{¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment that modified the sentence of Ty A. Sparks, defendant below and appellee herein, and granted him judicial release.
{¶ 2} The state of Ohio, plaintiff below and appellant herein, raises the following assignment of error for review:
The trial court erred when it modified appellee's sentence. *Page 273
{¶ 3} On May 26, 2000, appellee entered guilty pleas to six counts of burglary in violation of R.C. 2911.12(A)(3), all third-degree felonies. The trial court sentenced appellant to serve four years on each count, with two counts to run concurrently to each other, but the sets of two counts to run consecutively to each other, for a total prison term of 12 years.
{¶ 4} Appellee filed several motions for judicial release and motions to suspend further execution of his sentence, and the trial court denied all of them, except the most recent motion.1 On January 31, 2008, the court modified appellee's sentence and granted him judicial release. The court vacated two of the four-year sentences that it had previously imposed, and instead placed appellee on community control. Appellant now appeals the trial court's decision.
{¶ 5} Initially, appellee asserts that R.C. 2953.08 does not authorize the state to appeal the trial court's sentence modification and judicial release. We agree. "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." Statev. Cunningham, 113 Ohio St. 3d 108, 2007-Ohio-1245,863 N.E.2d 120, paragraph one of the syllabus. InCunningham, the trial court granted the defendant's motion for judicial release after she served a portion of her sentence for a fifth-degree felony. The state appealed and argued that the defendant had not timely filed her motion. The appellate court dismissed the case and determined that an appellate court does not have jurisdiction to hear appeals involving the granting of judicial release for third, fourth, or fifth degree felonies under R.C. 2953.08(B). On appeal, the Ohio Supreme Court agreed:
*Page 274The right of a prosecuting attorney to appeal a sentence is provided by R.C. 2953.08(B):
"(B) In addition to any other right to appeal and except as provided in division (D) of this section, a prosecuting attorney * * * may appeal as a matter of right a sentence imposed upon a defendant who is convicted of or pleads guilty to a felony or, in the circumstances described in division (B)(3) of this section the modification of a sentence imposed upon such a defendant, on any of the following grounds:
"* * *
"(2) The sentence is contrary to law.
"(3) The sentence is a modification under section 2929.20 of the Revised Code of a sentence that was imposed for a felony of the first or second degree."
R.C. 2953.08(B)(3) grants the state a right to appeal if a court modifies a sentence imposed for a felony of the first or second degree. Cunningham's conviction here, however, is for theft, a felony of the fifth degree.
The prosecuting attorney contends that R.C. 2953.08(B)(2) authorizes an appeal from modification of any sentence that is contrary to law, and urges that the modification of sentence granting judicial release to Cunningham violated R.C. 2929.20(B)(1)(a) because Cunningham did not file her motion seeking judicial release in a timely manner; in addition, the prosecutor argues that the court had no authority to reinstate Cunningham's withdrawn motion for judicial release and, therefore, that the court acted contrary to law in granting judicial release.
Cunningham claims that R.C. 2953.08(B)(3) precludes appellate review of any sentence modification involving any third-, fourth-, or fifth-degree felony. Thus, we are confronted with a question of statutory interpretation concerning whether R.C. 2953.08(B)(2) authorizes the prosecuting attorney to appeal as contrary to law the modification of a criminal sentence granting judicial release for a felony of the third, fourth, or fifth degree, or whether R.C. 2953.08(B)(3) precludes the prosecuting attorney from doing so because it expressly grants the right to appeal only the modification of sentences imposed for felonies of the first or second degree.
Cunningham, at ¶ 6-13.
{¶ 6} Thus, the court rejected the state's argument that R.C. 2953.08(B)(2) granted it the right to appeal a sentence modification that is contrary to law. The court stated: "A careful examination of R.C. 2953.08(B)(2), however, reveals that it does not refer to the modification of a sentence; rather, it authorizes the prosecuting attorney to appeal, as a matter of right, a sentence imposed on a defendant on the grounds that `[t]he sentence is contrary to law.' Thus, it does not apply to a modification of a sentence that is allegedly contrary to law. See State v. Raitz, 6th Dist. No. L-03-1118, 2003-Ohio-5687, 2003 WL 22417222, ¶ 13." Id. at ¶ 22.
{¶ 7} In the case at bar, we believe that Cunningham is controlling and requires us to dismiss the appeal. Appellant is attempting to appeal the trial court's decision to modify appellee's sentence and grant judicial release for third-degree felonies. Appellant asserts that the trial court's decision is contrary to law. As Cunningham states, however, R.C. 2953.08(B) does not authorize the state to appeal a sentence modification claimed to be contrary to law or a sentence modification under R.C. 2929.20 for a third-, fourth-, or fifth-degree felony. See also State v. Fox, Cuyahoga App. No. 87821, 2007-Ohio-3893, 2007 WL 2206793. Accordingly, we must dismiss the state's appeal.
Appeal dismissed. *Page 275
HARSHA, J., concurs in judgment only.
KLINE, J., dissents.
1 The parties assert that the trial court granted the motion immediately before the one involved in the case at bar, but we find no journal entry to that effect.