A)(2). Thus, unlike with participation in the
earned-credits program, the legislature has expressly conferred authority on the
judiciary to disallow a prisoner’s participation in the transitional-control program.
{¶15} Brown takes issue with the timing of the trial court’s disapproval. He
contends that the court must wait to disapprove of his participation in the program,
which could only occur with respect to his imprisonment for voluntary
manslaughter, until it receives a notification from the DRC that he is to be
transferred to the program based upon his conduct in prison. He suggests that
allowing the trial court to deny transitional control in advance defeats the purpose of
the statute. In support, he cites State v. Spears, 5th Dist. Licking No. 10-CA-95,
2011-Ohio-1538. That court held that denying transitional control in the sentencing
entry “clearly thwarts the design and purpose of the statute,” which is “to promote
prisoner rehabilitation effort and good behavior while incarcerated.” Id. at ¶ 37.
And Brown claims that no statutory provision specifically authorizes a trial court to
deny access to transitional control as a part of the sentence.
5
OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} But it is undisputed that the trial court has the statutory authority and
wide discretion to disapprove and ultimately block Brown’s participation in the
program as part of its sentencing powers. And, unlike the defendant in Spears,
Brown agreed that he would not be able to participate in this program as a condition
of his 12-year prison term. We conclude that R.C. 2967.26 permits the restriction as
part of the sentence under these circumstances. We hold, therefore, that this part of
Brown’s sentence was authorized by law. Accordingly, we overrule the second
assignment of error.
Judicial Release
{¶17} R.C. 2929.20 permits the trial court to “reduce” the “stated prison
term” of an “eligible offender” through judicial release. If judicial release is granted,
the court “shall order the release of the []offender,” “shall place the []offender under
an appropriate community control sanction” and shall reserve the right to reimpose
the reduced sentence if the offender violates the conditions of community control.
R.C. 2929.20(K). Although eligibility for judicial release in the first instance is set by
statute, see R.C. 2929.20(A), the trial court determines which eligible offenders may
have their stated prison terms modified. See R.C. 2929.20(B).
{¶18} Brown contends that he would have been eligible for judicial release at
some point during his incarceration based on the statutory requirements, and notes
that R.C. 2929.20 grants the court the authority to deny judicial release only after a
motion has been filed. He argues, therefore, that his sentence was unauthorized by
law because the trial court declared him ineligible for judicial release as a part of its
sentence, before he had an opportunity to prove the appropriateness of judicial
release.
{¶19} As recognized by Brown, however, the legislature has vested the trial
court by statute with the authority to deny Brown judicial release. Thus, we hold that
the trial court has sentencing powers with respect to judicial release, like with
6
OHIO FIRST DISTRICT COURT OF APPEALS
transitional control, but unlike with earned days of credit. In addition, Brown agreed
that he would not be eligible to partake in judicial release as a condition of his 12-
year prison term. Given the trial court’s authority and broad discretion in this area,
we conclude that R.C. 2929.20 permits the restriction as part of the sentence under
these circumstances. We hold, therefore, that this portion of the sentence was
authorized by law. Accordingly, we overrule the third assignment of error.
Conclusion
{¶20} The portion of the sentence prohibiting Brown from earning days of
credit in prison was not authorized by law, and appellate counsel was deficient for
not raising this issue in Brown’s direct appeal. To remedy the defect in Brown’s
sentence, we apply the remedy set forth in Livingston, 2014-Ohio-1637, 9 N.E.3d
1117 at ¶ 10. Thus, we vacate that portion of Brown’s sentence and remand this
matter to the trial court for the limited purpose of correcting the judgment. The trial
court’s judgment is affirmed in all other respects.
Affirmed in part, sentence vacated in part, and cause remanded.
FISCHER and DEWINE, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
7